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. Nyle J. Hooper et al v. Lockheed Martin Corporation, Case Number 2:08-cv-00561 (C.D. Cal. 2014).

  • 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. SUFI Network Servs., Inc. v. U.S., No. 453C (Fed. Cl., June 18, 2012). 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. SUFI Network Servs., Inc. v. U.S., 785 F.3d 585 (Fed. Cir. 2015).

  • 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. SafeGuard Services, Inc., B-404910, June 28, 2011, 2011 CPD ¶ 132. 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. TriCenturion, Inc.; SafeGuard Services LLC, B-406032, Jan. 25, 2012, 2012 CPD ¶ 52.  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. Department of State and U.S. Department of Homeland Security allegations. Obtained favorable verdict for defendant after an eight day jury trial involving allegations of overbilling the Department of State on security contract in Iraq and Afghanistan; dismissals of other allegations against five other corporate and individual defendants and involving myriad other allegations, including all claims asserted concerning another security contract with the Department of Homeland Security in the aftermath of Hurricane Katrina, were obtained prior to trial. United States ex rel. Davis v. U.S. Training Center, Inc. (f/k/a formerly known as Blackwater Lodge & Training Center), Case No. 1:08-cv-01244 (E.D. Va. 2011). The verdict and summary judgment rulings were upheld on appeal by the United States Court of Appeals for the Fourth Circuit.

  • 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. United States ex rel. Owens v. First Kuwaiti General Trading & Contracting Co., 612 F.3d 724 (4th Cir. 2010).

  • 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. United Concordia Companies, Inc. B-404740 (Apr. 27, 2011) and United Concordia Companies, Inc. v. United States, No. 11-276C (July 20, 2011).

  • Successful protest. Protested, on behalf of King Farm Associates, LLC, GSA's award regarding a lease of office space for the U.S. Department of Health and Human Services. Agreeing with Crowell & Moring, GAO determined that GSA evaluated one of the technical subfactors in a manner inconsistent with the solicitation and that the Agency's Head of the Contracting Activity failed to meaningfully consider the evaluated differences in the proposals when she disregarded the recommendations of lower-level evaluators. One Largo Metro LLC et al., B-404896 (June 20, 2011).

  • Successful defense of U.S. Army award. Turned back multiple protests challenging the Army's award to Crowell & Moring's client of a contract worth nearly $80 million to manufacture hand grenades. In denying the protests, GAO agreed with Crowell & Moring, finding that the Army's conduct of discussions and evaluation of proposals were proper, and that the Army correctly did not apply a price evaluation preference for HUBZone small business concerns to non-HUBZone entities. Martin Electronics, Inc.; AMTEC Corp., B-404197, et al. (Jan. 19, 2011).

  • Successful defense against multiple different challenges to award decision. Challenged an HHS Medicare Administrative Contractor (MAC) award to Highmark Medicare Services on behalf of CIGNA. In the first decision, GAO sustained on multiple grounds and recommended that discussions be re-opened and new proposals received. CIGNA Government Services LLC, B-401062 et al., May 6, 2009, 2010 CPD ¶ 283. It is unusual for GAO to issue decisions sustaining multiple different challenges to an award decision. Following a new round of proposals and re-evaluation, HHS awarded the contract to our client, CIGNA. Three protesters challenged the award, and Crowell & Moring intervened to assist the agency in defending the award. Several hundred pages of briefs were filed and GAO conducted a three-day hearing, before denying all of the protest grounds. Highmark Medicare Services, et al., B-401062.5 et al., Oct. 29, 2010, 2010 CPD ¶ 285.

  • Successful defense of NASA award. Defended successfully an award valued up to $229 million for information technology services to its client, ASRC Primus, by NASA. GAO denied all of the wide-ranging challenges to NASA's evaluation of the protestor's and ASRC Primus' proposals on price, technical, and past performance grounds, and to the agency's conduct of discussions. DB Consulting Group, Inc., B-401543.2, B-401543.3 (Apr. 28, 2010).

  • Defense of General Services Administration award. Defended an award by the General Services Administration to M.A. Mortenson Company for the construction of a federal courthouse in Billings, Montana. GAO rejected the protester's allegation because the contemporaneous record demonstrated that the protester's proposal failed to meet the minimum RFP requirements and was technically unacceptable. Sletten Companies, B-402422 (Apr. 21, 2010).

  • Summary dismissal of protest. Defended aggressively a Department of Interior award to its client, Moving Water Industries, by obtaining summary dismissal of the protest. In doing so, Crowell & Moring convinced GAO that the protester's challenge could be decided on the face of the solicitation and without the need for the agency record. Based on review of only the solicitation, GAO dismissed the protest, finding that it contained a minimum requirement that the protester indisputably failed to meet, and as a result, the agency reasonably rejected the protester's proposal. Sulzer Pumps (US), Inc., B-402503 (Mar. 18, 2010).

  • Successful protest of $16 billion contract. Protested successfully the award by DOD TRICARE of a massive $16 billion health care support services contract. After full protest proceedings including a lengthy hearing, GAO sustained Crowell & Moring's protest on six separate grounds and recommended that the agency perform a new evaluation and make a new source selection decision. The agency subsequently rescinded the original award, excluded the awardee from the competition, and awarded the contract to Health Net Federal Services. Health Net Federal Servs., LLC, B-401652.3, B-401652.5.

  • Important defense of large Navy weapons system contract. Defended the award of a large contract for the next generation modernization of the hardware and software of the Navy's Aegis Weapons System, the shield of the fleet against air attacks by aircraft or missiles to long-term incumbent contractor Lockheed Martin Corporation. The decision was important because: (1) Lockheed Martin maintained its status as the lead contractor for this important program; and (2) it re-affirmed important principles of bid protest law relating to sole source award procedures, particularly the important role that experience and unwritten overall knowledge of the critical components of a sophisticated system can play in justification of such awards. Raytheon Co. – Integrated Defense Systems, B-400610, et al. 

  • Successful protest of Drug Enforcement Agency (DEA) IT contract award. Represented Nortel Government Solutions (NGS) in a successful protest at the GAO in attempt by DEA to award a $78 million IT contract to SRA. Nortel Gov't Solutions, Inc., B-299522.1 (unpublished). As a result, DEA elected to take corrective action, and upon reevaluation, DEA once more awarded the contract to SRA. NGS filed a second protest, and within days, DEA decided to override the statutory stay on the performance of the awarded contract pending the GAO's consideration of NGS' second protest. In Nortel Gov't Solutions, Inc. v. United States, 84 Fed. Cl. 243 (2008), the Court sustained NGS' challenge to DEA's decision to override and held that the agency failed to establish that (1) "urgent and compelling circumstances" justified the override and (2) the override served the "best interests of the United States." In addition, in Nortel Government Solutions, Inc., B-299522.5, Dec. 30, 2008, 2009 CPD ¶ 10, GAO sustained NGS' second protest.

  • Dismissal of Airport authority tenant lawsuit. Represented the Defendant, Metropolitan Washington Airports Authority, in a suit where the plaintiff sought to enjoin the Airports Authority from leasing restaurant space at Reagan National Airport, on the eve of turnover to the new tenant. Crowell & Moring pushed for accelerated discovery, briefing and hearing on the motion for preliminary injunction, and then persuaded the Court to deny Legal Sea Food's motion, resulting in dismissal of the action just five days before the start of the new restaurant lease. Legal Sea Foods, Inc. v. Metropolitan Washington Airports Authority, Civil Action No. 1:09-cv-711 (E.D. Va. 2009).

  • Dismissal of protest on jurisdictional issues. Defeated a protest at the District of Columbia Contract Appeals Board, saving our clients' 8-year, $537 million public-private project with the D.C. Government to develop, construct, and manage a 14-story hotel to support the new D.C. convention center. Crowell & Moring obtained dismissal of the entire protest on jurisdictional issues at the Board and then secured summary affirmance of that ruling on appeal at the District of Columbia Superior Court.

  • Successful challenge. Challenged the award of a contract for detainee telephone services by the U.S. Department of Homeland Security, Bureau of Immigration and Customs Enforcement (ICE). Regarding the agency's price evaluation, GAO found that the agency had deviated from the solicitation in evaluating international calling rates and had further committed two errors in calculating total evaluated prices, the correction of which left PCS with a lower proposed price than the awardee. GAO also determined that the technical evaluation was irrational because ICE had assessed deficiencies against PCS based on unstated evaluation criteria and unequal treatment. GAO sustained the protest. Public Communications Services, Inc., B-400058, Jul. 18, 2008, In a separate decision, GAO awarded attorney's fees and costs to PCS, a small business, rejecting the agency's arguments that the legal fees incurred were excessive. Public Communications Services, Inc. -- Costs, B-400058.4 (June 25, 2009).

  • Vindication in one of the first Iraq War contracting False Claims Act cases. Represented Custer Battles in the first FCA case involving Iraq War contracting to be unsealed and litigated. The case involved allegations that our client defrauded the US Government in connection with two contracts with the Coalition Provisional Authority (CPA) in Iraq. One involved alleged fraud related to Custer Battles' contract with the CPA's Ministry of Aviation to provide security support services at the Baghdad International Airport (BIAP Contract) and the other involved alleged fraud related to Custer Battles' contract with the CPA Ministry of Finance to provide logistical support services in connection with its Iraqi Currency Exchange Program to convert and distribute Iraqi Dinars bearing the image of Sudam Hussein with new currency (ICE Contract). Crowell & Moring was successful in obtaining summary judgment on some of the claims; but other continued to trial. After a month-long trial and related motions proceedings, the Court granted our motion for summary judgment as a matter of law on the remaining BIAP Contract-related claims, and, in subsequent proceedings, granted our motion for summary judgment on the BIAP Contract claims alleged against Custer Battles (with very strong language vindicating them on the substantive allegations of wrong-doing).

  • High profile agreement to lift federal contracting suspension. Represented IBM when the Environmental Protection Agency (EPA) suspended our client from federal contracting without any prior notice or opportunity to respond. In this high profile case, the Crowell & Moring team launched into action and reached an agreement within days to lift the suspension under an administrative agreement.

  • Homeland Security Presidential Directive-12 protest. Filed protest on behalf of Electronic Data Systems (EDS) at GAO challenging the General Services Administration's (GSA) award of a contract to implement Homeland Security Presidential Directive-12 (HSPD-12), which mandates the establishment of a standard identification card for access to federally-controlled facilities and information systems. After GSA took corrective action and EDS won the recompetition, we worked closely with GSA counsel to successfully defended EDS' award against two separate GAO protests in XTec, Inc., B-299744.2, .3, 2007 CPD ¶ 148 (Aug. 6, 2007) and Computer Literacy World, B-299744, .04, 2007 CPD ¶ 154.

  • Defense against protests of Army award. Defended IBM Corporation against two protests at GAO of the U.S. Army's award of a contract for educational support services for the GoArmyEd program to provide high quality educational opportunities from participating colleges and universities to soldiers worldwide on a 24/7 basis. Protest allegations were denied as the record demonstrated that the agency's evaluation was reasonable and consistent with the stated evaluation factors, and, further, the protesters' mere disagreement with the evaluation was insufficient to show that it was unreasonable.

  • Defense of Marine Blanket Purchase Agreement Award. Defended protest against Harris Corporation in the Marine Corps' award of a Blanket Purchase Agreement for Tactical Hand Held Radios and Dual Vehicle Adapters. In doing so, Crowell & Moring helped Harris Corporation end Thales Communications' long-running monopoly of the Marines' requirements for these radios. The Marine Corps. originally issued a solicitation in March of 2007 which included a lengthy specification with many requirements that were unique to Thales' radio. Crowell & Moring assisted Harris in preparing and submitting challenges to this Request for Proposal (RFP) as unduly restrictive. In response to these challenges, the RFP was cancelled, and new solicitation with only a few stated requirements was issued several months later via GSA's e-Buy website. Harris was awarded the competitive contract under this new solicitation. After the incumbent contractor filed a bid protest, Crowell & Moring's work resulted in Thales withdrawing its protest.

  • Protest alleging Department of State acted arbitrarily in adopting a GAO recommendation. Represented Plaintiff Grunley Walsh International in a bid protest at the Court of Federal Claims which held that the Department of State acted arbitrarily when it adopted a GAO recommendation to reverse its own, longstanding interpretation of the total business volume requirement in the Diplomatic Construction Program statute (22 U.S.C. § 4852). The government argued that the Court must defer to State's revised interpretation, but the Court refused to do so, because that would "effectively strip this court of any real review in any case where the agency followed a recommendation of the GAO on an interpretation of a statute or regulation." Grunley Walsh Int'l v. United States (Fed. Cl. Aug. 3, 2007).

  • Successfully convinced GAO to reject protest arguments. Defended two protests challenging the award of a contract to provide educational support services to the Department of the Army valued in excess of $40 million. Crowell & Moring successfully convinced GAO to reject the protesters arguments that the agency improperly considered the past performance of proposed subcontractors during its past performance evaluation of aXseum Solutions, LLC and that the agency should have performed a price realism analysis to ascertain whether there were performance risks associated with aXseum's pricing structure. Heritage of America, LLC, B-298432.5 (Dec. 20, 2006); Indtai, Inc., B-298432.3, 2007 CPD ¶ 13.

  • Matter of first impression based on Crowell & Moring's arguments. Represented Lockheed Martin Corporation against the Government's claimed entitlement under the Cost Accounting Standards (CAS) to a refund from Lockheed Martin Corporation for "increased costs" allegedly paid as a result of changes that Lockheed Martin made to its cost accounting practices at the urging of the Government at the same time the Government was requiring Lockheed Martin to reprice a major defense program completely. Normally, a contractor would be required to refund increased costs paid on existing contracts in such circumstances, but not increased costs paid on new contracts. In a matter of first impression based on Crowell & Moring's arguments, the Armed Services Board of Contract Appeals (ASBCA) held that the repriced contract was not "affected" by the accounting change, so it was not subject to a price adjustment, in effect treating the repricing as if it were a new award for these purposes. The ASBCA decision also included very favorable guidance about whether the changes were sufficiently "desirable" as improvements in accounting accuracy to the Government prevent the Government from recovering a price adjustment.

  • Victory for UTC's Pratt & Whitney in the Great Engine War case. Secured victory for UTC's Pratt & Whitney in the $299 million Great Engine War case, before the Federal Circuit, that alleged overpricing against our client. The case arose out of the historic Fighter Engine Competition, a $10 billion procurement in 1983 pitting Pratt against long-time rival GE for the engine market for the Air Force's front-line F-15 and F-16 fighter jets. After Air Force Secretary Orr and Defense Secretary Weinberger made the initial award decisions and proclaimed billions of dollars of competitive savings in the 1980s, the auditors conducted over 32 audits spanning a decade and ultimately asserted that Pratt had overpriced the engines. Following a 33-day trial, the initial decision of the ASBCA in 2004 denied the Air Force's $299 million defective pricing claims, finding no liability on some claims and offsetting underpricing on others. On reconsideration in 2005, the ASBCA again rejected the Air Force's claims, holding that the Air Force could not prove reliance or causation where no one even looked at the allegedly defective data. Not content with two losses, the Air Force appealed to the Federal Circuit where the government presented a host of novel arguments, including the aggressive assertion that reliance had never been an element of defective pricing cases. On August 28, 2006, the Federal Circuit delivered a 3-0 victory to UTC, affirming the trial findings of no reliance upon the cost data at issue and slamming the U.S. Department of Defense’s (DOJ) attempt to disregard 30 years of settled law recognizing reliance as an essential element of such overpricing claims.

  • Contractor claims and terminations-for-default litigation. Retained by the Washington Metropolitan Area Transit Authority (WMATA) in litigation against Mergentime Corporation and Perini Corporation involving contractor claims and terminations-for-default arising from construction of the Metro's Green Line. The case was first tried in 1991, and decided in major part in WMATA's favor in 1993, but the judge died before deciding the entire case. The replacement judge completed the decision, but did not fulfill his record-familiarization obligations as a successor judge. As a result, the Court of Appeals reversed and vacated his decision. On remand, a new judge replaced the incapacitated second judge and ordered a new trial, which took place in 2001. In 2006, the judge issued the decision which upholds the default termination and grants our client $21 million in reprocurement costs, plus $19 million in interest, while limiting the contractor to only $200,000 in delay damages. Mergentime Corp. et al. v. McElhenny, et al., 2006 WL 416177.

  • 15-year favored customer discount dispute. Defeated GSA claims that Westinghouse Furniture Systems owed the Government more than $3.8 million in refunds for not disclosing its most favored customer discounts in negotiating a Federal Supply Schedule contract in 1984. On a dispute that lasted 15 years, and included U.S. Department of Justice fraud investigators (the fraud allegations were declined by DOJ), and after a contentious trial and briefing, the General Services Board of Contract Appeals (GSBCA) decided that the purportedly undisclosed discounts were irrelevant to the pricing of the contract at issue and the damages sought by the Government were based on an unreasonable premise. Viacom, Inc., Successor in Interest to Westinghouse Furniture Systems v. General Services Administration, GSBCA No. 15871, 05-2 BCA 33,080, Sept. 21, 2005.

  • Issues of first impression relating to interstate compact procurement law. Represented the Metropolitan Washington Airports Authority (MWAA), an interstate compact that operates Dulles International and Ronald Reagan Washington National Airports. The matter raised issues of first impression relating to interstate compact procurement law and judicial review of interstate compacts, and resulted in the first decision by a federal appeals court addressing the merits of a challenge to the award of a contract by MWAA. The Fourth Circuit upheld MWAA's award because it was "grounded in a methodical and public review of the proposals," had "a rational basis," and was not "arbitrary or irrational." Washington-Dulles Transp., Ltd. v. Metro. Wash. Airports Auth., (4th Cir.) Jan. 30, 2004), cert denied.