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    Global Problem Solving from Covington: Deal with Complex Problems Anywhere in the World

    • Apr 08, 2021

Alan A. Pemberton

Senior Counsel

Washington +1 202 662 5642

  • About
  • Representative Matters
  • Credentials
  • About

    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.

    Areas of Expertise

  • Practices and Industries
  • Representative Matters
    • 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.

    Areas of Expertise

  • Credentials
    Education
    • University of Michigan Law School, J.D., 1981
        • cum laude
    • University of Michigan, M.A., 1978
    • The University of Chicago, B.A., 1974
        •   with honors
    Bar Admissions
    • District of Columbia
    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.
    Accolades
    • 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
    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

    Areas of Expertise

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