Claims and Terminations
The government contracts practitioners at McKenna Long & Aldridge (MLA) have extensive experience in preparing and litigating claims on behalf of government contract clients. We handle a wide variety of claims involving cost disallowance and recovery issues, defective pricing, intellectual property, breaches of contract, change orders, constructive changes and equitable adjustments under various standard government clauses. Our practice includes disputes over interpretation of contracts, defective specifications, superior knowledge, formation mistakes, and the rights and obligations of the parties under special provisions concerning options, funding, price and cost ceilings, releases and indemnity obligations.
Claims Preparation and Negotiation
Based on our practitioners' years of experience with claims work, we are able to handle all types of contract claims, both large and small, with maximum efficiency. We are able to conduct early claims analysis when clients sense a problem, but have had difficulty in identifying its cause under their contract. We then can take that early analysis and, working closely with our clients, lay out the most efficient path to recovery. At times, that path may entail negotiations with the responsible government agency, and we frequently support our clients in those efforts by preparing the detailed claims necessary to successful negotiations, and by actively assisting our clients as they engage the government in face-to-face discussions. We also are well versed with the integration of legal, technical, scheduling and accounting experience to produce quality claims.
MLA attorneys appear before all Boards of Contract Appeals and the Court of Federal Claims in actions involving contract claims that implicate the full range of contractor rights and obligations under federal government contracts. Our claims litigation experience encompasses claims ranging from billions of dollars in such actions as the litigation challenging the Navy’s termination of the A-12 stealth aircraft contract , to our successful resolution of routine contract administration claims on behalf of our small business clients. The breadth of MLA's claims litigation experience is unparalleled, and positions us to deal effectively with claims issues, regardless of size or complexity.
We also represent our clients in actions in the U.S. District Courts and, at times, in the state courts, litigating issues related to government contract rights. Such actions frequently involve rights in technical data and intellectual property disputes, claims for document access under the Freedom of Information Act, and the defense and assertion of indemnity rights and obligations in the context of environmental and other tort-related actions. In both judicial and arbitration proceedings, we represent prime contractors and subcontractors to resolve disputes arising out of subcontracts.
We handle federal court litigation and international arbitrations on behalf of clients performing international government contracts. Our capability is enhanced by having six offices in the U.S. and an office in Brussels.
Environmental and Tort Litigation
Our attorneys also litigate cases involving the tort and environmental liabilities of government contractors, including not only the product liability aspects of such litigation, but also successfully asserting government contract-based defenses. We have defended contractors in environmental litigation arising out of federal and state environmental laws and regulations, relying also upon the substantial resources of the firm's environmental department.
We have substantial experience in litigating Federal Tort Claims Act suits against the government on behalf of clients whose claims against the government are best pursued as tort actions. In connection with our product liability and environmental representation, we have used the FTCA to secure either contribution or indemnity from the government.
Design/Build and Construction Litigation
An important part of our litigation practice involves design/build and construction contractor claims and litigation, including identification and support of claims for delay, disruption, acceleration, differing site conditions and additional work. We have also recommended alternative dispute resolution for resolving disputes, and we have experience with such proceedings. We have been extensively involved in claims arising out of the reconstruction of Iraq and Afghanistan, Hurricane Katrina, and the recovery activities conducted under the auspices of the Federal Emergency Management Agency (FEMA). We have specialized experience related to the Stafford Act, which limits the Government’s liability in emergency response situations.
Attorneys in our Government Contracts practice counsel clients in government contract termination matters and, when necessary, represent them in termination claims and appeals. In this arena, we have represented large and small contractors in all business sectors, including defense, information technology, and the Department of Energy. This experience includes contracts performed in the United States and United States Government contracts performed overseas, including in Iraq.
Our counseling in this area extends to contractors threatened with contract termination, as well as to those seeking to end an unsuccessful contractual relationship in an equitable manner. Based on the depth and breadth of our experience with terminations, we are able to advise our clients on critical issues that arise in these settings, including procedural requirements, performance cost recovery, subcontractor claims, profit and post-termination costs.
When contractors are terminated, we assist them in the preparation, submission and negotiation of monetary claims to recover their costs and profit. When negotiations fail to resolve such claims, we represent those clients, in appeals of those claims, before the Boards of Contract Appeals and the Court of Federal Claims. In these appeals, whether challenging an improper termination for default, or seeking monetary recovery, we bring to bear our extensive litigation experience, as well as our comprehensive substantive knowledge of unique termination-related issues.
Attorneys in our Government Contracts practice have extensive experience in counseling both prime contractors and subcontractors when subcontract performance disputes and claims arise. We are experienced in analyzing the causes of subcontractor performance issues and any cost and schedule impacts, and preparing and pursuing subcontractor claims against prime contractors. When prime contractors receive claims from subcontractors, we analyze the validity of those claims and the possibility of passing through valid claims to the government. Whether we represent the prime contractor or subcontractor in a claims dispute, we develop a strategy for fact-finding, negotiation and resolution and if that effort is unsuccessful, we litigate the dispute in the appropriate forum.
- FEATURE COMMENT: Reports Of The Death Of The Duty To Cooperate And Not To Hinder Have Been Greatly Exaggerated
- CDA Statute of Limitations and Cost-Related Claims: Five Things Contractors Need to Know Now
- Implied Certification Liability Under the False Claims Act