Government & Public Sector

Government contracting operates within a legal framework that has no parallel in commercial practice. Public agencies — whether federal departments, state agencies, or local municipalities — conduct procurement under statutory and regulatory requirements that impose competitive bidding obligations, transparency requirements, vendor eligibility standards, and contract term restrictions that commercial parties simply don't face. These requirements exist for legitimate public policy reasons — ensuring fair competition, preventing corruption, promoting accountability for public funds — but they create a contracting environment of significant complexity for both government agencies and the contractors who serve them.

The federal procurement system, governed by the Federal Acquisition Regulation (FAR) and agency-specific supplements, represents the most comprehensive and detailed procurement framework in the world. Federal contracts incorporate by reference an extensive library of clauses covering everything from small business subcontracting requirements to cybersecurity standards to equal employment obligations to Buy American provisions. Government contractors who don't understand which clauses apply to their contracts, what compliance they require, and what the consequences of non-compliance are operate at significant risk — both of contract default and of False Claims Act liability for misrepresentations made in pursuit of government business.

False Claims Act exposure is the defining litigation risk for government contractors, and its severity has increased substantially as DOJ enforcement has intensified and qui tam relators (whistleblowers) have become more sophisticated at identifying and prosecuting FCA violations. The FCA's treble damages provision means that a $10 million overbilling creates $30 million in FCA liability before penalties — a financial consequence that can be existential for small and mid-sized contractors. The FCA's breadth — reaching any "false or fraudulent claim," including false certifications in contract proposals, inflated billing, and compliance misrepresentations — means that almost every aspect of government contract performance carries FCA risk if not managed carefully.

Protest vulnerability affects both the award of contracts and the administration of ongoing work. Unsuccessful bidders who believe procurement decisions were improper have multiple protest venues — GAO, agency-level, and federal courts — creating litigation risk that delays contract performance, consumes management resources, and can result in award rescission even after work has begun. The prevalence of protests in competitive procurements means that agencies and contractors must document evaluation decisions and award justifications with a level of specificity that anticipates adversarial challenge — a requirement that adds significant administrative burden to procurement processes.

Build False Claims Act compliance into every stage of government contract performance — from proposal development through invoicing to compliance reporting. The FCA's knowledge standard includes "deliberate ignorance" and "reckless disregard" in addition to actual knowledge, meaning that contractors who fail to investigate red flags or who allow compliance problems to persist without investigation face FCA liability even without proving they knew their claims were false. Implement mandatory compliance training for all personnel involved in government contract work, establish clear reporting channels for compliance concerns, and conduct regular internal audits of billing practices and compliance representations.

Establish a government contract compliance program with specific procedures for each major compliance area: cost accounting practices, certified payroll and prevailing wage compliance, small business subcontracting plan performance tracking, cybersecurity requirement compliance, and export control. These programs should be documented, systematically implemented, and regularly tested — not paper programs that exist only in policy documents. Government audit agencies (DCAA for defense, OIG inspectors for civilian agencies) regularly assess contractor compliance programs as part of their audit scope, and contractors with documented, functioning compliance programs face less severe consequences when compliance issues are identified.

Develop procurement documentation practices that withstand protest scrutiny. Every significant evaluation decision — elimination from competitive range, technical rating differentials, past performance assessment, price reasonableness determination — should be documented with specificity sufficient to explain the agency's reasoning to a reviewing tribunal. Source selection officials who make defensible decisions but don't document them adequately create protest vulnerability that documented decision-making would prevent. Review final evaluation reports before award announcement to confirm that the written record supports the source selection decision.