Government Contracting
Kotz Sangster represent a wide variety of companies selling to the state, local and federal government, including construction, defense and aerospace contractors and subcontractors.
Kotz Sangster has assisted clients in virtually all aspects of the state, local and federal procurement process. This includes reviewing formally advertised and negotiated contract solicitations; preparing and negotiating GSA schedules; drafting opinion letters; interpreting contract clauses; protesting contract awards; pursuing claims under on-going contracts; and defending against defective pricing claims, and suspension and debarment actions.
The substantive areas encompassed by our representation span the entire range of state, local and federal contract formation and administration. Kotz Sangster has handled cases on formal advertising and negotiated solicitation procedures; offer, acceptance and award; mistake in bid; contractor responsibility and responsiveness; two-step formal advertising; cost reimbursement contracts; contract audits, including GSA Inspector General and Industrial Funding Fee (IFF) audits; debarment and suspension; small business contracting; the Service Contract Act; the Davis-Bacon Act; the Walsh-Healey Act; the Buy American Act; the Freedom of Information Act; appropriation of funds; rights in technical data; contract interpretation; termination for convenience claims; change orders; excusable delays; inspection and acceptance of goods; cost accounting; warranties; default termination; and GSA schedule contracting. This list is not exhaustive.
Compliance
Kotz Sangster counsels government contractors with regard to a wide variety of compliance matters. For example, government contractors are subject to unique labor and employment requirements. We counsel clients on matters of compliance with the Department of Labor's equal opportunity and affirmative action requirements under Executive Order 11246, the Rehabilitation Act of 1973 and the Vietnam Veterans Readjustment Assistance Act of 1974. We also help clients prepare written affirmative action plans that will pass muster with an Office of Federal Contract Compliance Programs (OFCCP) audit or investigation. In addition, we will explain DOL's workplace and labor standards such as the Walsh-Healey Act, the Davis Bacon Act, the Service Contract Act and the Contract Work House and Safety Standards Act.
Audits
At a client's request, Kotz Sangster's attorneys will conduct an internal investigation in advance of any government knowledge of possible problems at the client's company. We can also prepare responses to subpoenas and investigations by agency inspector generals or other criminal prosecutors. If the government is contemplating suspension or debarment as a result of an audit or investigation, we can represent the client in suspension and/or debarment proceedings and negotiate with the debarring or suspending entity on the client’s behalf.
Terminations
If a government contractor is terminated for convenience, Kotz Sangster will assist the contractor in the following manner:
- Review the circumstances surrounding the termination for convenience and provide advice to most protect the company's financial interest and recovery;
- Prepare termination for convenience claim in accordance with the Federal Acquisition Regulations (FAR);
- Represent the company during the Defense Contract Audit Agency audit, which will be required as a result of the termination, prior to entering into final negotiations;
- Prepare or review subcontractor and vendor proposals and prepare justifications on the company's behalf in order to obtain approval from the Contracting Officer for the subcontractors' proposals; and
- Assist the company in the negotiation of the company's proposal, if requested, to ensure the most favorable financial recovery to the company.
If the government contractor is terminated for default, Kotz Sangster will represent the company to limit its liability. For example, a termination for default may subject a contractor to excess costs for reprocurement. In addition, the termination for default may become part of the contractor's past performance record which will harm the contractor's ability to compete on future contracts. Kotz Sangster will assist the contractor in appealing the termination for default. When such appeals are successful, the termination for default is usually converted into a termination for convenience.
Bid Protest Services
Bid protests are commonly used by disappointed offerors to challenge the award of contracts or the terms of procurement solicitations. Bid protests are filed at the procuring agency, the U.S. Court of Federal Claims or, most frequently, the U.S. Government Accountability Office (GAO), which received over 1,300 cases in FY 2005. The protester won 23% of the cases that were decided on the merits.
Kotz Sangster has extensive experience with all aspects of the bid protest process, from preparing the initial protest to examining witnesses at trials and hearings. Companies who are considering filing a protest should seek legal advice quickly. Bid protests are subject to stringent filing deadlines. Missing a deadline may cause a company to lose legal rights. Also, when a protest is filed at the Government Accountability Office within certain prescribed deadlines, the protester can stop an award or contract performance unless a senior agency official overrides the required suspension. This can be an important step for the protester to obtain a meaningful remedy if the protest is successful.
Kotz Sangster helps clients distinguish between protests that have a realistic chance of winning and those that are likely to fail. Some companies believe that they should never protest because they will be "black balled" by the agency and will not get any business from the procuring agency in the future if they protest. In the vast majority of cases, this belief is untrue.
A company that wins a contract that is subsequently protested by a disappointed offeror is permitted to intervene and defend its award at the GAO. Similar intervention rights typically apply at the Court of Federal Claims. Intervention is almost always advisable if the protested contract is important to your company. Some companies decide not to intervene because they believe that a protest will likely be unsuccessful. However, the 23% sustain rate at the GAO shows that agencies can and do lose protests in a significant number of instances. Also, the 23% figure does not include other cases in which the agency opted to take corrective action after reviewing the protest. Any company that is the awardee of a protested contract that is important to its business will want to seriously consider intervening to assist the agency in defending against the protest.
Federal Programs for Small Business
Kotz Sangster specializes in advising clients about the various federal government assistance opportunities available to small and small disadvantaged businesses, including total and partial small business set-asides. Kotz Sangster also advises women-owned small businesses about the requirements for self-certifying as such. For businesses interested in applying to Small Business Administration’s Programs, or for participants already in the Small Business Administration’s Programs our attorneys can guide you through the most current regulations and how recent changes might impact your company.
Security Clearance Matters
The firm’s security clearance practice offers clients experienced legal counsel to help:
- Assess the impact of and handle foreign investment in U. S. Government contractors.
- Obtain a facility clearance and a personal clearance for all affected officers, directors and employees, including interim clearances.
- Overturn denials of clearances.
FOCI Mitigation
A U.S. company subject to foreign ownership, control or influence (FOCI) cannot obtain or keep the requisite facility security clearance (FCL) necessary to compete for and participate in classified U.S. Government contracts unless the company has effectively mitigated or eliminated FOCI. We structure and implement appropriate FOCI mitigation measures and negation plans.
Clearances
Kotz Sangster also helps clients obtain facility and personal security clearances for all levels of classified work. We assist clients with immediate clearance needs and assist clients in obtaining interim clearances when possible.
We also provide pre-clearance counseling in preparing Standard Form 86 and DD Form 1879. Avoiding problems with security clearances begins with an accurate pre-clearance submission. We also counsel companies and individuals on handling pre-clearance interviews.
Ethics
Kotz Sangster also provides advice to clients with regard to the unique ethical obligations of federal government contractors such as:
- Prevention of bribery and illegal gratuities;
- False claims and false statements;
- Lobbying restrictions;
- Procurement integrity;
- Conflicts of interest; and
- Kickbacks
We assist clients in drafting codes of conduct and compliance policies and in structuring corporate compliance programs to educate all of their employees about the added level of scrutiny applied to business dealings with the government.
