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    Thursday
    Jun032010

    « Government Contract and Procurement Law – A “Two-Fer” Legal Opportunity »

    Government contract and procurement law is a two-tier opportunity.  You can practice it, and/or your law firm or solo practice can serve as a government contractor.  The number of government contracts is currently at its historic high, and is unlikely to decline much even as we approach the end of the $767 billion American Recovery and Reinvestment Act largesse.

    Tier One – Government Contract and Procurement Practice

    Massive Numbers

    Government contract and procurement law is a huge and wide-ranging practice area, replete with numerous players.

    Three phenomena currently drive the practice: 

    (1)   U.S. Defense Department contracting for goods and services on behalf of the armed services.  Two wars, 6,702 known military bases worldwide, and a military presence in over 130 countries requires an immense amount of contractor support. 

    (2)   Add to that the U.S. Department of Homeland Security’s tens of billions of dollars of procurement funds annually.

    (3)   Mix in the $700 billion+ allocated for procurement under the American Recovery and Reinvestment Act, and 275,000+ federal government contractors, and it becomes easy to understand why government contracting and procurement is such a vibrant practice area.

    The U.S. government is the world’s largest buyer of goods and services—from spacecraft and advanced scientific research to paper clips and landscaping services.  Military and civilian purchases totaled more than $425 billion a year before the economy collapsed, and that figure is now well above $1 trillion a year.  Federal agencies are required to establish contracting goals, with at least 23 percent of all government spending targeted to small business.

    This growing discipline requires large quantities of legal services and the expertise of thousands of lawyers.  Moreover, these numbers do not even include the equally vast amount of contracting and procurement that goes on at the state, regional, local and special district levels.  There are opportunities galore at every level of government and in every private sector niche.(law firms, companies, nonprofits and solo practices).

    State and local governments are not far behind the U.S. Government, notwithstanding severe budget deficits resulting from the Great Recession.  They simply have to continue to purchase goods and services in order to function.

    The Practice

    Private practice includes advising clients on the rules and regulations governing competing for government contracts; advising and assisting with proposals and bids in response to requests for proposals (RFPs), invitations for bids (IFBs), Sources Sought notices, etc; negotiating and documenting government contracts,; contract disputes; and defending contract fraud allegations.

    Corporate procurement department duties include: identifying government spending categories; industry analyses;  developing contracts; renegotiating existing contracts; defining the negotiating strategy; analyzing, interpreting, and overseeing procurement actions and adherence to company policies and procedures, procurement terms and conditions, government and company directives, laws and regulations; and conducting audits to identify problems and trends, recommend improvements, and monitoring corrective actions; among other duties.

    Public sector practice includes:  drafting RFPs, IFBs and other contracting documents; investigating and litigating contract dispute allegations; investigating and prosecuting contract fraud allegations; administering and terminating contracts; contract compliance; and advising policymakers on procurement matters.

    Who Does This?

    Tens of thousands of law firms, sole practitioners and companies have thriving government contract and procurement practices.  Nonprofits such as colleges and universities, hospitals, faith-based organizations, and research institutions also participate in government contracting. More than 1,000 U.S. government law offices maintain such practices and employ several thousand government contract lawyers.  In addition, the U.S. government has almost 30,000 contracting personnel (such as administrators, officers, negotiators, and managers) who work intensively with government contract law and regulation, approximately 7,500 of whom are estimated to be attorneys.  This number is certain to increase along with the increase in federal contracting activity.

    Attorneys also work in a variety of capacities for the federal government's Boards of Contract Appeals, the three principal ones being the Civilian Board of Contract Appeals, the Armed Services Board of Contract Appeals, and the Postal Service Board of Contract Appeals.

    State and local governments have parallel procurement law functions and personnel.

    American contract and procurement attorneys also work for the legal and procurement offices of many international organizations, such as the World Bank, Inter-American Development Bank, European Bank for Reconstruction and Development, Pan American Health Organization, Asian Development Bank, International Finance Corporation, Multilateral Investment Guaranty Agency, International Centre for the Settlement of Investment Disputes, and close to 200 other international and multilateral agencies in the United States and abroad.

    Compensation

    Compensation varies widely, depending on type of practice, size, and geographic location of the employer and other variables.  This is particularly true of private practice and corporate positions.  U.S. government salaries begin at approximately the $51,000 –$74,000 range for entry-level attorneys and contract personnel, and can go up to approximately $155,000 and higher.  State and local salaries are typically lower.

    Trends

    Government contract and procurement law has a bright future. Defense contracting has almost always been strong.  While U.S. involvement in the Iraq and Afghan wars is presumably winding down, defense contracting is likely to maintain its vibrancy, although it may not grow quite as rapidly as in the last ten years.  Global threats, instability and unpredictability are likely to keep defense spending going at a high pitch as far out as the eye can see.

    Similary, Department of Homeland Security spending is not likely to decline very much.  Terrorism is not going to go away.  Homeland security spending at the federal level alone is now in the $40-$50 billion per year range.  State and local governments also contract for a large variety of homeland security and counter-terrorism technology, other goods and services. 

    Moreover, the very ambitious Obama agenda with respect to energy, healthcare, financial regulatory reform, and education are also harbingers of massive spending requirements that are certain to keep procurement dollars flowing for a long time to come.

    Positioning Yourself for a Procurement Practice

    Contract law is one of the core essentials of any legal education.  Law students take contracts as 1Ls because contracts is a bedrock course that infuses so many other law school courses and so much of legal practice.  Thus, attorneys are natural candidates for government contract and procurement law positions in mainstream arenas—i.e., law firms, corporate in-house counsel offices, and government law offices—as well as in law-related venues such as corporate, nonprofit, and government procurement offices.  Many government contract lawyers and other contract professionals have been recruited and hired without any additional credential beyond their JD.

    However, you can enhance your employability and compensation if you acquire an additional credential, such as an LLM degree or certificate in government contract law or a non-legal certificate in government contracting.  Here is a selected list of such offerings:

    Government Contracts Legal Networking

    You may (if eligible) be able to join one or more of the following organizations of contract professionals:

    Tier Two – The Lawyer as Contractor

    Government contracting can be a dual bonanza for practitioners.  You do not have to limit yourself to representing a government contractor.  You can simultaneously become a government contractor yourself.  Very few sole practitioners and law firms bid on legal services contracts, so competition is rather limited, making the opportunities even more enticing.

    Governments at all levels increasingly outsource legal services. Traditionally, major law firms thrived on securing lucrative bond counsel contracts from states, municipalities and special districts.  Outside counsel contracting has expanded far beyond bond counsel and is likely to continue to grow because outside counsel have proven their worth.  Moreover, outsourcing legal services allows government agencies to get around certain hiring restrictions that may restrict direct hiring of attorneys.

    The following federal organizations have contracted for outside legal services:

    U.S. Department of Agriculture

    • Agricultural Research Service
    • Forest Service
    • Rural Development

    U.S. Department of Commerce

    • Commercial Law Development Program
    • National Oceanic & Atmospheric Administration

    U.S. Department of Defense

    • Defense Fuel Supply Center
    • TRICARE Health and Medical Program of the Uniformed Services
    • Department of the Air Force
    • Department of the Army
    • Army Corps of Engineers
    • Naval Research Laboratory

    U.S. Department of Education – Office  of Civil Rights

    U.S. Department of Energy

    U.S. Department of Health and Human Services

    • Food and Drug Administration
    • National Institutes of Health
    • National Library of Medicine

    U.S. Department of Housing & Urban Development

    U.S. Department of Interior

    • Bureau of Indian Affairs
    • U.S. Fish and Wildlife Service
    • Minerals Management Service
    • National Park Service

    U.S. Department of Justice

    • Federal Bureau of Prisons
    • U.S. Marshals Service
    • U.S. Trustee Offices

    U.S. Department of Labor

    • Benefits Review Board
    • Office of Administrative Law Judges

    U.S. Department of Transportation

    • Federal Aviation Administration
    • Federal Highway Administration
    • National Highway Traffic Safety Administration

    U.S. Department of Homeland Security

    • Bureau of Immigration & Customs Enforcement
    • Federal Emergency Management Agency

    U.S. Department of Treasury

    • Internal Revenue Service
    • Office of Technical Assistance

    U.S. Department of Veterans Affairs

    Environmental Protection Agency

    Equal Employment Opportunity Commission

    Federal Communications Commission

    Federal Deposit Insurance Corporation

    General Services Administration

    Japan–U.S. Friendship Commission

    National Technology Transfer Center

    Nuclear Regulatory Commission

    Office of Personnel Management

    Pension Benefit Guaranty Corporation

    U.S. Agency for International Developmentt

    Administrative Office of the U.S. Courts

    The principal practice areas for which the U.S. government seeks outside legal services include:

    • Real estate closings
    • Foreclosures
    • Patents
    • Rule of law projects for emerging democracies and market economies
    • Legal research and decision writing
    • Mediation
    • Training in a wide variety of legal subjects.

    There are also a significant number of subcontracts available for legal and law-related services. Most agencies publish a list of prime contractors that will give you an idea of the types of subcontracting services in demand.

    The states that do the most legal and law-related services contracting are California, Massachusetts, Texas, Florida, Maryland, Hawaii, and Colorado.

    International organizations and multilateral development agencies contract for a range of legal services, particularly energy, environmental, and rule of law matters, in both the U.S. and abroad.

    Identifying Government Legal Services Contract Opportunities

    The primary source of information about U.S. government legal and law-related services contracts is the Federal Business Opportunities website.  All federal contracts worth $100,000 or more are published here. Some contracts worth between $25,000 and $100,000 are also published here. Contracts worth less than $25,000 are not included.

    In order to make sure that you or your organization receive timely information about all federal contract opportunities, you need to (1) identify those agencies most likely to procure the services you offer, and (2) contact (ideally visit) agency contracting offices and Small and Disadvantaged Business Utilization Offices that handle those contracts.

    The U.S. government pays invoices for virtually all legal and law-related contract services within 60 days of submission. Some payments can even be made by credit card.

    It is a good idea to register as soon as you can with the federal government’s Central Contractor Registration System (CCR), which is a prerequisite for being considered for a federal contract award.

    Every state government has a website where it lists contract opportunities, or it provides the same information through a centralized service such as BidSync.  In addition, most counties and cities have comparable websites.

    For More Information