David Z. Bodenheimer is a Government Contracts Group partner and litigator in Crowell & Moring's Washington, D.C. office. Mr. Bodenheimer brings 33 years of hands-on experience in doing business with the federal government. Nationally ranked by Chambers USA in Government Contracts and described as "an impressive government contracts practitioner" and "a fabulous writer," he has found solutions for clients for everything from bet-the-company cases to the day-to-day complexities of government contracting.
Defective Pricing & Cost Disputes. Mr. Bodenheimer handles a busy ASBCA docket of defective pricing appeals and claims, DCAA audit allegations, and other disputes involving cost and pricing issues. He has been recognized in Chambers USA by one reference as "the top expert on defective pricing."
- Litigation. Prevailed in the largest defective pricing claim litigated under the Truth in Negotiations Act (TINA). See Wynne v. United Technologies Corp., 463 F.3d 1261 (Fed. Cir. 2006), affirming 05-1 BCA ¶ 32,860 (denying $299 million defective pricing claim after 33-day trial and Federal Circuit appeal).
- Dispute Resolution. Obtained no-cost withdrawal of final decision during litigation (ASBCA No. 58976), resolved defective pricing claims with mini-trial and other ADR techniques (ASBCA Nos. 56655 & 56656), prepared detailed rebuttals to TINA claims and audit allegations, and served as lead Navy counsel in using structured negotiation process to resolve $126 million defective pricing allegation.
- Publications. Authored what the Nash & Cibinic Report called "the definitive text on TINA" – the Defective Pricing Handbook (Thomson Reuters), as well as leading Briefing Papers and articles on defective pricing and the False Claims Act.
- Training & Lectures. Taught Federal Publications Inc.'s leading course on defective pricing and the False Claims Act for over a decade, as well as many private TINA courses for major defense and aerospace contractors.
Protest Litigation. Since his first protest in 1982, Mr. Bodenheimer has litigated and defended more than 60 protests in every forum (GAO, COFC, ODRA, GSBCA, and federal district courts), with some of the best being successfully resolved without a decision – e.g., agency corrective action reopening the competitive range in a $6 billion procurement and resulting in award to a Fortune 25 company. In addition to four recent GAO wins in 2015, his reported decisions run the full gamut of protest issues.
- Organizational Conflicts of Interest. AT&T Government Solutions, 2008 CPD ¶ 170 (precedent-setting case on contractor due process rights to prove OCI mitigation).
- Technical Evaluation. BAE Systems, 2013 CPD ¶ 278 (misevaluation of technical risk on NextGen airborne jammers); LIS, Inc., 2010 CPD ¶ 5 (misevaluation of small business firm's technical excellence vs. technical acceptability).
- Past Performance. Supreme Foodservice GmbH, 2012 CPD ¶ 292 (past performance win in $8 billion competition); TriWest Healthcare Alliance, 2012 CPD ¶ 191 (protest defense in $20 billion award); DRS C3 Systems, LLC, 2008 CPD ¶ 103 (broad spectrum of past performance protests upheld).
- Cost/Price Realism. HealthNet Federal Services, 2009 CPD ¶ 220 (price realism win on $16 billion procurement); CACI Technologies, 2014 CPD ¶ 44 (cost realism defense); IBM Corp., 2008 CPD ¶ 64 (cost/price evaluation errors proven).
- Integrity & Responsibility. Acrow Corp. of America v. United States, 97 Fed. Cl. 161, aff'd on recon. 97 Fed. Cl. 182 (2011), dismissed on appeal (Fed. Cir. 2011) (defense of UK company against integrity and responsibility protest based on UK corruption charges); DME Corp., 2010 CPD ¶ 44 (dismissal of Procurement Integrity protest involving former employee).
- Stay of Performance. Supreme Foodservice GmbH v. United States, 109 Fed. Cl. 369 (2013) (improper stay override in $8 billion protest dispute); Air Transport Ass'n, Inc., et al., ODRA-08-466 (Aug. 28, 2008) (rare stay of award by ODRA in FAA procurement).
False Claims Act & Contract Disputes. From his first hearing in 1982, Mr. Bodenheimer has spent more than 100 days in the courtroom litigating False Claims Act (FCA) suits, default terminations, prime/sub disputes, and other actions involving complex military and aerospace systems, information technology, damages calculations and methodologies, and other government contracts disputes.
- Fraud Actions. Litigates FCA suits, including on-going litigation on a $657 million FCA claim after a 2-month trial and two appeals. 782 F.3d 718 (6th Cir. 2015) (rejecting trial court's damages award). See also United States ex rel. Ackley v. IBM, 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. 2003) (briefed disqualification of qui tam relator's counsel, ultimately leading to dismissal of action).
- Investigations. Defends fraud investigations, subpoenas, and audits (DCIS, AFOSI, Army CID, and various Inspector General offices) relating to defective pricing, ethics rules, battlefield contracting, labor charging, commercial items, and government property.
- Prime/Subcontractor Disputes. Advises both prime and subcontractors on contract and technology issues (e.g., software/data rights, procurement integrity breaches, teaming agreements, and commercial items) and litigates prime/sub disputes in both federal court and arbitrations. See, e.g., O'Gara Satellite Sys., Inc., vs. Telenor Satellite Serv., 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).
Cybersecurity, Privacy, and Homeland Security. Recognized by Chambers USA as "a leading lawyer within the cybersecurity space" (2014) with "a strong practice in the cyber security area" (2015), Mr. Bodenheimer brings over a decade of experience in advising government contractors, information technology (IT) businesses, and Fortune 500 companies on cybersecurity, privacy, and information law in the public sector.
- Federal Security Requirements. Prepared comprehensive analyses of federal information security and privacy standards (e.g., FISMA, FIPS, NIST, and Privacy Act), advised contractors on scope and compliance, and developed advocacy papers on risk assessments, security controls, cost-effectiveness standards, and management roles applicable to federal contractors.
- DoD Security Requirements. Advised multiple Fortune 500 companies on DFARS Safeguarding Rule (minimum security requirements, incident reporting, flowdowns, & waiver process), NDAA § 941, NISPOM, TRICARE security rules, and prior versions of DoD information assurance requirements, such as DIACAP.
- Cloud Computing & FedRAMP. Developed comprehensive analyses and advised major technology companies on federal cloud computing, FedRAMP information security, and DoD-unique cloud security requirements and their intersection with federal acquisition rules.
- Mobile Devices & BYOD. Reviewed international, federal, and industry standards relating to mobile devices—including Bring Your Own Devices (BYOD)—and advised clients on applicable requirements and compliance.
- Cybersecurity Disputes. Defended against default termination notice for security breach, litigated cybersecurity issues in various protest actions, and developed defense strategy against complaint alleging security vulnerabilities in IT devices sold by Fortune 100 companies.
- Personnel Security & Offshoring. Reviewed federal agency regulations and standards and advised multiple government contractors and commercial companies on personnel security and screening controls, U.S.-only personnel security requirements, and restrictions on offshoring of federal data.
- Security Breaches & Audits. Advised government contractors on security breaches, advanced persistent threats (APTs), agency actions to terminate network access and interconnections, and disputes over scope and legality of federal security audits, monitoring, and corrective action demands.
- Congressional Testimony. Testified before House Congressional Committees regarding DoD cybersecurity, homeland security technology and the SAFETY Act, and TSA acquisition rules and exemptions.
Honors, Awards, and Recognition. Mr. Bodenheimer has been recognized for his pro bono commitments, public service, and professional work.
- Veterans Consortium Pro Bono Service Honors, medals, and letters of appreciation for representing veterans before the Court of Appeals for Veterans Claims.
- American Bar Association (ABA) Science & Technology Law (SciTech) Section Award for Increasing Diversity (2010).
- ABA Leadership: Secretary, SciTech Section; SciTech Division Co-Chair (Security, Privacy, & Information Law); SciTech Committee Co-Chair (Homeland Security); Public Contract Law Section (PCL) Committee Co-Chair (Cybersecurity, Privacy and Data Protection); ABA President's Cybersecurity Legal Task Force Representative.
- Chambers USA National Ranking in Government Contracts.
- Thomson Reuters DC Super Lawyer in Government Contracts.