Multiple Award Schedules

The Multiple Award Schedule (MAS) contract program administered by the General Services Administration (GSA) - and the Department of Veterans Affairs (VA) for medical products - is the leading contract program for the sale of commercial item products and services to the federal government. Total MAS contract sales in FY 2008 exceeded $36 billion. While MAS contracts represent a substantial business opportunity for commercial item contractors, MAS contracts contain unique and frequently misunderstood terms and conditions that create enhanced compliance risks and challenges for contractors, including:

  • "Current, accurate and complete" commercial sales practices (CSP) pricing disclosures
  • Price reduction obligations under the Price Reductions Clause when prices are reduced to the negotiated basis of award
  • Trade Agreements Act (TAA) certification regarding product country of origin
  • Industrial funding fee (IFF) payment requirements
  • Sales of products and services not approved for MAS contract sales
  • Employee qualifications for labor categories sold through the MAS contract

In recent years, numerous MAS contractors have paid substantial fines and penalties to settle allegations of noncompliance with these requirements. Current and prospective MAS contractors are well-advised to be aware of the MAS contract program’s unique requirements and to ensure that they have the appropriate systems and procedures in place to meet these requirements.

The attorneys at Shook Doran Koehl LPP have extensive experience in all areas of MAS contracting, including regular assistance on MAS contract audits performed by GSA’s Office of Inspector General (OIG) and the VA OIG, as well as in responding to subpoenas issued by the Department of Justice and other investigative agencies. We assist clients on all aspects of obtaining and performing MAS contracts, including:

  • Researching and drafting CSP disclosures for each category of customer
  • Negotiating the terms and conditions of the original MAS contract
  • Counseling with respect to contract administration issues, including MAS leasing, pricing issues, Blanket Purchase Agreements (BPAs) and FAR 9.6 Contractor Teaming Arrangements (CTAs)
  • Helping contractors to establish IT systems and to prepare tailored training courses designed to maximize compliance with Industrial Funding Fee, Price Reductions Clause and other MAS contract requirements
  • Helping contractors respond to routine "contractor assistance" audits by GSA
  • Helping contractors to respond to pre-award and post-award OIG audits

Representative matters include:

  • Represented an IT hardware manufacturer in connection with a GSA OIG investigation into possible noncompliance with the TAA under its MAS contract
  • Represented a professional services firm in all facets of a GSA OIG audit of its MAS contract extension proposal and successfully negotiated a 5-year contract extension
  • Represented a software manufacturer in connection with a Department of Justice/GSA OIG investigation into allegations of noncompliance with the Price Reductions Clause and the TAA
  • Represented a MAS contract dealer in connection with a GSA OIG investigation of alleged defective CSP disclosures
  • Helped to prepare proposals and to negotiate contracts based upon various MAS solicitations, including: IT hardware, software and professional services; business consulting services; professional engineering services; medical products; office products; and, marketing and media services
  • Assisted the buyer of a MAS contract dealer to mitigate the impact of possible pre-closing pricing errors and to clarify the post-closing operation of the Price Reductions Clause

Training and Publications:

The attorneys at Shook Doran Koehl LLP have also lectured and written extensively about the MAS contracting program. We offer a two-day in-house training course on "High Risk Areas" in MAS contracting. For a detailed course agenda, click here. To read an article on MAS contracting published by our attorneys click here.

State and Local Government Contracting

While state and local government procurement requirements can present unique challenges for commercial companies, contracts with state and local government agencies can represent a substantial business opportunity. The attorneys at Shook Doran Koehl LLP help clients navigate through the many facets of state and local procurement laws, regulations, policies and procedures. Our attorneys have handled significant procurement law matters in most states, including many of the states with the largest purchasing budgets, such as Florida, New York, Pennsylvania, Texas and Washington. Our attorneys have extensive experience at both the state and local government level in California, where we have developed a working knowledge of the state’s procurement law and associated processes and have represented, as outside procurement counsel, state agencies in procurement matters including the California Lottery Commission and the Department of Social Services.

We have created 50 state surveys of the laws and regulations applicable to issues of greatest interest to state and local government contractors, e.g., intellectual property, data rights, indemnity, limitation of liability, audits and public ethics rules. These surveys help our attorneys provide efficient service to clients doing business in any of the 50 states.

Our attorneys advise clients doing business at the state and local level on a broad range procurement-related issues, including the following:

  • ethics and procurement integrity rules
  • responding to requests for proposals and invitations for bids
  • negotiation and counseling on contract terms and conditions
  • equal employment opportunity and other socio-economic laws and unique requirements
  • small and minority business programs
  • filing and defending against bid protests
  • pursuing and defending against public records act (FOIA) requests
  • contract claim litigation and dispute resolution

Representative Matters Include:

  • Assisted a large software and consulting services firm to successfully bid and negotiate terms for a contract with the centralized state procurement agency in California and Florida
  • Counseled the successful bidder during the competition for award of one of California’s strategic sourcing initiative (SSI) contracts, which consolidated the state’s contracts for some categories of commodity items
  • Assisted a client in successfully bidding and negotiating the terms and conditions of a contract to supply information technology products and associated services through with the Western States Contracting Alliance (WSCA) program
  • Successfully defended against a bid protest challenging the largest computer hardware contract ever awarded by the Commonwealth of Pennsylvania
  • Represented a software development firm in a $6 million claim against the Idaho Department of Health & Welfare (IDHW) under a contract to develop a new comprehensive claims processing system

Biodefense

The field of biodefense is one of the fastest growing and most complex areas in government contracting. The growth of the industry has stemmed from the government’s heightened focus on the security of our nation and defense against chemical, biological, radiological and nuclear weapons. This government focus resulted in the passage of the Project BioShield Act of 2004 (BioShield), with $6 billion in funding specifically for biodefense projects.

The attorneys at Shook Doran Koehl LLP have extensive experience in biodefense issues, having practiced in this area since BioShield became law in July 2004. We provide services to clients in the biodefense industry on a regular basis, including:

  • Assisting prospective contractors in responding to complex biodefense requests for proposals (RFPs) and advising clients on biodefense-unique RFP requirements
  • Establishing government compliant systems for new market entrants
  • Counseling existing contractors on contract administration issues and requirements under large biodefense contracts
  • Representing biodefense contractors in protests and claims against the government

Representative matters include:

  • Working with lobbyists to provide Capitol Hill and agency staff with legal and scientific analyses on an ongoing basis in support of Bioshield legislative issues
  • Successfully litigating an agency-level protest on behalf of an offeror in a significant BioShield procurement
  • Successfully representing an offeror in a U.S. Government Accountability Office (GAO) protest involving a pre-award challenge to the terms of a BioShield RFP
  • Regularly providing advice and counsel to companies performing several of the largest BioShield contracts

Small Business Programs

The attorneys at Shook Doran Koehl LLP regularly advise a broad spectrum of small business concerns that perform or seek to perform under special government contract set-aside programs, including:

  • 8(a) Businesses
  • HUBZone Businesses
  • Small Disadvantaged Businesses
  • Women-Owned Small Businesses
  • Veteran-Owned Small Businesses
  • Service-Disabled Veteran-Owned Small Businesses
  • Native American Businesses

Each of these programs has its own separate rules and requirements regarding eligibility and contract compliance terms. We work with our small business clients so that they can increase their revenue stream and accomplish their business goals while remaining eligible for the various preference programs. In addition, we monitor on-going legislative and agency administrative efforts to modify the various programs and work with clients who are interested in having an impact on the outcome of those efforts.

In addition, we advise on how our small business clients can best work with public sector agencies in order to ensure that solicitations are drafted so as to maximize the opportunity of successful bidding. In those circumstances where either the size of one of our clients is challenged or an award is made to an entity that does not qualify as a small business concern, we litigate the size protest before the Small Business Administration and the Office of Hearings and Appeals. Of note, our attorneys successfully litigated the leading case on the application of SBA’s "affiliation" rule to publicly-traded small business concerns. click here to read the Office of Hearings and Appeals decision in MPC Computers, LLC.

We regularly advise large businesses and prime contractors with respect to small business issues, including the establishment and compliance with small business subcontracting plans required by FAR 52.219-9 and subcontracting requirements that are increasingly found in major solicitations as well as the process for establishing joint ventures and teaming agreements with small business concerns. We also provide advice to a public agencies with regard to statutory small business subcontracting requirements and streamlining small business subcontracting programs.

Representative matters include:

  • Represented a helicopter services contractor in a size protest challenging its status to perform a set-aside contract issued by the Bureau of Land Management
  • Represented a small business concern in successfully challenging the size status of the apparent awardee thereby ensuring that the client was awarded a succession of mulit-million dollar contracts.
  • Assisted an IT professional services contractor with completion of an 8(a) Business Development Program application
  • Provided advice to a large construction firm on establishing an 8(a) Mentor/Protégé agreement with a small construction management services firm
  • Provided comprehensive advice to a large engineering services firm on how to maximize its performance role in support of set-aside prime contracts
  • Represented a IT hardware manufacturer challenging an adverse size determination issued by its SBA Area Office
  • Researching government contracting opportunities for small businesses in multiple industries and geographic regions

Bid Protests

When a federal, state or local government agency fails to conduct a procurement fairly and in accordance with statutes and regulations, a prospective contractor has the right to file a formal bid protest that challenges the government's actions. The attorneys at Shook Doran Koehl LLP each have at least 15 years of experience representing companies in bid protests, both pre-award and post-award and have been counsel of record in more than 100 bid protest actions. We help our clients ensure that the competition is conducted on a level playing field and that the agency adheres to legal requirements in making its award. We also represent clients defend an award they received when a disappointed bidder files a protest against the award decision.

Our bid protest experience extends to all available forums, including federal agency-level protests, the United States Court of Federal Claims and the Government Accountability Office. We are well-versed in the differences among these forums and the strategies that are necessary to be successful. We also have significant experience at the state and local level, appearing before many state and local administrative tribunals that hear bid protests.

In addition, we have a practical working knowledge of the rules applicable to contractor debriefings and help our clients prepare an effective debriefing strategy. After the debriefing, we are often better able to provide our clients with advice as to whether a protest might prove successful and, if so, the specific types of government corrective action that might follow.

Prior to filing a bid protest, we work with clients to develop an overall strategy intended to result in the award of a contract rather than just "winning" a bid protest. We focus on the client’s goal of meeting the government customer’s needs and help develop a strategy that can result in increased business rather than just litigation. This may include discussions with the government to address an issue without resorting to legal action, or it may include forms of Alternative Dispute Resolution. Whatever course is taken, our focus is on helping our client use the bid protest procedures to protect its rights and help it successfully pursue government business opportunities.

Representative matters include:

  • Represented the disappointed bidder in a Court of Federal Claims bid protest challenging the award of a U.S. Postal Service contract for computer hardware valued at several hundred million dollars. The court granted award of bid and proposal and bid protest costs
  • Represented the disappointed bidder in several successful Court of Federal Claims bid protests challenging the General Services Administration’s award of a contract to develop the next generation Federal Business Opportunities portal
  • Represented the incumbent contractor in a successful bid protest at the Government Accountability Office and, subsequently, the Court of Federal Claims, challenging a $250 million environmental remediation services contract
  • Represented a bidder in a pre-award agency level protest that reversed its exclusion from the competitive range on a large Department of Health and Human Services procurement. The bidder later received award of a contract valued at approximately $400 million
  • Represented several contractors in different industries in connection with disappointed offeror debriefings and bid protests involving California’s Strategic Sourcing Initiative (SSI) designed to reduce the State’s supplier base for commodity items
  • Successfully defended against a bid protest filed by a disappointed contractor for a $160 million contract for computer hardware awarded by the Commonwealth of Pennsylvania. This single-source award was the largest of its type ever awarded by the Commonwealth

Government Contracts Mergers and Acquisitions

Shook Doran Koehl LLP brings together a comprehensive set of legal skills when assisting clients and other law firms engaged in asset sales and purchases as well as mergers and acquisitions involving government contracts. Because the performance of government contracts requires careful compliance with a multitude of unique federal and state laws, executive orders, and contract terms and conditions, companies must identify and ensure that the prospective seller has properly performed its government contracts. We also work with buyers and sellers to assess the anticipated post-close value of the government contracts, including the potential loss of small business set-aside contracts and the integration and compliance costs resulting from the acquired government contracts.

Potential buyers should be aware of the December 2008 Federal Acquisition Regulation (FAR) rule specifying new contractor ethics and disclosure requirements. This rule makes it even more important for the buyer to gain a complete understanding during due diligence of the seller’s systems and controls for government contract compliance, so as to avoid unanticipated post-closing disclosures and liabilities relating to the acquired government contracts.

Pre-Closing Due Diligence

Our attorneys have developed a comprehensive due diligence checklist unique to government contracts, based upon decades of experience working on government contracts acquisitions. The checklist covers seven broad areas including:

  • Procurement Law Compliance
    This category includes a compliance check on 15 unique laws applicable to government contracting covering pricing disclosures pursuant to the Truth in Negotiations Act, the proper designation of products pursuant to the Buy American Act and Trade Agreements Act, as well as meeting a variety of socio-economic requirements. This category also includes a review of compliance with security regulations applicable to the performance of classified contracts and the maintenance of a facility clearance by companies
  • Contract and Proposal Files
    This category includes a review of closed, current, and pending government contracts and subcontracts. Issues reviewed include certifications and representations, performance issues, assignments of contract proceeds and past performance ratings
  • Financial Audits, Pricing, and Cost Accounting
    This category is particularly important for companies with cost-type contracts and General Services Administration (GSA) Multiple Award Schedule (MAS) contracts, and covers audit issues and dealing with government audit agencies including the Defense Contract Audit Agency and the various Inspectors General. The review includes direct and indirect rate issues, overhead rates, forward pricing rates, cost accounting system compliance, time-charging and time card procedures, commercial sales practices disclosures, the disclosure of certified "cost or pricing data" and "information other than cost or pricing data." When appropriate, we engage and work closely with accountants specializing in pricing and cost issues unique to government contracts
  • Litigation and Other Disputes
    This category includes a review of possible, threatened, and on-going disputes, claims, suspension and debarment proceedings, and bid protests. This category includes subcontractor claims and other contractual dispute issues
  • Intellectual Property
    This category includes a review of the unique and often complicated requirements associated with technical data rights, software licenses, trade secrets, patents, and copyrights—whether developed during the performance of a government contract or licensed as part of a government contract deliverable. The review includes procedures used to identify intellectual property, marking and disclosure procedures, march-in rights, and licensing and intellectual property protection procedures

Post-Closing Novation

In addition to assisting with the acquisition and sale of government contracts and government contracting entities, the attorneys at Shook Doran Koehl LLP can assist clients and other law firms with the post-closing process of novating the acquired contracts to the new company. This process includes both properly structuring the definitive agreement to clearly identify the parties’ respective "post-close" obligations and ensuring a timely submission of required documents and working with the lead government agency to ensure timely approval.

Representative matters include:

  • Represented the buyer in connection with a $70 million stock purchase involving a technology company with a substantial and complex government contracts business, including R&D contracts. Representation included due diligence, drafting and negotiation of relevant purchase agreement sections and counseling on post-closing compliance issues
  • Represented several different buyers in connection with multi-million dollar asset acquisitions involving GSA MAS contracts for IT hardware and software and business consulting services. Representation included due diligence, drafting and negotiation of relevant purchase agreement sections and counseling on post-closing compliance issues. In each case the MAS contract assignment was approved by GSA
  • Represented the buyer in connection with its acquisition of the stock of a $150 million government business subsidiary of a large engineering services firm. Representation included due diligence, as well as drafting and negotiation of relevant purchase agreement sections
  • Represented the seller of a small business, government-focused accounting firm in the sale of the company to a large business accounting firm. Representation included assistance producing government contracts due diligence materials, drafting and negotiation of relevant sections of the purchase agreement and pre-closing discussions with government officials about government consent to the contemplated contract assignments
  • Acted as government contracts counsel for the buyer in a $100 million acquisition of an environmental remediation company. Representation included due diligence, as well as drafting and negotiation of relevant purchase agreement sections
  • Represented an IT hardware manufacturer buyer in its acquisition of the assets of a publicly-traded, government-focused IT reseller with annual revenues in excess of $150 million. Representation included due diligence, as well as drafting and negotiation of relevant purchase agreement sections and counseling on post-closing compliance issues
  • Represented a publically-traded homeland security company in the acquisition of a leading provider of global environmental, hazardous and radiological infrastructure remediation, and advanced construction services. Representation included all aspects of due diligence, including contract review and drafting relevant sections of the purchase agreement

Portions of this Web site may contain Attorney Advertising under the rules of some states. THE RESULTS OF A CLIENT MATTER DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH MATTER. SUCCESS IN A PARTICULAR MATTER DOES NOT GUARANTEE OR PREDICT SUCCESS IN A FUTURE MATTER.
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