Government contracts are not standard commercial deals.
Compliance starts before the bid, continues throughout performance, and may govern conduct outside the contract itself.
1. QUALIFY TO COMPETE
- Keep registrations current. Ensure compliance with any applicable registration requirements to bid on and perform public work as a contractor or subcontractor. Track renewal dates for required federal, state, and local registrations before bidding. A lapse can prevent an award. Because a compliance issue in one jurisdiction may require disclosure in another, review forms, processes, and certifications across the company’s full contracting footprint.
- Plan for prevailing wage compliance. Prevailing wage projects may require additional filings, including contractor registration, certified payroll records, and worker classifications.
- Disclose the ownership chain. Be prepared to identify direct and ultimate owners so the government can evaluate the full corporate structure.
- Choose the right contract classification. Whether the offering is a commercial item, noncommercial item, labor-hour service, or professional service determines which rules apply. Commercial items generally face fewer cost and pricing requirements.
2. READ THE EVALUATION RULES
- Know how the award will be scored. Some solicitations weigh price, technical approach, management, and past performance. Others select the lowest-priced compliant bidder, with no benefit for exceeding the minimum requirements.
- Protest with purpose. A bidder whose economic interests are directly affected may challenge the solicitation, evaluation process, or award.
- Act immediately. Protest periods may be only a few days and differ by agency and jurisdiction. A late filing can end the challenge regardless of its merits.
- Weigh the business realities. Consider the contract’s value, incumbent status, winning bidder, and agency relationship, not just the legal theory.
3. ACCOUNT FOR RELATED RULES
- Political contributions can jeopardize an award. Contributions made to influence contract consideration are illegal.
- Prior labor law violations may affect an award. Know when such violations need to be disclosed and the applicable disclosure period.
- Account for pay-to-play laws. Contractors may face stricter contribution limits and broader disclosure obligations, including complete bans in some jurisdictions.
- Lobbying extends beyond direct contact. Research, planning, and preparation for government outreach may trigger registration and periodic reporting obligations.
- Treat gifts as a compliance risk. Companies may face an outright ban—rather than a dollar cap—on gifts to public officials, and the restriction may extend to an official’s family. Even permissible gifts may require disclosure.
4. BUILD COMPLIANCE INTO THE PROCESS
- ASSESS: Map the jurisdictions, agencies, contract types, and activities that create financial, operational, reputational, or regulatory risk.
- DOCUMENT: Use clear procedures and approval paths for registrations, certifications, prevailing wage compliance, lobbying, gifts, and political contributions.
- TRAIN: Train employees who prepare bids, oversee prevailing wage work, interact with government, or approve company spending.
- MONITOR: Assign responsibility, track deadlines, audit high-risk activity, and monitor rule changes in every relevant jurisdiction.
BEFORE YOU BID: LOOK BEYOND THE CONTRACT
Government contracting risks often extend beyond the solicitation and contract. Registration lapses, prevailing wage requirements, political activity, lobbying, gifts, and disclosure obligations can affect eligibility, performance, and future opportunities—sometimes across jurisdictions. In-house counsel should identify these issues early, assign clear ownership, and seek specialized guidance when the rules are unclear, unfamiliar, or potentially consequential.
