Practice Areas
Bid Protests
Bid Protests
Bid Protests are an unavoidable reality in government contracting. Whether contractors win or lose a contract award, a challenge to that award should be expected and planned for. The deadlines in bid protests are short and brutal.
Quick and correct assessments of risks and viability of potential protest grounds are essential. There is no substitute for experience with the applicable procedures at the Government Accountability Office, the United States Court of Federal Claims, the Board of Contract Appeals, or the Federal, State, County, or Municipal Agency.
Gebo Law represents clients on all sides of bid protests, and in all of these venues. Knowledge of the substantive basis for the bid protests is also critical because each bid protest hinges on the facts of the specific procurement. Gebo Law has decades of experience analyzing and arguing numerous and varied protest grounds.
Case Study
The problem
A company in the emergency debris removal and recovery industry learned that it was not selected for the award of a large, multi-year regional contract. Without the award of a regional debris removal contract, the company would be relegated to seeking subcontracting opportunities until the regional contracts were rebid in the future. As it was pursuing its rights to secure a debriefing of the agency’s decision not to award it a regional contract, the agency made a no-bid, emergency award of a contract that covered essentially the same scope as the awarded regional contract. Time was of the essence. If that company had any shot to challenge the award of the regional contract it had to immediately protest both the award of the regional contract and the emergency contract.
The solution:
Gebo Law answered the call and in the span of three weeks, filed 5 protests at the Government Accountability Office (“GAO”) and the U.S. Court of Federal Claims (“CoFC”). Gebo Law’s protests challenged the award of the regional debris removal contract, the agency’s decision to override the statutory automatic stay of that contract’s award, and the award of the emergency contract. Without these protests, the agency’s actions would have immediately cut off the bidding company from any shot at the award of a prime contract. To file and simultaneously pursue multiple protests at GAO and the U.S. Court of Federal Claims requires a complete understanding of the procedural rules of both protest forums; the ability to quickly master complex factual scenarios; digesting and gaining mastery of voluminous documents, and experience identifying, developing, and crafting persuasive legal arguments.
- Gebo Law drew on its years of experience with public procurement principles and protest procedures and preserved the client’s rights to substantively challenge each of the agency’s award decisions by timely filing multiple protests between Christmas and New Year’s.
- Many protests get dismissed for not being filed timely or otherwise failing to comply with procedural requirements. Such defective protests cost time and money without ever obtaining a substantive review of the protest grounds.
Compliance
Compliance
Government contracts include and incorporate many statutory and regulatory obligations. Each one is a potential “gotcha” awaiting a well-intentioned contractor who happens to be ignorant of the latest development.
Gebo Law works with its clients to ensure that they understand their obligations on the front end of procurement so that they can develop responsive proposals, which account for the full cost of compliant performance. Gebo Law also advises clients during contract performance to ensure they stay compliant despite changes like the COVID pandemic, government shutdowns, Stop Work Orders, and Show Cause Orders.
Gebo Law also provides ongoing training to its clients so that they develop the internal capability to better adhere to compliance requirements.
Case Study
The problem
Federal government contractor enjoying success in the SBA’s 8(a) Business Development Program, and is receiving awards of several 8(a) Set Aside Contracts on a Sole Source, No-Bid Basis. Relying on its team of consultants and subcontractors it submits lump-sum, fixed-price proposals for many of these sole source opportunities. Each proposal represents that the contractor will comply with the Limitations on Subcontracting and Prevailing Wage requirements. After awarding the contracts, the Contracting Officer raises questions and issues a Stop Work Notice and a Show Cause Notice that directs that the contractor show proof that it has performed the contract in accordance with those requirements. And that’s when the contractor outreached to Gebo Law.
The solution:
Because the contract had been awarded on a fixed-price rather than a cost-plus basis, the Contractor’s project accounting did not capture direct and indirect costs on an ongoing basis. Gebo Law first had to assist the Contractor to extract from its available bookkeeping data what hourly wages and fringe benefits were paid to its employees and to its subcontractors’ employees and also determine the percentage of work performed by the contractor and each of its subcontractors, as well as the cost of supplies. Extracting this data and presenting it to the Contracting Officer in a manner that demonstrated compliance with the Limitations on Subcontracting and the Service Contract Act prevailing wage and fringe benefit requirements under the pressure of a Show Cause Notice required focused, efficient, and experienced management of information; exhaustive knowledge of the applicable contractual, regulatory, and statutory authorities; as well as poise under pressure. Gebo Law jumped in and took charge of the information gathering effort directing and delegating the Contractor’s resources and engaging outside vendors to work as efficiently as possible.
Having marshalled the relevant information, Gebo Law turned to organizing a presentation of that data and legal arguments to the Contracting Officer that detailed how the contractor had substantially complied with the requirements and how any discrepancy currently revealed in the percentage of work performed by the subcontractors would be corrected with the contractor’s performance of the remaining work on the project. The Contracting Officer satisfied, Gebo Law assisted the contractor to implement corrective changes to its policies and practices to remove similar exposure from other current projects and to ensure that future proposals facilitated operational compliance in an audit-proof way.
Agreements
Agreements
Teaming Agreements, Subcontracts, Mentor-Protege Agreements, and Joint Venture Agreements are just a few of the many types of agreements that Gebo Law prepares, negotiates, and advises its clients on.
Especially for government contractors with certified status, those agreements are essential to leveraging their status successfully. But also, Employment and Independent Contractor Agreements, Non-Disclosure, and Non-Compete Agreements, Termination for Convenience Settlement Proposals, Novation Agreements, Sale of Assets, Merger, and Acquisition Agreement are all likely to be a part of the lifespan of a government contractor.
Gebo Law advises its clients on these agreements and leads them through the drafting, negotiation, and implementation process to ensure that the client’s objectives are captured by these contracts and ultimately achieved.
Case Study
The problem
Service-Disabled Veteran Owned Small Business that currently is also a certified participant in the SBA 8(a) Business Development Program wants to leverage its solid working relationship with a large company for which it has performed as a subcontractor. Those two companies want to formalize their relationship in a way that allows them to maximize federal government contracting opportunities. In the past, they have used a simple subcontract agreement. Should they enter into a Teaming Agreement, a Mentor-Protege Agreement, or should they form a Joint Venture?
The solution:
Gebo Law worked with the SDVOSB client and its strategic partner to examine and understand the pros, cons, and compliance requirements of each contractual arrangement. With a full understanding of the advantages of the SBA’s Mentor-Protege program, the SDVOSB had Gebo Law prepare a compliant Mentor-Protege Agreement with its large company partner, which received SBA approval. With an SBA-approved Mentor-Protege Agreement in place, those two companies were able to better position the SDVOSB to compete for federal government contracts as a prime contractor. Using the assistance allowed by the Mentor-Protege Agreement, the SDVOSB now had access to greater financial resources, bonding, administrative and operational support, and equipment than ever before without fear that such assistance would constitute a prohibited affiliation with its partner. Then the two companies had Gebo Law prepare a Joint Venture Agreement, which formed a separate legal entity 51% owned and controlled by the SDVOSB. Gebo Law ensured that the Joint Venture Agreement met the SBA’s regulatory requirements for a Mentor-Protege Joint Venture and that the Operating Agreement satisfied all applicable state law. To accomplish that, Gebo Law also assisted the SDVOSB with its internal corporate structuring, company name change, registration and licensing issues, employee compensation and bonus structures. Moreover, Gebo Law crafted those documents to facilitate the SDVOSB’s compliant management of the Joint Venture’s operation while building in flexibility for the parties to use those agreements to successfully pursue numerous federal government contracts.
Certifications
Certifications
The various socio-economic certifications recognized by the Government are valuable statuses. Whether as an SBA 8(a), Service-Disabled Veteran-Owned Small Business (SDVOSB), Veteran-Owned Small Business (VOSB), Woman-Owned Small Business (WOSB), Economically Disadvantaged Small Business (EDWOSB), Native American Owned Small Business, HUBZone, DBE/ACDBE, or any of the many designations recognized by specific state and local government procurement agencies — each certified status can translate into valuable contracts and subcontracts with limited or no competition.
Gebo Law helps government contractors attain and retain the certifications that they are eligible for and ensures that they operate to keep their status out of jeopardy. Gebo Law has also represented certified companies’ appeal decisions that would strip a company of its certified status at the SBA Office of Hearing Appeals.
Case Study
The problem
A small, women-owned business wants to secure federal government contracts and to participate in small business subcontracting programs of large defense contractors. To achieve those goals it seeks WOSB, 8(a), and SDVOSB certification. The company commences the process of securing WOSB certification through SBA. Multiple requests for additional documents and other delays frustrate the company and it abandons its certification efforts. And then calls Gebo Law for help.
The solution:
Gebo Law works with the company to clean up its corporate structure and documents to demonstrate irrefutable 51% ownership in qualifying socially and economically disadvantaged individuals. And Gebo Law assists the company to document the qualifications of those individuals to own and manage the company’s operations and strategic goals. This effort included preparation and approval of corporate resolutions, changes to the operating agreement, revision of public-facing materials and social media, and creation and implementation of internal policies and practices. Working with Gebo Law, the company developed a strategy for prioritizing the certifications it sought based on known and potential contracting opportunities. Gebo Law assisted with vetting those opportunities. After cleaning up its own house, the small business was ready to pursue those certifications in a strategic manner. Gebo Law guided the company through each submission and response to the inevitable follow-up inquiries and requests from the U.S. Women’s Chamber of Commerce (WOSB), VA (SDVOSB) and the SBA (8(a)). With Gebo Law’s help the company was able to secure all three (3) certifications without any denials and while stopping the small business owners from wasted effort and frustration.
As the company received more and more contract awards, protests and appeals followed. Those protests and appeals challenged the size and status of the company. Gebo Law was there to advise and counsel the company to successfully defeat those contract award challenges.
Litigation & Disputes
Litigation & Disputes
Nothing is constant except change. Nowhere is that truer than in government contracts. Contract modifications, disagreements over contract requirements and contract scope, Requests for Equitable Adjustments (REAs), Change Orders, regulatory changes, Executive Orders, undisclosed conditions, Wage Determination changes, supply chain issues, labor shortages, compliance, and performance issues, etc. All of these situations and more can result in disputes with the Government, subcontractors, and suppliers.
Gebo Law helps contractors find resolutions to those disputes. Some disputes cannot be resolved through negotiation and informal processes and formal claims have to be prepared, filed, and pursued. Gebo Law advises government contractors through the entire process so that when a claim must be filed the contractor has all the necessary documentation to support its claim and prevail. It is also true that some disputes can give rise to inquiries and investigations from oversight authorities like the Offices of Inspectors General, DCAA Auditors, and different investigating agencies. Gebo Law has represented both whistleblowers and those defending against claims that could lead to default termination, suspension, or debarment.
Case Study
The problem:
An 8(a) company and its owner get hit with a lawsuit accusing them of stealing the intellectual property of its subcontractor on a federal contract, breach of contract, and breach of fiduciary duty. Gebo Law immediately makes an assessment of the claims and develops a strategy designed to resolve the matter as quickly and efficiently as possible. But some opponents are not reasonable. When that happens the best course of action is to leverage the litigation system and best position the client to achieve the best results possible. Through aggressive pre-trial motion practice, Gebo Law got the potentially most damaging claims dismissed as a matter of law.
The solution:
Gebo Law guided the client through the discovery process, including taking and defending depositions, to support a motion for summary judgment that removed the company owner from the lawsuit with no liability and dismissed the intellectual property misappropriation claims. Gebo Law’s knowledge of government contracting statutes and regulations governing Rights in Data proved essential to the 8(a) company’s defense of these claims.
- It needed a trial attorney knowledgeable in government contract law and with the experience to marshal and lead a team of legal professionals to support a small business government contractor facing an existential threat in the form of meritless claims brought by an irrational opponent.
- Gebo Law provided the knowledge and leadership necessary to help that 8(a) company and its owner resolve the matter before trial — to weather the storm so it could focus on growing its government contracts business.
Strategic Guidance
Strategic Guidance
If your business is not growing, then it is dying. Businesses grow organically, or through acquisition, or by luck. Gebo Law works with its clients to develop and implement strategic plans for growth. That includes ensuring that the company has the proper infrastructure, policies, procedures, training, and agreements to meet its operational and strategic goals. Gebo Law helps companies navigate through the difficult stages of their lifecycle — business formation, capitalization, and financing, internal systems and compliance practices, onboarding key personnel, establishing strategic relationships with suppliers and service providers, creating compensation and equity sharing structures and policies, asset and resource acquisition, business purchase, sale, or merger, succession planning, and dissolution. As a former Army Helicopter Pilot and Maintenance Officer, Carl Gebo knows, “If it ain’t right on the ground, it won’t get better in the air.” Planning and preparing with Gebo Law gives your company its best shot to hit its targets.
Case Study
The problem
A company wants to grow its government contracting division, which currently represents less than 10% of total revenue. It has a small sales force, who also have duties related to compliance and order fulfillment. The company offers both products and services and has limited space to hold inventory and fewer transportation assets for deliveries. Management is reticent to add to its headcount or to layout capital for facilities and equipment. The company called Gebo Law
The solution:
The company was large, but its General Counsel was not experienced with government contracting. The company already had the requirement to establish and maintain a Small Business Subcontracting Plan. Gebo Law helped identify and conduct due diligence on potential small business strategic partners that could expand the company’s ability to receive and process orders, manage inventory flow, and execute and track deliveries. Gebo Law interviewed key personnel within each area impacting the company’s growth goals. Then Gebo Law created selection criteria for potential strategic partners. In discussion with Management, Gebo Law devised a hybrid approach for the company that included subcontracting, Mentor-Protege Agreements, Joint Ventures, and an acquisition. Working with the Management and the General Counsel, Gebo Law helped prepare and negotiate the necessary agreements to secure strategic alliances with these partners, which ensured that the company stayed compliant with all legal authorities governing companies with federal and non-federal government contracts. Without adding to its own personnel headcount or undertaking an expensive facility expansion, Gebo Law worked with the client to significantly increase its capabilities, total government sales revenue, and its small business subcontracting participation numbers. Sometimes it takes a trusted and knowledgeable resource that can see all sides of a problem to find the right path through it.
Claims Analysis
Claims Analysis
Few contracts or business arrangements are free of misunderstandings and disagreements. When routine disputes escalate to potential claims, identifying and analyzing the merits, risks, and costs associated with those claims and the dispute resolution process is critical to a business owner’s decisions. The earlier business owners appreciate the factual, legal, and procedural realities affecting potential claims, the better decisions they can make. Gebo Law has decades of experience in reviewing, assessing, and analyzing all aspects of potential litigation claims. Whether the claims involve breach of contract, breach of fiduciary duty, performance deficiencies, non-compliance, unfair competition, trade secret misappropriation, statutory or regulatory violations, or business torts, such as, fraud, negligence, or interference with business relations, Gebo Law helps business owners decide if a claim is worth pursuing or how best to defuse or defend claims against their company.
Case Study
The problem
Federal construction contractor receives award to renovate existing buildings on a military installation. The solicitation identified the possible presence of lead paint that would need to be removed. As work commences, the contractor discovers not only lead paint but also asbestos and asbestos-containing materials. The contractor notifies the Contracting Officer and OSHA while taking steps to protect its workforce and to stop further exposure and contamination at the site. The Contracting Officer takes the position that because the procurement process provided for an on-site visit and disclosed the presence of lead paint that the contractor was responsible under its firm-fixed price contract for removal and abatement of all hazardous materials discovered on the site with only adjustments for contract time and not for contract price. Direct, informal negotiations between the contractor and the agency did not resolve the issue.
The solution:
Gebo Law interviewed the contractor, secured all supporting documentation, and helped devise a strategy for the contractor that leveraged OSHA’s report and the agency’s statutory duties to investigate, identify, disclose, and remediate the presence of hazardous materials in its facilities to prepare a Request for Equitable Adjustment (REA), which included provisions to recover attorneys’ fees for assessment and preparation of the REA. Gebo Law worked with the contractor to ensure that the costs and expenses portion of the REA included amounts that were both allowable and allocable and that the overhead and profit applied was supported and reasonable. Gebo Law also provided the legal authorities and argument to support the REA. To assess the contractor’s equitable adjustment and potential claim, Gebo Law considered recent Board of Contract Appeal and U.S. Court of Federal Claim decisions, the contractor’s estimates for labor to ensure compliance with prevailing wage and fringe requirements, and proposed materials to ensure compliance with Trade Agreements Act and Buy American Act, as well as all other contract requirements. Gebo Law also analyzed the burdens — indirect costs — that the contractor sought to apply to ensure they were supported, reasonable, and accurately calculated. Because this contract had been awarded on a fixed-price basis, the contractor had not captured or categorized costs data for the project in real time.
The Contracting Officer was initially not inclined to grant the REA and instead directed that the contractor submit a claim while the Contracting Officer looked for a replacement contractor. To avoid the additional costs of completion of the project by a replacement contractor that would be charged to Gebo Law’s client, Gebo Law assisted in the contractor’s negotiation with the agency and negotiated the Change Order that not only addressed the additional work made necessary by the hazardous material but also expanded the scope to additional buildings at the base.
Outside General Counsel
Outside General Counsel
For companies with limited or no internal legal resources, Gebo Law serves as outside general counsel. In that capacity, Gebo Law provides general legal advice, counsel and guidance regarding fundamental legal concerns faced by businesses — contract review and negotiation, compliance issues, member/partner/shareholder disputes, intellectual property protection, subcontractor and supplier disputes, payment issues, due diligence, joint ventures, litigation avoidance strategies, acquisitions and mergers, investigations and audits. Having worked with large and small companies in widely varied industries gives Gebo Law the experience to function as trusted and reliable legal counsel, as well as a valuable team member in any C-suite.
Case Study
The problem:
After months of developing a ‘capture strategy’ and forming a team of subcontractors and consultants, a minority-owned, SBA certified 8(a) company prepared and submitted a proposal for environmental engineering survey services. This proposal represented the single largest contract the 8(a) company had ever gone after. The team sweats the details, and puts in the effort and the money to put together its best proposal. But when the agency selected the competitive range, this 8(a) company did not make the cut and was eliminated from further consideration for the award.
That’s when the 8(a) company owner first contacted Gebo Law.
The solution:
Immediately, Gebo Law took action to protect the company’s rights to a debriefing of the agency’s decision to eliminate the 8(a) company from the competitive range. Working with the owner, Gebo Law put the 8(a) company’s subcontractors and consultants into working groups to develop the factual responses and arguments available to support a bid protest.
- Gebo Law completed the necessary legal research to offer advice and recommend that the 8(a) company protest the agency’s decision.
- Gathering the work of the 8(a) company and its subcontractors and consultants, as well as Gebo Law’s own legal research and knowledge and experience with bid protests, Gebo Law advised filing a protest at the Government Accountability Office (“GAO”). After several drafts and review sessions with the client, Gebo Law completed the bid protest and got it timely filed at GAO.
- Upon receiving the bid protest, the agency offered to voluntarily take corrective action that included restoring the 8(a) company to the competitive range and giving them full consideration for award in that procurement.
And that was just the start of Gebo Law’s work for this federal government contractor. Since then, Gebo Law has functioned as an outside general counsel to this 8(a) company, the owner has had Gebo Law review subcontracts and proposals to ensure compliance; prepare proposals to terminate contracts for convenience; give advice regarding hiring and firing considerations; make recommendations on negotiations with consultants and subcontractors; provide instruction regarding contractual and regulatory requirements; and assist the company navigate the legal challenges — anticipated or not — that confront federal government contractors.
Corporate Transactions
Corporate Transactions
Mergers and acquisitions are complicated transactions that require due diligence and careful crafting of the legal vehicles documenting the transactions. And other corporate transactions also benefit from legal counsel to ensure that the rights, responsibilities, and financial aspects of the deal are defined specifically and clearly. Lease agreements, service agreements, supply agreements, joint ventures, teaming agreements, subcontracts, financing and loan documents all can create liabilities and obligations, for which knowledgeable legal guidance is indispensable. Gebo Law has prepared, negotiated, and advised clients in numerous types of corporate transactions and has a track record of working well with business owners, in-house counsel, and co-counsel to get the deal done.
Case Study
The problem
An 8(a) company will graduate from the SBA’s 8(a) Business Development Program. Having benefited from sole source, set aside contracts for several years, the prospect of no longer being able to count on those types of non-competition contracts has management concerned about its existence following its graduation from the 8(a) program. Does it take on new owner-investors to raise capital? Or merge with another company – perhaps one of its competitors? Does it simply start competing against other small and large businesses? Or does it close up shop? Gebo Law was able to help that client find the answer that worked.
The solution:
First, Gebo Law learned what the owner’s goals and risk tolerances were. Then, Gebo Law assessed the assets and capabilities the company currently had. Working with the client, Gebo Law was able to identify what it would take to get the company positioned to compete successfully upon its graduation from the 8(a) program. To compete for larger and more profitable contracts, the company needed to increase its bonding capacity and add to its past performance, expertise, and equipment. Gebo Law assisted the company through several corporate transactions to achieve those goals. These included: 1) acquiring a minority ownership interest in another 8(a) company in the early stages of that program by forming a Mentor-Protege arrangement and a Joint Venture with that 8(a) company; 2) merging with one of its competitors, which increased its performance capacity, past performance, expertise, and allowed the company to add different certified statuses; and 3) securing key employees without further diluting equity. Each of these actions required Gebo Law to conduct thorough due diligence, ensure the owner understood the proposed transactions and how to integrate the new features of and partners in its business. And, of course, Gebo Law ensured that the transaction deal points were fully negotiated and documented in appropriate agreements, which protected the client and were understandable and functional from an operational perspective. This result took foresight, planning, and close coordination and communication between client and Gebo Law.