The best way to describe what we do is to be specific:
- All contract breaches are constructive changes. We can find constructive changes. They often are hidden. Our experience over more than 50 years has taught us how to take the client’s complaint and ferret out the legal cause of action. There are many constructive change theories, including some that only we have successfully articulated and prosecuted, such as the equal ignorance sister to superior knowledge.
- We excel in trial strategy and tactics. We take the identified constructive changes and put them in the proper category for litigation. We then always file a complaint with the notice of appeal. If appropriate, we also file a motion for summary judgment simultaneously with the appeal/complaint. We limit the discovery that we file as soon as the rule permits. We set an early trial date and propose a detailed pretrial order. Like F. Lee Baily, our trial instincts were tested in the Marine Corps. We try cases.
- We excel at the art of negotiation. Our experience has taught us what goals to set. We are known to try cases that enhance the bargaining position of our clients. The depth and breadth of our negotiation experience have no rival.
Over the past several years, we have successfully handled 23 appeals for clients before the Armed Services Board of Contract Appeals (ASBCA) and the Civilian Board of Contract Appeals (CBCA). This litigation has consisted of defense of terminations for default, prosecution of changes and termination for convenience claims, monetary and nonmonetary claims involving contract interpretation and CPAR reviews, government breach of express and implied contractual obligations, and defective specifications. Most of those cases were settled by agreement of the parties, and five were litigated to the final decision. We have advised clients on many contract management and dispute resolution matters and were an expert witness. We frequently assists clients in preparing requests for equitable adjustment and claims and has experience with ADR at the ASBCA and the CBCA.
Early on, we concentrated on cost reimbursement contract cost allowability disputes with DCAA. After successfully litigating several cost disallowance issues, we began concentrating on disputes under fixed-price contracts. We successfully resolved such disputes involving recovering various types of overhead costs, constructive changes for defective drawings and specifications, and interference by inspectors with attendant delay and disruption. We also handled major problems involving government misuse of proprietary data and many disputes involving the recovery of termination for convenience settlement costs and profit. Our experience then broadened to include breach of various implied obligations of the government under its contracts and subcontracts, such as the duty to cooperate, communicate with, and not interfere with the contractor.
Along the way, we have continued to broaden and deepen our understanding of FAR and all the various federal, state, and local procurement regulations and judicial interpretations. Our clients make us a part of the management team, providing expert advice on interpreting regulations and compliance with contract requirements. We have written, lectured, and taught courses on government contract law.
We have worked closely with our client’s in-house lawyers, contract managers, consultants, accountants, and executives. We have consistently emphasized close, careful monitoring of contract performance, early identification of possible problems, analysis and creative construction of solutions, effective and thorough presentation of those solutions, and negotiation short of litigation. Our stock in trade is avoiding litigation through early communication with the contracting officer. If that fails, we move the litigation quickly, efficiently, and economically.