Background - Practices (Details)
Government Contracts

Representative Engagements

  • Victory in Qui Tam Jury Trial. After a six-day trial in Los Angeles where a jury unanimously found in favor of our client, Lockheed Martin Corporation, in a qui tam suit under the civil False Claims Act in which the plaintiff alleged fraudulent underbidding on a contract for the development of a system to standardize and automate the eastern and western ranges used for launching rockets from Vandenberg Air Force Base and Cape Canaveral. The plaintiff claimed single damages of approximately $450 million (subject to trebling under the Act), representing the difference between Lockheed Martin's original cost estimate and the final contract value of $883 million paid under the cost-reimbursement contract; however, the jury found: (a) the cost estimates for the original contract and those submitted in support of Air Force directed changes were not false statements (a finding based in part on the testimony of key Air Force personnel), and (b) the termination of plaintiff's employment with Lockheed Martin was not a retaliatory discharge.

  • Court of Federal Claims (CFC) award of attorney's fees, affirmed by the Federal Circuit. Granted summary judgment by the CFC holding that SUFI is entitled to attorneys' fees for claim preparation as an equitable adjustment pursuant to the common-law test of foreseeability applicable to NAFI contractors when FAR regulations do not apply. The CFC analyzed SUFI's claim under the Federal Circuit's seminal Bill Strong decision, finding that, even under a FAR analysis, SUFI's claimed legal fees (calculated on an "hours times rate," or lodestar, basis) were not precluded by the existence of a contingency agreement and were recoverable because they were for contract administration, as opposed to claim prosecution. After a three-day trial on quantum, the CFC granted SUFI all its requested hours at its claimed, standard billing rates. DOJ appealed the judgment in numerous respects, and SUFI cross-appealed the denial of overhead and profit. The Federal Circuit affirmed the fee award to SUFI in all respects save the date from which interest runs, while also granting SUFI's cross-appeal and remanding for the CFC to set profit and overhead rates.

  • Victory at the Government Accountability Office (GAO) leads to reinstatement in competition. Represented SafeGuard Services (SGS), a subsidiary of Hewlett Packard, and successfully protested the client's exclusion from the competitive range by the Department of Health & Human Services, Centers for Medicaid and Medicare Services (CMS) from the Zone Program Integrity Contractor (ZPIC) procurement to support CMS' audit, oversight and anti-fraud, waste and abuse efforts associated with Medicare and Medicaid claim types in twelve states covering the mid-Atlantic and Northeast. The Agency excluded SGS (who is the incumbent contractor for most of the services being procured) from the competition after one of SGS' minor subcontractors failed to timely submit its final proposal revisions to the Agency. In a case of first impression, we were able to get around the strictly-applied "late is late" rule by successfully arguing that the agency excluded SGS without first assessing whether SGS' proposal was complete even without the subcontractor's final revisions. In a remarkable decision, GAO not only agreed that the agency failed to consider the acceptability of SGS' proposal, but GAO also went a step further and actually determined that the SGS proposal was in fact complete notwithstanding the late subcontractor submission. Crowell & Moring's victory at the Government Accountability Office led to SGS being reinstated in the competition, with an estimated value of $120 million, as well as a recommendation that the Agency reimburse SGS for reasonable attorneys' fees and costs. After reopening discussions and receiving new final proposals, the agency made award to one of SGS' competitors. Crowell & Moring once again filed a protest challenging CMS's evaluation of the cost and technical proposals, including past performance, on the basis it was flawed.  GAO sustained the protest finding that the record was deficient and did not support the agency's findings that their evaluation was reasonable.  GAO recommended that CMS reevaluate the proposals as well as award our client protest costs. We are still awaiting the results of the re-evaluation.

  • Favorable settlement dismisses all claims. Represented a local contractor that faced over $2.5 million in false claims allegations based on an expansive government audit alleging, among other things, labor mischarging and illegal kickbacks. Crowell & Moring obtained a favorable settlement which dismissed all claims against the contractor, converted the government's termination for default into a termination for convenience, and compensated the contractor for monies owed by the government at the time of termination.

  • U.S. Embassy construction fraud allegations. Represented a foreign construction company in a qui tam suit alleging fraud in connection with building the U.S. Embassy in Iraq. The Fourth Circuit affirmed summary judgment on all claims.

  • Successful GAO and Court of Federal Claims defense. Defended successfully twice a contract award to Metropolitan Life Insurance Co. valued at over $3 billion for a comprehensive worldwide dental healthcare insurance program for eligible family members of military personnel. In denying United Concordia's initial protest, GAO found that the agency reasonably considered proposal risk regarding the parties' technical proposals, reasonably evaluated past performance, and was not required to perform a cost realism assessment where such analysis was not provided for in the solicitation. A post-GAO protest filed with the Court of Federal Claims (COFC) alleging many of the same protest grounds was also denied. There the COFC found that the agency reasonably performed a comparative assessment of the technical proposals, conducted a rational past performance evaluation, and did not commit error when it did not require the awardee to submit past performance information for its subcontractor.