Tenley A. Carp

Government Contracts Litigation

Ms. Carp represents companies challenging and/or defending contract awards in bid protests before military and civilian contracting agencies, the Government Accountability Office, and the United States Court of Federal Claims ("COFC"). She provides insightful counsel regarding various approaches for success, including structuring effective bid protest timelines, determining where a protest should be filed to maximize the chances for a “win” and formulating strategies for how best to defend against a competitor’s protest. She also works with a company's relevant personnel to investigate facts, formulate optimal legal theories and draft and present requests for equitable adjustment and certified claims to various Boards of Contract Appeals in a manner that maximizes the contractor’s chances of recovery. She works with accounting and financial experts to formulate appropriate pricing and damage methodologies that seek to maximize the contractor’s chances of recovery. Whatever the controlling legal theory—defective specifications, performance delay or acceleration, late or defective government-furnished property, performance impossibility/impracticability, breach of the Government’s duty to cooperate or excessive testing or inspection—she knows how to formulate those theories based on prior experience.

Government Contracts Terminations

If a government contractor is terminated for convenience, Ms. Carp will assist the contractor in the following manner:

• Review the circumstances surrounding the termination for convenience and provide advice to most protect the company's financial interest and recovery
• Prepare a termination for convenience claim in accordance with the Federal Acquisition Regulations (FAR);
• Represent the company during the DCAA audit, which will be required as a result of the termination, prior to entering into final negotiations;
• Prepare or review subcontractor and vendor proposals and prepare justifications on the company's behalf in order to obtain approval from the Contracting Officer for the subcontractors' proposals; and
• Assist the company in the negotiation of the company's proposal, if requested, to ensure the most favorable financial recovery to the company.

The accounting, legal and clerical costs associated with the preparation of the settlement proposal are recoverable expenses as long as they are reasonably necessary for the preparation of the Termination for Settlement Proposal and supporting data.

If the government contractor is terminated for default, Ms. Carp will represent the company to limit its liability. For example, a termination for default may subject a contractor to excess costs for reprocurement. In addition, the termination for default may become part of the contractor's past performance record which will harm the contractor's ability to compete on future contracts. Ms. Carp will assist the contractor in appealing the termination for default. When such appeals are successful, the termination for default is usually converted into a termination for convenience.

Government Contracts Counseling

Ms. Carp counsels government contractors with regard to a wide variety of compliance matters. For example, government contractors are subject to unique labor and employment requirements. Ms. Carp counsels clients on matters of compliance with the Department of Labor's equal opportunity and affirmative action requirements under Executive Order 11246, the Rehabilitation Act of 1973 and the Vietnam Veterans Readjustment Assistance Act of 1974. She also helps clients prepare written affirmative action plans that will pass muster with an Office of Federal Contract Compliance Programs (OFCCP) audit or investigation. In addition, she explains DOL's workplace and labor standards such as the Walsh-Healey Act, the Davis Bacon Act, the Service Contract Act and the Contract Work House and Safety Standards Act.

In addition, federal government contractors of every size have specialized socio-economic concerns. Ms. Carp counsels large federal government contractors who are required to submit detailed subcontracting plans on the requirements for those plans. She also advises small, small-disadvantaged and women-owned contractors on their eligibility for award of set-asides and government preferences. And, she helps companies seeking entry into or already in SBA's 8(a) Program to compete for the $6 billion worth of contracts awarded annually.

Ms. Carp also provides advice to clients with regard to the unique ethical obligations of federal government contractors such as the prevention of bribery and illegal gratuities, false claims and false statements, lobbying restrictions, procurement integrity, conflicts of interest and kickbacks. She assists clients in drafting codes of conduct and compliance policies and in structuring corporate compliance programs to educate all of their employees about the added level of scrutiny applied to business dealings with the government.

Finally, Ms. Carp counsels government contractors with regard to the unique requirements stemming from the Trafficking Victims Protection Act whereby contractors are prohibited from engaging in human trafficking -- whether by the use of forced labor or some form of prostitution. Ms. Carp assists the clients in developing the plans and the documentation necessary to meet such requirements in order to avoid the severe penalties applied to contractors who fail to abide by this law.

Government Contracts Audits and Investigations

At a client's request, Ms. Carp will conduct an internal investigation in advance of any government knowledge of possible problems at the client's company. She can also prepare responses (with the assistance of a C.P.A. when needed) to subpoenas and investigations by agency inspector generals or other criminal prosecutors. She will attempt to persuade the IG or prosecutor not to pursue the matter. But, if an audit or investigation goes forward, she will represent the client in grand jury investigations, plea-bargaining sessions or trial. If the government is contemplating suspension or debarment as a result of the audit or investigation, Ms. Carp can represent the client in suspension and/or debarment proceedings and negotiate with the debarring or suspending entity on the client's behalf. She works quickly to minimize the impact of any debarment or suspension on other corporate affiliates or divisions. If needed, she will seek judicial review on behalf of a federal government contractor in a federal district court or at the U.S. Court of Federal Claims.

Government Contracts Mergers and Acquisitions

Clients call upon us for assistance with critical growth and exit strategies, including:

• Business combinations, joint ventures and alliances
• Divestitures and exit strategies

Cohen Mohr provides merger and acquisition assistance at every stage, from planning strategic considerations involved in structuring and financing transactions to negotiating effectively to take full advantage of the business opportunities presented. The firm works with companies and their directors to formulate and implement an acquisition strategy, respond to acquisition invitations of other bidders, or structure strategic joint ventures involving multiple parties and lines of business.

Our merger and acquisition practice includes:

• Structuring the sale or purchase of a company
• Negotiating favorable terms and conditions
• Assigning or novating contracts, including federal, state, and local government contracts
• Conducting due diligence, particularly in areas involving intellectual property or government contracts

On behalf of our clients, we regularly prepare the full range of documentation required in mergers and acquisitions, including:

• Non-Disclosure Agreements
• Letters of Intent
• Asset Purchase and Sale Agreements
• Stock Purchase and Sale Agreements
• Plans of Merger
• Escrow Agreements
• Non-Competition Agreements