In a nutshell
Government contracts lawyers “don’t necessarily focus on one area and have to be jacks-of-all-trades,” according to Tom McGovern of Hogan Lovells. They help contractors navigate the regulations and special rules involved with providing goods and services to federal government, as well as advising on subcontracts, scheduling and organizational conflicts. Bid protests form the bulk of contentious work, along with disputes involving costs recovery or performance problems, and defending contractors accused of fraud or other misconduct.
“Law firms who lobby are not selling access, they are selling skills,” says Nick Allard, former chair of Squire Patton Boggs’ lobbying, political and election law practice, and current dean of Brooklyn Law School. “They are litigators being 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 – healthcare, education and defense – 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.
Political law specialists advise on the organization and financing of election campaigns, and help corporations and other groups with election-related activities. On the litigation side they engage in challenges to 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
- 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. There is not as much room to negotiate the requirements which form part of the contract as there is in a commercial setting. Lawyers 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 Government Accountability Office (GAO) or the US Court of Federal Claims (CFC). These cases are resolved over a period of about three months, which means associates don’t get bogged down for long periods in document review. 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.
- There are also disputes 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 also defend contractors against allegations of fraud, waste and misconduct under various federal criminal and civil statutes, including the False Claims Act.
- Lawyers also act in litigation 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, with a lot of 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 McGovern.
- Associates working on a smaller bid protest may have the opportunity to actually lead the case, while in a larger bid protest it's more likely that they'll work on a particular aspect of it.
- Cost issues can be daunting to look at because of the vast regulations and complex wording involved. According to Chierichella, however, “if you can understand that logic chain and overcome those concerns, there's a lot of benefit you can give clients in 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 of 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.
- There is also pro bono lobbying work for 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 DLA Piper 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.”
- 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.”
- Contractors and government are always at odds as they attempt to achieve the best prices from their respective positions. Tom McGovern, the government contracts practice area leader at Hogan Lovells, explained that “contractors are consulting us for advice as to how to protect themselves from government budget cuts and austerity measures.”
- A significant issue for government contract lawyers has been advising their clients on potential budget cuts in light of the 'fiscal cliff', including assessing what their rights would be should the government decide to cease financing certain services or projects. While a deal was reached to avoid such substantial spending cuts – albeit narrowly – a lot of work still needs to be done and it remains a primary concern for contractors.
- The budget cuts and reductions in overall government spending have made the competition for any government work available all the more competitive. “With tighter budgets come fewer contract awards, so contractors are more likely to seek redress through the bid protest process if they lose contracts they previously held,” according to McGovern.
- An area which has seen significant activity, unsurprisingly considering the ongoing impact of Edward Snowden's revelations about the activities of the security services, has been data security. This affects all contractors who have access to government information, whether they store it on their own systems or are tasked with securing the government's own storage facilities.
- “Contractors are concerned about mounting cybersecurity threats, 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 cyber attacks 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,” explained McGovern.
- Government contractors have also been integral in the implementation of Obamacare, and not all has gone smoothly. They have been “at the forefront of setting up government websites, health insurance exchanges and providing navigators to inform consumers of their various options,” explains McGovern. “This development is typical of this area of practice where the focus shifts depending on the government’s priorities of the day.”
- Technology is having a major impact on the relationship between government, the public and corporations. The amount of information provided online is driving up the quality of counseling and advice demanded from lawyers.
“Contractors are concerned about mounting cybersecurity threats."