Government Contract Litigation - Best Practices for Contractors and Attorneys

Overview

Government Contract Litigation – Best Practices for Contractors and Attorneys is a fast-paced, 2-day course offering a practical overview of the federal procurement process, followed by in-depth discussions of the principal types of litigation one might encounter while pursuing, performing, managing, and litigating U.S. Government appropriated fund contracts.

The course begins by addressing briefly several topics fundamental to an understanding of Government Contracting, including Contract Format and the FAR System, Authority to Contract, Funding and Fund Limitations, Competition, Contract Types, Contract Pricing, Contract Changes, Pricing of Adjustments, and Terminations. Next, it addresses in detail the types of litigation that contractors, government customers, and attorneys for both parties most often encounter when working with government contracts, including Bid Protests, Contract Disputes arising under the Contract Disputes Act and conducted before the Boards of Contract Appeals and the U.S. Court of Federal Claims, and Alternate Disputes Resolutions. It concludes by discussing other types of litigation one might encounter when involved in U.S. Government contracting, including matters of Ethics and Compliance; civil and criminal fraud prosecutions and defense; litigation under the Foreign Corrupt Practices Act; Suspension and Debarment; and management of ITAR, Mandatory Reporting and NIST/NISPOM Program Agreements in avoiding litigation.

This course is designed for anyone interested or involved in avoiding, prosecuting, defending, advising on, or understanding litigation arising under or relating to the award or performance of U.S. Government contracts. This would include in-house and outside counsel; government contracting officers and agency attorneys; contractor contracting personnel; compliance and ethics officers; risk, contracts, and subcontracts managers; and more.

Learning Objectives:
Upon successful completion of this course, you will:

Have working knowledge of differences and relationships between a federal contract and a commercial subcontract
Recite and understand the authority to contract
Understand the procedures and processes of litigation based on the venue
Determine when and how to request a change or an equitable adjustment
Litigate effectively in front of the ASBCA based on rules and procedures
Litigate effectively in front of the COFC based on rules and procedures
Negotiate remedies in a contract dispute

Dates/Locations

No upcoming dates/locations at this time

Agenda

9:00 AM - 4:00 PM

Introduction

Fundamentals of Government Contracting

Contract Format and the FAR System
Authority to Contract
Funding and Fund Limitations
Competition
Contract Types
Contract Pricing
Contract Changes
Pricing of Adjustments
Terminations for Convenience / Terminations for Default

Bid Protests

Overview
Protest Basics and the Significance of a Protest
- What is a bid protest?
- Bid protest forums: Agency, GAO, COFC (formerly: US District Courts, GSBCA)
- Precedential authority
Types of Protest
- Pre-proposal information exchanges and restrictions on information sharing
- Pre-award protests – common issues and timing
- Post-award protests – common issues and timing
Debriefings
- Pre-award debriefings & disclosure limitations
- Post-award debriefings & disclosure limitations
- Five types of post-award debriefings
Pre-Protest Considerations
Protest Forums and Procedures
Agency Protests
Government Accountability Office (GAO) Protests
- “Interested” parties
- Intervention – what is it, when to file, and how to intervene?
- What, when, and how to protest?
- Protective orders – practice tips and violations
- Handling classified information
- The agency report, document production, additional filings, and summary dismissals
- Hearings
- The standard, corrective actions, and withdrawal
- Resolution – ADR, Decision, and Remedies
- Requests for Reconsideration
U.S. Court of Federal Claims (COFC) Protests
- “Interested” parties
- Intervention – what, when, and how to intervene?
- What, when, and how to protest?
- Injunctive relief
- Override of the automatic stay
- Filing the protest
- Jurisdictional hurdles and considerations
- Protective orders
- Standard of review & the burden of proof
- The administrative record – contents & supplementation
- Motions for Judgment on the Record
- Available relief
- Requesting reconsideration and filing an appeal after judgment
Considerations for Selecting a Bid Protest Forum

Contract Disputes at the Boards of Contract Appeals

Pre-litigation Issues
- What constitutes a proper CDA claim, and when is certification required?
- How are claims properly and timely evaluated by the contracting officer?
- Procedures that must be followed
Funding Settlements and Judgments
- Mechanics of funding a Board’s monetary judgment
- Sources of funds available when the parties reach a compromise monetary settlement of their dispute
Pleading and Discovery
- The discovery process (depositions, interrogatories, requests for admission, inspection/production of books and records, documents, and related materials)
- Three key exceptions to discovery (the attorney/client privilege, the attorney work product rule, and executive privilege)
- Sanctions
- Miscellaneous topics: (a) the Rule 4 file; its contents, the CO’s responsibilities, and the contractor’s right to offer supplemental materials, and (b) the parties initial pleadings – the contractor’s complaint and the Government’s answer
Common Issues
- Bid mistakes (pre- and post-award)
- Contract interpretation
- The proper exercise of options
- Defective pricing and fraud
- The inspection process
- Government claims
- Terminations (convenience and default)
- Proving quantum
Settlement
- The purpose of settlement
- What claims should be settled?
- Who should negotiate?
- Should the negotiation be at a meeting?
- Determination of litigation risk
- Timing the settlement
- Pressures on the parties
- Negotiation tactics
- Common mistakes in the negotiation process
- The use of quantum analysis in determining a party’s realistic negotiation position
- The mechanics of settlement (Board’s order dismissing an appeal, preparation of the settlement agreement/contract modification, and drafting a release that accurately reflects both parties’ intent in settling the dispute)

Contract Disputes at the U.S. Court of Federal Claims (COFC)

Introduction
The United States Court of Federal Claims
Contract Litigation at the COFC
- Commencement of the suit
- Attorney of Record
- Sanctions
- The Call Letter
- The Litigation Report
- The Offer of Judgment
- Alternative Disputes Resolution
- Arbitration
- Affirmative discovery
- Defensive discovery
- Formalized pre-trial preparation
- Decisions
Preparing for an Unfavorable Decision
Conclusion

Appeals Before the US Court of Appeals for the Federal Circuit

Appellate Jurisdiction
Appeals of Bid Protest Decisions
Appeals of Decisions of the Boards of Contract Appeals

Other Matters/Risk Mitigation

Ethics and Compliance
Fraud – Civil and Criminal
Foreign Corrupt Practices Act
Performance Issues (Cure Notices/ Deficiency Notices/Show Cause Notices/Terminations)
Suspension and Debarment
Mandatory Disclosure Rule
ITAR/NISPOM/NIST Compliance
Use of Dispute Resolution Boards

Conclusion

Experts

Michael Killham

Experienced Corporate Counsel

Michael A. Killham is a California attorney specializing in U.S. Government procurement and subcontracting support. He provides legal advice, training, and assistance concerning all aspects of federal and commercial contracting and fiscal law, including but not limited to subjects relating to Contra...

See Full Bio

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: N/A

Program Prerequisite: N/A

Advance Preparation: N/A

Method: N/A

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: (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

Level

100

Basic or fundamental subject matter is covered. Courses are geared to general knowledge or can be taken as a refresher.
200

Specific topics or issues within a topic area are covered. Students should be familiar with terms of art and general concepts concerning the course topic.
300

Workshops and class discussions cover specific subject matter in-depth, and participation is strongly encouraged. Attendees should have at least 2-3 years' experience in the area of study.
400

Courses build upon students' knowledge and experience, and cover complex issues within the subject matter. Should have 4-5 years' mastery of subject for in-depth analysis.
500

Masters-level programs designed for professionals with 5+ years' experience. Courses cover in-depth and technical analysis on specific subjects and updates on current issues.