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, Hogan Lovells' government contracts practice area leader. 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.”
- 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.”
- Government 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. Civil recoveries under the FCA reached $3.7 billion in 2017 according to the Department of Justice – the fourth highest annual recovery in the Act's history. However in 2018 civil recoveries fell to $2.8 billion, the DOJ’s lowest annual recovery since 2009. Cases related to healthcare accounted for the majority of that figure.
- A government shutdown occurred between December 22nd 2018 and January 25th, less than a year after the last shutdown in January 2018 and the longest US government shutdown ever. More shutdowns may well happen throughout the year. Federal contractors can encounter a range of issues when these happen, including delays to new contract modifications and certain procurement processes.
- The government is interested in streamlining the process for acquiring and protesting government contracts. The 2017 National Defense Authorization Act (NDAA) made way for an e-commerce portal and the 2016 NDAA set up the snappily-named 'Section 809 Panel' to look into ways of improving the Department of Defense's (DoD) acquisition processes. In January 2019 the panel presented its findings before Congress, making around 90 suggestions to improve the DoD’s acquisition process. Implementing those suggested changes will be another story, according to top Pentagon officials. Keep an eye out for future developments.
- The budget cuts and reductions in overall government spending have made the competition for any government work all the more intense. “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,” McGovern reports.
- That said, Trump's 2019 budget proposal did contain a large increase in military spending. In addition, a two-year bipartisan agreement was reached in February 2018 by Senate leaders, which raised spending caps on military and domestic initiatives by around $300 billion in total. Contractors operating in the defense or domestic arena may well find things easier, depending on what they're offering.
- Contractors like Boeing –the aircraft manufacturer won three new military contracts last year, helping it reach a record revenue of $101 billion. This is good news for Israel: Boeing agreed to spend billions of dollars there over the next ten years if it wins major defense contracts.
- Data security has become a significant area of activity, especially in light of Edward Snowden's revelations about the activities of the security services. 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,” 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 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.”
- Government contractors have been integral to the implementation of Obamacare. 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.” Further shifts could be on the horizon if the current administration's efforts to repeal and replace the Affordable Care Act (Obamacare) are successful.
“Contractors are concerned about mounting cybersecurity threats."