Government contractors often find themselves before adjudicatory bodies that stand apart from, and have different rules than, state and federal courts. Among other types of disputes, Ravenhearth Law represents companies on bid protests, small business size protests and appeals, suspension and debarment defense, Government claims and disputes, and prime and subcontractor disputes.
Unlike a purely commercial contract award, in federal Government procurements, unsuccessful offerors generally have a right to “protest” the award of a federal Government prime contract. Such protests of federal Government solicitations and contracts are adjudicated at several levels by several different bodies with different rules. Most such protests are filed at the procuring agency, the Government Accountability Office (“GAO”), the Federal Aviation Administration’s Office of Dispute Resolution in Acquisition (“ODRA”), or the United States Court of Federal Claims.
Protests generally can be filed before proposal submission or immediately after contract award, but the exact timing is a complicated matter that often means the difference between successful and unsuccessful protests. A company deliberating whether to protest a solicitation or an award should obtain legal advice, to include strategic and tactical considerations, as soon as possible.
Common Elements of a Case
In many cases, legal advice related to a potential bid protest should begin when the draft solicitation is released. Successful contract awardees also should stand ready to assist the procuring agency in defending against a protestor, and are well advised to seek legal representation to do so. Most state and local Government procurements also are subject to protests of some kind, and although many states and localities try to follow the general principles of federal procurement protests, each state and locality is different and each has its own rules.
Small Business Size Protests
If your company has submitted, or is contemplating submitting, a proposal for a procurement that has been “set aside” for small businesses (or a subcategory of small business), you may face the daunting task of filing a small business size protest, or defending against such a protest.
Protesting and Defending Small Business Protests
Filing or defending against a small business size protest means dealing with, among other things, strict timeliness rules, specific evidentiary requirements, and other technical requirements related to the Small Business Administration’s (“SBA”) regulations concerning small business size determinations. A successful small business size protest or defense depends greatly on making the proper arguments and citing to the correct regulations and applicable case law.
Benefits of Legal Assistance
A benefit of a successful protest is that your company may have a valuable competitive advantage in your marketplace. A successful defense can preserve your company’s ability to compete as a small business. Ravenhearth Law has a great deal of experience in both protesting small business size status and defending against such protests.
Suspension and Debarment Defense
Possibly the worst moment any government contractor might ever face is the moment when it is suspended or proposed for debarment from government contracting, which can properly be described as a “death sentence” for many such contractors. The key to avoiding such a moment is to have in place robust Federal Acquisition Regulation (“FAR”) internal compliance and ethics compliance programs, together with strong and useful training in the same.
Ravenhearth Law regularly advises government contractors on these issues, and can develop tailored approaches to policies, programs, and training in these areas. For contractors facing suspension or proposed debarment, a swift, knowledgeable, and forthright response can convince the Government to withdraw its action and resolve the issue or issues that precipitated the action.
Government Claims and Disputes
In the course of performing a Government contract, many issues can arise between the contractor and the Government customer. These issues include funding, performance, interpretations of contract terms and conditions, and even terminations for convenience or default. Typically, claims and disputes related to such issues can be resolved through fairly informal discussions and negotiations with the Government’s contracting officer. If these efforts are unsuccessful, claims and disputes may be resolved through formal alternative dispute resolution procedures or through administrative or judicial proceedings.
Subcontractors whose performance or funding is at issue in a particular claim or dispute typically will have access to the claims and dispute resolution process, usually through a contractual agreement with the prime contractor.
Ravenhearth Law has extensive experience in negotiating equitable adjustments, contract modifications, and termination settlements, including converting proposed terminations for default into terminations for convenience. We also can represent your company before the various adjudicative and judicial fora in claims and dispute litigation.
Prime and Subcontractor Disputes
In Government contracting, disputes also can arise that do not involve the Government. Prime and subcontractors often disagree on performance, payment, and other issues. As always, the key to avoiding such disputes is the contractual language under which the two entities perform — non-disclosure agreements, teaming agreements, joint venture agreements, and subcontracts.
Ravenhearth Law is experienced in assisting your company in the formation and administration of such agreements, with an eye to preventing disputes and litigation. When necessary, however, we provide litigation representation in such disputes. Call us or contact us online today to learn how we can help you reach your goals.
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