Our Construction & Design attorneys handle a full range of issues involving public construction projects, from pre-award advice and counsel through post-construction claims and dispute resolution, for prime contractors, subcontractors, suppliers and sureties. With the decreasing number of private projects available, we have recently been called upon to assist clients seeking to enter the public contracting marketplace. In addition to advising clients on the rules governing federal government contractors, from registration through the unique accounting requirements imposed, we also provide counsel on matters of corporate organization and compliance-related obligations; small business, MBE and DBE issues; as well as teaming agreements, joint venture agreements and the like.
We routinely provide public construction advice on the following:
Pre-Award Issues
Our Construction & Design attorneys assist contractors during preparation of their bids and frequently advise them on the unique aspects of federal construction clauses. We are often called upon to guide them on issues related to procurement irregularities, represent them in the filing of bid protests when they are not the awardee, and intervene on their behalf in defending against protests when they are the low responsive, responsible bidders. Given the increased competition for federal projects, assisting clients in the procurement of new work is a fundamental part of our pre-award representation.
Contract Performance Issues
Once an award is secured, we often take on the role of project counsel, and advise clients on key issues during the project’s performance phase. We assist clients in the preservation of their rights by providing timely notice of changes and differing site conditions, as well as responding to cure notices and threatened terminations. We frequently work with our clients' project team to develop and price change order requests and Requests for Equitable Adjustments. We analyze the schedule impact of delays in the performance of the work, develop the factual underpinnings and pricing impacts to anticipated productivity to discrete disciplines of work activities, and mitigate the adverse impacts associated with scope changes, alterations in the sequencing of activities and other issues affecting performance. When these change order requests cannot be resolved at a jobsite level, we counsel the contractor's management team on the preservation of rights. This may include requesting final decisions of the Contracting Officer, filing Notices of Appeal at the Civilian or Armed Services Boards of Contract Appeals, or filing complaints at the U.S. Court of Federal Claims. Our Washington, D.C. office is in close proximity to these available forums.
Compliance Issues
From time to time, our clients have been placed on the federal government's Excluded Parties List (EPLS). Our attorneys are experienced in dealing with government agencies and negotiating the terms of Administrative Compliance Agreements (ACA) to get our clients off EPLS and back to work in the federal marketplace. Typically we remain involved with our clients through the implementation phase of these ACAs and have conducted extensive training on a wide range of topics to ensure continual compliance with federal procurement regulations. In so doing, we enable our clients to not only continue working in the federal marketplace, but also to become better federal contractors, thereby enhancing their profitability in this aspect of their business.
Suspension, Debarment and False Claims Issues
We have successfully represented our contractor clients against government efforts to suspend and/or debar them. We are skilled in dealing with issues surrounding the government's allegations of false claims. Often these issues arise in the context of a civil monetary dispute, but occasionally there are possible criminal ramifications to the government’s allegations. We work closely with our Government Compliance, Investigations & Litigation group to ensure comprehensive coverage of False Claims Act issues from all aspects of our client's business.
Contract Termination Issues
When appropriate, we have represented contractors in challenging the propriety of default terminations and have experience trying such cases. We are well-versed in analyzing the relevant issues relied upon by the government in support of its termination decision and preparing the contractor's case against the government's termination action. Our attorneys are also experienced in the preparation of termination for convenience claims and quantifying the contractor's damages resulting from the government’s wrongful default termination.
Claims and Disputes
Many construction projects end up late and/or over budget. Our attorneys frequently represent contractors in the preparation of claims for additional compensation and for time extensions. We are often called upon to analyze the nature of the cost overruns and develop the factual underpinnings in support of the contractor's claim for additional compensation. Because our attorneys practice in this area full-time, we are very familiar with the manner in which contractors track costs through their accounting systems and are able to efficiently analyze cost overruns and the likely bases therefore. Similarly, we are very comfortable with all forms of project scheduling software and are adept at analyzing schedule slippage and focusing on the likely causes for slippage in the contractor's schedule. This expertise allows us to efficiently and cost-effectively test theories of delay and provide our clients with early evaluation of the merits underlying a potential claim. This early accurate assessment approach enables us to provide clients with the information they need to develop the appropriate strategy before costs become a variable influencing a particular course of action.
When disputes cannot be resolved at a project and/or senior management level, we frequently represent general contractors through the dispute resolution phase. We have extensive experience in all facets of ADR and litigation, including mediations, mini-trials, and a wide array of structured settlement meetings. We are well-versed in representing contractors before dispute review panels, both in hearings as well as behind the scenes in principle-only proceedings. We have also tried numerous cases at the Boards of Contract Appeals and the U.S. Court of Federal Claims and argued appeals before the District of Columbia Court of Appeals.
State Contract and Local Government Issues
In addition to our experience on federal construction projects, our attorneys have similarly broad experience at the state and local level. We routinely handle issues ranging from bid protests at the pre-award stage to comprehensive claim litigation in the post-completion stage in a wide array of jurisdictions from coast to coast, both in state and federal court, as well as before numerous administrative tribunals.
Our experience also reaches the representation of owners on public projects. On the federal side, these projects are usually on behalf of quasi-governmental agencies and authorities (such as local airport authorities) or federally funded organizations (e.g. DOE-funded laboratories). However, on the state and local level, more frequently the involved agency will not have the need for dedicated professionals in discrete disciplines like construction law. As such, they are more likely to hire outside counsel to assist in their procurement-related legal needs. Our extensive work on behalf of public contractors helps make our representation of public owners more efficient and effective. Conversely, our work with owners helps us advise our contractor clients on what is most likely to have the best chance of resonating with the owner.