Expeditionary, Stability and Reconstruction Contracting
The military responses of the U.S. to national security threats — both in Iraq and Afghanistan today, and in numerous potential other locations in the future — have precipitated a number of new and heightened procurement related challenges for businesses providing goods and services in support of efforts on the battlefield. Similar challenges arise in contracts in support of United Nations, NATO, NGO and U.S. Government (including USAID and Department of Defense and State) stability operations, which include activities conducted across the spectrum, from peace to conflict, to establish or maintain order in states or regions, or to help rebuild infrastructure and systems.
McKenna Long & Aldridge (MLA) is uniquely situated to assist its clients in responding to these challenges because of the breadth and depth of our Government Contracts practice, and our ability to bring to bear our firm’s established strengths in White Collar Defense, Products Liability and Tort Defense, and Public Policy. Our history in support of such projects goes back to the contracts in support of operations in Korea and Vietnam. Our attorneys and professionals on the team are particularly well qualified, with relevant experience that includes active duty military service in Iraq; leadership positions in the ABA Section of Public Contract Law Battle Space and Contingency Procurements Committee; numerous working trips to Iraq; and senior-level positions in the federal executive and legislative branches.
MLA’s work in these areas includes:
Traditional Core Government Contracts Issues:
The contractor on the battlefield operates in dangerous and difficult settings, under certain unique contractual terms and conditions, and often in circumstances where government contract administration and oversight is less than optimal. We have provided clients with counseling and litigation services that cover the entire spectrum of issues that arise in such a setting, from contract formation and bid protests, contract performance, cost accounting issues, claims and disputes; to terminations, war risk insurance and the Defense Base Act.
Additional examples of services include:
- Successfully represented contractors in protests of Army awards of base maintenance contracts in Iraq;
- Successfully negotiated the conversion of default terminations to convenience terminations for logistics support providers in Iraq;
- Counseled private security contractors on general, and specific, contractual and risk issues concerning provision of armed private security services in Iraq;
- Successfully counseled and represented a U.S. Flag carrier before the Board of Contract Appeals and Federal Circuit in claims arising out of Operation Desert Shield and Operation Desert Storm in Iraq;
- Prepared claims on behalf of contractors resulting from performance of Army contracts; and
- Assisted contractors in preparation of award fee presentations and implementation of various accounting and estimating systems.
Products Liability and Tort Defense:
Inevitably, the battlefield conditions in Iraq and Afghanistan have resulted in injury and death to contractor and military personnel related to the performance of government contracts. In part because the U.S. is virtually immune from liability for such claims, this has spawned an ever-growing tide of tort suits against the contractors, ranging from product liability for weapons systems involved in friendly fire deaths, to wrongful death suits arising out of suicide bombings on military bases in Iraq. Building upon our firm’s national leadership in this field, we have been particularly successful in defending our clients in matters that include:
- Secured the dismissal on Political Question Doctrine grounds of numerous personal injury and wrongful death tort actions brought in federal district courts against Kellogg, Brown, & Root by employees and military personnel arising out of logistics support contract in Iraq;
- Represented weapons systems manufacturer in products liability suit arising out of friendly fire downing in Iraq of U.S. military jet, by U.S. missile; and
- Counseled logistics support contractor on specific contractual clauses to mitigate and manage the risk of tort exposure arising out of contractual requirement to provide armed private force protection for its employees working in Iraq.
Procurement Fraud, Government Investigations, and Criminal Prosecutions:
The conduct of the war in Iraq, as well as reconstruction efforts there, have shown a very bright public spotlight on contracting on the battlefield. In response, agency contracting offices, the DCAA, the Inspectors General of the Defense and State Departments, as well as the Special Inspector General for Iraq Reconstruction, U.S. attorneys, the Department of Justice Civil Fraud section, and several Congressional committees have vigorously undertaken numerous extensive investigations, issued subpoenas, held hearings, and filed civil and criminal actions against contractors. Further, Congress has responded with literally hundreds of procurement-related bills, including legislation that exposes contractors to criminal prosecution under the Uniform Code of Military Justice and the Military Extraterritorial Jurisdiction Act, and imposes new criminal penalties for “war profiteering”. The impact on the battlefield contracting community of this increased scrutiny has been, and likely will continue for some time to be, substantial and potentially devastating. In this area, the assistance we have provided our clients includes:
- Represented logistics support contractor in Iraq in Justice Department investigation of potential civil False Claims related to costs incurred by subcontractors;
- Represented major Iraq Reconstruction design/build contractors in internal investigations, Government investigations, and Congressional inquiries related to alleged construction defects, quality control, and procurement irregularities; and
- Represented a contractor employee under investigation for accepting large bribes from Iraqi subcontractors and stashing the funds in off-shore accounts.
Public Policy and Government Relations:
As Congress has imposed the enhanced scrutiny on battlefield contractors described above, our Government Contracts attorneys, bolstered by the experience of our firm’s attorneys and professionals in the public policy arena, have assisted our clients in communicating with, and advocating before, the various cognizant committees. We also regularly represent clients before executive branch agencies, including the Department of Defense, where our longstanding relationships have proven instrumental in fostering cooperation between our clients and DOD in a variety of contentious matters. Our services in this area include:
- Assisted contractor executive in preparation for testimony before House Committee on Oversight and Government Reform, on Iraq reconstruction issues;
- Counseled Iraq logistics support contractor in preparation of its response to Congressional committee’s request for documents relating to use of private armed security in Iraq; and
- Drafted legislative proposal to provide tort liability protection to contractors on the battlefield.