Opportunities and Challenges for Government Contractors
The current climate for companies doing business with the United States government is anything but clear. The government’s massive investment of funds in Iraq and Afghanistan, and to a lesser extent in post-Katrina reconstruction, is expected to continue generating a multitude of new government actions against contractors involved in those efforts. News media have alluded to a backlog of cases alleging fraud yet to be made public. New additions to the Federal Acquisition Reform Act that require contractors to report violations of the civil False Claims Act and certain criminal statues are also creating uncertainty, as contractors labor to decipher the regulations. Finally, the Administration’s emphasis on shovel-ready projects, coupled with the recently announced focus on issuing guidance designed to reduce fraud and minimize no-bid contracts, has resulted in an environment characterized by both opportunities and challenges for government contractors.
Go-to Counsel for Government Contracts Litigation and ADR
Miller & Chevalier’s government contracts practice features proven litigators with a deep understanding of the disputes that can arise in doing business with the government. We are equally skilled in methods of alternative dispute resolution (ADR), including arbitrations and mini-trials. Whether litigation is being contemplated or pursued, we are alert to the opportunities for favorable settlement, as well as mechanisms to avoid protracted disputes. We have an enviable track record achieving favorable results for our clients in the venues in which government contract controversies are heard -- the federal and state district courts, the United States Court of Federal Claims, the Boards of Contract Appeals, and the U.S. Government Accountability Office (GAO) -- and have significant experience handling parallel civil and criminal proceedings. The practice also features lawyers with valuable experience gained while serving in a variety of positions in the government.
For more than four decades, Miller & Chevalier has counseled and represented a broad range of government contractors in the full spectrum of government contract disputes. These include criminal investigations, False Claims Act, and other civil fraud actions; government audits, suspension, and disbarment proceedings; bid protests; claims and requests for equitable adjustments; and issues related to the Foreign Corrupt Practices Act (FCPA). We also have extensive experience handling disputes arising from subcontracts and teaming agreements.
Fraud and False Claims
Miller & Chevalier has long been a leader in defending False Claims Act matters, including qui tam (“whistleblower”) and government-initiated actions. False claims litigation has increased exponentially since the 1986 amendments to the False Claims Act, as have the qui tam actions to which the amendments gave rise. The consequences for companies violating the Act can be very significant: treble damages in addition to civil penalties for each violation.
We have litigated cases involving virtually every major issue that has arisen under the Civil False Claims Act -- dozens of cases in the past several years alone -- and have achieved dismissal or a successful settlement in every case. Many of these cases have included parallel civil and criminal investigations. We have successfully defended actions involving a wide range of allegations, including failure to comply with quality assurance requirements, cost mischarging, fraudulent inducement, defective pricing, obstruction of federal audits, product substitution, provider overpayments, false certifications, improper gratuities, bribery, kickbacks, and conflicts of interest. We also have experience with cases involving foreign military sales. In addition, we have been asked to file amicus briefs in federal district courts and courts of appeals, as well as in the United States Supreme Court, in many precedent-setting cases.
Miller & Chevalier has counseled and represented a broad range of government contractors in every phase of criminal procurement fraud and False Claims Act investigations and litigation. We have experience with Inspector General inquiries, government audits, grand jury proceedings, suspension and debarment proceedings, global settlements, trials, and appellate proceedings. Indeed, the firm’s depth and capacity in defending criminal and civil fraud cases from inception through trial enables us not only to spot and develop innovative litigation strategies, but also to isolate, identify, and investigate the relevant issues in a procurement fraud case quickly and efficiently -- always with an eye to bringing these often complex and potentially costly matters to an early and favorable resolution.
Investigations and Compliance
Miller & Chevalier has recognized experience in investigations and fact-gathering around the globe. Our lawyers have designed, coordinated, and conducted internal investigations for a wide range of clients in connection with government actions, as well as assisted clients in establishing procedures to ensure compliance with applicable laws and government regulations. Because we recognize that companies doing business with government agencies have interests beyond current problems, we work closely with company counsel and internal auditors to improve compliance and establish procedures to mitigate risk and avoid problems in the future. Having an effective compliance program and system of internal controls is particularly important in light of the recently-enacted regulations mandating that at least certain federal contractors maintain such programs and specifying in detail what provisions they should include.
Our lawyers have prepared, negotiated, and litigated claims for equitable adjustments to help our clients recover costs. We recognize that an effective claim minimizes the potential for litigation, which most often is brought against a customer with whom the client may want to continue doing business. We also have litigated claims that involve breaches of contract, cost allowability and allocation, and audit disputes. Always, when litigation is the best option for our clients, our objective is to achieve the maximum recovery as promptly as possible.
Suspension and Debarment
For companies that do significant business with the government, suspension and debarment is a catastrophic occurrence. Miller & Chevalier has defended numerous individuals and companies threatened with potential exclusion from government business. Our lawyers have substantial experience dealing with the many regulations and proceedings attending suspension and debarment and with negotiating debarment agreements. We also advise clients on creating or improving ethics and compliance programs to help them avoid future risk.
Our Government Contracts Litigation team is experienced in counseling clients challenging contract awards before the Government Accountability Office, the Court of Federal Claims, federal administrative agencies, and in appeals before the Federal Circuit, as well as before state procurement agencies. We have handled protests covering a wide range of procurements for goods and services.
Intellectual Property Issues
Intellectual property rights in the area of government contracts have become increasingly important as a result of statutory and regulatory developments that involve IP interests, such as the Clinger-Cohen Act and the Federal Acquisition Streamlining Act. Our Government Contracts Litigation team handles disputes that arise over IP in government contracts. These include technical data rights and the allocation of patent and software rights.
Foreign Corrupt Practices Act
The Foreign Corrupt Practices Act (FCPA) has become one of the most important laws for companies doing business internationally. For government contractors, an allegation of corruption under the FCPA can lead to a ban on doing business with the government. Miller & Chevalier is widely recognized as having one of the preeminent FCPA practices in the United States. For more than 20 years, we have advised U.S. and foreign-based businesses and individuals in every aspect of anti-corruption and FCPA issues. Although litigation of FCPA issues is uncommon, we have represented clients in litigation that presented FCPA or corruption issues, both in the U.S. and in international arbitration.
Export Controls and Sanctions
We have handled complex enforcement matters, including criminal investigations and criminal defense charges; helped clients shape voluntary disclosures under the export control regulations; and negotiated favorable settlements of criminal and administrative charges.