Government Contracts

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“An impressive bench of experienced and highly skilled government contracts practitioners,” Covington’s Chambers ranked government contracts group represents clients in all aspects of the public procurement process.

From large aerospace and defense contractors to growing NGOs, we help clients solve problems and secure opportunities.

With global teams of experts who cut across traditional practice groups (such as M&A, white collar, product liability, IP, and life sciences) we resolve our clients’ most intricate problems efficiently and creatively.

Six-Year Dispute with DOJ Ends with Declination

Our client, a major aerospace manufacturer, was accused of misrepresenting key facts to a government agency, resulting in the agency's decision to move forward with a rocket launch that eventually failed. The client enlisted Covington’s representation in what ended up being a six-year, high-stakes dispute with DOJ. Our compelling presentation and mastery of the details bolstered our arguments, and DOJ ultimately advised it would not pursue a False Claims Act case against the company.

Cutting-edge cost allowability victory

Successfully represented a major defense contractor, through trial and decision, in board of contract appeals litigation involving the allowability of private security costs allegedly incurred in connection with providing logistical support to the U.S. military during the Iraq War. The case raised cutting-edge cost allowability, contractor-on-the-battlefield, and statute of limitations issues.

Protection of IP rights for pharmaceutical companies

For pharmaceutical companies entering into R&D contracts, grants, and cooperative agreements with BARDA, NIH, and DTRA, we have successfully developed and implemented strategies for protecting our clients’ intellectual property. We have helped our clients limit or avoid government IP rights through the use of alternative contracting vehicles, specially negotiated contract clauses, properly drafted statements of work, and other means. We have also obtained waivers of U.S. manufacturing requirements under the Bayh-Dole Act.

Obtained SAFETY Act protection for anti-terror products and services

The SAFETY Act, administered by the U.S. Department of Homeland Security, provides liability protection to the makers and users of anti-terror technology in the event of a terror attack. We have successfully guided clients from virtually every major industry in the United States, including government contractors, airports, port authorities, chemical companies, large sports stadiums, and professional sports leagues, through the SAFETY Act application process and secured SAFETY Act protection for a wide range of technologies.

International procurement capacity building

Through the United Nations Development Program, the International Senior Lawyers Project, and the U.S. Department of Commerce’s Commercial Law Development Program, we provide procurement law expertise and training to senior procurement officials of foreign governments including Liberia, Iraq, and Afghanistan to help those countries build capacity for conducting predictable and transparent procurements. This experience allows us to provide specific, knowledgeable advice to clients wishing to pursue procurements conducted by foreign governments.

Largest Suspension and Investigation in USAID's History

A voluntary disclosure to USAID by one of its largest not-for-profits led the agency to suspend the entity for potential false claims and lack of internal controls, resulting in the board of directors forcing the resignation of the entity’s leadership team and hiring our lawyers to resolve the matters. When the agency refused to lift the suspension due to the lack of trustworthy internal controls and the entity was on the brink of shuttering its doors, our lawyers successfully negotiated a grand bargain to transfer nearly all of the programs, assets, and employees to another not-for-profit and settle the False Claims Act (FCA) investigation.

Lindsay Goldberg's transformation of PAE

Represented private equity firm Lindsay Goldberg and PAE as regulatory counsel in six different M&A transactions that have grown PAE to a defense contractor with annual revenue in excess of $2 billion. Our work began in 2011 with Lindsay Goldberg’s acquisition of PAE from Lockheed Martin, and continued through to PAE’s acquisitions of Defense Support Services, CSC’s Applied Technology Division, USIS’s Global Security and Solutions Business, and A-T Solutions and to Lindsay Goldberg’s 2016 sale of PAE to Platinum Equity. Our work in each of these deals has included government contracts, national security, trade controls, and anti-corruption due diligence and advice on transaction structuring, novations, and regulatory approvals.

$44 Million Breach-of-Contract Recovery for KBR

Recovered $44 million plus interest on behalf of Kellogg Brown & Root Services Inc. (KBR) in a highly-publicized breach of contract dispute with the United States Army regarding the allowability of private security costs. The U.S. Court of Appeals for the Federal Circuit unanimously affirmed a ruling by the Armed Services Board of Contract Appeals that held the Army breached its contractual obligation to provide physical security to KBR and its subcontractors during the Iraq War.

Dismissal of Multidistrict Litigation Alleging Contractor Negligence Inside Overseas War Zones

Obtained complete dismissal of 63 lawsuits brought by 800-plus named plaintiffs against KBR, the largest military services contractor in Iraq and Afghanistan. These claims challenged KBR’s use of burn pits to dispose of waste during those wars. The district court adopted our arguments in their entirety and held the claims were barred by the political question doctrine and preempted based on the “combatant activities” exception to the Federal Tort Claims Act.

Magellan’s Acquisition of AFSC

Represented Magellan Health as regulatory counsel during its $117.5 million acquisition of Armed Forces Services Corporation (AFSC), a provider of behavioral health and specialty services to the Department of Defense and other U.S. government agencies. We handled government contracts and national security matters for Magellan.

Advising on domestic sourcing compliance under subgrants and state and local agreements

Advised multiple for-profit clients about domestic sourcing requirements imposed under subgrants and state and local agreements through various Departments of Transportation and Energy appropriations, New Jersey Buy American requirements, and the American Recovery and Reinvestment Act of 2009.

Arms Export Control Act - third party beneficiary claims

Our client sold microchips under a U.S. Air Force Foreign Military Sales (FMS) transaction to a foreign ally’s defense ministry, in a “back-to-back” sale under the Arms Export Control Act (AECA), in which the Air Force purchased the microchips from our client and then sold them in turn to the foreign defense ministry. The foreign defense ministry then sought to present warranty claims directly against our client, claiming to be a third-party beneficiary under our client’s contract with the Air Force. We waged successful litigation in federal trial and appellate courts raising issues of first impression, which established that third-party beneficiary claims are not available, given the public policy and intent of the AECA.

Assisting clients with VA Schedule contracts involving medical equipment and pharmaceuticals

Assisted numerous clients with matters arising under U.S. Department of Veterans Affairs schedule contracts, blanket purchase agreements, and related national agreements, including matters relating to price reporting, drafting of proposals, interactions with federal employees, small business subcontracting, and compliance with other commercial-contracting requirements.

Assisting with cost classification determinations and implementation of subaward negotiation requirements

Advised global nonprofit organization on the appropriate classification of proposal costs claimed in connection with extensions of existing contracts and grants, as well as requirements relating to negotiation of profit under sole-source subawards for commercial items.

Assisting with review and overhaul of FSS pricing model

We advised a large technology reseller in conducting a review and revision of its pricing practices under its Federal Supply Schedule (FSS) contract with the U.S. General Services Administration (GSA). In addition to identifying and addressing potential pricing irregularities, we successfully guided the company through an overhaul of its Commercial Sales Practices Format (CSP-1) disclosure and convinced the GSA to permit our client to implement an alternative pricing model that greatly reduced administrative burdens.

Advised client of risk mitigation techniques during contract formation

Counseled a major defense contractor on how to mitigate potential future tort risk during contract discussions with the U.S. government. The military wanted the contractor to provide support for a significant anti-terrorism initiative, and the contractor needed advice on how best to structure the contract to minimize its risk and maximize its protection in the event of third-party claims arising from its contract performance.

Advising clients on pricing and contracting under Veteran’s Health Care Act programs, including VA FSS, 340B, and Tricare

Advice to numerous clients regarding compliance with the statutory and contractual pricing obligations under the Veteran’s Health Care Act (VHCA), including performing gap analyses, providing policies and training, and assisting with investigations and disclosures.

Advising clients regarding anti-human trafficking compliance

Advised multiple clients concerning the Federal Acquisition Regulation’s anti-human trafficking requirements, which were expanded in early 2015. Our advice has included creating employee policies and trainings to facilitate compliance and developing contractor compliance plans that, among other things, provide tools for monitoring subcontractor adherence to human trafficking prohibitions.

Advising clients on the negotiation and performance of contracts with the Biomedical Advanced Research and Development Authority, the Defense Threat Reduction Agency, and the National Institutes of Health

Advised multiple clients on matters arising from their negotiation and performance of manufacturing and research and development contracts relating to various pandemic and Chemical, Biological, Radiological and Nuclear (CBRN) threats, including matters relating to government indemnification or liability protection for unusually hazardous risks, compliance with cost standards and principles, and protection of intellectual property.

Advice regarding shared employee and facility costs during M&A process

Advised client on structuring employee secondment agreements so as to permit reimbursement of costs of shared employees and associated indirect costs under a secondment agreement during a contractual novation process in connection with an M&A transaction, enabling the client to orderly transfer employees and facilities to the purchaser and ensure continued reimbursement up to the point of final transfer.

Successfully Represented Communications Manufacturer in Proposed Debarment Before GSA

Represented a manufacturer of lightweight communications supplies that had been proposed for debarment by the General Services Administration ("GSA"). After obtaining an emergency waiver of the proposed debarment, which enabled our client to continue filling new orders, we filed a formal written response that convinced GSA to terminate the proposed debarment.

Case of first impression arising from an FMS contract

Represented a U.S. electronics manufacturer in federal trial and appellate courts against contract claims by a foreign sovereign government asserting third-party beneficiary rights under a Foreign Military Sales (FMS) contract. The case raised issues of first impression under the Contract Disputes Act and Arms Export Control Act (AECA).

Addressing Regulatory Enforcement Actions

We have addressed regulatory investigations and enforcement actions from regulators in the United States, Europe, and Asia following data breaches. These have included investigations or formal enforcement proceedings brought by the Federal Trade Commission, State Attorneys General, and the Securities and Exchange Commission in the United States, and by data protection authorities and sector-specific regulators across Europe and Asia.

Dismissal of personal injury case involving military personnel

Persuaded a district court to dismiss a tort suit brought against a large logistical services contractor for injuries sustained by a soldier on a military base in Iraq. The district court and the court of appeals agreed that the case raised political questions because of the involvement of the military that were outside the scope of judicial review.

Dismissal of wartime wrongful death claims brought by contractor employees

Obtained dismissal of wrongful death claims against a military support contractor following an insurgent attack on a supply convoy in Iraq. After the district court refused to dismiss the case, we successfully brought an interlocutory appeal and persuaded the court of appeals that the Defense Base Act provided an exclusive remedy and barred the employee claims.

Dismissal of wrongful death case based on government contractor defense

Obtained dismissal of a wrongful death case brought against a major government contractor for alleged gamma radiation exposure from a cargo screening device it manufactured for national security/border protection purposes. Early in the case, and only after minimal discovery, we successfully asserted the government contractor defense and convinced the trial court that the government had meaningfully reviewed and approved the product’s design specifications, that the product conformed with those specifications, and that the contractor had no knowledge of any product risks or hazards unknown to the government.

Eight-Year FCA Investigation Ends with Declination

Press reports accusing our client of using inflated labor categories on a billion dollar contract triggered an eight year False Claims Act (FCA) investigation. Eventually, our appeal to senior attorneys at the U.S. Department of Justice’s Civil Division brought an end to the FCA investigation and cleared the way for the client to negotiate an administrative settlement with the contracting agency resulting in a net payment to the client of millions of dollars.

Los Alamos investigation

We represented the University of California in an intense and wide-ranging investigation by the House Energy and Commerce Committee’s Subcommittee on Oversight and Investigations into alleged fraud and mismanagement at the Los Alamos National Laboratory. The investigation involved more than two dozen witness interviews and culminated in three days of hearings. At the conclusion of the investigation, the University retained its contract to manage the Laboratory.

Navigated foreign legal requirements for international contractors

Organized foreign counsel in 40 foreign countries to determine legal requirements governing U.S. government contractors working in country, to ensure local compliance as to business registrations, visas, employment laws, and taxes. In doing so, developed a template for determining foreign requirements and a network of local counsel to serve as a resource for the contractor.

Navigation of Organizational Conflicts of Interest

We have helped major contractors navigate the specific Organizational Conflicts of Interest (OCI) rules and requirements imposed by the Centers for Medicare and Medicaid Services (CMS), the Defense Health Agency, and other agencies. When CMS rolled out its new approach to OCIs, including its new standard clause and required forms, we helped a major CMS contractor comment on key aspects of the approach.

Negotiation and vetting of state contracts for healthcare exchanges and MMIS

We helped a major client negotiate contracts with state healthcare exchanges in Maryland and several other states, and navigate the procurement rules and risk areas unique to many state exchanges. We have also advised clients regarding intellectual property and other issues specific to state MMIS procurements.

Procurement advice and protests in states across the country

We have helped clients navigate state procurement systems and have handled protests in states across the country, including: California, Texas, New York, Florida, Maryland, the District of Columbia, Oregon, North Carolina, Massachusetts, Minnesota, Georgia, Colorado, Washington, New Jersey, and others.

Protection of Client IP Rights

For pharmaceutical, energy, and defense companies entering into R&D contracts, grants, and cooperative agreements with federal agencies (including DoD, DOE, and HHS), we have successfully developed and implemented strategies for protecting our clients’ intellectual property. We have helped our clients limit or avoid government IP rights through the use of alternative contracting vehicles, specially negotiated contract clauses, properly drafted statements of work, and other means. We have also obtained waivers of patent ownership from federal agencies, as well as waivers of the U.S. manufacturing requirements under the Bayh-Dole Act.

Renegotiated government IP agreements

On behalf of a major pharmaceutical manufacturer, we renegotiated agreements with the National Institutes of Health (NIH) concerning IP rights arising out of the development, manufacture, and use of experimental vaccine supplies for international clinical trials, and negotiated contract terms placing on the government the risk of the client’s use of contested IP developed by another contractor.

Resolved hotly-contested completion disputes of U.S. Embassy in Baghdad

Negotiated resolution of concerns that the contractor building the U.S. embassy in Baghdad had thousands of unauthorized deviations from specifications, which prevented the U.S. State Department’s acceptance of the sprawling compound. Demonstrated in senior-level meetings and on-the-ground inspections that the project was materially compliant, leading to acceptance and the resolution of investigations by multiple agencies and Congress.

Resolved claims arising from the incarceration of U.S. contractor for espionage

Negotiated a creative settlement of a tort suit filed by a subcontractor arising from his imprisonment in Cuba for carrying out a USAID democracy-building program in that country. We converted that tort settlement into a contract claim by the prime contractor, and successfully negotiated payment to fully compensate the subcontractor while making the prime contractor whole.

SBA Size Determination

We took over a U.S. Small Business Administration (SBA) size determination proceeding for our client, an IT services provider, after previous DC government contracts counsel had failed to persuade the SBA that our client was a small business. We submitted thousands of pages of documentation and numerous position papers in what is believed to be the most complex size determination ever performed by SBA, and persuaded the agency that our client is a small business, notwithstanding its affiliation with dozens of other small businesses, thus allowing it to continue to compete for business on small business set-aside contracts.

SBIC portfolio company divestment advice

Our client was a small business defense contractor owned by a Small Business Investment Company (SBIC) that was nearing the end of the control period permitted under Small Business Administration (SBA) regulations. We advised a special committee of the board of directors of the client about the potential effects of various potential sale and transfer scenarios on the client’s continued small-business status, and enabled the committee to decide upon a course of action that would permit the client to continue to perform and compete for small-business set-aside contracts.

Service Contract Act investigation and disclosure

Our client, a major large business provider of IT services to the federal government, discovered possible Service Contract Act compliance issues in the operations of a recently acquired subsidiary. We conducted and internal investigation and assisted the client in making a disclosure to the U.S. Department of Labor, which closed the matter without adverse financial or other consequences for our client.

Severance cost dispute for DOE contractor

Recovered disallowed severance costs paid by a U.S. Department of Energy (DOE) contractor to its employees when the contractor exited the contract and the employees went to work for a successor contractor. The costs were unallowable under the Federal Acquisition Regulation (FAR), but the contract contained an unusual provision, personally approved by President Truman, making virtually all costs allowable. We handled the preparation of the initial claim, the contract appeal to the Court of Federal Claims, and the appeal to the Federal Circuit, at the end of which our client recovered every penny of its severance outlay, plus interest.

Successful jury trial defense of Schedule contractor in False Claims Act case in the Eastern District of Virginia

Through a jury trial in the Eastern District of Virginia, successfully represented a Schedule contractor accused of submitting fraudulent commercial pricing data in violation of the False Claims Act (FCA). The Fourth Circuit affirmed the jury verdict in favor of the contractor.

Successful representation of major defense IT contractor in GSA IG audit

Successfully represented a major defense IT contractor in an audit of two U.S. General Services Administration (GSA) Schedule contracts by the GSA Inspector General (IG), in which the IG initially asserted a claim for the repayment of tens of millions of dollars. The matter was resolved for less than $5,000.

Successfully defeated infringement suit in the Court of Federal Claims

One of our clients provides a key component of the F-35 Joint Strike Fighter. A rival contractor sued the U.S. government in the Court of Federal Claims, alleging that the component infringed its patent. We intervened on behalf of our client and persuaded the court to rule that the patent is invalid.

Successful resolution of best pricing investigation

One of the nation’s largest construction supply companies was investigated for failing to provide the General Services Administration (GSA) with its “best pricing” for materials. Working with the company’s auditors, we were able to resolve the matter for no money based on ambiguities in the Schedule language as applied to the circumstances.

Successfully defended prime contractor in data rights lawsuit

We successfully defended a Navy prime contractor accused of misusing its subcontractor’s design data. We convinced the court that the Defense Federal Acquisition Regulation Supplement (DFARS) data rights clauses allowed the client to use and distribute the data, resulting in a complete summary judgment for our client.

Successfully defended bidder against claims of misuse of competitors data

We obtained a complete jury verdict for our client accused of misappropriating the incumbent’s trade secrets to win a $200 million NASA contract. The alleged trade secrets included the data generated under the incumbent’s existing NASA contract and the incumbent’s proposal data for the new contract.

Successfully protested $2 billion+ biodefense award

When the federal government awarded a contract worth more than $2 billion for the development and delivery of a medical countermeasure, we protested at the U.S. Government Accountability Office (GAO). After many rounds of briefing, and a hearing before GAO, the agency agreed to cancel and re-compete the majority of the contract.

Successfully protested award for contract to help reform the justice system in Mexico

We successfully challenged an agency award of a contract to assist the government of Mexico in reforming its justice system, obtaining corrective action that involved new final proposal revisions. When our client won the second round award, we defended a challenge by the prior awardee, and preserved the award to our client.

Successfully protested $200 million U.S. Army award

When the U.S. Army awarded a $200 million contract for IT services, we protested the award, arguing that the awardee had an organizational conflict of interest and gained an unfair competitive advantage by hiring a former government official. The agency took corrective action in response to the protest.

Successfully protested the terms of a $2 billion USAID procurement

When USAID issued a $2 billion procurement for consulting services related to economic growth and poverty reduction, we protested the terms of the solicitation. Our protest convinced the agency to abandon its use of the “low cost, technically acceptable” evaluation scheme by arguing that LPTA was inappropriate for the complex, high-stakes services being sought.

Successfully protested exclusion from $500 million+ biodefense competition

When the U.S. Department of Defense (DoD) conducted a competition for an Advanced Development and Manufacturing (ADM) facility for medical countermeasures, we protested DoD’s exclusion of one of the offerors from the competitive range. The protest issues were of extraordinary technical complexity, but after several rounds of briefing, we convinced the agency to reverse course and invite the offeror back into the competition.

Successfully protested the terms of a $600 million cloud procurement

When the Central Intelligence Agency (CIA) issued an RFP for cloud services, we filed a protest challenging the terms of the RFP as unduly restrictive of competition. After discussion with the U.S. Government Accountability Office (GAO), the agency agreed to amend the RFP to revise the terms at issue in the protest.

Support of derivative sovereign immunity defense through Supreme Court amicus brief

Filed a Supreme Court amicus brief on behalf of a government contractor trade association in support of a U.S. Navy contractor being sued for unwanted text messaging. The proposed class action raised significant questions regarding the application of derivative sovereign immunity to private contractors performing work on behalf of the federal government.

Transfer of major construction dispute from state to federal court

Removed a construction dispute involving several hundred million dollars from state to federal court, which was a superior forum for asserting various federal defenses on behalf of our government contractor client. We defeated the plaintiff’s efforts to send the case back to state court, successfully arguing that the case properly was removed under the federal officer removal statute because of the significant role played by the federal government in the construction project.

Veritas Capital’s investment in Alion Science & Technology

Represented private equity firm Veritas Capital as regulatory counsel during its acquisition of Alion Science & Technology Corporation, a leading provider of engineering services to the Department of Defense. We handled government contracts, trade controls, and national industrial security due diligence.

Veritas Capital’s investment in SolAero Technologies Corp.

Represented private equity firm Veritas Capital as regulatory counsel during its acquisition of EMCORE’s Space Photovoltaics business, and represented the business, which is now known as SolAero Technologies Corp., during its subsequent acquisitions of Alliance Spacesystems and Vanguard Space Technologies. We handled government contracts, trade controls, anti-corruption, and other regulatory due diligence, and also assisted with contract novations.

Bayh-Dole Advice Across Sectors

We have advised clients in various sectors regarding the substantial manufacturing requirement under the Bayh-Dole Act, including securing waivers of the requirement and helping clients structure manufacturing obligations to maximize business efficiencies within the requirements of the Bayh-Dole Act. We also routinely advise clients regarding the Bayh-Dole Act’s requirements for perfecting title in intellectual property and avoiding potential march-in actions under the Act.

Emerging IoT Government Contracts Standards

We monitor and advise clients on legislation and regulations that affect IoT-related government contracts. For example, we track legislation that would require the development of contractual IoT security standards for IoT devices purchased from government contractors. We also advise on IoT best practices for government contractors.

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Intellectual Property Considerations for Manufacturers Contracted under the Defense Production Act

On March 18, 2020, the President invoked a portion of the Defense Production Act, 50 U.S.C. §§ 4501 et seq., (the “DPA”), in order to address shortages of personal protective equipment and ventilators needed to treat patients affected by the COVID-19 pandemic.

New Paid Sick Leave Requirements Impact Government Contractors

Recent legislation significantly expanded many workers’ entitlement to paid sick leave and paid family leave. These new benefits take effect on April 1st. Our employment and benefits experts have described those requirements in a series of posts, including overviews here and here, and New York-specific considerations here. Federal government contractors ...

Defense Production Act Anti-Hoarding Provisions Invoked for Coronavirus

The Department of Health and Human Services published a notice on March 30, 2020 — effective March 25, 2020 — designating certain COVID-19-related personal protective equipment (“PPE”) and materials as “scarce” or “threatened” materials subject to the Defense Production Act’s (“DPA”) anti-hoarding provisions. As a result of this notice, the DPA now prohibits ...

Interacting with the Government During the Pandemic: Compliance Blind Spots for Corporations and Executives

The consequences of the COVID-19 pandemic are reverberating in every sector of the global economy, from life sciences to transportation, retail to manufacturing, financial services to sports and entertainment. As federal, state, and local governments attempt to blunt the pandemic’s public health and economic effects, many companies are frantically working with ...

The Defense Production Act and the Coronavirus Executive Order: Key Considerations

Following up on our post earlier this week giving a general overview of the Defense Production Act of 1950 (“DPA”), 50 U.S.C. §§4501 et seq., this post comments on President Trump’s March 18, 2020 Executive Order on Prioritizing and Allocating Health and Medical Resources to Respond to the Spread of COVID-19 (the “COVID-19 E.O.”) and...… Continue Reading The ...

The Likely Effects of COVID-19 on Contract Awards and Contract Formation

As a result of novel Coronavirus (SARS-CoV-2) and COVID-19, federal and state governments have a sudden and unanticipated need for more goods and services. Some of those goods and services are highly specialized and specific to Coronavirus and COVID-19. But governments also have an increased and urgent need to buy otherwise-routine goods and services that...… ...

State of Emergency: COVID-19, the Stafford Act, and What It All Means for Contractors

On March 13, the President declared a national emergency in response to the COVID-19 pandemic. Doing so activated the authorities available to the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5207 (the “Stafford Act”) to provide federal assistance to state and local governments responding to the ...

FLSA Considerations In Response to Government COVID-19-Related Directions

As federal agencies adjust their worksites to the realities of the COVID-19 pandemic, these changes will likely have a direct impact on government contractors and their employees who work at those sites. If the government closes or reduces operations at a site, a contractor may be forced to furlough or reduce the hours of employees. ...… Continue Reading The ...

Can I Recover the Added Costs of Work Caused by COVID-19?

As the fallout from COVID-19 continues, federal contractors in every industry are seeing significant impacts on their ability to perform, ranging from scheduling delays to supply chain interruptions and increased costs of performance. We previously addressed the rules and regulations governing excusable delays, which permit a contractor to avoid default if a ...

A Coronavirus Contractor’s Guide to the Defense Production Act

As a followup to our recent post on the implications of the PREP Act for government contractors working to respond to the COVID-19 outbreak, this post will provide an overview of the Defense Production Act—including its key powers that the federal Government might invoke to counter the pandemic. Congress first enacted the Defense Production Act...… Continue ...

A Coronavirus Contractor’s Guide to the PREP Act

We’ve covered several topics already this week on the U.S. Government’s varied responses to the COVID-19 outbreak and how these responses will affect contractors that do business with the government, including BARDA’s EZ-BAA for COVID-19 diagnostics, mission-essential services during the outbreak, and how excusable delay provisions may help federal contractors ...

Expanding the Coronavirus Disease 2019 (COVID-19) Response through Diagnostic Development

In the latest World Health Organization daily situation report, as of March 11, 2020, the WHO reported 118,326 COVID-19 cases confirmed and 4,292 deaths worldwide, and the U.S. Centers for Disease Control and Prevention (CDC) reported 938 cases and 29 deaths in the United States. The same day, WHO characterized COVID-19 as the first global...… Continue ...

Covington Assists Veritas Capital with $5 Billion Acquisition of DXC’s Health and Human Services Business

WASHINGTON—Covington is assisting Veritas Capital with its acquisition of DXC Technology’s U.S. State and Local Health and Human Services business in a deal valued at $5 billion. The transaction is expected to close no later than December 2020, subject to the satisfaction of customary closing conditions. DXC Technology’s U.S. State and Local Health and Human ...

COVID-19: Legal and Business Toolkit

As the legal, regulatory, and commercial implications of coronavirus COVID-19 continue to evolve, our lawyers and advisors are helping clients navigate the complex considerations that companies around the world are facing and develop plans and strategies in response. Reach out to our COVID-19 task force at COVID19@cov.com. Below is a compendium of resources ...

Audit Process Remains A Mystery In DOD Cybersecurity Plan

Susan Cassidy is quoted in Law360 regarding the DoD’s implementation of cybersecurity requirements for defense contractors. Ms. Cassidy says that questions about the process, such as who will audit the thousands of contractors that need to be certified for cybersecurity compliance, how they will be audited and what options they will have if they disagree with an ...

GSA Praised for Progress on Contracting Schedule Consolidation

Mike Wagner spoke with Government Executive about the General Services Administration's restructuring of the terms and conditions of current contracts so that they are in sync with those on the new, single contracting vehicle, which also features new contracts. . Mr. Wagner says, “Contractors should not be seeing changes to any negotiated elements of their ...

Covington Named a Law360 "Firm of the Year"

WASHINGTON—Law360 has named Covington one of its 2019 “Firms of the Year” for the second consecutive year based on the firm having received six Practice Group of the Year awards. The Covington practices named 2019 Practice Groups of the Year are: Competition/Antitrust Government Contracts International Arbitration Life Sciences Media & ...

4 Gov't Contracting Policy Developments To Watch In 2020

Fred Levy spoke with Law360 about the 2021 National Defense Authorization Act. Mr. Levy says the upcoming NDAA could also include more provisions that would expand the government’s right to obtain pricing information on commercial items, given recent congressional attention to alleged “price-gouging,” even as that definition has been applied somewhat ...

Top 5 Gov't Contracts Cases Of 2019

Fred Levy spoke with Law360 about an FCA case involving a rocket and missile propulsion company misleading the U.S. DoD about its failure to safeguard "unclassified controlled technical information" from cybersecurity threats, in an article highlighting the top government contracts cases of 2019. Mr. Levy says the growing attention federal agencies are giving to ...

National Security Update - Commerce Department Releases Proposed Rule Implementing the Information and Communications Technology Supply Chain Executive Order

The Department of Commerce (“the Department”) has issued a proposed rule implementing the May 15, 2019 Executive Order entitled “Securing the Information and Communications Technology and Services Supply Chain,” which we previously analyzed here. Once finalized and effective, the regulations will govern the process and procedures that the Secretary of Commerce ...

Seven Covington Lawyers Named Law360 MVPs

WASHINGTON—Law360 has named seven Covington lawyers as MVPs, third most among all firms, in their respective practice areas. The awards single out lawyers from across numerous practice areas based on their success in high-stakes litigation, complex global matters, and record-breaking deals. The Covington lawyers recognized as Law360 MVPs are: Thomas ...

Bid Protest Successes Counter Agencies' Frivolity Concerns

Jay Carey spoke with Law360 about the high rate of success for federal contract protests at the Government Accountability Office over the last five years, as shown in a recent GAO report. Mr. Carey say among other barriers in the way of a successful protest, protesters bear the burden of proof, often have less access to relevant information than agencies, and ...

Litigators of the Week: Covington Team Beats Multi-Billion FCA Claim

Ethan Posner, Matthew Dunn, and Christopher Denig were featured in Am Law Litigation Daily as "Litigators of the Week." The team was profiled for their complete defense win for UnitedHealth Group subsidiary Executive Health Resources in U.S. District Court for the Eastern District of Pennsylvania. Krysten Rosen Moller led the associate team and was involved in ...

New Report Shows Feds' Nuanced Approach To Contractors

Mike Wagner is quoted in Law360 regarding the 2018 Suspension and Debarment report. Mr. Wagner says “that modest decline in suspension and debarment activity over time has also been offset in part by suspension and debarment officials' increased use of alternative measures. This dual trend is interesting — I think it speaks to the overall evolution of the ...

Creation of the Procurement Collusion Strike Force

On November 5, 2019 the Department of Justice (DOJ) announced the launch of the “Procurement Collusion Strike Force” (PCSF). The creation of the PCSF marks a significant development in the government procurement enforcement landscape. Creation of the PCSF prioritizes the DOJ’s focus on government procurement offenses. As part of that effort, DOJ has launched a ...

DOD's Haste May Spell Turbulent Start For Cybersecurity Plan

Susan Cassidy spoke with Law360 about the Department of Defense’s goal for its Cybersecurity Maturity Model Certification (CMMC) and its impact on join bid contractors. Ms. Cassidy says such teaming arrangements are already complicated and can take years to put together for big defense procurements. Although the DOD has said cybersecurity compliance will be ...

Nooree Lee Receives NAPABA's Best Under 40 Award

WASHINGTON—The National Asian Pacific American Bar Association (NAPABA) has recognized Nooree Lee with its Best Under 40 Award. The award recognizes talented individuals within the Asian Pacific American legal community under the age of 40 who have achieved prominence and distinction in their fields of endeavor—be it the practice of law, academia, business, ...

Government Agencies Field More Cybersecurity Maturity Models

Susan Cassidy, Samantha Clark, Ryan Burnette, and Ian Brekke are mentioned in Gov Info Security regarding their blog post analyzing the CMMC draft. "The guidance offers no insight into how DOD will determine the CMMC certification level required for each contract solicitation or whether it intends to standardize a process for making such determinations across ...

Covington Assists CPI in its Acquisition of GD's Satellite Antenna Systems Business

WASHINGTON—Covington’s Government Contracts and Communications regulatory practices are representing Communications & Power Industries LLC (CPI) in its recently announced deal to acquire SATCOM Technologies, the antenna systems business of General Dynamics Mission Systems, Inc., a business unit of General Dynamics. SATCOM Technologies designs, manufactures and ...

Covington Secures Key Victory for KBR in Iraq War Contract Dispute

WASHINGTON—Covington recently secured a significant victory on behalf of Kellogg Brown & Root Services Inc. (KBR) in a long-running contract dispute with the U.S. Army arising from the Iraq War. The U.S. Court of Appeals for the Federal Circuit unanimously affirmed a 2017 ruling by the Armed Services Board of Contract Appeals (ASBCA) that held the United States ...

Covington Represents Peraton in Solers Acquisition

WASHINGTON—Covington is representing Peraton in its recently announced deal to acquire Solers, Inc., a leading provider of software development and systems integration for space situational awareness, satellite ground systems and operations, cybersecurity engineering, and enterprise cloud-based solutions. Covington is handling government contracts, national ...

Thornberry unveils potential punishments for DoD's slow implementation of acquisition reforms

Scott Freling is quoted in Federal News Network regarding the House Armed Services Committee’s proposal to speed up the Department of Defense’s implementation of changes. Mr. Freling says, “The process for updating and refining the acquisition regulation to keep pace with Congress has slowed to a glacial pace. That causes quite a bit of consternation for ...

Thornberry Considering Punishing DoD for Moving Too Slowly on New Laws

Scott Freling spoke with the Federal News Network regarding the DoD’s hesitation towards implementing acquisition reforms and possible cuts to some defense agencies. Mr. Freling says, “The process for updating and refining the acquisition regulation to keep pace with Congress has slowed to a glacial pace. That causes quite a bit of consternation for contractors ...

Covington Represents Elbit in $350M Acquisition of Night Vision Business

WASHINGTON—Covington advised Elbit Systems of America, LLC, a subsidiary of Elbit Systems Ltd., in its definitive agreement with Harris Corporation for the acquisition of Harris' Night Vision business for a purchase price of $350 million. The closing of the transaction is subject to receipt of regulatory approvals. Elbit Systems Ltd. is an international high ...

Former Assistant U.S. Attorney Joins Covington in Los Angeles

LOS ANGELES—Ryan Weinstein has joined Covington in the firm’s Commercial Litigation practice in Los Angeles. Mr. Weinstein most recently served as an Assistant United States Attorney in the Central District of California. At the U.S. Attorney’s Office, Mr. Weinstein prosecuted and tried dozens of criminal cases, briefed and argued numerous appeals before the ...

DoD tightens enforcement of cyber regulations on contractors to protect data

Susan Cassidy is quoted in Federal News Network regarding the Department of Defense’s tightening of cybersecurity enforcement regulations on contractors. Ms. Cassidy says, “DoD wants to get everyone to a certain cybersecurity level. Now they are tightening up and they are going to make it a performance and award differentiator.” She said before an award, ...

Top Senate Armed Services Committee Counsel Joins Covington

WASHINGTON—Samantha Clark has joined Covington in its Public Policy, CFIUS, and Government Contracts practices in Washington. Ms. Clark’s arrival follows the recent additions of former U.S. Senator Jon Kyl and Broderick Johnson to the firm’s Public Policy practice. Ms. Clark provides advisory and advocacy support to clients facing policy, political, and ...

Covington Named One of Law360's 2018 “Firms of the Year”

WASHINGTON—Law360 has named Covington as one of its 2018 “Firms of the Year” for earning seven Practice Group of the Year awards. The Covington practices named 2018 Practice Groups of the Year are: Banking Government Contracts Insurance International Trade Product Liability Sports White Collar "We have followed a ...

DoD is dragging its feet on following the law and it could be a national security issue

Scott Freling is quoted in Federal News Network regarding the implementation of 2017 Department of Defense legislation. Mr. Freling says, “The process for updating and refining the acquisition regulation to keep pace with Congress has slowed to a glacial pace. That causes quite a bit of consternation for contractors we work with where there’s changes that ...

State interventionism may spur policy advice work for law firms

Sergio Urias participated in the “Latin Lawyer Live 9th Annual Private Equity Conference,” where he discussed regulatory and corporate issues, and is quoted in Latin Lawyer. Commenting on FIRRMA, Mr. Urias says, “This results in the most complex investment trade and transactional environment in many years and it won’t go away.” Although he thought FIRRMA will ...

Who’s in Your Supply Chain? Contractors Face Increasing Compliance Obligations and Restrictions

How well do you actually know your supply chain—from the materials you acquire to the software you include in your products or services? If you have not answered this question recently, you should consider adding it to your “to do” list. Not only does the U. S. Government want to know, it is increasingly imposing new compliance obligations on its contractors.

Covington Secures First SAFETY ACT Protections for Public Utility

WASHINGTON—Covington represented Public Service Enterprise Group and its subsidiary Public Service Electric & Gas in securing liability protection under the Support Anti-Terrorism by Fostering Effective Technologies Act of 2002 from the U.S. Department of Homeland Security. PSE&G is the first public utility in the United States to be awarded SAFETY Act ...

Covington Advises GSK on 23andMe Collaboration and $300M Investment

SILICON VALLEY—Covington advised GlaxoSmithKline on its multi-year collaboration with and $300 million equity investment in 23andMe. GSK will become 23andMe’s exclusive collaborator for drug target discovery programs. The collaboration will focus on research and development of innovative new medicines and potential cures using human genetics as the basis for ...

BAE Is Doing F-16 Victory Flyby Despite South Korea Defense Costs

Alan Pemberton and Ryan Burnette are quoted in a Federal Contracts Report article regarding a Fourth Circuit ruling that shielded BAE from liability under the Foreign Military Sales program. According to Pemberton and Burnette, although the court didn't definitively address the issue of foreign enforcement, the ruling is favorable for contractors overall because ...

Covington Advises Elbit Systems in $120 Million Acquisition

WASHINGTON—Covington advised Elbit Systems Ltd. in its $120 million acquisition of the assets and operations of the privately owned U.S. company, Universal Avionics Systems. Elbit Systems is an international high technology company engaged in a wide range of defense, homeland security, and commercial programs throughout the world. Universal Avionics is a ...

What Every Defense Contractor Should Know About Insurance for Cyberattacks

Cyberattacks targeting defense contractors illustrate the need for cybersecurity, for thoughtful planning—and for insurance when security and planning prove insufficient. Understanding your insurance policies before things go wrong can help ensure financial protection when they do.

Covington Earns Five “Practice Group of the Year” Awards

WASHINGTON—Law360 has named five Covington practice groups among its “2017 Practice Groups of the Year.” The practice groups recognized by Law360 are as follows: Government Contracts International Trade Product Liability Sports White Collar

Gov't Contracts Group Of The Year: Covington & Burling

Covington was named a 2017 Government Contracts Practice Group of the Year by Law360. According to Fred Levy, the group is unique due to the breadth and depth of experience that its attorneys have, and its seamless interaction with other top-tier practice groups at the firm. “I think we’re a very cohesive practice group,” he says. “It really incentivizes our ...

Feds to Ramp Up Online Purchasing Presence

Susan Cassidy is quoted in an E-Commerce Times article regarding efforts to create an online marketplace for government purchasers. "One model that was discussed would require a portal provider to contract with GSA to provide an online interface. Under this approach, suppliers would then sign up to use the portal, potentially via a contract with the portal ...

Beware of Employment Law Issues Amidst a Potential Government Shutdown

As Congress scrambles in a last ditch attempt to pass a funding proposal, government contractors face the various employment law implications of furloughs caused by the potential government shutdown. During the last government shutdown in 2013, many federal agencies furloughed employees and instructed contractors to implement similar reductions in contract ...

Russian hacker claims there's proof of his DNC breach

Susan Cassidy is quoted in Politico Pro's "Morning Cybersecurity" newsletter regarding the December 31st deadline for defense contractors to meet minimum cybersecurity requirements for the systems they operate for the Pentagon. According to Cassidy, the cybersecurity rule presents “a problem for DoD because there’s a lot of subjectivity in what is ‘adequate ...

Four Covington Partners Named Law360 MVPs

WASHINGTON—Law360 has named four Covington partners as MVPs in their respective practice areas. The awards single out lawyers from across numerous practice areas based on their success in high-stakes litigation, complex global matters, and record-breaking deals. The Covington lawyers recognized as Law360 MVPs are: Ray Biagini, Government Contracts. Mr. ...

Aerospace Up Against Deadline on Cybersecurity

Susan Cassidy is quoted in a Los Angeles Business Journal article regarding the difficulties that some defense contractors in Southern California were facing trying to meet the Department of Defense deadline of December 31, 2017 for implementing the cybersecurity controls in NIST Special Publication 800-171. Cassidy notes that the definition of the information ...

Defense contractors busy preparing to meet cybersecurity deadline

Susan Cassidy is quoted in a Bloomberg Government article regarding contractors' efforts to comply with new cybersecurity standards. According to Cassidy, the mandate that contractors develop cybersecurity plans—the most recent requirement added to the NIST list—is crucial for contractors. Contractors must “develop, document, and periodically update system ...

Defense Bill Amendment Pushes Fraud Punishment for Contractors

Fred Levy is quoted in a Federal Contracts Report article regarding a provision in the 2018 National Defense Authorization Act that would require the Pentagon to file a report to Congress on contracting fraud. According to Levy, the amendment appears to be a way for Congress to try to keep tabs on DoD, which was subjected to appropriations bills starting in 2012 ...

Missing Data Hinders Contractor Disclosure Rule Nine Years In(1)

Fred Levy is quoted in a Federal Contracts Report article regarding the effectiveness of the Mandatory Disclosure Rule, enacted almost a decade ago. “I’ve heard anecdotally that some government people complain that they get mostly the small stuff, and that there must be bigger matters out there,” says Levy. “On the other hand, from my perspective as somebody who ...

Ross, Mulvaney issue 'Buy American' guidance to federal agencies

Inside U.S. Trade's Daily Report highlights a Law360 article by the firm's Government Contracts lawyers regarding President Trump's "Buy American and Hire American" Executive Order. The firm's lawyers predict an increased "emphasis on procuring domestic end products" and state that "it will be prudent" for contractors and manufacturers "to take a fresh look at ...

Pentagon demands contractors up cybersecurity

Susan Cassidy is quoted in a San Antonio Express-News article regarding new cybersecurity requirements for contractors. According to Cassidy, "Essentially, the DOD wants its contractors to protect its information, because the DOD is a huge target, and its contractors are also a target." Commenting on the fact that over the years, contractors have been working ...

Attys Dish On Escobar's FCA Impact One Year Later

Peter Hutt II is quoted in a Law360 article evaluating how the Supreme Court's decision in Escobar has been applied over the last year. According to Hutt, "Escobar is such a powerful case because it establishes rules that align with common sense. As to 'implied certification,' courts are instructed to determine if defendants were lying to the government by ...

How Trump's 'Buy America' Push Could Harm This US Steel Mill

Sandy Hoe is quoted by The Daily Signal in an article regarding the potential impact of President Trump's 'Buy America' policy on steel mills. Despite steel mill operators' concerns surrounding increased costs and potential layoffs, Hoe explains that "[t]he April executive order doesn't change any law." He adds, "It is a lot like a lot of [Trump's] executive ...

F-16 Fallout Clouds Future Foreign Deals, May Alter National Security

Peter Lichtenbaum and Fred Levy are quoted in a Federal Contracts Report article regarding the dispute, which is on appeal in the Fourth Circuit, between South Korea and BAE following the failure to finalize a deal to upgrade the F-16 jet. According to Lichtenbaum, the contracting community would expect the Fourth Circuit not to enforce the BAE-South Korea ...

Defense Contractors Should Have Shutdown Plan, Attorneys Say

Scott Freling is quoted in a Bloomberg BNA article discussing why defense contractors should prepare for a possible government shutdown. According to Freling, a certain amount of complacency, especially in the Washington area, has crept into companies regarding brinksmanship surrounding federal funding deadlines. “My sense is that contractors are refreshing ...

4 Takeaways From The 'Buy American' Executive Order

President Donald Trump took a significant step this week toward implementing his often touted objective of protecting U.S. manufacturers and workers by signing the “Presidential Executive Order on Buy American and Hire American” on April 18, 2017. In addition to addressing reforms to the H1-B visa program to protect U.S. workers, the EO sets forth a policy and ...

Federal Contractors Bear Brunt Of 'Buy American' Crackdown

Fred Levy is quoted in a Law360 article regarding the effect of President Trump’s “Buy American, Hire American” Executive Order on federal contractors. Commenting on supply-chain adjustments made to items from overseas, Levy says, “If they change the Buy American Act to flow those requirements all the way back down again so it’s not just components, but any ...

Wall to Mexico: Beautiful She Is, and Insurmountable

Jennifer Plitsch is quoted in a Die Zeit article regarding the Department of Homeland Security’s request for U.S.-Mexico border-wall prototypes. Commenting on the short time frame interested companies have to create a concept, Plitsch says, “The schedule is breathtakingly close.”

Covington Advises Intersil on $3.2 Billion Sale to Japan's Renesas

WASHINGTON—Covington represented semiconductor manufacturer Intersil Corporation in its $3.2 billion sale to Japan’s Renesas Electronics Corporation. The firm advised Intersil on aspects of the transaction involving Committee on Foreign Investment in the United States (CFIUS), Foreign Ownership, Control, or Influence (FOCI), trade controls, and government ...

Trump's Contracting By Twitter Likely To Backfire

Alan Pemberton is quoted in a Law360 article regarding President Trump’s use of Twitter to involve himself in the federal contracting process. According to Pemberton, "I'm not aware of a president doing quite what President Trump has done." He adds, "It's important to remember that the president certainly has considerable power in the bully pulpit, but ...

SEC Targets Defense Contractor on Violation of Books-and-Records Requirements

Contractors are used to the Defense Contract Audit Agency scrutinizing their internal accounting practices, but in a recent cautionary tale a contractor found itself in the crosshairs of another federal law enforcement agency: the Securities and Exchange Commission (SEC). In a settlement recently made public, defense contractor L3 Technologies, Inc. (L3) agreed ...

Fate of DOD Cybersecurity Improvements Unclear, Lawyers Say

Susan Cassidy is quoted in a Federal Contracts Report article regarding the fate of cybersecurity improvements made by the DoD under President Trump. According to Cassidy, “I would expect those to continue forward because I don't see a political will to say, ‘No you shouldn't protect this.’” The nomination of former Sen. Dan Coats (R-Ind.) to serve as director ...

Lockheed Martin Facing Twin Pressures on F-35 Price

Sandy Hoe is quoted by The Wall Street Journal in an article regarding Donald Trump’s focus on the defense sector and his ability to negotiate military deals. According to Hoe, "The president doesn't have the authority just by fiat to negotiate a contract or the terms of a contract."

Six Covington Lawyers Named Law360 MVPs

WASHINGTON—Law360 has named six Covington lawyers as MVPs in their respective practice areas. The awards single out lawyers from across various practice areas based on their “success in high-stakes litigation, complex global matters, and record-breaking deals.” The Covington lawyers recognized as Law360 MVPs are: Shara Aranoff, International Trade. Ms. ...

Trump's $440 billion weapon

Sandy Hoe is quoted in a Politico article regarding President-elect Donald Trump’s interest in taking a direct role in federal contracting. Most federal contracts include a clause allowing the government to break it. When a company tries to prove a contract was broken illegally, the standard is exceptionally difficult. Commenting on a recent decision in which a ...

Gov’t Contracts Policy Developments Of 2016: Year-In-Review

Jay Carey is quoted in a Law360 article providing a review of significant government contracts policy developments in 2016. Commenting on the 2017 National Defense Authorization Act, Carey says, “I think the provision that puts a thumb on the scale against using LPTA [the lowest price technically acceptable model] is important, and in the long run beneficial not ...

Gov't Contracts MVP: Covington & Burling's Jay Carey

Law360 selected Jay Carey as a 2016 Government Contracts MVP and profiled his involvement in a number of major bid protests by federal contractors in a variety of industries, such as UnitedHealth’s challenge to $58 billion Tricare contracts. According to Carey, “One of the things I really enjoy about it is that every protest is a challenge in terms of learning ...

DOD Updates Cyber Reporting Rule for Contractors

Susan Cassidy is quoted in a Federal Contracts Report article regarding the Defense Department’s updated cyber incident reporting rule. According to Cassidy, the rule succeeded in clarifying some industry concerns, but did not address them all. “They didn't take an opportunity to clarify everything you might have hoped they would.” For example, when asked ...

Final Sick Leave Rule Offers Little Relief For Contractors

Jennifer Plitsch is quoted in a Law360 article regarding the U.S. Department of Labor's final rule requiring federal contractors to provide paid sick leave to employees. According to Plitsch, "I can't say we've had any clients who have said, 'I'm done with the federal government; I'm never going there again,' but I do think there is increasing concern about the ...

NARA Sets the Stage for a Final FAR Cyber Clause

On September 14, 2016, the National Archives and Record Administration (NARA) issued the “Controlled Unclassified Information Final Rule” (Final Rule), effective November 13, 2016, establishing consistent practices and procedures for safeguarding, disseminating, controlling, destroying, and marking Controlled Unclassified Information (CUI) across Executive ...

Pentagon proposes rule meant to help non-traditional contractors and small businesses

Frederic Levy is quoted in an Inside Defense article regarding a proposed rule that would exempt non-traditional contractors and small businesses from certified cost and pricing data requirements for certain contracts. According to Levy, the "intent is to open up participation in government programs." He adds, "Expanding that concept to a broader base of awards ...

After pushback last year, Pentagon tries again with commercial items rule

Susan Cassidy is quoted in an Inside Defense article regarding the DOD’s proposed rule change to implement sections of the National Defense Authorization Acts for Fiscal Years 2013 and 2016 relating to commercial item acquisitions. According to Cassidy, "They were going to take out the 'of a type' commercial item, and that's been a big deal with DOD for a long ...

GSA Publishes Transactional Data Reporting Rule Transforming Schedule Contracting Landscape

On June 23, 2016, GSA issued a long-awaited final rule that significantly alters the regulatory landscape for contractors who hold Federal Supply Schedule (FSS) contracts and other government-wide contracting vehicles. The new rule, which is known as the Transactional Data Reporting rule, is the most significant change to the FSS program in more than two decades ...

Supreme Court Accepts Implied False Certification Theory But Erects Substantial Hurdles To Proving Materiality

In Universal Health Services Inc. v. U.S. ex rel. Escobar, No. 15-7 (Slip. Op. June 16, 2016), a unanimous Supreme Court affirmed the viability of the “implied false certification” theory of False Claims Act liability, at least in certain circumstances. This portion of the ruling was not unexpected given the overwhelming acceptance of implied certification among ...

Proposed Legislation Targets Perceived Injustices in Defense Contract Protests

Hunter Bennett is quoted in a National Defense article regarding proposed legislation that would penalize contractors who challenge the government with frivolous protests to hold a job until the protest is settled. Bennett, wondering if these provisions “simply go too far,” write, “Clearly aimed at curbing the practice of incumbent contractors filing meritless ...

Lawyers highlight limited scope of liability protections under cyber info-sharing law

Susan Cassidy participated in a panel discussion at the annual cybersecurity conference at Georgetown University Law Center and is quoted in this Inside Cybersecurity article regarding the limited scope of liability protections under the new cyber info-sharing law. According to Cassidy, "Anything you create could be used in litigation against you," in referring ...

Protest reform ideas abound, but much of industry says, 'No, thanks'

Jay Carey is quoted in an Inside Defense article regarding the defense industry’s reaction to protest reform ideas being proposed by Capitol Hill and the Pentagon. According to Carey, the defense industry has a more “balanced view of protests.” “They're coming at it not only as a company that sometimes files protests, but as a company that wins awards and has ...

Senate defense policy bill would block GAO protests for task orders

Jay Carey is quoted in an Inside Defense article regarding the defense policy bill approved by the Senate Armed Services Committee which would block GAO protests for task orders. According to Carey, if the bill is passed, it would mean that there is "no effective oversight of task order awards -- which are now a huge part of the procurement process." He ...

Senate Defense Bid Protest Provision Concerns Contractors

Jay Carey is quoted in a Federal Contracts Report article regarding contractor concerns sparked by the Senate version of the National Defense Authorization Act (NDAA), which includes a “loser-pays” provision in bid protests. “I think contractors should be quite concerned” with the Senate version of the NDAA as it now stands, says Carey. “Protests are a critical ...

Final FAR Cyber Rule Issued on Safeguarding of Contractor Systems

Today, the Department of Defense (DoD), General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) issued a Final Rule to add a new subpart and contract clause (52.204-21) to the Federal Acquisition Regulation (FAR) “for the basic safeguarding of contractor information systems that process, store, or transmit Federal ...

Thornberry predicts NDAA debate on contractor protest process

Jay Carey is quoted in this Inside Defense article discussing House Armed Services Committee Chairman Mac Thornberry’s expectation that lawmakers will debate proposals to reform the way defense contractors protest losing bids. Carey, disagreeing with Thornberry’s view, says it is inaccurate to characterize contractor protests as being out of control. “Some folks ...

Non-TAA-Compliant Covered Drugs Must be Offered to the VA in the Coming Weeks

The United States Department of Veterans Affairs (“VA”) recently announced a significant change in policy that will allow it to purchase drug products that were previously unavailable due to the Trade Agreements Act (“TAA”) because they were manufactured in countries with whom the United States does not have a procurement agreement in place. The VA has issued a ...

SCOTUS to hear biggest False Claims Act case in more than 30 years

Peter Hutt II is quoted in this Modern Healthcare article discussing the upcoming oral arguments at the Supreme Court in Universal Health Services v. United States ex. rel. Escobar. Hutt argues it is the biggest False Claims Act case to be weighed by the Supreme Court in more than 30 years, and the case would be the "polestar" for any future decisions from ...

Industry Mergers: DoD in Uphill Fight Against Market Forces

Scott Freling is quoted in this National Defense article exploring the DOJ and FTC joint statement on preserving competition in the defense industry. According to Freling, the interagency truce should “provide some comfort” to defense contractors that mergers and acquisitions can go forward, albeit “under the right circumstances.” Brown adds, the statement ...

Bias Allegations Require Agency Depositions, COFC Concludes

Scott Freling is quoted in a Federal Contracts Report article regarding a recent COFC ruling that allowed Starry, an IT firm challenging solicitation cancellation, to depose HHS officials due to an alleged bias. According to Freling, allegations of bias often fail to gain traction during bid protest litigation because it is difficult to allege sufficient ...

Defense experts endorse protest process, but lament unintended consequences

Jay Carey is quoted in this InsideDefense.com article focusing on the need for the bid protest process and its unintended consequences. Carey, backing the need for greater information throughout the whole process said, "If agencies can share more info in a debriefing, I think that will lower the protest rate." He also added that the government can improve the ...

Attorney: Statistics Counter Arguments There Are Too Many Protests

Jay Carey is quoted extensively in this BNA Federal Contracts Report article discussing bid protest rates. At a panel discussion hosted by the Center for Strategic and International Studies, Carey shared that bid protest rates are increasing but are still low by historical standards. Speaking to BNA, Carey says, “I think people tend to focus on the increase in ...

Leading Government Contracts Lawyer Joins Covington

WASHINGTON, DC - Peter Hutt II has joined Covington as a partner in the Government Contracts practice. “Further enhancing Covington’s standing within the defense community as a leader in the False Claims Act and government cost accounting standards fields remains a key priority for the firm,” said Jennifer Plitsch, co-chair of the firm’s Government Contracts ...

After Doubling in Size, Covington’s Government Contracts Practice Is Still Growing

Peter Hutt II and Fred Levy are quoted in this Bloomberg BNA “Big Law Business” article discussing Covington’s growing government contracts practice. Hutt, who has watched the firm’s growth from a distance before joining recently says, “It was an eye opener to everyone in the government contracts space.” Levy, who joined last year, adds, “There continues to be a ...

Covington Earns Six Law360 “Practice Group of the Year” Awards

WASHINGTON, DC - Law360 has named six Covington practice groups among its “Practice Groups of the Year.” The practice groups recognized by Law360 are as follows: Government Contracts Insurance International Trade Life Sciences Product Liability Sports

House, Senate Energy Policy Bills Include Provisions to Boost Performance Contracting

Scott Freling is quoted in a Bloomberg BNA article discussing House and Senate energy policy bills with provisions intended to boost performance contracting and make the government more energy efficient. Ganderson argues that even though some of the energy savings performance contracts (ESPCs) provisions were eliminated, congressional deliberations on ...

Four Covington Partners Named Law360 MVPs

WASHINGTON, DC, November 25, 2015 - Law360 has named four Covington partners as MVPs in their respective practice areas. The awards single out lawyers from across 31 practice areas based on their success in high-stakes litigation, record-breaking deals, and complex global matters. The Covington lawyers recognized as Law360 MVPs are: Ray Biagini, ...

Defense Leaders to Discuss Next Steps in Private Sector Outreach

Peter Lichtenbaum is quoted in this National Defense Magazine blog post discussing the push by the Pentagon to attract innovative technology firms and to create new business relationships with the commercial tech sector. Although conversations between government officials and tech leaders are occurring, there are some doubts about the future success of these ...

Leading Government Contracts Group Joins Covington

WASHINGTON, DC, May 1, 2015 — Covington is significantly expanding its government contracts practice with 20 lawyers from one of the nation’s top government contracts groups, including its former chair and leaders in contractor tort liability, bid protests, procurement fraud, trade secrets and employment. The group of five partners and 15 other lawyers from ...

Covington’s Scott Freling Named “Rising Star”

WASHINGTON, DC, April 8, 2015 — Law360 has named Covington & Burling’s Scott Freling a recipient of its “Rising Star” award in the government contracts category. The award honors lawyers under the age of 40 whose “legal accomplishments belie their age.” In its profile of Mr. Freling, Law360 wrote that he is “one of today’s go-to experts in the mergers and ...

Government contractors increasingly eye insurance to transfer cyber risks

Covington's David Fagan and Marialuisa Gallozzi are quoted in this article regarding a symposium co-hosted by Covington & Burling and George Washington University's Cybersecurity Initiative titled "Cybersecurity for Government Contractors." "That is the bubble that we're sitting on at this moment," said Covington and Burling insurance attorney Marialuisa ...

Morning Cybersecurity

Michael Chertoff is quoted regarding a symposium co-hosted by Covington & Burling and George Washington University's Cybersecurity Initiative titled "Cybersecurity for Government Contractors." "Information sharing between the government and private sector shouldn’t just be about swapping threat signatures or intelligence, former DHS Secretary Michael Chertoff ...

Inside The Proposed DFARS Business Systems Rule

Susan Cassidy, Scott Freling and Kayleigh Scalzo have co-authored this article about the U.S. Department of Defense issuing a proposed rule to amend the Defense Federal Acquisition Regulation Supplement (“DFARS”) in order to improve the efficiency and effectiveness of auditing contractors’ accounting systems, estimating systems, and material management and ...

How a Civil War-era law could cost government contractors millions

Covington partner Susan Cassidy is quoted regarding a recent court decision by the Fourth Circuit that is set to change how much contractors who mislead the government face in potential penalties. "That potential windfall acts as a strong incentive for people to file suits on behalf of the government, said Susan Cassidy, a partner at law firm Covington & ...

Contractors Vulnerable to Growing Number of ‘False Claims’ Suits

Susan Cassidy and Mike Wagner authored this article on the increase of "false claims" suits. Under a recent court decision by the Fourth Circuit, a federal government contractor may suddenly find itself facing potentially massive liability based solely on the number of invoices submitted in previous years, even if every one of those invoices was entirely ...

4th Circ. Per-Invoice Rule: Warnings For Gov't Contractors

Susan Cassidy and Mike Wagner write on the False Claims Act in this article for Law360: "For the past four years, FCA enforcement has focused most heavily on the health care industry, recovering more than $2 billion a year in cases involving health care fraud. This article discusses a recent FCA ruling by the Fourth Circuit that, if allowed to stand, could ...

Susan Cassidy Joins Covington’s Expanding Government Contracts Practice

WASHINGTON, DC, July 2, 2012 — Covington & Burling is bolstering its government contracts practice by adding Susan Cassidy as a partner in its Washington, D.C. office. This marks Covington’s second high-profile addition to its government contracts practice in recent months and underscores the firm’s strong commitment to expand in this area of law. Robert Nichols ...

Covington Advises University on Creation of Bioinformatics Database

SAN FRANCISCO, May 2, 2012 — Covington & Burling LLP advised the University of California, Santa Cruz on the creation of a national, federally-financed bioinformatics database. The database will serve as a secure repository for storing, cataloging, and accessing cancer genome sequences, alignments, and mutation information from leading cancer-related projects ...

Covington Advises Thomson Reuters In $1.25 Billion Sale of its Healthcare Business

NEW YORK, April 23, 2012 — Covington & Burling represented Thomson Reuters in a definitive agreement to sell its Healthcare business to an affiliate of Veritas Capital for $1.25 billion in cash. The sale, expected to close in the next few months, is subject to regulatory approval and customary closing conditions, including the expiration or termination of ...

Washington Business Journal Recognizes Four Covington Partners

WASHINGTON, DC, September 18, 2009 — Four Covington & Burling LLP partners were recognized at the Washington Business Journal’s “2009 Top Washington Lawyers” awards gala held last night at The Fairmont Washington. Tony Herman, who chairs the firm’s public service committee, was named the “Top Washington Lawyer” in the pro bono category. Paul Schmidt, a ...

Covington Advises Snow Phipps on Acquisition of ITSolutions

NEW YORK, NY, July 16, 2009 — Snow Phipps Group, LLC, a private equity firm, announced on July 7 that it had completed the acquisition of ITS Holding Company (ITSolutions), a leading information technology services provider to US government civilian, national security, and intelligence agencies, along with Mr. Stefan Lalos, co-founder and CEO of ITSolutions. ...

Covington Announces Four New Counsel

WASHINGTON, DC, April 7, 2009 — Covington & Burling LLP is pleased to announce the promotion of four lawyers to of counsels and special counsels. The new of counsels are as follows: Heather Haberl represents local, regional, and national owners, developers, property managers, tax-exempt organizations, and other users in all aspects of real estate ...

Covington Advises Intercell in Acquisition of Iomai Corporation

WASHINGTON, DC, August 7, 2008 — On August 5, Intercell AG completed its acquisition of Iomai Corporation (now known as Intercell USA, Inc.) in a deal that will create a leading traveler’s vaccine portfolio. Covington & Burling LLP advised Intercell on the transaction. Intercell is a growing biotechnology company which focuses on the design and development of ...

Covington advises Novartis Vaccines on New Flu Cell Culture Facility Intended to Produce Vaccine for Influenza Including Avian or "Bird" Flu

WASHINGTON, D.C., July 25, 2006 - Covington advised Novartis Vaccines and Diagnostics, Inc. (successor to Chiron Corporation) in its plans to locate, construct and operate a cell culture-derived influenza vaccines manufacturing facility in Holly Springs, North Carolina. The facility, slated to be the first of its kind in the United States, should ...

Administrative Appeal Board Reverses Medicaid Disallowances Totaling $980 Million

WASHINGTON, D.C., July 15, 2005 - Five States, represented by Covington & Burling, have prevailed before the Departmental Appeals Board of the United States Department of Health & Human Services (the "Board") in their appeals of Medicaid disallowances. In a decision issued on June 24, the Board reversed disallowances of federal Medicaid funding totaling over ...

Covington & Burling Announces Five New Partners

WASHINGTON, D.C., September 30, 2004 - Covington & Burling announced the election of five new partners, effective October 1. Stuart C. Stock, chair of the firm's management committee, commented: "These fine lawyers very much reflect the strength, excellence, and diversity of the firm." Covington's newest partners and their backgrounds are as follows: Robert ...

Covington Represents Decision Systems Technologies, Inc. in its Sale to STG, Inc.

October 3, 2002 - WASHINGTON, D.C. - Covington & Burling represented privately-held Decision Systems Technologies, Inc. (DSTI), of Rockville, Maryland, an information technology, engineering, and science solutions provider to federal government clients, in its sale to STG, Inc., an information technology, engineering and professional services firm also serving ...

Covington Represents Aegis Research Corporation in Its Sale to ManTech International Corporation

August 5, 2002 - WASHINGTON, D.C. - Covington & Burling represented privately-held Aegis Research Corporation, of Falls Church, Virginia, a leading provider of secrecy, security, intelligence, counterintelligence, computer forensics, intrusion analysis and other enterprise protection strategies and technical services to the national security community, in its ...

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Covington Assists Veritas Capital with $5 Billion Acquisition of DXC’s Health and Human Services Business

Government Contracts

Representative Matters

Vencore and KeyPoint’s Combination to Form Perspecta

Six-Year Dispute with DOJ Ends with Declination

$1 Billion Breach-of-Contract Recovery

Cutting-edge cost allowability victory

Protection of IP rights for pharmaceutical companies

Obtained SAFETY Act protection for anti-terror products and services

Inverted domestic corporations

International procurement capacity building

Largest Suspension and Investigation in USAID's History

Lindsay Goldberg's transformation of PAE

$44 Million Breach-of-Contract Recovery for KBR

Dismissal of Allegations Related to Security Contract

Dismissal of Multidistrict Litigation Alleging Contractor Negligence Inside Overseas War Zones

Veritas Capital’s Acquisition of Peraton

Honeywell’s Sale of HTSI to KBR

Magellan’s Acquisition of AFSC

Tower Three’s Acquisition of NTS

Snow Phipps’ Creation of Acentia

Pohlad Family’s Acquisition of PaR Systems

Successfully Defended $50 Million Sole-Source Award by Air Force

Advising on domestic sourcing compliance under subgrants and state and local agreements

Arms Export Control Act - third party beneficiary claims

Assisting clients with VA Schedule contracts involving medical equipment and pharmaceuticals

Assisting with cost classification determinations and implementation of subaward negotiation requirements

Assisting with review and overhaul of FSS pricing model

Alion's Sale of Naval Systems Unit to Serco

$500 million in recoveries for oil and gas companies

Declination in Investigation into Alleged Small Business Fraud

Advice regarding bid and proposal costs

Advising clients in complex transactional work with life sciences portfolios involving government contracts

Advised client of risk mitigation techniques during contract formation

Advising clients on pricing and contracting under Veteran’s Health Care Act programs, including VA FSS, 340B, and Tricare

Advising clients regarding anti-human trafficking compliance

Advising clients on the negotiation and performance of contracts with the Biomedical Advanced Research and Development Authority, the Defense Threat Reduction Agency, and the National Institutes of Health

Advice regarding shared employee and facility costs during M&A process

Successfully Represented Communications Manufacturer in Proposed Debarment Before GSA

Won Lawsuit Challenging GSA Debarment of Tech Entrepreneur

Case of first impression arising from an FMS contract

Compliance with DBE requirements

CRADA with Air Force Research Laboratory

CRADA advice for a consumer products company

CRADA with the Department of Defense

CVG Sale

Cybersecurity FCA Victory for a Services Contractor

Addressing Regulatory Enforcement Actions

Dismissal of personal injury case involving military personnel

Dismissal of wartime wrongful death claims brought by contractor employees

Dismissal of wrongful death case based on government contractor defense

Ensuring compliance with sourcing restrictions

DOE grant to support clean energy

Eight-Year FCA Investigation Ends with Declination

Financing of a cleared contractor

Financing of foreign military sales

HAECO's Acquisition of TIMCO Aviation

Peraton's Acquisition of Solers

Los Alamos investigation

Minority business enterprise subcontracting

Navigating FMS and FMF processes

Navigated foreign legal requirements for international contractors

Navigation of issues specific to CMS Recovery Audit Contracting

Navigation of multiple issues related to healthcare.gov

Navigation of Organizational Conflicts of Interest

Negotiated cooperative research and development agreements (CRADAs)

Negotiation and vetting of state contracts for healthcare exchanges and MMIS

New York state protest victory

North Carolina protest victory

Privatization of municipal assets

Procurement advice and protests in states across the country

Protection of Client IP Rights

Renegotiated government IP agreements

Resolved hotly-contested completion disputes of U.S. Embassy in Baghdad

Resolved claims arising from the incarceration of U.S. contractor for espionage

Covington Named a 2019
Government Contracts Practice Group of the Year

Covington Assists Veritas Capital with $5 Billion Acquisition
of DXC’s Health and Human Services Business