In a nutshell
Government contracts lawyers “don't just sit at their desks reviewing contracts,” says Richard Rector, chair of DLA Piper's government contracts practice. “Actually, what we do involves a broad range of legal skills, as over half of what we do is litigation.” Bid protests form the bulk of contentious work, along with disputes involving costs recovery or performance problems; lawyers also defend contractors accused of fraud or other misconduct. In addition, attorneys here help contractors to navigate the regulations and special rules tied to providing goods and services to federal government. Advising on subcontracts, scheduling and organizational conflicts are all common activities too.
“Law firms that lobby are not selling access, they are selling skills,” says Nick Allard, professor of law at Brooklyn Law School and former chair of Squire Patton Boggs’ lobbying, political and election law practice. “They are litigators serving as advocates in a broader array of arenas.” More specifically, government relations lawyers directly lobby the federal and state government on behalf of a variety of businesses – including healthcare, education and defense entities – on specific legislation or ongoing issues. They promote or oppose new initiatives to congress or the administration; attempt to persuade government to amend legislation; and try to convince courts to reinterpret laws. “You get exposed to a wide range of industries,” says Richard Rector, “and so it never gets boring.”
Political law specialists advise on the organization and financing of election campaigns, which includes assisting corporations and other groups with election-related activities. On the litigation side, they help to challenge decisions made by electoral authorities, such as the Federal Election Commission.
“Law firms who lobby are not selling access, they are selling skills.”
What lawyers do
Keeping up with the government maelstrom has been a full time job of late. For businesses to navigate and change the laws and regulations which govern their activities, they are in need of some prodigious legal expertise. Akin Gump is one firm which provides exactly that.
- Virtually every government agency procures external services, but the Department of Defense is far and away the largest consumer. Other major areas are aerospace, construction, healthcare, homeland security, education and IT.
- When external services or goods are required, the government will issue a procurement solicitation (or ‘Request for Proposal’). The process of procurement and contracting is run by a government official called the contracting officer.
- Lawyers help guide potential contractors through the solicitation procedures: pointing out the key risk issues; how the evaluation factors will influence the selection decision; and how this contract differs from previous ones. However, they do not advise clients on how to obtain a contract or how to market themselves.
- Rand Allen of Wiley Rein says: “We advise a lot of companies on how to get into the government contracts arena without creating undue compliance risk, for instance by qualifying for a status which will minimize the intrusiveness of government in their business.”
- Government contracts tend to use 'boilerplates' or standardized terms and conditions. In contrast to a commercial setting, there isn't as much room to negotiate the requirements that form part of the contract. Lawyers also negotiate subcontracts and teaming agreements between contractors.
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After the formation of the contract, lawyers act for both plaintiffs (the disappointed bidders) and defendants (the awardees) during bid protests. A typical bid protest challenges the award of a contract at an administrative forum: the US Government Accountability Office (GAO) or the US Court of Federal Claims (CFC). These cases are usually resolved over three months, which means associates don’t get bogged down by document review for prolonged periods. The GAO is required by statute to issue a ruling within 100 days. Plaintiffs have ten days to put together protest documents, and government agencies have 30 days to respond. CFC proceedings take about the same time, sometimes slightly longer. Associates prepare drafts of protest filings and identify applicable legal precedent. This involves close scrutiny of the original Request for Proposal; the government agency’s award decision; and the proposals and negotiation responses submitted by both the awardee and the protester.
- Disputes also arise over the performance of existing contracts. Lawyers represent contractors in alternative dispute resolution or litigation in front of the Armed Services Board of Contract Appeals, the Civilian Board of Contract Appeals or the Court of Federal Claims.
- Lawyers defend contractors against allegations of fraud, as well as waste and misconduct under various federal criminal and civil statutes, including the False Claims Act.
- Lawyers also act in disputes between prime contractors and subcontractors in federal and state courts.
“Lobbying involves so much more than this image people have of the glad-handing door-opener. That is not interesting or high-end work. What we do is analyze, advise and advocate. We seek to understand our clients’ business, their mission and what they want to accomplish.”
- Government relations lawyers are approached by clients from all industries who believe a certain piece of legislation will benefit or harm their business, in order to get it promoted or changed.
- The service that government relations lawyers provide involves “analyzing laws, writing memoranda to clients advising on legal provisions – telling them what their responsibilities are under new legislation – and preparing advocacy pieces for hearings,” Allard tells us.
- Besides advocacy there’s legal research into current statutes, drafting of proposed rules and legislation, and drafting of clients’ comments on legislation.
- Government relations lawyers are a link between their clients and politicians and administrators. But Allard wants us to clear up a misunderstanding: “Lobbying involves so much more than this image people have of the glad-handing door-opener. That is not interesting or high-end work. What we do is analyze, advise and advocate. We seek to understand our clients’ business, their mission and what they want to accomplish.”
Realities of the job
- “Government contracts is a very litigation-oriented area,” explains John Chierichella of Sheppard Mullin. “You don't just have the opportunity to litigate, though; you get to do so in relation to things that are incredibly interesting, whether it be a bid protest, debarment proceeding, False Claims Act case or subcontract dispute.”
- Bid protests are typically intense affairs, packed with information that must be absorbed in a short space of time. “If your eyes glaze over when reading a detailed technical or cost proposal, this is not the area for you,” says Tom McGovern, senior counsel at Hogan Lovells and former leader of its government contracts practice. Richard Rector of DLA Piper confirms that “you have to have a very good analytical ability when reviewing a contract to understand how it applies to a particular industry. When we are interviewing, we look out for people who are detail-oriented and don't shy away from digging into the documents and enjoying the analysis and the investigation.”
- Associates working on a smaller bid protest may have the opportunity to actually lead the case. During a larger bid protest it's more likely that they'll work on a particular aspect of it.
- Cost issuescan be daunting to analyze due to the vast body of regulations and complex wording to grapple with. However, Chierichella tells us that “if you can understand that logic chain and overcome those concerns, there's a lot of benefit you can give to clients by working through cost issues to maximize the amount to be paid and the amount they will retain.”
- While most traditional law practices deal with questions pertaining to what the law is, political law mainly involves the question of what the law should be.
- Lobbyists’ main clients include corporations, trade associations, universities, healthcare institutions, states and municipalities. Lawyers also do pro bono lobbying work on behalf of charities and other nonprofit organizations.
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- “One of the most important things to understand is that every company in the US is affected by the government's policies,” Tom Boyd of Venable tells us. “Whether it's in the form of legislation, regulation or the exercise of executive power, it's going to impact the marketplace and every one of our clients.”
- Allard describes the public policy process as “never-ending,” adding that “anything that is done can be undone.”
- It is usually easier to shoot down a planned bill than to get one passed.
- “Whenever you're representing a corporation, part of the picture will involve a high-profile public official,” says Ken Gross of Skadden. “So it's vital to understand how decisions will play out if they get picked up by the media.”
- The famous ‘revolving door’ relationship between the administration and lobbying shops provides lawyers at all levels with the opportunity to work in-house for the government.
- “I think having some exposure to government service is very helpful in this practice,” explains Gross. “You're essentially seeing the picture from the inside, which certainly helps when dealing with the regulation side of things.” David Nadler of Blank Rome confirms this: “I would advise working for the government before a law firm, as it's rewarding in its own right, but it also paints a picture of what it's like to work on both sides of the table.”
- Government lawyers are also active at the state level. Smaller state-based firms – grouped together into the State Capital Global Law Firm Group – advise on business regulation, ethics codes, campaign finance and state government procurement.
- “Clients come from all over the globe,” Boyd says. “So we’re not only interested in the political issues concerning Washington, DC, but also the likes as they relate to client interests in London, Paris, Berlin and Brussels.”
- “There is a relatively small Bar and you deal with the same people regularly on the other side,” states Allen. “That generates more comity and less hostile behavior than some lawyers are used to.”
- Given the government’s central role in the response to Covid-19, law firms had to be on hand to advise clients navigating regulatory and policy issues. "The coronavirus has created a lot of work for government and regulatory lawyers advising clients on how to access disaster relief funds made available by federal, state and local appropriating bodies," says Jesse Vogtle, a partner at Waller. "Navigating the SBA guidelines on the Payroll Protection Program (“PPP”) has been a challenge for recipients hoping to protect loan forgiveness."
- Federal contract spending reached $681 billion in 2020, the highest amount on record, according to Bloomberg. Medical, research and development, professional services, and IT areas in particular saw an increase in funding allocation due to the Covid-19 pandemic. Pentagon contracts accounted for most of the increases.
- Contractors and government are always at odds as they attempt to achieve the best prices from their respective positions. Tom McGovern of Hogan Lovells explains that “contractors are consulting us for advice as to how to protect themselves from government budget cuts and austerity measures.”
- Biden’s sweeping legislative agenda is likely to prompt a number of immediate and longer-term regulatory changes. Combatting the previous administrations approach to (de)regulation, the Biden administration hopes to modernize the regulatory review process “to ensure swift and effective Federal action.” A whole suite of executive actions on a number of issues – Covid-19 relief, climate change, border wall defunding – have set the tone for a radically new regulatory landscape.
- Biden’s $2 trillion American Jobs Plan aims to stimulate sustained economic recovery post-pandemic and create millions of jobs for American workers through projects to upgrade infrastructure in the country. Contractors will be required at each stage of infrastructure proposals, keeping attorneys and their firms busy for years ahead as the plan rolls out.
- Contractors are coming under increased scrutiny and pressure, particularly when it comes to alleged violations of the False Claims Act (FCA), which imposes liability on people or companies that defraud the US government. The Civil Division recovered over $3 billion in settlements and judgments in 2019, but in 2020 this fell to $2.2 billion.
- Cybersecurity is a major focus of the 2021 National Defense Authorization Act, with suggested provisions such as the introduction of a cybersecurity leadership positions at the White House. Other provisions in the NDAA include an emphasis on IT development, data rights, and modifications to the potential for foreign influence in awarding contracts, with a new focus on ‘domestic sourcing of strategic and critical materials.’
- Contracts designed solely for IT acquisitions – known as government-wide acquisition contracts (GWACs) – have grown with the aim of modernizing outdated IT infrastructure. Spending on GWACs reached nearly $21 billion in 2020. These kinds of contracts can deliver quickly on the acquisition of key telework equipment, such as laptops or tablets, which was especially important in the aftermath of the lockdown measures in place after the outbreak of Covid-19. Examples of GWACs include NASA's Services for Enterprise-Wide Procurement and the National Institutes of Health Information Technology Acquisition and Assessment Center (NITAAC).
- Federal contract cases to watch this year include the likes of Amazon’s challenge to the Defense Department over a $10 billion cloud computing contract awarded to Microsoft, and the claims court’s review into whether the US Army wrongly awarded contracts for logistics services in an $82 billion procurement.
- Cybersecurity threats and noncompliance with government cybersecurity regulations are becoming an increasing concern in connection to the FCA. “Contractors are concerned about mounting cybersecurity threats,” emphasizes McGovern, “both in relation to their own networks and those they maintain for government customers. The government is greatly concerned about the security of its own data entrusted to contractors and expects contractors to adhere to strict information assurance guidelines and to cooperate and share data about cyberattacks in order to counter such threats. At the same time, there have been news reports of government intelligence agencies attempting to access data in commercial networks, including those operated by their own contractors, which is somewhat ironic."