Experience Details

GOVERNMENT CONTRACTS

Cost Accounting and Recovery

As a government contracts lawyer, Mr. Bouquet has extensive experience helping clients to solve problems associated with compliance with the government contract cost accounting and recovery regulations. His prior experience as a government contractor and his MBA provide an important context for his work with these regulations. As a result, he has a thorough appreciation for the business implications of these regulations. His experience with the regulations includes work on issues involving:

compensation costs
pension costs
home office expenses
costs of mergers and acquisitions
classification of costs as direct or indirect
required disclosures of cost accounting practices
cost accounting practice changes
development of indirect cost pools
cost impact statements for changes to cost accounting practices and non-compliances with the Cost Accounting Standards
legal costs
lobbying costs
relocation costs
tax refunds and other credits
idle facilities and capacity
pre-contract costs
termination costs
segregation of unallowable costs
independent research and development costs
general and administrative costs

Mr. Bouquet is frequently involved in analyses and communications concerning clients’ compliance with cost accounting and recovery rules. For example, he has:

reviewed indirect cost rate proposals for compliance with the Federal Acquisition Regulation (FAR) rules governing allowability of costs on government contracts
reviewed incurred cost submissions for compliance with the FAR and the Cost Accounting Standards (CAS)
reviewed numerous research and development projects to determine whether they qualify for treatment as independent research and development projects under government contracts cost accounting regulations
drafted or assisted in the drafting of responses to numerous Defense Contract Audit Agency audit reports concerning clients’ compliance with the FAR and CAS
made presentations to government officials defending the practices of the clients.

Compliance Program Development and Implementation

Mr. Bouquet has worked extensively with new and existing government contractors on the development and implementation of comprehensive and pro-active government contracts compliance programs. In particular, he has analyzed compliance requirements and drafted reports with recommended compliance program development activities. In addition, he has drafted or assisted in drafting numerous policy and procedural documents in support of client compliance programs. These documents have covered topics such as:

codes of conduct for work on government contracts
compliance program requirements
timekeeping
bribery, kickbacks and gratuities
accuracy in representations made in connection with government contracts
classification of costs as direct or indirect
accounting for unallowable costs
bid and proposal cost accounting
protection of intellectual property
independent research and development cost accounting
compliance with the anti-trust laws
compliance with the Truth in Negotiations Act.

Mr. Bouquet has also conducted training on the following topics:

introduction to government contracts
the unique compliance challenges presented by cost reimbursable type government contracts
organizational conflicts of interest
other transaction agreements
cost allowability rules
accounting for independent research and development costs
defective pricing
accounting for lobbying costs.

Internal Investigations

Mr. Bouquet has been involved with internal investigations constantly throughout his career as a government contracts lawyer. He is typically involved with investigation of concerns or allegations of overcharging based on non-compliant cost accounting or contract pricing practices. To these investigations, he brings a wealth of knowledge and experience as a businessman and government contracts lawyer. Indeed, in his career, he has helped defend companies against allegations of overcharging the government in excess of $100 million Mr. Bouquet’s work on internal investigations typically involves one or more of the following activities:

initial identification of issues
document review and analysis
witness identification and interviews
preparation of written assessment of issue or case, including quantum of potential liability to the government
preparation of position papers and presentations for government officials
involvement with settlement negotiations
recommendations to company concerning compliance program changes.

These investigations typically involve analysis of whether the company has violated one or more of the major statutes:

the criminal False Claims Act
the civil False Claims Act
the False Statements Act
the Truth in Negotiations Act
the Anti-Kickback Act

In connection with these investigations, Mr. Bouquet was frequently called upon to perform legal research and analysis. These efforts included comprehensive research and analysis of the case law interpreting the civil False Claims Act.

Contract Formation

Mr. Bouquet’s prior service as Director of Government Operations for a government contractor informs his legal work in the contract formation phase. As a government contractor, he was responsible for all the aspects of the proposal submission process and gained a full appreciation of the many challenges and opportunities associated with the submission of a proposal to the government. As a government contracts lawyer, he has served on a number of client proposal teams. In this capacity, he helps clients to comply with the numerous laws and regulations governing submission of proposals for government contracts and thereby to reduce their exposure to the legal risks associated with such proposals. In addition, he helps clients submit proposals that are responsive to the government’s requirements.

Particular issues he has addressed in the contract formation phase of the government contracting process include:

compliance with the Procurement Integrity Act
use of required legends to protect proprietary proposal data
identification and inclusion in the proposal of background intellectual property for use and protection during the contract performance phase
drafting of questions to the agency in response to a Solicitation to clarify applicability of FAR clauses to the procurement
completion of required representations and certifications including required statements on the domestic content of supplies
applications for exemptions from the cost or pricing data submission requirements of the Truth in Negotiations Act (TINA)
compliance with TINA including proper indexing and disclosure of cost or pricing data and due diligence required in connection with TINA certifications
completion of Cost Accounting Standard (CAS) disclosure statements
preparation for pre-award accounting system surveys
drafting and negotiation of special contract clauses covering specified risk areas, such as the need for indemnification or other liability protection.

In certain procurements, agencies may invite offers to propose either a FAR based contract or an Other Transaction Agreement (OTA), which is a more flexible instrument not subject to the FAR. Mr. Bouquet’s contract formation experience includes significant work helping companies make the case to an agency for use of an OTA. In addition, he has significant experience with the negotiation of such agreements, especially the intellectual property provisions.

Claims

In his career in government contracts law, Mr. Bouquet has drafted over $50 million in contract claims. His claims development efforts involve thorough fact finding concerning changes made to the contract. He then prepares comprehensive analyses of client entitlement under the governing contractual provisions, the case law interpreting these provisions and the quantum of the claim. He uses these analyses to prepare powerful claim narratives advocating his clients’ positions. In addition, he frequently gets involved in the negotiations of resolution of the claims. His experience with claims includes the following types of claims:

government delay and disruption
delay and disruption caused by other contractors
breaches of the duties of good faith and cooperation
constructive changes to the scope of work
excessive inspections
stop work orders
terminations for convenience.

Intellectual Property Protections

A constant theme of Mr. Bouquet’s counseling of companies in connection with their government contracts is the importance of following Federal Acquisition Regulation procedures concerning protection of company intellectual property. As mentioned above, he has extensive experience working with intellectual property issues and clauses in the contract formation phase. In addition, he:

drafts policies and procedures concerning protection of intellectual property under government contracts
assists companies with questions concerning the proper protective marking of technical data delivered in the performance of government contracts
assists companies with questions concerning the proper procedures to follow in the event a patentable invention is first conceived or reduced to practice in the performance of a government contracts
reviews, analyzes and comments on non-disclosure agreements between contractors contemplating teaming agreements and other cooperative arrangements.

Small Business Programs

Mr. Bouquet’s experience with small business contracting programs of the federal government centers on relationships between small companies and large companies. Under the Small Business Administration’s rules, if such relationships rise to the level of “affiliation”, the small business may no longer be eligible for government contracting procurement preferences. Typically, Mr. Bouquet is called upon to analyze the nature of the relationship and prepare an opinion concerning whether it rises to the level of affiliation. If it does, he makes recommendations concerning how to restructure the relationship so that it does not rise to this level. His analyses have covered whether affiliation existed based upon:

stock ownership
common management
identity of business or economic interests (e.g., family relationships)
subcontracting arrangements for vital or primary aspects of the scope of work
franchising relationships.

Subcontracts and Teaming Agreements

Mr. Bouquet has extensive experience drafting subcontracts and teaming agreements pertaining to government contracts. His work on teaming agreements typically involves drafting to promote his clients’ business objectives and to avoid case law that makes bid and proposal costs incurred under teaming agreements unallowable. His work on subcontracts typically involves one or more of the following:

analysis of whether the subcontract qualifies as a “commercial item” subcontract under the Federal Acquisition Regulations (FAR), which allows for streamlined commercial item acquisition procedures
flow down and tailoring of applicable FAR clauses to the subcontract
assisting clients to obtain appropriate representations and certifications from the subcontractor
providing guidance on the applicability of the Truth in Negotiations Act (TINA) to the subcontract
if TINA applies, providing guidance on the procedures to follow to obtain certified cost or pricing data from the subcontractor
assisting clients to understand their obligations to perform cost and/or price analysis on subcontract pricing actions
reviewing and commenting on commercial terms of the subcontract
assisting in the negotiation of the subcontract.

Litigation Support

Mr. Bouquet has significant experience in providing support to litigations involving government contracts issues. His experience includes:

drafting briefs in a purchase price adjustment dispute involving accounting for nearly $50 million in assets and liabilities
assisting in litigating the government's liability for over $165 million in pension costs
serving on a team litigating the largest government contract default termination case in history
assisting in the litigation of a case involving breach of a requirements contract.

In these cases, he has engaged in extensive factual discovery and analysis including taking and defending depositions of government and contractor personnel.

Other Government Contracts Experience

Mr. Bouquet also has experience in other areas of government contracts law. For example:

He has prepared analyses for clients concerning whether their products meet domestic content regulations set forth in the Buy American Act and the Trade Agreements Act.
He submitted requests for novation and change of name agreements in accordance with FAR procedures on behalf of clients who had acquired government contractors.
On behalf of buyers, he participated in due diligence reviews of government contractors who were acquisition targets.
He prepared submissions to agency debarring officials for contractors who have been proposed for debarment or concerned about whether they would be proposed for debarment.
He prepared briefings in a successful appeal of an agency’s denial of a client’s request for information under the Freedom of Information Act.

COMMERCIAL CONTRACTS

As mentioned above in connection with his experience with subcontracts and teaming agreements, Mr. Bouquet has reviewed and participated in the drafting of standard commercial terms. Essentially, aside from the flow down of government contracts terms, these subcontracts are commercial contracts. Like any other commercial contract, they are subject to state law. As part of his work on these contracts, he has been involved in issues such as:

warranties
indemnities
intellectual property
term and termination
ordering procedures
limitation of liability
ordering procedures