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Alan Pemberton has practiced in the government contracts area since 1982, and chaired or co-chaired Covington’s government contracts practice from 2000 to 2016. His practice includes the full range of government contracts matters, including bid protest and other procurement litigation before GAO, agency boards, and federal and state courts and ADR tribunals. He advises large and small contractors and grantees about the full range of government proposal, performance, compliance, regulatory, suspension and debarment, transactional and legislative issues. He also directs the firm’s pro bono program as co-chair of the Public Service Committee.
- SBA Size Determination. We took over an 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.
- CRADA with Research Laboratory. Representing an aerospace technology company in its negotiation and performance of a Cooperative Research and Development Agreement (CRADA) with the Air Force Research Laboratory for the testing and validation of privately developed propulsion technology. Addressing key intellectual property protection issues.
- 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.
- Inverted domestic corporations. We have advised several clients concerning the statutory ban on federal contracting with “inverted domestic corporations.” Our advice has enabled these clients to arrange their business structures and operations so as to maintain contracting opportunities to the maximum extent possible.
- Minority business enterprise subcontracting. We defended a major supplier to transit authorities funded by the Federal Transit Administration against allegations that it was subcontracting with ineligible Minority Business Enterprises (MBEs), thus enabling our client to continue supplying the transit authorities of several major metropolitan areas.
- Defending a local contracting authority in a construction litigation. Represented municipal government agency in construction disputes concerning construction at municipal convention center and at municipally owned professional baseball stadium. We employed creative alternative dispute resolution methods in both cases that led to money-saving results for our client.
- 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 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.
- BAA and TAA compliance counseling. Assisted major suppliers of office and aeronautics equipment to navigate the Buy American and Trade Agreements Acts, ensuring that the clients’ products are domestic end products, qualifying country end products, designated country end products or U.S.-made end products eligible for sale to the U.S. government.
- CRADA advice for a consumer products company. Advised Fortune 50 consumer products company about its rights and obligations under a Cooperative Research and Development Agreement with a Department of Energy weapons lab.
- Ensuring compliance with sourcing restrictions. Counseled our client, a construction material supplier, in connection with a state government construction project partially funded by federal grant funds, and persuaded prime contractor to accept Mexican-sourced construction material consistent with applicable federal grant restrictions.
- New York state protest victory. Brought bid protests in New York State administrative and judicial forums concerning redevelopment of municipal hospital property. Obtained an opportunity for our client to become the selected awardee after the procuring agency initially selected two other awardees.
- Advice regarding bid and proposal costs. Advised our client regarding the circumstances in which bid and proposal costs may be claimed as reimbursable costs under a USAID contract, despite agency directive purporting to make virtually all such costs unallowable.
Pro Bono
- Has for many years been active in prisoners' rights and other civil rights matters. He is currently plaintiffs’ counsel in Jerry M. v. District of Columbia, a class action seeking to reform the city’s juvenile justice system. He supervises firm lawyers serving in our Bread for the City rotation program.
Memberships and Affiliations
- Georgetown University Law Center (constitutional law), Adjunct Professor of Law
- American Bar Foundation, Life Fellow
- Indigent Civil Litigation Fund, Inc., Vice President
- U.S. District Court for the District of Columbia, Committee on Pro Se Litigation, Member
May 2, 2018, BNA's Federal Contracts Report
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 ...
April 26, 2018, Inside Government Contracts
The Court of Appeals for the Fourth Circuit recently published a decision that expanded on its prior Trimble ruling that a foreign government customer cannot sue a U.S. contractor in the Foreign Military Sales (“FMS”) context (at least in U.S. courts). In BAE Sys. Tech. Solution & Servs., Inc. v. Republic of Korea’s Def. Acq....… Continue Reading The post ...
Trump's Contracting By Twitter Likely To Backfire
January 23, 2017, Law360
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 ...
Law360 Names Covington a Top “Pro Bono Firm of 2016”
September 28, 2016
WASHINGTON—Law360 named Covington & Burling to its list of “Pro Bono Firms of 2016,” recognizing the firm’s work in providing legal services to those in need. Law360 highlighted Covington victories on behalf of Guatemalan forest workers on work visas who were defrauded by a labor trafficker, victims of an Arizona sheriff’s racial profiling, Guantanamo Bay ...
September 23, 2016, Inside Government Contracts
The Fourth Circuit recently held, in an unpublished opinion, that the anti-retaliation or “whistleblower” provisions of the False Claims Act (“FCA”) protect an individual’s efforts to stop a contractor from violating the FCA, even when there is no “distinct possibility” of litigation. This “distinct possibility” standard was adopted prior to 2009 when the ...
Pro Bono Firm Of 2016: Covington & Burling
September 20, 2016, Law360
Law360 named Covington as a “Pro Bono Firm of 2016.” According to Alan Pemberton, the firm’s pro bono program is loosely structured to allow attorneys to take on cases they feel strongly about. Legal services are often too expensive for the people who need them most, he adds, so the firm takes addressing pro bono work seriously. “We view it as a moral and ...
The BigLaw Firms Fighting For Transgender Rights
July 11, 2016, Law360
Jeff Bozman and Alan Pemberton are quoted in a Law360 article that features Covington as a leader among law firms fighting to end discrimination against transgender men and women. Bozman, commenting on Covington’s work with the ACLU to end the military ban on transgender people serving openly says, “What we were able to do was bring a lot of the Covington ...
April 15, 2016, Inside Government Contracts
IT-acquisition reform remains an area of ongoing concern for Federal agencies and government contractors. Indeed, as we previously discussed, the GAO has added IT Acquisitions and Operations to its bi-annual list of programs it identifies as posing a high risk for fraud, waste, abuse, and mismanagement. Strengthened by Congress’ passage in December 2014 of ...
February 18, 2016, Inside Government Contracts
On February 17, 2016, the FAR Council proposed a rule that would add a new category of unallowable costs to FAR Part 31 — costs of responding to an inquiry by Congress, if that inquiry results from a judicial or administrative proceeding in which the contractor is found criminally liable, found liable for civil fraud,...… Continue Reading The post FAR Council ...
August 10, 2015, Inside Government Contracts
Congress is currently considering a bill that if enacted would require “major rules” to receive approval from both the House of Representatives and the Senate before going into effect. The bill defines major rules using current standards—which, among other categories, cover rules that have or are likely to have an annual economic impact of $100...… Continue ...
July 24, 2015, Inside Government Contracts
The key word is “suffer.” Government contractors already face painful compliance burdens associated with the Fair Pay and Safe Workplaces Executive Order, the proposed implementing regulations, and the Labor Department’s “Guidance” amplifying the proposed regulations. Last week, the Department added another layer of complexity when it issued an Administrator’s ...
July 17, 2015, Inside Government Contracts
The private sector is likely to produce critical cyber innovations—at least, that is what the U.S. Defense Advanced Research Projects Agency (“DARPA”) and the U.K. Centre for Defence Enterprise (“CDE”) would like to see. In the United States, although the internet may have been invented at DARPA, DARPA is turning to a private sector competition to protect...… ...
July 13, 2015, Inside Government Contracts
On June 26, 2015, the United States Agency for International Development (“USAID”) published a final rule extending its pilot Partner Vetting System (“PVS”) program to assistance awards and cooperative agreements. This final rule comes nearly two years after USAID issued a proposed rule applying PVS to USAID assistance and resembles USAID’s existing vetting ...
Covington Named D.C. Bar’s Pro Bono Law Firm of the Year
June 19, 2015
WASHINGTON, DC, June 19, 2015 — Covington has been named “Pro Bono Law Firm of the Year” by the District of Columbia Bar, the second-largest unified bar in the United States. “Public service is a key part of our firm culture,” said Alan Pemberton, chair of the firm’s pro bono committee. “We encourage our lawyers to participate in pro bono activities and devote ...
June 16, 2015, Inside Government Contracts
The Office of Management and Budget (“OMB”) has issued final guidance (the “Guidance”) implementing the Federal IT Acquisition Reform Act (FITARA). We have previously discussed FITARA’s requirements that seek to reform and streamline the Government’s information technology (“IT”) acquisitions, which account for approximately $80 billion in annual spending. At ...
Leading Government Contracts Group Joins Covington
May 1, 2015
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 ...
April 15, 2015, Inside Government Contracts
On April 10, the Federal Acquisition Regulatory Council issued an interim rule “amending the Federal Acquisition Regulation (FAR) to implement Executive Order (E.O. 13672) . . . and a final rule issued by the Department of Labor.” As we previously blogged, Department of Labor’s (DOL’s) final rule implements E.O. 13672 and effectively “prohibit[s] discrimination ...
April 15, 2015, InsideGovernmentContracts Blog
February 17, 2015, InsideGovernmentContracts Blog
December 12, 2014, Inside Energy & Environment
On December 4, 2014, the House passed a version of the National Defense Authorization Act for Fiscal Year 2015 (“NDAA FY 15”) which is now up for debate in the Senate. While the original House version of NDAA FY 15 contained a number of provisions relating to the procurement of biofuels, these biofuels provisions were...… Continue Reading
December 12, 2014, InsideGovernmentContracts Blog
October 23, 2014, InsideGovernmentContracts Blog
Law360 Names Covington a Top “Pro Bono Firm of 2014”
October 7, 2014
WASHINGTON, DC, October 7, 2014 — Law360 named Covington & Burling to its list of “Pro Bono Firms of 2014,” recognizing the firm’s work on some of the year's most pressing civil-rights matters. Law360 highlighted Covington’s landmark litigation efforts in Floyd v. New York City, the suit challenging the city's stop-and-frisk policing strategy, and Melendres v. ...
September 3, 2014, InsideGovernmentContracts Blog
May 30, 2014
WASHINGTON, DC, May 30, 2014 — Voices for a Second Chance, a Washington-based nonprofit organization that assists incarcerated and recently released men and women, honored Covington & Burling partners Timothy Hester and Alan Pemberton with its Charles A. Horsky Civic Leadership Award for their commitment to public service and prisoners’ rights. “This is a ...
May 9, 2014, Covington E-Alert
April 28, 2014
WASHINGTON, DC, May 1, 2014 — B’nai B’rith International, a Jewish humanitarian organization based in Washington, has recognized Covington & Burling with its 2014 Distinguished Achievement Award. Covington was selected for its commitment to philanthropy, community service and industry leadership. B’nai B’rith, founded in New York City in 1843, commended ...
January 29, 2014, Covington E-Alert
December 24, 2013, Bloomberg BNA Federal Contracts Report
November 21, 2013, Covington E-Alert
New Proposed Rules to Enhance Contractors’ Responsibilities in the Fight Against Human Trafficking
September 27, 2013, Covington E-Alert
Covington Recognized with NLADA Beacon of Justice Award
September 4, 2013
WASHINGTON, DC, September 4, 2013 — The National Legal Aid & Defender Association recognized Covington & Burling’s pro bono commitment with its 2013 Beacon of Justice award. Covington was among 17 law firms honored for providing significant pro bono representation to secure the mandate of Gideon v. Wainwright, which fifty years ago established the right to ...
Law360 Names Covington a Top “Pro Bono Firm of 2013”
9/4/2013
WASHINGTON, DC, September 4, 2013 — Law360 named Covington & Burling to its list of “Pro Bono Firms of 2013,” recognizing the firm’s success in securing high-profile victories and devoting more than 117 pro bono hours per lawyer. Law360 highlighted Covington’s wins in pro bono cases over the past year, noting the firm’s fight against government-sanctioned ...
Department of Labor Moves Forward on Affirmative Action Regarding Individuals with Disabilities
August 8, 2013, Covington Advisory
June 21, 2013, Covington E-Alert
February 12, 2013, Covington E-Alert
Law360 Names Covington a Top ‘Pro Bono Firm of 2012’
August 23, 2012
WASHINGTON, DC, August 23, 2012 — Law360 named Covington & Burling on its “Pro Bono Firms of 2012” list in recognition of the firm’s success in securing high-profile victories and devoting more than 133 pro bono hours per lawyer. Law360 highlighted Covington’s wins in pro bono cases over the past year, noting that the firm succeeded in getting two wrongly ...
July 2, 2012
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 ...
May 8, 2012, Covington E-Alert
4/23/2012
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 ...
April 16, 2012, Covington E-Alert
March 15, 2012, Covington E-Alert
January 18, 2012, Covington E-Alert
January 3, 2012, Covington E-Alert
Covington Named NLADA Beacon of Justice Awardee
December 8, 2011
WASHINGTON, DC, December 8, 2011 — The National Legal Aid & Defender Association (NLADA) has named Covington & Burling one of its 2011 Beacon of Justice awardees. The association honored 14 law firms nationwide with the award for devoting considerable resources and significantly improving the administration of justice by engaging in pro bono appellate ...
July 6, 2011, Covington E-Alert
June 15, 2011, Covington E-Alert
June 7, 2011, BNA Insights
May 31, 2011, Covington E-Alert
May 18, 2011, Covington E-Alert
April 26, 2011, BNA's Federal Contracts Report
March 7, 2011, Covington E-Alert
March 1, 2011, BNA's Federal Contracts Report
February 2, 2011, Covington E-Alert
Covington Advises CVG in Merger with Integral Systems
March 15, 2010
WASHINGTON, DC, March 15, 2010 — CVG, Incorporated (“CVG”) has announced its merger with Integral Systems, Inc. in a deal valued at $34.675 million. Covington & Burling LLP advised CVG on the transaction. CVG and its subsidiary, Avtec systems, Inc., based in Chantilly, Virginia, provide secure satellite-based communication solutions to government and commercial ...
9/18/2009
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 ...
July 16, 2009
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. ...
April 14, 2009, Covington E-Alert
April 7, 2009, Covington E-Alert
April 1, 2009, Covington E-Alert
March 25, 2009, Covington E-Alert
February 5, 2009, Covington E-Alert
December 8, 2008, Covington E-Alert
February 4, 2008, Covington E-Alert
March 29, 2007, Covington E-Alert
October 5, 2006, Covington E-Alert
Teaming Agreements and Subcontracts
August 17, 2006, National Small Business Federal Procurement Summit
- Chambers USA - America's Leading Business Lawyers, Government Contracts (2013-2018)
- Legal 500 US, Government Contracts (2016-2017)
- Washington DC Super Lawyers, Government Contracts (2013-2018)
- Who’s Who in America (2006-present)
Personal
- Winner, M60-64, 2013 Boston Marathon, Winner M55-59, 2009 Boston Marathon; National Champion, 2008 USATF Marathon Masters’ Championship, M55-59