David Z. Bodenheimer is a partner in the law firm of Crowell & Moring LLP in the DC office where he heads the Homeland Security Practice and specializes in Government Contracts, False Claims Act, Privacy, and Cybersecurity. For more than 25 years, he has found solutions for clients whenever and wherever problems arise in doing business with the Government.

Government Contracts. Mr. Bodenheimer represents all sizes of technology clients (computer hardware and software, major weapon systems, biodefense, satellite and space services, and military avionics and equipment). He litigates, counsels and resolves the full range of issues that clients confront in selling to the Government. Highlights include the following:

• Defective Pricing. Counseling on TINA cost and pricing matters, teaching the Defective Pricing course, and litigating major cases define the core of his defective pricing practice. See, e.g., Wynne v. United Technologies Corp., 463 F.3d 1261 (Fed. Cir. 2006), affirming 05-1 BCA ¶ 32,860 and 04-1 BCA ¶ 32,556 (defeated $299 million defective pricing claim after 33-day trial and Federal Circuit appeal).

• Protests. His 25-year protest experience spans all forums (court, GAO, and agency), with the best ones being successfully resolved through agency corrective action without a decision, while others have established precedents in key areas. See, e.g., Health Net Federal Services, LLC, Nov. 4, 2009, 2009 CPD ¶ 220 (winning protest against $16 billion award after 5-day hearing, establishing key precedents on unfair competitive advantage, price realism, past performance, and staffing); AT&T Government Solutions, Inc., Aug. 28, 2008, 2008 CPD ¶ 170 (establishing contractor's due process rights of notice, opportunity to respond, and right to mitigate organizational conflicts of interest (OCIs)); DRS C3 Systems, LLC, Feb. 26, 2008, 2008 CPD ¶ 103 (winning protest on past performance evaluation of $65 million shipboard display award); IBM Corp., June 4, 2007, 2008 CPD ¶ 64 (prevailing on protest against cost and price evaluation of $125 million financial management system); Gentex Corp. v. United States, 58 Fed. Cl. 634 (2003) (sustaining protest against misleading and unequal discussions on $400 million award for aircrew helmets for nuclear, biological, and chemical protection).

• False Claims Act (FCA) & Investigations. He defends fraud investigations and subpoenas (DCIS, AFOSI, Army CID, DOD IG, NSF IG, and Postal IG) relating to battlefield contracting, ethics rules, defective pricing, labor charging, progress payments, cost claims, government property, and postal equipment. His FCA litigation includes a pending decision on a $600 million FCA claim after a 2-month trial, as well as public decisions. See, e.g., United States ex rel. Ackley v. International Business Machines, 76 F. Supp. 2d 654 (D. Md. 1999) (briefed and argued jurisdictional dismissal of qui tam relator's fraud claims); Peoples v. Eagle-Picher Indus., Inc., No. 96-5009-CV-SW-GAF (W.D. Mo., Jan. 31, 2003) (briefed and obtained disqualification of qui tam relator's counsel, ultimately leading to dismissal of FCA case).

• Prime/Sub Disputes and Issues. He advises both prime and subcontractors on software and data rights, trade secret and procurement integrity breaches, teaming agreements, specialty metals requirements, and flowdown terms. He litigates prime/sub disputes in both federal court and international arbitrations. See, e.g., O'Gara Satellite Systems, Inc., vs. Telenor Satellite Services, Inc., No. AW 04 CV 3841 (S.D. Md. 2005) (achieved no-cost resolution of lost-profits claim for satellite services after judicial mediation); McDonnell Douglas Corp. vs. SCI Corp., No. 91CV2077 (E.D. Mo. 1996-97) (conducted 2 weeks of courtroom cross-examination relating to A-12 prime/sub contract, leading to successful resolution and withdrawal of default termination).

• Counseling & Compliance. Mr. Bodenheimer supports clients in a broad spectrum of areas, developing strategies for resolving organizational conflicts of interests (from protests to mitigation plans), conducting compliance reviews (defense, healthcare, and postal industries), defending against default terminations and cure notices, supporting convenience termination settlements, protecting software and technical data rights, preparing claims and requests for equitable adjustment (REAs), and addressing a host of cost, pricing, and profit issues.

Homeland Security. Mr. Bodenheimer serves as the head of the firm's Homeland Security practice, where he focuses upon the intersection of this practice with other Crowell & Moring groups such as Government Contracts, Transportation, Privacy, and International.

• SAFETY Act. He has developed SAFETY Act due diligence procedures, untangled complex insurance issues, advised on applications, prepared regulatory comments, testified before Congress, and supported legislative and regulatory enhancements to the SAFETY Act.
• International Sales. When contractors seek to sell anti-terrorism technology abroad, he has developed strategies for limiting liability exposure, advised on privacy and security implications, and analyzed other international risks.
• Acquisition Challenges. For the unique challenges of Department of Homeland Security (DHS) contracting, he has addressed issues relating to inverted corporations and organizational conflicts of interest, commented on special acquisition risks relating to requirements definition, and testified before Congress on TSA regulatory exemptions that have since been legislatively revoked.
• Homeland Security Privacy. For privacy issues arising out of Homeland Security technology (including passenger screening, identity authentication, and data mining), Mr. Bodenheimer has prepared extensive analyses of privacy requirements, advised on risk mitigation strategies, and assisted with preparation of policies, procedures, and Privacy Impact Assessments (PIA).
• ABA Committee. As Co-Chair of the ABA Science and Technology Section's Homeland Security Committee, he supports ABA activities, publications, and panels on the latest developments, risks, and opportunities in the homeland security arena.

Privacy & Information Security. In the privacy and information security arena, Mr. Bodenheimer handles emerging dilemmas arising out of data sharing, information technology (IT) interoperability, cybersecurity, and privacy concerns in the homeland security, defense, and intelligence industries. His privacy and cybersecurity counseling spans the Privacy Act, Federal Information Security Management Act (FISMA), DIACAP, NIST, USA PATRIOT Act, cyber warfare, electronic workplace monitoring, security breach notification laws, HSPD authentication and biometrics, and federal electronic surveillance. He has testified before Congress regarding cybersecurity threats, public-private partnerships, and contractor liability issues for military contractors. He currently serves as a Vice Chair of the ABA Public Contract Law Section's Cybersecurity Committee.

Prior to joining Crowell & Moring LLP, Mr. Bodenheimer worked for the Department of the Navy from 1982 to 1988 in various positions, including Assistant to the General Counsel, where he handled default termination litigation, suspension and debarment, foreign military sales, major claims and disputes, NATO negotiations, and bid protests (GAO, agency, and district court actions).

Education
University of North Carolina, B.A., 1978
University of North Carolina, M.B.A., 1982
University of North Carolina Law School, J.D., 1982

Affiliations

• Admissions to practice. Bars of District of Columbia and North Carolina; United States Court of Appeals for Federal Circuit; United States Court of Federal Claims; United States District Courts (DC and MD).
• American Bar Association (ABA). Co-Chair, Committee on Homeland Security, Science and Technology Section; Member, Public Contracts Law Section.
• International Association of Privacy Professionals (IAPP). Member and Certified Information Privacy Professional.
• Intelligence & National Security Alliance (INSA). Member.

Publications
"SAFETY Act Liability Protection for Service Contractors in the Homeland Security Business: Why It's Important and How to Get It," CSA Service Contractor, p.14 (Winter 2007). Co-Authors: Linda S. Bruggeman and David Z. Bodenheimer.

"Government's Defective Pricing Claim in the Great Engine War Flames Out at the Federal Circuit," The Government Contractor, Vol. 48, No. 36 (October 4, 2006). Author: David Z. Bodenheimer.

"When Cyber Barbarians Storm the Security Walls: The Mounting Risks of Security Breaches to Federal Agencies & Contractors," BNA Federal Contracts Report, Vol. 86, No. 12 (October 3, 2006). Author: David Z. Bodenheimer.

"Pulling the Plug on the Nation's Power Grid: Cyberthreats and Homeland Security Challenges," The SciTech Lawyer, Vol. 2, No. 4 (Spring 2006). Author: David Z. Bodenheimer.

"When Homeland Security Goes Abroad: The Global Collision of Privacy & Anti-Terrorism Laws," BNA's Federal Contracts Report, Vol. 85, No. 16 (April 25, 2006). Co-Authors: David Z. Bodenheimer and Kris D. Meade.

"Country Q&A: United States Data Protection," Practical Law Company, Vol. 2: Data Protection (2006-07). Co-Authors: Gaela Bailey, David Z. Bodenheimer, Benjamin T. Butler, Christopher Calsyn, Robin B. Campbell, Charles C. Hwang, Kris D. Meade, Jeremy Rhyne and John Stewart.

"'False' or 'Inaccurate' Estimates," Briefing Papers, No. 5-13 (December 2005). Author: David Z. Bodenheimer.

"The Strange Notion of Estimates as Fraud: Will Weather Predictions Be Next Under the False Claims Act?," The Procurement Lawyer, Vol. 4, No. 40 (Summer 2005). Author: David Z. Bodenheimer.

"Privacy vs. Information Sharing: The Gathering Storm Over Homeland Security and How Contractors Can Reduce Their Risks," Federal Contracts Report, Vol. 83, No. 21 (May 25, 2005). Author: David Z. Bodenheimer.

"Competition Trumps Defective Pricing Claim in the Great Engine War," The Government Contractor, Vol. 47, No. 8, pp47-48 (February 23, 2005). Author: David Z. Bodenheimer.

"Homeland Security Now and Later: Emerging Issues and New Perils in Contracting," The Clause, Vol. XIV, Issue 4 (November/December 2003). Author: David Z. Bodenheimer.

"The SAFETY Act Interim Regulations: Will They Fulfill the Homeland Security Mission By Stimulating Innovations in Antiterrorism Technology?," Federal Contracts Report, Vol. 80, No. 16 (November 4, 2003). Author: David Z. Bodenheimer.

"Technology for Border Protection: Homeland Security Funding and Priorities," Journal of Homeland Security (August 2003). Author: David Z. Bodenheimer.

"Finding Dollars for Biodefense: Opportunities and Challenges for Biotech Firms," Genetic Engineering News, Vol. 23, No. 10 (May 15, 2003). Author: David Z. Bodenheimer.

"Is the SAFETY Act Safe? Homeland Security and the Politics of Tort Liability," 45-17 The Government Contractor 181 (April 30, 2003). Author: David Z. Bodenheimer.

"Biotechnology Sellers Beware: The Risks and Opportunities of Doing Business with the Government," 22 Biotechnology Law Report 88 (April 2003). Author: David Z. Bodenheimer.

"Economic Price Adjustment Clauses: Pricing Pretzels and Pitfalls," Gov't Cont. Audit Rep. 16-20 (Fall 2002). Co-Authors: David Z. Bodenheimer and J. Chris Haile.

"The A-76 Commerical Activities Panel Report: Irreconcilable Differences Meet Mission Impossible," 78 Fed. Cont. Rep. (BNS) 187 (August 6, 2002). Author: David Z. Bodenheimer.

"Putting Teeth into the False Claims Act’s Pre-Complaint Disclosure Requirements for Relators," The Procurement Lawyer, Vol. 4, No. 37 (Summer 2002). Author: David Z. Bodenheimer.

"Profits in Government Contracting: The Continuing Tug of War," Gov't Cont. Audit Rep. 12-16 (November 2001). Author: David Z. Bodenheimer.

"Damages Under the False Claims Act: Is the Sky the Limit?," Gov't Cont. Audit Rep. 16-20 (September 2000). Author: David Z. Bodenheimer.

"The New Battleground: Defective Pricing Invades Competitive Procurements," Gov't Cont. Audit Rep. 16-20 (December 1999/January 2000). Author: David Z. Bodenheimer.

"Past Performance: The Sequel," 8-3 Topical Issues in Procurement Series, 37 Cont. Mgmt. (September 1997). Author: David Z. Bodenheimer.

"Responsibility of Prospective Contractors," Briefing Papers 97-9 (August 1997). Author: David Z. Bodenheimer.

"Contractors Caught in the Cross Fire of Appropriations Law," 2-5 Government Contract Audit Report 14-16 (June 1997). Author: David Z. Bodenheimer

"Cost Realism Analysis: The Myth of Unfettered Agency Discretion," 58 BNA Federal Contracts Report 24 (July 13, 1992). Author: David Z. Bodenheimer.

Speeches & Presentations
"Cyber Tsunami 2.0: Digital Pearl Harbors, Cyber Riptides, & Swirling Cybersecurity Standards," Caught in the Federal Procurement Fish Bowl, 26th Annual Ounce of Prevention Seminar (OOPS), Crowell & Moring, Washington, D.C. (May 26-27, 2010). Presenter: David Z. Bodenheimer.

"Cyber on the Hill: Congressional Cybersecurity Oversight, Legislation & Initiatives for 2010," ABA Science & Technology's Homeland Security Committee and Public Contract Law's Cybersecurity Committee (May 10, 2010). Moderator & Speaker: David Z. Bodenheimer.

"Private Sector Perspectives on Department of Defense Information Technology and Cybersecurity Activities," Testimony before House Armed Services Committee's Subcommittee on Terrorism, Unconventional Threats and Capabilities, 112th Cong. (Feb. 25, 2010). David Z. Bodenheimer.

"Cybersecurity: Escalating Threats, Morphing Duties & Intensifying Oversight," ABA Cybersecurity Committee, Washington, DC (Jan. 11, 2010). Speaker: David Z. Bodenheimer.

"Cybersecurity: Titanic Threats and Escalating Duties for Agencies and Contractors," ABA Annual Conference, Chicago, IL (Aug. 2, 2009). Moderator & Speaker: David Z. Bodenheimer.

"Cybersecurity: Opportunities & Pitfalls for Selling in the US Marketplace," Enterprise Ireland Forum, Washington, DC (June 16, 2009). Speaker: David Bodenheimer.

"U.S. Technology Marketplace: Opportunities & Pitfalls for Selling to the U.S. Government," Canadian Technology Forum, Washington, DC (June 10, 2009). Speaker: David Z. Bodenheimer.

"Bid Protests and Competition 25 Years After CICA," Crowell & Moring Ounce of Prevention Seminar (OOPS) (May 2009). Co-Speakers: Thomas P. Humphrey, David Z. Bodenheimer, John E. McCarthy Jr. and Puja Satiani.

"Securing our Critical Infrastructure: Money, Technology, and Homeland Security Opportunities," Crowell & Moring Security Roundtable (October 2, 2008). Speaker & Moderator: David Z. Bodenheimer.

"Cyber on the Hill: Congressional Initiatives and Oversight for Emerging Cybersecurity Issues," Crowell & Moring Security Roundtable (August 5, 2008). Speaker & Moderator: David Z. Bodenheimer.

"Investing in Intelligence: Cutting-Edge Solutions for the National Security Mission," C&M Security Breakfast Series (May 13, 2008). Speaker & Moderator: David Z. Bodenheimer.

"Cyberspace and Homeland Security: Vulnerability and Opportunity," Crowell & Moring Homeland Security Breakfast Series, Washington, DC (Jan. 24, 2008). Moderator and Speaker: David Z. Bodenheimer.

"Homeland Security Technology: Where the Technology is Going & the Money is Flowing," Crowell & Moring Homeland Security Breakfast Series, Washington, DC (Nov. 15, 2007). Speaker & Panel Moderator: David Z. Bodenheimer.

"Future of Homeland Security Technology," Crowell & Moring Homeland Security Breakfast Series, Washington, DC (Sept. 18, 2007). Moderator: David Z. Bodenheimer.

"Cybersecurity: Old Targets, New Strategies," ABA Annual Conference, Public Contract Law Section, San Francisco (Aug. 12, 2007). Moderator: David Z. Bodenheimer.

"Playing by Its Own Rules: TSA's Exemption from the Federal Acquisition Regulation, and How It Impacts Partnerships with the Private Sector," Testimony before the House Homeland Security Subcommittee on Management, Investigations and Oversight, 110th Cong. (Aug. 1, 2007). Witness: David Z. Bodenheimer.

"Government Contract Claims: The Expanding Litigation Battlefield on Estimates in False Claims Act suits and Defective Pricing Actions," ABA Public Contract Law Section and Center for CLE Teleconference, Washington, DC (March 2007). Speaker: David Z. Bodenheimer.

"Discussion with Stewart Baker (DHS Assistant Secretary for Policy): Biodefense, Cybersecurity, and Technology Issues in Homeland Security," ABA Science and Technology Section's Committee on Homeland Security, Washington, DC (January 2007). Moderator: David Z. Bodenheimer.

"Helping Business Protect the Homeland: Is the Department of Homeland Security Effectively Implementing the SAFETY Act: Testimony Before the House Homeland Security Subcommittees on Management, Integration & Oversight and Emergency Preparedness, Science & Technology, 109th Cong. (Sept. 13, 2006). Witness: David Z. Bodenheimer.

"IT Homeland Security Risks & Opportunities: Technology, Privacy & Cybersecurity," BNA 4th Annual Homeland Security Contracting Opportunities Conference, Washington, DC (May 2006). Presenter: David Z. Bodenheimer.

"Privacy & Cybersecurity Dilemma in Balancing the Homeland Security Mission to Gather & Share Information," BNA 3rd Annual Homeland Security Contracting Opportunities Conference, Arlington, VA (May 2005). Presenter: David Z. Bodenheimer.

"Border & Transportation Security: Emerging Issues & Practical Perils in Contracting," BNA 2nd Annual Contracting with DHS Conference (May 2004). Presenter: David Z. Bodenheimer.

"Defective Pricing & False Claims Act," Federal Publications Seminar - Washington, DC (Septempber 2003-present). Speaker: David Z. Bodenheimer.

"Pricing of Adjustments in Administration of Government Contracts," The George Washington University Law School (1997 and 1998). Speaker: David Z. Bodenheimer.