The Growth of Our Federal Practice Group
The Firm’s merger with my boutique government contract law firm, Payne Hackenbracht & Sullivan, in 2009, was one of many milestones in the development of Cohen Seglias as one of the largest, and most successful, construction law firms in the Mid-Atlantic region. The new Federal Practice Group expanded the capability of the Firm to represent the interests of both federal construction and supply contractors. In the five years since the merger, the Federal Group has grown considerably, developing a strong national and international presence that serves the interests of government contractors in over thirty states and a number of foreign countries.
I thought that this anniversary issue would be a good place to explain some of the capabilities of the Federal Practice Group and how we now serve a growing number of contractors working on federal government projects. While federal government contracting has many similarities when compared to government contracting generally, there are also a number of significant differences. The differences often arise because of the myriad of federal laws and social programs that are implemented by a regulatory system that is spearheaded by the Federal Acquisition Regulation (“FAR”). Navigating the murky waters of the FAR, and the supplemental agency acquisition regulations is a difficult task. The federal procurement process, together with complicated and confusing contract provisions, creates a veritable minefield for those who are unfamiliar with federal contracting. The required recordkeeping, alone, is enough to drive a contractor crazy! The counter, of course, is that the government’s checks do not bounce (at least, not yet).
To keep things lively, there is always something new. When the government was attempting to stimulate the economy, the American Recovery and Reinvestment Act (“ARRA”) was enacted to fund a number of projects that had previously been placed on the back-burner. The reporting requirements tied to ARRA were quite onerous, however, and a whole new set of regulations had to be studied and followed. Many contractors who had not been interested in federal contracting decided to go where the money was and entered the federal marketplace for the first time. Unfortunately, they often found out that it was not easy to compete with experienced federal contractors, and they further discovered that the competition was fierce. Many contracting officers reported that projects where 5–10 bids were anticipated attracted as many as 50 bidders. We are proud to have helped so many contractors enter the federal contracting arena for the first time, and we have enjoyed educating them about the ways to find business opportunities, the ways to deal with federal agencies, and the ways to protect their interests.
Sadly, virtually every significant federal project becomes the subject of a bid protest. The practice, in years gone by, of soliciting contractors through sealed bidding, where the lowest price generally won, has been largely replaced by a “best value” procurement process, which evaluates a bidder’s past performance, experience, technical merit, and quality of personnel. In this “contracting by negotiation” process, contracts can be awarded to a contractor who is not offering the lowest price because other evaluation factors may be deemed more important. This fundamental shift in the government’s procurement process has been responsible for the spike in the number of bid protests.
We spend a lot of time advising our clients as to whether a protest is feasible or defending their interests when they have been awarded a contract that is protested by a disappointed bidder. We have engaged in a number of successful bid protests involving unfair government actions affecting VA, HUBZone, and other small businesses.
It is very gratifying when we prevail on a bid protest, but it is particularly gratifying when we can solve a problem early and avoid litigation. Our services include assistance in the preparation of proposals, the interpretation of contract provisions, the proper application and compliance with procurement regulations and the rules governing ethics in federal contracting, and assisting our clients to effectively communicate with government agencies. We also assist clients in preparing requests for equitable adjustment and claims for additional compensation. Our recent successes include the reversal of a termination for default where the government furnished defective specifications and failed to acknowledge differing site conditions, and the successful negotiation and settlement of a number of contract claims that involved changes, terminations, differing site conditions, suspensions of work, and delays.
It is a full-time job to keep up with the constantly changing, and challenging, field of federal contracting. Our “Federal Construction Contracting Blog” is well-known and widely read. It focuses on federal construction issues and it enables us to keep the industry informed about the latest developments. We also recently launched a federal construction Twitter handle (@FedConLaw) where we share relevant industry news. We look forward to continuing our service to the federal contracting community for many years to come and helping our clients resolve issues in a practical and cost-effective manner.