Government Contracts

In Depth

Practical, business-focused advice in a complex, highly regulated environment

Cooley’s government contracts team operates across a range of industries – including the traditional areas of defense and civilian agency procurement (aerospace, electronics, military weapons and vehicles, shipbuilding, telecommunications, and computer hardware and software), as well as rapidly evolving disciplines, like biodefense and cybersecurity.

Equipped with industry knowledge from prior in-house counsel experience and a practical understanding of the highly regulated environment in which their clients operate, Cooley’s government contracts practitioners provide clients with actionable advice and efficient – yet highly effective – litigation services.

Cooley’s government contracts team is part of our CooleyREG offering, through which we combine an understanding of the impact of disruptive advancements – and the regulatory issues that impose risk and slow progress – to help our clients navigate an increasingly complex regulatory landscape.

Areas of practice

Routine regulatory and contract counseling on:

• Allocation of rights in intellectual property between government and contractor
• Cybersecurity requirements and data transfer restrictions applicable to contractors
• Patent rights and the Bayh-Dole Act
• Facility security clearances (FCLs), mitigation of foreign ownership, control or influence (FOCI), and related requirements of the Defense Counterintelligence and Security Agency (DCSA) and National Industrial Security Program Operating Manual (NISPOM) regulations
• Other transaction agreements (OTAs), consortia and additional nontraditional contracting approaches designed to reduce regulatory burdens and accelerate the adoption of new technology by government agencies
• The Buy American Act (BAA), Trade Agreements Act (TAA), Section 889 prohibitions on certain Chinese telecommunications and video surveillance equipment, and other country of origin and supply chain restrictions
• The meaning and practical application of Small Business Administration (SBA) size standards and eligibility requirements for small businesses, service-disabled, veteran-owned small businesses (SDVOSBs), 8(a) participants, small disadvantaged businesses (SDBs), HUBZone small businesses and women-owned small businesses (WOSBs)
• Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) program eligibility restrictions and the terms of related contracts and grants
• Prime contractor/subcontractor negotiations – including the meaning and operational effect of Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) flowdowns
• Equal employment opportunity (EEO) requirements – including affirmative action plan (AAP) guidance and implementation, related reporting obligations and risks associated with diversity, equity and inclusion (DEI) executive orders, and related representations incorporated in contracts, grants and other federal funding agreements
• Contingent fee arrangements, gifts and gratuities to government personnel, lobbying restrictions, and other business practices restricted or prohibited in the government market
• Contractor Codes of Business Ethics and Conduct, including related training

Support for M&A, financing and other strategic transactions involving government contracts:

• Before a transaction
• Identify and summarize government contracts portfolio using federal procurement data and sophisticated software tools
• Assess a seller’s government business compliance processes and anticipate – and remedy – any potential red flags
• During a transaction
• Review terms and conditions of government contracts
• Draft and negotiate related representations in purchase agreements
• Advise on deal risks unique to government contracts – including impacts related to deal structure, buyer/investor nationality, continuing performance of small business set-aside contracts, facility security clearances and FOCI mitigation
• Coordinate and work closely with Cooley’s CFIUS (Committee on Foreign Investment in the United States) and international trade colleagues in an integrated approach to national security regulatory implications of proposed transactions
• After a transaction
• Advise on and assist with assembling contract novation requests, changed conditions packages, updates to federal database registrations and re-representations of size status
• Assist with post-closing integration and compliance process enhancement

Internal investigations, bid protests, contract disputes and whistleblower/qui tam defense:

• Investigate potential failures to comply with government contract obligations, counsel clients regarding application of the mandatory disclosure rule, draft disclosures to agency Offices of Inspector General (OIGs), and represent clients in suspension and debarment proceedings
• Represent clients as protester and intervenor in bid protests at the Government Accountability Office (GAO), the Court of Federal Claims, agency-specific forums and state government offices
• Advise clients in contract claims and disputes
• Counsel clients regarding whistleblower claims – including qui tam actions filed under the False Claims Act (FCA) and retaliation claims filed under the federal Sarbanes-Oxley Act (SOX)