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Overview

A special two day program for contract professionals, corporate counsel, lawyers, accountants, commercial and investment bankers, insurance professionals, executives and strategic managers, and M&A specialists.

Mergers and acquisitions (M&A) are key business strategies in the domestic and international economic landscapes today. Efficiency, effectiveness, and the need for scarce and special resources continue to drive organizations to acquire the products, services, processes, and intellectual talent they need to compete in the world marketplace. Due Diligence gives buyers, sellers, and merger partners the opportunity to evaluate the true worth of the partners and prospective new enterprise. The unique requirements of government contracts demand that due diligence efforts include an in-depth analysis, assessment and evaluation of those contracts.

Government contracting is an area of arcane and esoteric rules and regulations. A misstep in assessing the true values, exposures and potential liabilities of existing--and old--government contracts could be fatal to your bottom line. Your traditional M&A templates must be supplemented and strengthened. When the acquiring organization is a foreign entity, the potential for missteps is even greater. More statutes, rules, and regulations come into play.

The purpose of this course is to assist you in performing a due diligence analysis when a potential partner has government contracts. A faculty of experienced government contract practitioners will provide you with practical guidance in the conduct of a due diligence analysis. Whether you are a buyer, seller, or merger partner, you will benefit from this comprehensive program.

Coverage includes:

  • Novation agreements
  • Government discretion/rules & regulations
  • Security issues
  • Buyer & seller exposure and liabilities
  • Cost allowability issues
  • Organization costs
  • Advance notice and advance agreements
  • Defective pricing/False Claims Act issues
  • Protecting technology
  • Legal and financial analysis


There are few--if any--absolutes in the dynamic area of mergers and acquisition. This course may not provide the perfect answer to each and every situation you face. We are confident, however, that the resources, insights, and guidance you receive will prepare you to thoroughly analyze and evaluate your opportunities and exposure in your M&A activities.

Dates/Locations
No upcoming dates/locations at this time
Agenda
9:00 AM - 4:00 PM

Due Diligence in Government Contractor Mergers & Acquisitions
Course Curriculum

  1. Introduction
  2. The Various Types of Transactions and Their Key Characteristics
    1. Forms of Transactions
    2. Stock Purchase
    3. Asset Purchase
    4. Merger
    5. Joint Venture
    6. The Acquisition "Dance"
  3. General Sources of Due Diligence Information
    1. Publicly Available Records
    2. Information Supplied by Company Management
    3. Investigative Efforts - Inquiries and Interviews
  4. Preparing the Data Room
    1. Content
    2. Data Room Procedures
  5. Organizing/Managing the Due Diligence Process
    1. Introduction
    2. Concept - Think Proposal Preparation
    3. Coordination/Cross-Fertilization - Procedures to Promote Sharing of Due Diligence Information
    4. Interaction With Target Company
    5. Continuation of Due Diligence Process Through Negotiation, Execution of Transaction Agreement and Closing of the Transaction
    6. The Special Issues Presented by Classified Contracts
  6. Typical Representations and Warranties in a Government Contracts Transaction
    1. Financial Statements
    2. Litigation
    3. Material Contracts
    4. Intellectual Property ("IP")
    5. Employee Benefit Matters
    6. Government Contracts and Government Bids
    7. Government Furnished Property or Equipment
    8. Backlog
    9. Product Warranties
    10. Clearances
    11. Foreign Corrupt Practices Act ("FCPA")
    12. Other Issues to Consider
  7. Government Contracting - Unique Issues
    1. Assignment/Novation
      1. Case law
      2. Federal Acquisition Regulation
      3. Agency implementation of the FAR
      4. When is government approval required?
        1. Assets transactions (direct transfers of government contracts)
        2. Mergers and consolidations (direct transfers of government contracts by operation of law)
        3. Stock transactions (indirect transfers)
        4. Corporate reorganizations
        5. Bankruptcies
      5. How is government approval obtained?
        1. Scope of the government's discretion to approve or disapprove a transaction
        2. Mechanics of novation agreement
      6. If no government approval
        1. Test of the government's legal authority
        2. Statutory remedy
      7. Miscellaneous issues
        1. Pending bids and proposals
        2. Subcontracts
    2. Unique Areas of Risk
      1. Inefficiencies in obtaining business
      2. Qualification and eligibility impediments to award
        1. Responsibility
        2. Unfair competitive advantage
        3. Conflicts of interest
        4. Suspension/debarment
      3. Bid protest
      4. Quasi-criminal and criminal restrictions to eligibility
        1. The statutory offenses
        2. False Statements Act
      5. Consent to subcontractors
      6. Limits on authority of government personnel
      7. Changes
        1. Standard "Changes" clauses
        2. Changes authority
        3. Contractor's duty to proceed
        4. Procedures: unilateral or bilateral
        5. Constructive changes
      8. Cost allowability rules
      9. Cost accounting rules
      10. Government property duties
      11. Termination for convenience
        1. Government's convenience termination right
        2. Termination procedures
        3. Constructive termination
        4. Contractor recovery
        5. Partial terminations
      12. Termination for Default
        1. Contract "Default" clauses
        2. Bases for termination
        3. The termination decision
        4. Contractor defenses
        5. Government remedies
        6. Contesting default terminations
      13. Determining fair prices for negotiated contracts: TINA
      14. Disclosing commercial sales practices for GSA MAS contracts
      15. Reporting price reductions for GSA MAS contracts
      16. Determining the contract value
      17. Audits of contractor records: types and scope
      18. Foreign ownership, control, influence
      19. Anti-assignment and novation
      20. Protecting intellectual property
      21. Post-acceptance liabilities
      22. Disputes process
    3. Transactions Involving Foreign Purchasers: Exon-Florio
      1. Background and basics
        1. Acquisition
        2. Foreign person
        3. Foreign control/foreign government control
        4. U.S. person
        5. Credible evidence
        6. Standards for intervention
      2. The review process
        1. Informal consultation
        2. Notice of transactions
        3. Third parties
        4. Agency notices
        5. Potential for disclosure
        6. Timetable
    4. Transactions Involving Foreign Purchasers: FOCI Restrictions
      1. The basics
      2. DoD Industrial Security Program
      3. Facility Security Clearance ("FCL")
      4. The determination of FOCI
      5. Methods of negating FOCI
      6. DOE determinations
        1. DOE rules
        2. Contract terms and flow-downs
        3. Determining eligibility for FCLs or contracts
        4. Negating methods
  8. Summary and Review: A Due Diligence Methodology in Government Contractor Mergers & Acquisitions
Accreditation
See Individual Courses For Available Credits
Certificates of Completion are provided to all seminar participants who attend Federal Publications Seminars courses following the event, upon request.
CPE: Continuing Professional Education
Field of Study: Specialized Knowledge
Delivery Method: Group-Live Classroom
Federal Publications Seminars is affiliated with West Professional Development and is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional education on the National Registry of CPE Sponsors. State boards of accountancy have final authority on the acceptance of individual courses for CPE credit. Complaints regarding registered sponsors may be submitted to the National Registry of CPE Sponsors through its website: www.nasbaregistry.org.
For more information regarding administrative policies such as refunds, cancellations and complaints, please contact Federal Publications Seminars at 888.494.3696.
CPE Hours
This program is eligible for: 13.0 (CPE) hours of credit
Program Level: Basic
Program Prerequisite: None
Advance Preparation: None
Method: Group-Live
CLP: Continuous Learning Points
Approved for CLP by Defense Acquisition University
Defense Acquisition Workforce members must acquire 80 Continuous Learning Points (CLP) every two years from the date of entry into the acquisition workforce for as long as the member remains in an acquisition position per DoD Instruction 5000.66. We will provide you with documentation of points awarded for completing the event.
CLP Hours
This program is eligible for: 11.0 (CLP) hours of credit
CLE: Continuing Legal Education
States have widely varying regulations regarding MCLE credit. LegalEdcenter is an approved provider in AL, AK, AR, CA, GA, IL, ME, MO, MS, NC, ND, NE, NH, NJ, NM, NV, NY, OH, OK, PA, RI, SC, TN, TX, UT, VA, VI, VT, WA, WI, and WV. Credit may be applied for in other jurisdictions on request and in accordance with state MCLE rules.
Please note that because some states are changing their policy on CLE reporting, you will need to fill out the request for credit from Federal Publications Seminars within 10 business days, or we may not be able to issue credits for the program.
CLE Hours
This program is eligible for: 11.0 (60 minutes), 13.0 (50 minutes)
Travel
No travel information is available at this time