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PROGRAM AGENDA

1:00 p.m. Registration and Networking

1:30 p.m. Welcome and Introduction

1:40 p.m. Procurement Issues

Moderator: Carl Vacketta Speakers: Richard Rector – Organizational Conflicts of Interest Seamus Curley – The E-Verify Rule Steve Phillips – Legislative Outlook for Procurement Joseph Barsalona – Cost/Pricing Developments of 2008 Partner, Price Waterhouse Coopers Paul Stone – Survey of EU Bid Challenge Laws

2:45 p.m. Break

3:00 p.m. International Contracting

Moderator: Frank Menaker Speakers: Lynn Van Buren – Export Controls Fern Lavallee – TAA/BAA Compliance Tara Lee – Contractor Liability On The Battlefield Rick Newcomb –Foreign Investment in the US: Lessons Learned Former Director of OFAC

4:00 p.m. Break

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4:15 p.m. Fraud and Compliance

Moderator: Nancy Dix Speakers: Earl Silbert – Mandatory Disclosure of Procurement Violations Nancy Luque – False Claims Act Developments Peter Zeidenberg –Foreign Corrupt Practices Act Robert Wardle – EU Enforcement Environment Former Director of the UK’s Serious Fraud Office

5:30 p.m. Keynote Address - “Homeland Security: Then and Now” James M. Loy Senior Counselor, The Cohen Group Deputy Secretary of Homeland Security (2003-2005) Administrator, Transportation Security Administration (2002-2003) Commandant, U.S. Coast Guard (1998-2002)

Optional Name Goes Here

Venue

Date of Presentation

Public Contracting In A Global MarketDecember 3, 2008 Optional Name Goes Here

Venue


Panel IProcurement IssuesModerator: Carl Vacketta

Personal and Organizational Conflicts of InterestRichard Rector

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Personal And Organizational Conflicts of Interest

GAO Report: Defense Contracting – Additional Personal Conflict of Interest Safeguards Needed for Certain DoD Contractor Employees (GAO-08-169), March 2008

Contractor and Govt Employees Working Side By Side, But Subject to Different Ethical RulesGovt Ethical Rules Generally Impose Higher Standards (e.g., Financial Interests, Gratuities, Misuse of Information, Revolving Door Restrictions)Contractor Standards and Codes of Conduct Not Sufficiently Developed On Issue

Advanced Notices of Proposed RulemakingService Contractor Personal Conflicts of Interest (PCIs): 73 Fed. Reg. 15,961 (March 26, 2008)Organizational Conflicts of Interest: 73 Federal Register 15,962 (March 26, 2008)FAR Council Seeks Comments on Need For Regulations and Industry Initiatives

National Defense Authorization Act For FY 2009 (S.3001), § 841, October 14, 2008Requires New FAR Rule and Clause To Prevent PCIs By Contractor Employees Performing Acquisition Functions Closely Associated With Inherently Governmental FunctionsRequires OFPP Administrator and OGE Director to Study PCIs Related to Any Functions, As Well As OCIs, and Determine Whether FAR Revisions and New Contract Clauses Are Necessary

Report to Congress Required By March 1, 2010Requires “Best Practices” Repository On Both PCIs And OCIs

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OCI Case Law DevelopmentsGeneral Rule: If an agency fails to meaningfully assess a potential OCI, or makes a decision that is not supported by a reasoned analysis of both the potential conflict and its impact on contract performance, a protest of the agency’s decision will be sustainedAT&T Government Solutions, Aug. 2008 (GAO): protest sustained where agency failed to consider protester’s OCI Mitigation Plan prior to excluding protester from procurementAxiom Resource Management, Feb. 2008 (COFC): option years of contract enjoined where Govt refused to permit an independent auditor to oversee compliance with awardee’s proposed OCI Mitigation Plan; court finds Mitigation Plan must be “enforceable”U.S. v. SAIC, July 2008 (D.D.C.): jury finds SAIC guilty of violating False Claims Act by failing to disclose OCIs that had the potential to bias its advice to NRC on regulatory matters; U.S. awarded $1.97 million in damages, trebled to $5.91 million under FCA, plus penalties for each of the 77 false statements and claims for payment

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CONTRACTOR ACTIONS TO MITIGATE PROTEST RISK AND COMPLIANCE RISK

1. Update Compliance Program, As Needed, To Address PCIs And OCIs-- Develop systematic process for identifying solicitations and

contracts at risk for PCIs And OCIs (e.g., part of Bid/No Bid process)

-- Develop procedures for: preventing PCIs; prohibiting use or disclosure of non-public information for personal gain; prompt reporting of PCIs to Contracting Officer; effective oversight to verify compliance with PCI safeguards; procedures for screening employees for potential PCIs; appropriate disciplinary action

-- Enhance Code Of Conduct, Ethics Training, and Internal Control Systems to address PCIs and OCIs … including FCA-related risk

2. Develop Contract-Specific PCI and OCI Mitigation Plans and Techniques … be proactive and transparent … enforceability?

3. Monitor Regulatory Developments And “Best Practices” Compilation …Adjust Compliance Program and Mitigation Plans As Needed

The E-Verify Rule

Seamus Curley

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The E-Verify Rule

New Rule Requires Certain Contractors To Enroll In And Use E-Verify

E-Verify: Internet-Based System Administered By U.S. Citizenship And Immigration Services (USCIS)

Employer must enter into MOU with USCIS to (a) abide by legal hiring procedures and (b) not to discriminate

Employer inputs employee information into system

USCIS cross-references against Government databases, including SSA records, to confirm work eligibility

Any red flags will initiate administrative review process for employee to establish work eligibility

Employee under review cannot be terminated before a final determinationPotential liability for employer’s continued employment of ineligible workers after final notice ($500 – 1000 per instance, rebuttable presumption of violation of immigration law, and government contract remedies)

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Applicability Of The Rule

Implemented Through New Contract Clause (FAR 52.222-54)In Solicitations issued after January 15, 2009Existing IDIQ contracts: To be included in orders issued after January 15, 2009 if (a) performance period extends at least 6 months beyond 1/15/09 and (b) remaining orders/work anticipated is substantialMandatory flow-down for subcontracts exceeding $3,000 for (a) services (except commercial services related to COTS) or (b) construction, that (c) include work performed in the U.S.

ThresholdsApplies to prime contracts above the simplified acquisition threshold ($100,000)Applies to subcontracts above the micro-purchase threshold ($3,000), if the above criteria are met

Principal ExemptionsAll work to be performed outside the U.S.Performance period less than 120 daysCOTS item (or would be COTS item, but for minor modification) and related commercial services if (a) performed by COTS provider; and (b) normally provided for that item

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Obligations, Impact, And Outstanding Issues

Compliance Obligations Of The ClauseEnroll in E-Verify within 30 days of award

Within 90 days of enrollment, begin to verify all new hires within 3 days of hiring (whether or not working on the contract)For employees assigned to the contract, initiate verification within 90 days of enrollment or 30 days of assignment, whichever is laterIf already enrolled at award, initiate verification of all new hires within 3 days of hireOption to verify all existing employees (hired after Nov. 6, 1986), whether or not assigned to contract

Comply with E-Verify MOU for performance period of contractVerification not required for employees holding certain security clearance or similar credentials

Impact/IssuesPotential employee turnoverCosts and manpower devoted to complianceTo what degree will prime or higher-tier subcontractors be liable for subs?Authority to make E-Verify mandatory?Is re-verification of employees under covered contract inconsistent with MOU?

Steve Phillips

Legislative Outlook for Procurement

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Challenges For Defense Spending And Government Contractors

Recent Defense Business Board report warned: “business as usual is no longer an option. The current and future fiscal environments facing the Department demand bold action.”

The cost of new weapons programs that DOD is currently buying -- $1.7 trillion – is “unaffordable”.

The current DOD plan is to add 92,000 personnel to the Army and Marine Corp.

Health care costs for DOD is skyrocketing - from $42 billion currently to a projected $66 billion by FY 2015.

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GAO Report Focuses On Substantial DoD Cost Overruns

March 2008 report focused on the top 95 weapons programs – found cost overruns of nearly 300 billion compared to initial estimates.

GAO report calls for greater oversight, better planning and better execution of acquisition in contracting process.

Obama has promised greater oversight of existing contracts and an increase in the effectiveness of acquisition process and.

According to reports, Obama has pledged to reduce Federal spending on government contracts by $40 billion by using fewer contractors (Washington Post, Nov. 11, 2008).

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Obama Administration & Potential Impact On Government Contracts

Obama Administration has proposed “an end to abusive no bid contracts” (for awards above $25,000).

Obama has proposed minimizing the use of “cost plus contracts” and instead focus on fixed-price contracts and incentives.

Require more audits of large contracts each year: 25 % of such contracts. (Scope would cover performance and cost savings, etc.).

Obama has promised to hire more contract managers, and put more info on the Web.

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Result Of Obama Proposals

Could result in more competitively awarded contracts as well as task orders.

Contractors could face substantial increase in oversight and scrutiny of performance of contracts.

Could result in more audits, government claims, and denials of contractor claims, as well as greater scrutiny of cost overruns

Companies will need to prepare, including focus on financial management and procedures for contracts.

Cost/Pricing Developments of 2008Joseph Barsalona

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Cost Accounting Standards Update

FAR Part 30 revisions effective March 31, 2008Material changes and noncompliances must be resolved using FAR 30 procedures rather than less formal techniquesEquitable adjustments for required or desirable changes must be negotiated as provided in the Changes clause of the contractProvides for netting of cost impacts that affect both cost estimating and cost accumulationA recommendation to allow combining impacts from multiple changes was not adopted

Pension Harmonization – Advanced Notice of Proposed Rulemaking (ANPR) issued September 2, 2008

ANPR addresses harmonization of CAS 412 and 413 with the Pension Protection Act of 2006 (PPA)PPA utilizes a settlement/liquidation approach vs. the going concern approach under CAS. This difference results in higher expense and funding under PPACASB rejected using PPA for CASANPR proposes:

Changing the amortization period for gains and losses from 15 to 10 years (7 in PPA)Revising the “assignable cost limitation”A 5 year transition period

The proposed changes will allow additional recovery but will still leave contractors with cash flow issues

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Other CAS and Cost Issues

CASB Guidance Needed

Hybrid ContractsExemptions for separate contract line items, e.g., commercial items, firm fixed price line items based on adequate price competitionValue for applicability and full vs. modified coverage

Proposed Rule on Travel Costs

New limit: “airfare costs in excess of the lowest price coach class, or equivalent, airfare available to the contractor…”

Old Limit: “airfare costs in excess of the lowest customary standard, coach or equivalent airfare..”.

Limitation on Pass Through Charges (DFARS Interim Rule) for DoD.exclude excessive pass through charges (defined as those that cannot be proven to the CO to add substantive value in accomplishing the work performed under the contract);identify the percent of effort performed by each subcontractor;for proposals with more than 70% subcontract effort

- identify the amount of indirect costs and profit applicable to subcontracts and- describe the value added as related to the subcontractor work;

Flow-down the clause to non-exempt subcontracts.

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DCAA

In July 2008 GAO criticizes DCAA for not adhering to GAGAS

Inadequate working papers

Supervisors dropped findings

Insufficient work to support opinions and conclusions

Recent Audit Guidance/Alerts

Audit Alert on Current Economic Conditions and Financial Condition Risk Assessments

Audit Guidance on DoD Commercial Time-and-Materials (T&M) and Labor-Hour (LH) Contracts

Audit Guidance on the Application of FAR 31.205-6(p), Limitation on Allowability of Compensation for Certain Contractor Personnel

Audit Alert on Performance of Postaward (Defective Pricing) Audits

Areas of focus

Consulting costs

Reasonableness of compensation

Estimating systems

CAS allocation standards

European Procurement: The Contentious/Regulatory RegimePaul Stone

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The European Context

The European Union - 27 member states - 493 million population - 11,000 billion euros GDP (US 10,000 billion Euros)

A semi-federal structure:

European Treaty - fundamental principles

European Commission:Regulations - UK - The Public Contracts Regulations 2006Directives - The EU Procurement Directives

- The Remedies DirectivesThe European Court of Justice - case law

Domestic Law and domestic case law and procedures

Domestic public law and regulation

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Methods of challenge/regulation

Complaint to European Commission:

result investigation and legal challenge to Member Stateanonymous and minimal cost exposureslow unlikely to have short term impact on commercial positionthreat of complaint to domestic regulators powerful

Legal Challenge:

procurement regulationspublic lawcontracttortcriminal

Effectiveness/cost varies radically from member state to member state

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European Procurement Challenges key variables

Procedure

Germany/Austria/Denmark - specialist administrative tribunal

UK and others normal Court System

Time limits

Austria/Belgium/Spain/Germany - immediate - 15 days

UK/France/Italy - 2-3 months (need for promptness)

Interim relief - Yes but grounds and level of risk varies significantly from jurisdiction to jurisdiction. Power to set aside awarded contract limited

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European Procurement Challenges key variables

Damages - Yes in most jurisdictions (not France) but scope varies significantly - Germany separate court proceedings required but can recover damages for wasted costs/loss of contract

UK similar but also possible to claim damages for loss of opportunity


Venue


Panel IIInternational Contracting IssuesModerator: Frank Menaker

Export Controls

Lynn Van Buren

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DFARS Rule Requires Compliance with Export Control Regulations

Interim Rule effective July 21, 2008, requires COs to include an appropriate clause in solicitations/contracts if export-controlled items are expected to be involved in contract performance, as determined by the requiring activity

Amends DFARS Parts 204, 235 and 252Contracts involving export-controlled items (252.204-7008)

Anticipates that contractor will generate or require access to EAR- or ITAR-controlled informationRequirements regarding potential access to export-controlled information (252.204-7009)

Anticipates that no access is required or information will be generatedIf during performance, contractor becomes aware that it must access or generate export-controlled information, it must notify the COCO may (i) modify contract to include 252.204-7008; (ii) modify contract to exclude export-controlled work; or (iii) terminate the contract

Release of export-controlled items to foreign personsITAR: “Access to” and “disclosure of” defense articles; defense services; technical dataEAR: “Disclosure of” technology (data and assistance) and source code

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Required Subcontract Flow-Downs

TrendsChecklists/certifications regarding ITAR registration and/or foreign personsTechnology Control Plans – Physical and electronic access controls

Research-based contractsFundamental research exempt from export control laws: Basic and applied research in science and engineering, the results of which are ordinarily published and shared broadly within the scientific community (NSDD 189)Applied research: (a) Normally follows, but may not be severable from, basic research; (b) attempts to determine and exploit the potential of scientific discoveries or improvements in technology, materials, processes, methods, devices, or techniques; and (c) attempts to advance the state of the artNot fundamental research:

Export controlled information used during or for researchContract restricts publication of research resultsCompany research related to ITAR-controlled items

Assess applicable export rules before selecting U.S. or foreign supplierUnderstand who will be working with export-controlled informationMark data before providing them to a subcontractor

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Other Export Compliance Trends

ITAR ComplianceForeign person employees – DSP-5 license required for access to controlled dataThird country/dual nationals of NATO, European Union (EU), Australia, New Zealand, Japan, and Switzerland – No longer required to (a) be identified in Agreements or (b) execute NDAs (ITAR § 124.16)Servicing U.S. military overseas – A license may be required. For example:

If ITAR-controlled data are released to local contractorsIf hardware such as spare parts are exported

FMS – Licenses required unless items/services specified in current, effective LOA and other conditions metProposed EAR Intra-Company Transfer License Exception

Would allow a U.S. “parent” company headquartered in the U.S. or Wassenaar Arrangement participating states to transfer to controlled subsidiaries/branches and third country/dual employees specified EAR-controlled hardware, software and technology (data and assistance) for internal use without individual licensesRequires preparation and submission of a ICT Control Plan, annual reports and biannual audits by the Department of CommerceDoes not apply to transfers outside the company

Mergers and AcquisitionsChecklists increasingly include export compliance as an issueCFIUS – New regulations require information about applicable export controls in the process; export control compliance is a key issue during CFIUS review

TAA/BAA Compliance

Fern Lavallee

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Buy American Act and Trade Agreements Act Compliance

Offerors and Contractors must distinguish the BAA from the TAAThe BAA and TAA are mutually exclusive - a dollar value threshold is determinative.

For acquisitions with an estimated value equal to or exceeding $193,000, the U.S. has waived application of the BAA and the TAA applies. FAR 25.402(a)(1).Federal procurements under the TAA threshold of $193,000 are subject to the BAA. The dollar threshold is adjusted from time-to-time.

The BAA creates a preference (i.e., restricts but does not prohibit) for the purchase of supplies that are "domestic end products" for use within the U.S. FAR 25.001(a)(1). The TAA creates a statutory prohibition preventing the federal government from purchasing items that are not a U.S. end product or a "designated country end product". FAR 25.003.

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Applying the BAA and TAA

Under the BAA, a "domestic end product" is defined as an article, material, or supply "to be acquired for public use." FAR 25.003.

For a manufactured end product to qualify, it must satisfy the following two-part test: (i) the article must be manufactured in the U.S., and (ii) the cost of domestic components must exceed 50 percent of the cost of all the components. A "component" is an article, material, or supply "incorporated directly into an end product."

Under the BAA, there are three major exceptions: (i) the "public interest" exception; (ii) the "unreasonable-cost" exception; and (iii) the "nonavailability" exception. FAR 25.103(a)-(c) (Other exceptions include the purchase of end products for commissary resale and the purchase of intellectual property commercial items. FAR 25.101(d)-(e)).Under the TAA, a product is the end product of a country if the product is: (i) "wholly the growth, product, or manufacture" of that country, or (ii) "[i]n the case of an article that consists in whole or in part of materials from another country, has been substantially transformed" in that country. FAR 25.003. The TAA does not apply to (i) small business set asides; (ii) the acquisition of "war materials," end products for resale, or from specifically-delineated non-profit entities; (iii) certain acquisitions using other than "full and open" competition; and (iv) if the particular supply or service was excluded from the WTO GPA, as reflected in the schedules appended to that agreement. FAR 25.401(a)-(b).

In DoD procurements, the TAA does not apply unless the supply being acquired falls under a specific "Federal supply group," which encompass a wide array of supplies. See DFARS 225.401-70.

Under both the BAA and the TAA, the Customs Law “Rule of Origin” applies in determining whether an article is “manufactured in the U.S.” (BAA) or is “substantially transformed” in a country.

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Proposed Change to the Rule of Origin Applicable to Government Procurements

On July 25, 2008, the U.S. Customs and Border Protection issued a proposed rule that would change/replace the “substantial transformation” rule of origin by imposing use of the “tariff shift” test in federal public procurements;

The relevant shift is in the numerical classification under the Harmonized Tariff System of the U.S. (“HTSUS”) from that for the “foreign” components, materials and inputs to the HTSUS classification of the end product.

Ex: 8471.49.0000 to 9018.19.5500A “substantial transformation” will normally be deemed to occur only if there is a “tariff shift”.This will impact compliance with the BAA and TAA.

Purpose is to replace a complex and subjective standard with an objective and “straight-forward” one.Offerors and Contractors will have to re-analyze products to ensure that they comply under the tariff shift test.

The expectation is that the outcome under either test will be the same in most cases, but no one knows for sure:Computers/Electronics? Probably yes.Software? Not clear, possibly no.

Contractor Liability on the BattlefieldTara Lee

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ATCA / TVPA litigation

Abu Ghraib

PSC

Immunity arguments (FTCA combatant activities exception, derivative sovereign immunity arguments)

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Employee-employer suits

5th circuit reverses political question

State law torts - failure to warn, fraudulent inducement, negligence

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Contract disputes / trends

Mainawal Rahman Building & Construction Co., Ltd. v. DynCorp Int’l LLC, U.S.D.C. for E.D. of Va., Case No. 08cv1064 [Afghanistan construction litigation case]

Appeal of -- Piril Insaat Tic. Bilgisayar Elek. Buro DonanimLtd. Sti., ASBCA No. 55605, October 28, 2008.

Local jurisdiction issues (Iraq SOFA discussion)

Foreign Investment in US: Lessons LearnedRick Newcomb

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The Office of Foreign Assets Control (“OFAC”)

1.) Country ProgramsBurmaCubaIranSudan

2.) List-based ProgramsTerrorismNarcotics TraffickersWeapons of Mass DestructionZimbabweSyriaIraq

3.) Specially Designated Nationals (“SDN’s”) owned or controlled by, or acting for or on behalf of. . .

Western BalkausBelarusCongoLebanonLiberiaIvory Coast

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Enhanced Statutory Cap for Civil Penalties

The International Emergency Economic Powers Enhancement Act provides for maximum civil penalty amounts that are the greater of $250,000 or twice the amount of the transaction. Prior to the Act, the maximum statutory civil penalties OFAC could impose under the International Emergency Economic Powers Act (“IEEPA”) were the lesser of $11,000 or the amount of the transaction, adjusted to $50,000 in 2006. The new Enforcement Guidelines also:

no longer are geared toward a specific industry sector, as in the case of the 2006 Guidelines for financial institutions;

no longer provide a general range of 10-75 percent mitigation from the amount proposed in a PrePenalty Notice, as did the 2003 Guidelines for non-bank related civil penalty cases;

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Enhanced Statutory Cap for Civil Penalties

no longer separately identify mitigating and aggravating factors but adopt the “holistic” approach of identifying “General Factors”;provide for the issuance of “findings of violation” that constitute final agency action in lieu of warning letters, with a corresponding potential adverse impact on “first offense” as a mitigating factor;distinguish between “egregious” and “non-egregious” civil monetary penalty cases in recognition that the enhanced maximum civil penalties authorized by the Enhancement Act should be reserved for the most serious cases; and implement new procedures for determining the proposed base civil penalty amount based upon: 1) the egregiousness of the activity (including the transaction amount); and 2) whether the case involves a voluntary self-disclosure (more strictly defined), to be adjusted upward or downward depending upon an evaluation of other applicable General Factors.

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1. Willful or Reckless Violation of Law

2. Awareness of Conduct at Issue

3. Harm to Sanctions Program Objectives

4. Individual Characteristics

5. Compliance Program

6. Remedial Response

7. Cooperation with OFAC

8. Timing of apparent violation in relation to imposition of sanctions.

9. Other enforcement action

10. Future Compliance/Deterrence Effect

11. Other relevant factors on a case-by-case basis

General Factors to Consider

Panel IIIFraud and Compliance IssuesModerator: Nancy Dix

Mandatory Disclosure of Procurement ViolationsEarl Silbert

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Mandatory Disclosure

9.406-2 Causes for debarment(b)(1) A contractor, based upon a preponderance of the evidence, for

any of the following—

– (vi) Knowing failure by a principal, until 3 years after final payment on any Government contract awarded to the contractor, totimely disclose to the Government, in connection with the award,performance, or closeout of the contract or a subcontract thereunder, credible evidence of –

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Mandatory Disclosure

9.406-2 Causes for debarment– (A) Violation of Federal criminal law involving fraud, conflict of

interest, bribery, or gratuity violations found in Title 18 of the United States Code;

– (B) Violation of the civil False Claims Act (31 U.S.C. 3729-3733); or

– (C) Significant overpayment(s) on the contract, other than overpayments resulting from contract financing payments as defined in 32.001.

False Claims Act DevelopmentsNancy Luque

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False Claim Act Developments

Cases:

Allison Engine Co. v. United States, 128 S. Ct. 2123 (June 9, 2008). New standard of liability where there is no direct presentment of a claim to the government (sections (a)(2) and (a)(3)).For liability to attach to subcontractor claims (no direct presentment to government), there must be proof of intent the false record or statement be material to Government’s decision to pay or approve the false claim.FCA is not an “all-purpose antifraud statute.”Broader standard than Totten requirement for proof of direct presentment (U.S. ex rel. Totten v. Bombardier Corp. 380 F.3d 488 (D.C. Cir. 2004)(claim to Amtrak as a federal grantee was not presented to Government.)

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Cases:

Rockwell International Corp. v. United States, 127 S. Ct. 1397 (2007). To be the “original source” of information for FCA purposes, the person must be the original source for all allegations.

United States ex rel. DRC v. Custer Battles, 444 F.Supp. 2d 678 (E.D. Va 2006) Case against a contractor for allegedly filing fraudulent claims with the Coalition Provisional Authority (CPA) for work in Iraq. Relator could not prove claims were presented for payment by Government.

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FCA Correction Act (under consideration)Legislation aimed at overturning effect of these decisions (and generally enhancing ability of relators to bring and maintain non-meritorious claims).

Expansion of damages – from treble amount of damages “sustained” by the government to treble the amount of money or property “paid or approved”Damages would include losses by 3rd party administrative beneficiaries such as CPARepeal of public disclosure bar as jurisdictional defenseExtension of statute of limitationsLiability to claims of non-federal entitiesGovernment employees as relators

Foreign Corrupt Practices Act DevelopmentsPeter Zeidenberg

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What is FCPA?

Prohibits bribery or offers of things of value to foreign officials by U.S. citizens, residents or companies in order to obtain or retain business. Applies to:

U.S. companies that are deemed “issuers” (public companies)Any officer, director employee or agent acting on an issuer’s behalfParent company can be liable for bribery by subsidiaries, including non-US subsidiaries

Books & Records ProvisionFCPA imposes certain accounting and record-keeping requirements upon companies whose securities are listed in the United States

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How Far Does FCPA Reach?

Companies can be prosecuted for bribers paid by a third party they have hired if company should have known conduct was likely to occur.Third parties include, for example:

AgentsConsultantsContractorsBrokersJoint Venture PartnersA person/company may be deemed to have knowledge if:Aware of a “high probability” that prohibited conduct will occurDemonstrates conscious disregard, wilfull blindness, or deliberate ignorance of prohibited conductReasonable and appropriate due diligence would have identified prohibited conduct

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Particularly Vulnerable Industries & Markets

Industries Energy companiesDefense contractorsTechnology companiesTelecommunicationsMedical & Pharmaceutical companiesFinancial services

Industries most at risk because government licenses are critical to their operations.Regions most dangerous to operate in:

AsiaLatin AmericaAfricaMiddle East


Venue


EU Enforcement Environment

Robert Wardle

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UK - Overview

EU

Rely on National Regulators

Differences between member states

OLAF

UK

The Serious Fraud Office and City of London Police

Pressure on the UK to take action on corporate corruption of overseas public officials

SFO has announced more resources for this type of investigation – 50% more investigators

City of London Police being given increased resources

New National Strategic Fraud Authority

Other regulators - Office of Fair Trading

Financial Services Authority

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Differences

No right of silence

Money laundering reporting and tipping off

Very difficult to negotiate a settlement with Law Enforcement -no mechanism to do so. Only option - prosecute or not

Result is long and expensive investigations and trials -unsatisfactory for all concerned

Extraditions - European Arrest Warrant

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Recent UK Developments

Plea negotiation

New statutory powers for obtaining cooperation from witnesses, granting immunity and negotiating pleas

Serious Crime Prevention Orders

Civil Recovery Orders available to prosecutors

First FSA prosecutions for insider dealing

More self-reporting

New Bribery and Corruption Bill

More international cooperation - globalisation of business requires globalisation of regulation and enforcement


Venue


“Homeland Security: Then and Now”

Admiral James M. Loy

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Panel I Procurement Issues

Moderator Carl Vacketta

Richard Rector

Seamus Curley

Steve Phillips

Joseph Barsalona

Paul Stone

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Carl L. Vacketta Partner

500 Eighth Street, NW Washington, DC 20004 (202) 799-4402 T (202) 799-5402 F [email protected]

PRACTICES Government Contracts Government Affairs Aerospace and Defense

EDUCATION • University of Illinois at Urbana-Champaign (1965) J.D.

• University of Illinois at Urbana-Champaign (1963) B.S. with honors

ADMISSIONS District of Columbia Illinois

EXPERIENCE Carl Vacketta has more than 40 years of experience in government contracts law, including pre-award and post-award counseling on supply, service, and construction contracts with federal, state, and local government agencies and public transit authorities. He has represented companies selling information technology, telecommunications equipment, and professional and technical services to the government. He has in-depth experience in GSA's Multiple Award Schedule Contract (MASC) program; due diligence reviews to support mergers and acquisitions; termination disputes; socioeconomic obligations; and small business acquisition matters. He also has led teams of attorneys, accountants, and engineers in the investigation and preparation of multimillion-dollar claims for major shipyards, aerospace, power generating, electronics, and telecommunication companies.

In Chambers USA: America's Leading Lawyers for Business, the respected English research firm Chambers & Partners cites Mr. Vacketta in the top tier nationally in the area of Government Contracts. In 2007, Chambers commented on his "thoughtful, considered" work and the high level of respect he has earned; in 2008, it noted that he has "a prominent national and international reputation" and "is esteemed for his skills in matters relating to contract formation and administration." Mr. Vacketta, Chambers said, "is regarded as a luminary by his peers."

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He is also named in the 2008 edition of The Best Lawyers in America for his government contracts practice. In 2005, Mr. Vacketta was named a member of the Legal Elite by Washington SmartCEO magazine. In 2004, Legal Times named him to its short list of the top practitioners of government contracts law in the Washington, DC area. Prior to entering private practice, Mr. Vacketta served in the US Army Judge Advocate Corps as a captain teaching government contract law.

COURTS AND FORUMS • United States Court of Federal Claims

• United States Supreme Court

PUBLICATIONS • "An Effective Compliance Program: A Necessity for Government Contractors Under IDIQ

Contracts and Beyond," Public Contract Law Journal, Volume 37, Number 3 (Spring 2008)

• "Government Contracts," Chapter 27 in Commercial Contracts: Strategies For Drafting And Negotiating (Aspen, 2003)

• "Lessons from the Commercial Marketplace," Public Procurement Law Review, February 2002

• "Federal Government Contract Overview,” FindLaw.com (1999)

• “Other Transactions,” Briefing Paper (March 1998)

• “Commercial Item Contracts: When is a Government Contract Term or Condition Consistent with ‘Standard’ or ‘Customary’ Commercial Practice?” 27 Public Contract Law Journal 291, (Winter 1998)

• “GSA’s MAS Explosion,” The Government Contractor (August 1997)

• “Obtaining Payment from the Government’s ‘Judgment Fund,” Briefing Paper ( February 1997)

• “Technology Transfer,” Briefing Paper (November 1994)

• “Recovery of Legal Costs,” Briefing Paper (November 1993)

• “Constructive Change Orders/Edition III,” Briefing Paper (December 1992)

• Default Termination, Federal Publications, Inc. (1991 & Supp. 1999)

• “Convenience Termination: Selected Problems,” Briefing Paper (November 1990)

• “The ‘Government Contractor Defense’ in Environmental Actions,” Briefing Paper (December 1989)

• “Option Clauses,” Briefing Paper (December 1988)

• “Security Requirements in International Transactions,” Briefing Paper (December 1987)

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• “Procurement Reforms of the 99th Congress,” Briefing Paper (December 1986)

• “The Price Reductions Clause,” Briefing Paper (December 1985)

• “Government Rights in Technical Data,” Briefing Paper (December 1984)

• “Settlement and Release,” Briefing Paper (December 1980)

• “Contract Disputes Act of 1978,” Briefing Paper (April 1979)

• “Claims Investigation and Preparation,” Briefing Paper (August 19780

• “A Government Contractor’s Right to Abandon Performance,” 65 Georgetown Law Journal 27 (Oct. 1976)

• “Equitable Adjustment under Government Contracts,” Government Contracts Monograph No. 3, George Washington University (1975)

PRESENTATIONS AND SEMINARS Mr. Vacketta is an Adjunct Professor of Law at the Georgetown University Law Center, where he has taught government contract law since 1973. He also has lectured at conferences and conventions for the University of Virginia Law School, Pennsylvania State University, the American Bar Association (1979, 1984, 1985, 1990, 1996, 2000, and 2003), the Federal Bar Association, the National Contract Management Association (1978-1990, 1993, and 1996), and Federal Publications, Inc./West Group (1978-2002).

PROFESSIONAL MEMBERSHIPS • Editor in Chief, Public Contract Law Journal, Section of Public Contract Law, American Bar

Association

• Fellow, American Bar Association, Section of Public Contract Law

• Fellow, National Contract Management Association

• Advisory Board, The Government Contractor (West Group, 1992 to present)

• American Bar Association, Section of Public Contract Law (Council Member, 1979-1982; Secretary, 1978-1979; Vice Chair, Commercial Products and Services Committee, 1998-present)

• Past President, Board of Visitors, College of Law, University of Illinois

• Academic Member, National Association of Purchasing Management

• Bar Association of the District of Columbia

• Illinois State Bar Association

• Federal Bar Association

• Board of Contract Appeals Bar Association

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Richard P. Rector Partner


PRACTICES Government Contracts Government Affairs Aerospace and Defense Homeland Security

EDUCATION • University of Maryland (1987) J.D.

• University of Maryland (1981) B.A.

ADMISSIONS District of Columbia Maryland

EXPERIENCE Rich Rector chairs the firm's Government Contracts practice and focuses his practice on federal, state, and local procurement issues. He has litigated contract actions and bid protests before the Court of Appeals for the Federal Circuit, the Court of Federal Claims, federal district courts, state and federal boards of contract appeals, and the US Government Accountability Office. He also has represented prime contractors and subcontractors in breach-of-contract and protest actions in state and federal courts, as well as prepared contract claims and requests for equitable adjustment.

Mr. Rector also counsels clients on a broad range of federal and state procurement matters, including IT contracts and transactions, infrastructure projects, state procurement laws and issues, terminations for convenience, US Postal Service procurement, and compliance with procurement integrity and ethics laws.

Prior to entering private practice, Mr. Rector worked for Litton Industries, Inc. for eight years in a variety of business development and legal positions. During that period, he gained valuable experience in the preparation and management of new business proposals, as well as in the review and preparation of subcontracts and teaming agreements.

The respected English research firm Chambers & Partners cites Mr. Rector in Chambers USA: America's Leading Lawyers for Business. In 2007, it termed him "an expert on the process" and

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"strategic thinker" and commented that "clients dubbed him 'as good as a crystal ball'"; in 2008, it noted his "numerous successes" and called him "knowledgeable and highly proficient."

In 2007, Mr. Rector was named to Washington SmartCEO's Legal Elite.

COURTS AND FORUMS • United States Court of Appeals for the Federal Circuit

• United States Court of Appeals for the District of Columbia Circuit

• United States Court of Federal Claims

• United States District Court for the District of Columbia

• United States District Court for the District of Maryland

PUBLICATIONS • “Prepare Now to Avoid Conflicts,” Washington Technology (September 2007)

• "DOD Limits Subcontract Pass-Through Charges," Washington Technology (August 2007)

• "Acquisition Reforms Would Give Auditors Upper Hand," Washington Technology (June 2007)

• “Time Has Come to Update Ethics Programs,” Washington Technology (May 2007)

• “It’s Pretty Tough to Beat Home-Cooked Contracting,” Washington Technology (March 2007)

• "Fixed-Price Contracting Makes Unwelcome Return,” Washington Technology (February 2007)

• "Domestic-Preference and Domestic-Source Laws: An Overview of 'Home Cooking' Issues in State Procurement," ABA Section of Public Contract Law, First Annual State and Local Procurement Symposium (May 2006)

• "States Grow More Inflexible on Contract Terms," Washington Technology (March 2006)

• "Druyun Fallout Will Be Felt Long and Hard," Washington Technology (November 2005)

• "Europe Ponders New Competition Policy For Defense Procurement," Washington Technology (October 2004)

• "Acquisition Goes Commercial,” ABA Journal, October 2004, with David A. Drabkin

• “DOD to Scrutinize Subcontractor Choices by Primes,” Washington Technology(August 2004)

• “Putting the ‘Share’ In Share-In-Savings Rules,” Washington Technology (July 2004)

• “Time May Tick Against You When Adding to FSS Contracts,” Washington Technology (June 2004)

• “Now, Why Can’t Foreigners Work on Fed IT Deals?,” Washington Technology (April 2004)

• “Homeland Security-The New Acquisition Regulations and Guidelines,” The Government Contractor, with William J. Crowley (February 2004)

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• “Savvy Contractors Brush Up on Procurement Integrity Laws,” Washington Technology (February 2004)

• “New York To Keep Close Eye On Contractor Lobbying,” Washington Technology (October 2003)

• “Homeland Security Contracting: What We’ve Learned,” Washington Technology (July 2003)

• “Federal IT Schedule Opens to State, Local Governments,” Washington Technology (June 2003)

• “Consequential and Punitive Damages: Should Federal Contractors Be Worried?”, Washington Technology (April 2003)

• “Homeland Security: Who Pays for Protecting Critical Infrastructure,” Washington Technology (March 2003)

• “Homeland Security Act of 2002,” The Government Contractor (December 2002)

• “Homeland Security Bills Provide Special Procurement Authority,” Washington Technology (November 2002)

• “Homeland Security Policy Expands Corporate Liability,” Washington Technology (October 2002)

• “Homeland Security – Ten Things You Should Know,” Washington Technology (August 2002)

• “Proposed Procurement Authority of Homeland Security Department Needs Clarification,” The Government Contractor (July 2002)

• “When It Comes to Paying Interest, Government Fails Fairness Test,” Washington Technology (June 2002)

• “Protect Intellectual Property Rights in Unsolicited Proposals,” Washington Technology (April 2002)

• “Government Sets Defense Priorities Under DPAS,” Washington Technology (March 2002)

• “Procurements Aren’t Urgent Unless the Law Says So,” Washington Technology (November 2001)

• “The Procurement Challenges Ahead,” Washington Technology (October 2001)

• “Some Room to Breathe in New IT Services Regs,” Washington Technology (July 2001)

• “Who Owns a Company’s Past Performance?,” Washington Technology (June 2001)

• “Maximizing Recovery of Claims and Requests for Equitable Adjustments,” Washington Technology (March 2001)

• “Good Faith, Bad Faith in Government Contracts,” Washington Technology (January 2001)

• “Contract Profit and Incentives: Surviving in a Thin Market,” Washington Technology (November 2000)

• “Rules of the Revolving Door,” Legal Times (November 2000)

• “Contractor Responsibility Regulations: A Solution Worse Than the Problem,” Washington Technology (October 2000)

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• “Standing Guard at the Revolving Door,” Washington Technology (August 2000)

• “As E-Buying Hits Fed World, Time to Draw Lines,” Washington Technology (May 2000)

• “Defense Study Backs Fixed-Price Contracts, Past Performance,” Washington Technology (April 2000)

• “Quelling Disputes May Key on Contract Proposals,” Washington Technology (February 2000)

• “Protecting Confidential Data from FOIA Scrutiny,” Washington Technology (September 1999)

• “Source Selection: Lessons Learned From Bid Protests,” Washington Technology (August 1999)

• “Past Performance: Protecting the Corporate Reputation,” Washington Technology (July 1999)

• “Phase II of FAR Part 15 Rewrite Proposes Organizational and Other Changes to Pricing Provisions,” The Government Contractor, with Gregory A. Smith (May 1997)

• “Disclosure and Receipt of Procurement Information Under the Revised Procurement Integrity Act,” The Government Contractor (February 1997)

• Contributor, Construction Claims Deskbook, John Wiley & Sons (1996)

PRESENTATIONS AND SEMINARS Mr. Rector lectures frequently for clients, bar groups, and professional associations on contract litigation, state and local contracting, organizational conflicts of interest, procurement integrity and ethics laws, and emerging issues in government procurement. He has been a lecturer for the American Bar Association's Program on Trial Preparation and Advocacy in Federal Procurement, as well as for the Government Contracts Year-In-Review Conference sponsored by Federal Publications, Inc./West Group.

PROFESSIONAL MEMBERSHIPS • Board of Governors, U.S. Court of Federal Claims Bar Association (2005-present)

• Council Member, ABA Section of Public Contract Law (2004-2007)

• Vice Chair, Task Force on Homeland Security, ABA Section of Public Contract Law (August 2002-present)

• Co-chair, Emerging Issues Committee, ABA Section of Public Contract Law (2003-2004)

• Chair, Regulatory Coordinating Committee, ABA Section of Public Contract Law (2000-2003)

• Co-chair, Fall Program – “Homeland Security: Challenges, Changes, and Emerging Issues,” ABA Section of Public Contract Law (November 2002)

• Co-chair, Contract Claims and Disputes Resolution Committee, ABA Section of Public Contract Law (1997-2000)

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• Managing Editor, Public Contract Law Journal (1994-1997)

• Member, Board of Contract Appeals Bar Association

• Member, Maryland State Bar Association

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Seamus Curley Associate


PRACTICES Government Contracts

EDUCATION • George Washington University Law School (2008) LL.M. Highest Honors

• Seton Hall University School of Law (2003) J.D.

• Boston University (2000) B.S.

ADMISSIONS District of Columbia New Jersey New York

EXPERIENCE Seamus Curley is an Associate in the firm’s Government Contracts practice group. He engages in a broad array of government contracts-related work at the federal, state, and local level, including: the litigation of bid protests and size-related protests/appeals; general counseling; the negotiation and drafting of subcontracts; responding to government audits; internal investigations; due diligence for mergers and acquisitions involving government contractors; counseling on intellectual property protection, domestic preference/country of origin, and procurement fraud issues; commercial litigation arising out of government contracts, including disputes between prime contractors and subcontractors; and Contract Disputes Act claims-related matters.

Prior to joining the firm, Mr. Curley was in private practice in New Jersey, with a focus in commercial and real property-related litigation. He also served as a judicial law clerk in the Superior Court of New Jersey, Monmouth Vicinage, Criminal Division.

COURTS AND FORUMS • United States District Court for the District of New Jersey


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PUBLICATIONS • "Net Result of Proposed Rule on 'Substantial Transformation' Unclear," Washington Technology

(September 2008)

• "E-Verify Rule Brings New Compliance Requirements," Washington Technology (July 2008)

• Co-author, "An Effective Compliance Program: A Necessity for Government Contractors Under IDIQ Contracts and Beyond," Public Contract Law Journal, Volume 37, Number 3 (Spring 2008)

• Co-author, "Protecting Company Confidential Information When Selling Commercial Computer Software And Technical Data To the Federal Government," Reaching New Heights in the Development and Use of Intellectual Property in Government Contracts, American Bar Association, Section of Public Contract Law, National Contract Management Association (November 2, 2007)

PROFESSIONAL MEMBERSHIPS • American Bar Association, Public Contract Law Section

• Vice-Chair, Commercial Products and Services Committee

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Steven R. Phillips Partner


PRACTICES Communications Federal Affairs and Legislative Government Affairs International Trade Insurance and Reinsurance Aerospace and Defense Homeland Security

EDUCATION • Campbell University, The Norman Adrian Wiggins School of Law (1987) J.D.

• Georgetown University (1989) LL.M.

• Campbell University (1984) B.A. cum laude

ADMISSIONS District of Columbia North Carolina

EXPERIENCE Steven Phillips focuses his practice on the representation of corporations, associations, and local governments before Congress, the administration, and federal agencies with a concentration on trade, tax, communications, defense, insurance, banking, environment, and energy. He also advises clients on congressional strategies, the legislative process, and the regulatory process.

Prior to joining the firm, Mr. Phillips served as legislative director and counsel to Senator Jesse Helms, chairman of the Foreign Relations Committee. During his 10 years in Congress, Mr. Phillips developed and implemented the senator's legislative strategy and managed his legislative staff. He served as the senior policy advisor to the senator on a broad range of issues, including trade, tax, communications, banking, budget, health care, energy, environment, and product liability reform. Mr. Phillips' responsibilities included drafting legislation and speeches, in addition to advising the senator on Senate floor strategy. He also was a surrogate speaker for the senator at numerous business and association meetings and he was a spokesman on legislative issues.

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Prior to working for Senator Helms, Mr. Phillips served as a law clerk for a mid-size French law firm and as a law clerk to a firm in Raleigh, North Carolina. He also worked on the Bush-Quayle re-election campaign and served as an advisor to several congressional candidates. He is fluent in French and has traveled extensively in Europe and Asia.

Significant Accomplishments:

• Assistance to Bush-Cheney transition team, specifically the U.S. Trade Representative Advisory Committee, regarding various issues such as labor and environmental standards, the Free Trade Agreement of the Americas Initiative, and U.S. - Canada bilateral trade issues.

• Advice to several clients regarding export control policy and legislative proposals, as well as how to comply with trade sanctions laws.

• Representation of Senator Helms at the WTO trade talks in Singapore and the GATT negotiations in Geneva; worked with negotiators on issues such as high-tech tariffs, textiles, and anti-dumping.

• Assistance to an insurance company in defeating a legislative proposal that would have blocked enforcement of a multimillion-dollar judgment.

• Organization of successful Senate efforts to stop revision to patent law that would have resulted in hundreds of millions of dollars in lost revenue and adversely affected pharmaceutical research.

• Advice to clients regarding communications policy and helped an industry coalition implement a strategy to affect the standards for the next generation of wireless technology.

• Organization of a bipartisan congressional coalition to revise the broadcast ownership rules.

• Assistance to several defense companies in their efforts to protect billions of dollars allocated to federal defense programs.

• Assistance to a company in securing over $50 million in federal funding for an environmental cleanup of valuable property.

• Assistance to organize and lead a Senate coalition that secured revisions to the Clean Air Act, saving North Carolina over $250 million.

• Leadership of successful congressional effort that secured $1.8 billion in hurricane disaster relief for North Carolina and other states.

PUBLICATIONS • "The New Section 301 of the Omnibus Trade & Competitiveness Act of 1988: Trade Wars or Open

Markets?" 22 Vanderbilt Journal of Transnational Law, 491, 1989

• "The French Connection," Campbell Law Observer, 1986

PRESENTATIONS AND SEMINARS • Steve Phillips addressed more than 80 participants at the Technology Council of Maryland's CFO

Forum on March 19, 2003.

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Joseph A. Barsalona PricewaterhouseCoopers LLP 300 Madison Avenue New York, New York 10017 646 471-5748 [email protected]

Joseph A. Barsalona is a partner in the Advisory Services practice of

PricewaterhouseCoopers LLP and is the National Director of the firm’s Government

Contracts Practice. He provides clients with assistance on technical issues associated with the

pricing, costing, and administering of contracts; preparation of claims and resolution of

contract disputes; design and implementation of self -governance programs; due diligence

and purchase price dispute support; and litigation support and investigative services. He also

provides expert witness services in board of contract appeals and court proceedings. Mr.

Barsalona received his B.S. degree in Accounting from Fordham University. A Certified

Public Accountant, he is a member of the American Institute of CPAs, the New Jersey State

Society of CPAs and the New York State Society of CPAs. Mr. Barsalona currently serves as

a Vice-Chair of the Accounting, Cost and Pricing Committee of the American Bar

Association’s Section of Public Contract Law.

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Paul Stone Partner

Princes Exchange Princes Square Leeds LS1 4BY +44 (0)113 369 2700 T [email protected]

EXPERIENCE Paul is a senior litigation partner based in the Leeds office. In addition to his wide-ranging experience of corporate and commercial litigation, he also acts for a significant number of public sector clients, advising on public law issues including judicial review, freedom of information and human rights issues as well as advising on internal corporate governance, risk management and dispute avoidance in connection with major projects.

Paul has consistently been listed as one of the leading litigation lawyers in Yorkshire by both Chambers and The UK Legal 500 over the last 10 years. He is described by Chambers as a "forceful litigator" who has "won plaudits for his judicial review, procurement litigation and human rights practice" and who has a "talent for coming up with ideas that others would not think of". Paul has recently been awarded 'Dispute Resolution Lawyer of the Year' at the Yorkshire Lawyer Awards 2006.

Paul focuses on heavyweight commercial and corporate disputes. He has acted for a range of public sector clients, advising them on public law and judicial review-related claims and issues, as well as advising on internal investigations, inquiries by the Public Accounts Committee of the House of Commons and district auditor inquiries.

Paul advises on corporate disputes involving shareholder actions, fraud investigations and warranty claims. He also has considerable experience advising on expert valuations and related issues following on from corporate transactions.

Paul also advises on media and defamation matters, product liability litigation and on crisis management. He is an experienced negotiator and litigation tactician who is committed to achieving early solutions to his clients’ problems. Paul has considerable experience of preparing for and representing clients in mediation at all stages of the litigation process.

Key experience: Public law

• Acting for the Mayor of London and Transport for London in successfully defending judicial review proceedings brought by Westminster City Council in relation to congestion charging in London.

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• Advising the Mayor of London and Transport for London on risk management issues relating to the development of the Mayor's Transport Strategy and the making of the Central London Congestion Charging Scheme Order. Also coordinating general legal advice on issues relating to the scheme including competition law, data protection, intellectual property, planning, street signage, enforcement and other issues.

• Acting for the NHS National Programme for Information Technology on a wide range of issues including successfully defending a judicial review challenge relating to a major procurement exercise brought by Fuji Film UK Limited, as well as advising the National Programme on a wide programme of other contentious issues.

• Leading the team acting for Rockware Glass Limited in relation to a judicial review challenge against Chester City Council and Quinn Glass Limited regarding the construction of the largest combined bottle manufacturing, filling and warehousing facility in Europe. This has involved advising on both legal proceedings and political lobbying and campaigning.

Corporate and commercial

• Acting for Argyll Group Plc in its claim against Guinness Plc and others following the Distillers takeover.

Commercial litigation

• Assisting George Staple (former head of the Serious Fraud Office) and acting as the DTI inspector in the affairs of Aldermanbury Trust Plc.

• Preparing and presenting the Law Society's submissions on the General Product Safety Directive to the House of Lords Select Committee on EC Affairs.

• Advising the Baby Products Association in the case of R -v- Liverpool Trading Standards - a judicial review in relation to the safety of baby walkers.

• Appearing with the Vice-Chancellor of Huddersfield University before the Public Accounts Committee of the House of Commons.

Pensions litigation

• Handling a significant number of professional negligence and related cases against actuaries and lawyers advising on pension-related issues.

• Advising on a range of pension-related disputes concerning pension transfer values and similar issues arising in connection with corporate transactions.

"partner" refers to a member of DLA Piper UK LLP

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Panel II International Contracting

Moderator Frank H. Menaker

Lynn Van Buren

Fern Lavallee

Tara Lee

Rick Newcomb

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Frank H. Menaker Of Counsel


PRACTICES Litigation Foreign Corrupt Practices Act and Anti-Corruption Practice

ADMISSIONS District of Columbia Maryland

EXPERIENCE Frank Menaker focuses on internal investigations, corporate governance and regulatory practices at the Washington, D.C. office of DLA Piper.

Mr. Menaker served as senior vice president and general counsel for Lockheed Martin Corporation for 24 years. Over the course of his career, Mr. Menaker helped guide the company through a period of dramatic consolidation in the defense industry. Beginning with Martin Marietta’s successful “Pac Man” defense of Bendix Corporation’s attempted hostile takeover of Martin Marietta in 1980, Mr. Menaker has been at the center of some of the most celebrated and groundbreaking legal developments.

With Mr. Menaker’s deep and extensive knowledge of the defense and government contractor sectors, he provides clients insight and strategy regarding this industry. He helped to establish the Defense Industry Initiative on Business Ethics and Conduct that committed aerospace and defense companies to adopt ethics codes and share best practices in ethics and compliance programs. Drawing on his many strong relationships with general counsels of leading American and international companies, he also focuses on internal investigations, corporate governance and regulatory practices.

Mr. Menaker’s professional activities include serving as past chair and fellow of the ABA Public Contract Law Section, as a board member of the Atlantic Legal Foundation, and as an advisor to Human Rights First. He serves as a director of Martin Marietta Materials, Inc. of Raleigh, North Carolina. Mr. Menaker is an emeritus member of the Association of General Counsel and a member of the Aerospace General Counsel Association. In its 30th anniversary edition in 2008, the Legal Times named Mr. Menaker to its list of Washington's "Visionaries" who have built courts, law firms and companies, and inspired political activism and legal scholarship.

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A native of Harrisburg, Pennsylvania, Mr. Menaker graduated from Wilkes University and the Washington College of Law at American University.

PROFESSIONAL MEMBERSHIPS • Atlantic Legal Foundation

• Human Rights First

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Lynn M. Van Buren Partner


PRACTICES Government Contracts Federal Affairs and Legislative Government Affairs International Trade Energy: Oil and Gas Mergers and Acquisitions Finance

EDUCATION • University of Wisconsin-Madison (1997) J.D. cum laude

Order of the Coif, Senior Notes and Comments Editor, International Law Journal, Jessup International Moot Court Team

• George Washington University (2005) M.A. International Affairs/International Law

• St. Norbert College (1992) B.A. magna cum laude, with honors

ADMISSIONS District of Columbia Wisconsin

EXPERIENCE Lynn Van Buren practices in the areas of export licensing, compliance, and enforcement, as well as international law. Ms. Van Buren represents U.S. clients seeking authorization for exports of highly regulated technology to sensitive areas such as the Middle East, China, and India. She advises clients regarding the classification of and controls on dual-use products, software, and technology controlled by the U.S. Department of Commerce Bureau of Industry and Security. Ms. Van Buren has prepared both licensing and classification requests for dual-use items.

She has advised clients regarding and has prepared registration and licensing applications for the export of defense articles and defense services controlled by the U.S. Department of State Directorate of Defense Trade Controls. In addition, she has assisted clients with licensing and classification issues before the Nuclear Regulatory Commission and the Department of Energy, with licensing and

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compliance issues before the Department of Treasury’s Office of Foreign Assets Control and with Foreign Corrupt Practices Act, anti-boycott regulations, and Exon-Florio Act compliance.

Ms. Van Buren counsels clients regarding implementation of effective compliance programs. She has prepared export control and U.S. sanctions compliance programs for multinational corporations and small businesses and reviewed existing compliance programs for such corporations. She also advises clients regarding establishing and maintaining compliance programs with respect to foreign-incorporated subsidiaries and the transfer of technical information to foreign-national employees.

In addition, Ms. Van Buren has assisted clients during civil and criminal enforcement proceedings before the Department of Commerce Bureau of Industry and Security and the Department of Treasury Office of Foreign Assets Control, as well as an investigation by the Department of State Directorate of Defense Trade Controls. In connection with these enforcement actions, Ms. Van Buren has assisted clients with preparing voluntary disclosures, performing compliance audits, recommending modifications to compliance plans, and identifying mitigating circumstances. She has also prepared pleadings and oral arguments before various state and federal courts and international arbitral tribunals.

COURTS AND FORUMS • United States Court of International Trade

• United States District Court for the Western District of Wisconsin

PROFESSIONAL MEMBERSHIPS • Wisconsin State Bar Association

• American Society of International Law

• American Bar Association, International Section

• Former Board Member, Big Brothers, Big Sisters

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Fernand Lavallee Partner


PRACTICES Mergers and Acquisitions Litigation Government Contracts International Trade Government Affairs

EDUCATION • College of William and Mary (1988) J.D.

Law Review

• Georgetown University (1985) A.B.

ADMISSIONS District of Columbia Virginia

EXPERIENCE Fernand A. Lavallee represents clients in all aspects of federal, state, and local procurement law matters and international commercial transactions. Mr. Lavallee’s familiarity with government contract matters derives from his broad range of experience in counseling, litigating, and teaching contractors in all areas of government contracting, including contract negotiation and formation; teaming arrangements; strategic alliances; prime/sub issues; intellectual property in government contracts including technical data, patents, trade secrets, copyrights and trademark; contractor self-governance, compliance programs and annual compliance training; multiple award schedule contracting and cooperative purchasing; foreign military sales and financing; technology transfer; commercial products and services; information technology and telecommunications procurements; claims and requests for equitable adjustment; internal investigations and voluntary disclosures; procurement fraud investigations; suspension and debarment; small business and socio-economic contracting issues, including HUBZone, 8(a), women-owned business enterprises, the Ability One Program (formerly JWOD); defective pricing issues and TINA; cooperative agreements; cooperative research and development agreements; and other transactions.

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Mr. Lavallee routinely represents clients involved in providing products and services to both civilian (e.g., DHS, GSA, DOE, NASA, DOT, NIH, HHS, NIST, DOS, USDA) and defense (e.g., DOD and the military services, NSA, NRO, DARPA) agencies, including contractors providing goods and services under classified contracts. Mr. Lavallee also litigates high technology issues and government contracts cases before various federal and state courts and brings protests and claims before various boards of contract appeals, the Government Accountability Office (GAO), and the SBA.

Mr. Lavallee’s practical, problem-solving approach to government contracting issues is informed by his experience as a civil servant with the U.S. Department of Commerce and his service as an infantry officer in the United States Army and Maryland Army National Guard, as well as his many years as a practicing attorney.

Recent Matters:

• Defended a government contractor and manufacturer of defense articles in an action brought in the U.S. District Court for the Eastern District of Virginia (the “Rocket Docket”) against claims of copyright infringement involving software that was developed and delivered under a government contract.

• Successfully protested the exclusion from the competitive range of a government contractor providing services to the U.S. Treasury.

• Successfully defended the award of an Other Transaction by DARPA to a consortium in the first reported GAO protest decision involving an OT.

• Participated in the litigation and successful settlement of a breach of contract action between a prime and subcontractor involving over $1 billion in controversy arising from a DOD aerospace contract.

• Successfully represented an IT services client in the resolution of a dispute arising from a teaming agreement following the failure of the parties to negotiate a subcontract.

PRIOR EXPERIENCE • Venable, Baetjer, Howard and Civiletti, Partner 1997–2003; Associate, 1988–1997

• United States Department of Commerce, Trade Policy Analyst (Part-time), 1983–1985

• CPT, 1-115th Inf., 29th DIV (L), 1984–1992

COURTS AND FORUMS • United States Court of International Trade

• United States District Court for the Eastern District of Virginia

• United States District Court for the Western District of Virginia

• United States Supreme Court

• United States Court of Appeals for the Federal Circuit

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PUBLICATIONS • Co-author, "Protecting Company Confidential Information When Selling Commercial Computer

Software And Technical Data To the Federal Government," Reaching New Heights in the Development and Use of Intellectual Property in Government Contracts, American Bar Association, Section of Public Contract Law, National Contract Management Association, November 2, 2007

• Co-author, “Fear and Loathing of Federal Contracting: Are Commercial Companies Really Afraid to do Business with the Federal Government? Should They Be?” Public Contract Law Journal, Fall 2003

• "Cooperative Agreements and Other Transactions: A Concise Primer," Federal Publications, 1996-2006

• Co-author, "Joint Ventures, LLCs, and Teaming Arrangements," George Washington University Law Center, Government Contracts Program, 1997

PRESENTATIONS AND SEMINARS • George Washington University Law School Government Contracts Program, Adjunct Instructor,

Seminar on Joint Ventures and Teaming Arrangements, 1995-1998

• Federal Publications Seminars

• Course Director, Government Contracts Intellectual Property Institute, 2001-2002

• Course Director, Cooperative Agreements, CRADAs, and Other Transactions, 1994-

• Lorman Educational Services On Purchasing Law (Maryland), Instructor, 2001-2002

PROFESSIONAL MEMBERSHIPS • American Bar Association, Public Contract Law Section

• Vice Chair, R&D and Intellectual Property Committee

• National Contract Management Association (NCMA)

CIVIC AND CHARITABLE • Chairman, Board of Directors for an elementary school (1999-2005)

• College of William and Mary Law School

• Board of Directors, College of William and Mary Alumni Association

• Class Agent, College of William and Mary Law School Annual Fund

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Tara M. Lee Partner

1775 Wiehle Avenue, Suite 400 Reston, Virginia 20190-5159 (703) 773-4150 T (703) 773-5150 F [email protected]

PRACTICES Litigation

EDUCATION • University of San Diego School of Law J.D.

Outstanding Future Trial Lawyer Outstanding Student in Public Interest Law Michael Konz Memorial Scholarship

• United States Naval Academy B.S. Departmental Nominee for Academic All-American

ADMISSIONS California Maryland Virginia

EXPERIENCE Tara Lee, a partner in DLA Piper’s Litigation practice based in Northern Virginia, primarily focuses her practice on national security and battlefield incident litigation on behalf of defense contractors. Her practice also encompasses commercial litigation, white collar and regulatory defense, and government contracts litigation.

Ms. Lee has represented a broad range of clients in cases involving contract disputes, government investigations, commercial transactions, intellectual property, business torts, employment law and security clearance matters. She has particular experience in areas relating to defense industry issues and government contractors, and has spoken and written extensively on issues related to battlefield contractors' oversight and liability. Ms. Lee has led trial teams to successful jury verdicts in major cases and has several thousand hours of experience litigating Torture Victims Protection Act and Alien Tort Claims Act cases before federal district courts and United States Courts of Appeal. She also has significant subject-matter and US Court of Appeal experience in foreign sovereign immunity and derivative sovereign immunity cases.

Earlier in her career, Ms. Lee was a Resident Fellow at the United States Naval Academy’s Center for the Study of Professional Ethics, where her speaking and writing focused on national security law and

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war crimes. In 2001 and 2002, she served as a law clerk for United States District Court Judge William B. Shubb of the Eastern District of California. She is a former associate of Cooley Godward Kronish LLP, Seyfarth Shaw LLP and Jackson Lewis LLP.

Ms. Lee received a J.D. from the University of San Diego School of Law in 1996, where she was recognized as the Outstanding Future Trial Lawyer and Outstanding Student in Public Interest Law and was the recipient of the Michael Konz Memorial Scholarship. She earned a B.S. from the United States Naval Academy in 1991, where she was a departmental nominee for Academic All-American. After graduating from the Naval Academy, she served as a naval officer at several helicopter commands in San Diego until transferring to the JAG Corps in 1996. As a JAG, she conducted 12 jury trials as first chair and received the American Trial Lawyers Association Outstanding Military Trial Advocate Award. She taught courses in trial advocacy and pre-trial practice as an adjunct professor at University of California at Davis School of Law and at McGeorge School of Law, University of the Pacific.

She is a vice chair of the ABA’s Battle Space and Contingency Procurements Subcommittee and a member of the ABA's Standing Committee on Law and National Security. On behalf of the ABA, she has led teams of attorneys in producing ABA white papers on the expansion of UCMJ and MEJA jurisdiction over contractors on the battlefield, and in drafting the ABA public comment to proposed regulations related to combating human trafficking. In association with several industry trade groups, she is currently drafting standards of conduct and guideline rules for the use of force by battlefield contractors.

In 2008, the Washington Business Journal recognized Ms. Lee as a Young Gun.

COURTS AND FORUMS • United States District Court for the Eastern District of Virginia

• United States District Court for the Eastern District of California

• United States Court of Appeals for the Armed Forces


• United States Court of Appeals for the Fourth Circuit

PUBLICATIONS • Author, “Don't Kick Contractors Off the Battlefield: Just Hold Them Accountable,” The Jurist,

April 24, 2008. This op-ed may be read on line at The Jurist’s website

• Author, “The Importance of Preserving Hargeysa’s Mass Graves,” Somaliland Times, May 12, 2007, describing her April 2007 trip to Somalia to collect evidence of war

• Co-author, “Can a Third Party Subpoena the Feds?” Legal Times, August 21, 2006, at 40

• Author, “The Tangled Web of Military Command Responsibility,” op-ed, Los Angeles Times, August 4, 2004

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• Author, “Perspectives on the State-Centric System of Traditional International Law and the Developing Jurisprudence of International Criminal Law,” paper presented at Fifth Annual Royal Military College of Canada Conference on Ethical Leadership, November 4-6, 2003

• Author, “American Courts-Martial for Enemy War Crimes,” 33 U. Balt. Law Rev. 49 (Fall 2004)

• Author, “Military Justice Jurisdiction: Forums at the Intersection of War and Justice,” paper presented at 2003 Joint Services Conference on Professional Ethics, Anti-Terrorism Operations and Homeland Defense, January 30-31, 2003

PRESENTATIONS AND SEMINARS • Selected to participate in a panel discussion before the United Nations Special Rapporteur on

Extrajudicial, Summary or Arbitrary Executions, discussing contractor battlefield killings, June 21, 2008

• Panelist, “The Future of Private Security Contracting,” Center for a New American Security, May 30, 2008

• Presenter, “A New Paradigm for Accountability and Control of Battlefield Contractors,” National Security Law Conference, Wake Forest School of Law, May 23, 2008

• Panelist, KALW live radio call-in show, April 28, 2008. An MP3 of the broadcast is available at www.yourcallradio.org

• Participant, Terrorism Trials Colloquium co-sponsored by the School for Advanced International Studies at Johns Hopkins University and RAND Corporation. Co-participants included agency heads and General Counsels from US DOJ, DOS, CIA, NSA, FBI and equivalent law enforcement and counterintelligence agencies of Australia and the United Kingdom, January 2008

• Chair and moderator, panel presentation, International Symposium for Military Ethics, January 30-31, 2007

• Delivered panel presentation,“Litigating Law of War Violations in Federal Civil Court,” Public Interest Law Day Conference, Boalt Hall – UC Berkeley School of Law, September 30, 2006

• Coordinated a proposed series of joint USNA - Georgetown University Law Center conferences on civil-military relations, including drafting roundtable topics for the conference series and preparing the conference research proposal, “Civilian Soldiers, Profit Motives, and the Business Face of War: As the Privatized Military Industry Redraws the Line between the Public and Private Spheres, Is the Existing Domestic and International Regulatory Framework Adequate?” Spring 2003

PROFESSIONAL MEMBERSHIPS • American Bar Association - Battle Space and Contingency Procurements Subcommittee; Standing

Committee on Law and National Security

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Richard Newcomb Chair, International Trade Practice Group Partner


PRACTICES International Trade Government Affairs

EDUCATION • Case Western Reserve University School of Law J.D.

• Kenyon College B.A.

ADMISSIONS District of Columbia Ohio

EXPERIENCE R. Richard Newcomb is a partner based in Washington DC where he is chair of the International Trade practice group. He comes to DLA Piper from Baker Donelson, where he chaired the International group.

Mr. Newcomb has had considerable international experience dealing with target governments, front-line states, like-minded allies, multilateral organizations (the United Nations, the European Union and others), financial and business communities worldwide and others who are responsible for compliance with asset controls and economic sanctions and embargo programs. He is adept at handling regulatory procedures relating to international transactions, including navigating the requirements of the Committee on Foreign Investment in the United States (CFIUS), the Bank Secrecy Act (and all aspects of anti-money laundering statutes), Export Administration Act, Anti-Boycott compliance, US Customs law and the relevant portions of the Patriot Act.

From 1987 to 2004, Mr. Newcomb served as director of the Office of Foreign Assets Control (OFAC) of the United States Treasury Department. Throughout his tenure, Mr. Newcomb oversaw the administration and enforcement of 39 economic sanctions programs in furtherance of US foreign policy and national security goals. His leadership guided the agency through many of the major foreign policy challenges the nation has experienced in the past two decades, from the advent of multilateral sanctions against Iraq in 1990 – coupled with a protective blocking of approximately $50

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billion in Kuwaiti assets – to the transformation of the agency after the attacks of September 11, 2001, to track and disrupt terrorist organizations and their financing networks.

In his time at OFAC, Mr. Newcomb was responsible for implementing economic sanctions and asset controls against Burma, Cuba, Iran, Liberia, Libya, Sudan, Zimbabwe, narcotics traffickers in Colombia and narcotics kingpins and their networks operating worldwide, as well as for maintaining the prohibition against financial transactions with Syria. Other economic sanctions that he implemented and saw through to completion included programs targeting the Taliban, North Korea, Serbia, Angola, Haiti, South Africa, Panama, Vietnam and Cambodia.

Throughout his time at OFAC, the agency played a significant role within the domestic and the international communities, confirming that economic sanctions can be an effective tool of international diplomacy. The strategies developed under his leadership and supervision for implementing sanctions and targeting terrorists are among the principal tools used today to wage the war on terrorism and terrorist financing.

Prior to his assignment with OFAC, Mr. Newcomb held a number of other positions in the Treasury Department, including director of the Office of Trade and Tariff Affairs and deputy to the assistant secretary (Regulatory, Trade and Tariff Affairs), where he was the principal advisor to the assistant secretary for enforcement on customs, international trade, commercial and regulatory matters.

President Ronald Reagan awarded him the Presidential Rank Meritorious Executive Award. Both President George H. W. Bush and President Bill Clinton honored him with the Presidential Rank Distinguished Executive Award. He has also received the Department of the Treasury Management Excellence Award and the Albert Gallatin Award. The Department of the Navy awarded him its Superior Public Service Award. During his tenure at OFAC, the American Bar Association Section of International Law and Practice presented the agency with its Award for Outstanding International Law Office. When Mr. Newcomb departed the Treasury Department, he was awarded The Treasury Medal by Secretary John Snow "in recognition of singular accomplishments and leadership."

HONORS • President Reagan's Presidential Rank Meritorious Executive Award

• President Clinton's Presidential Rank Distinguished Executive Award

• President Bush's Presidential Rank Distinguished Executive Award

• The Treasury Medal, United States Department of the Treasury

• Department of the Treasury Management Excellence Award

• Outstanding International Law Office Award, American Bar Association Section of International Law

• Superior Public Service Award, US Department of the Navy

• Listed in The Best Lawyers in America® in the area of International Trade and Finance Law

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COURTS AND FORUMS • Court of International Trade

PROFESSIONAL MEMBERSHIPS • District of Columbia Bar Association

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Panel III Fraud and Compliance

Moderator: Nancy Dix

Earl Silbert

Nancy Luque

Peter Zeidenberg

Robert Wardle

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Nancy O. Dix Partner

401 B Street, Suite 1700 San Diego, California 92101-4297 (619) 699-2921 T (619) 764-6621 F [email protected]

PRACTICES Government Contracts Qui Tam/False Claims Act Trademarks Litigation Trademark Litigation Copyrights

EDUCATION • Georgetown University Law Center (1986) J.D. magna cum laude

Order of the Coif, Dean's List

• Loyola Law School Los Angeles J.D. student, 1982-1983 (Ranked 2nd in class); Loyola Law School Merit Scholarship

• California State University, Dominguez Hills (1982) M.B.A. Outstanding MBA Graduate - Awarded by CSU Faculty, 1982 California State University Honor Student, 1980-82 (4.0 GPA)

• California State University, Dominguez Hills (1981) B.A. Business & Management

• University of Florida Psychology

ADMISSIONS California District of Columbia

EXPERIENCE As a partner in the Government Affairs Practice group, Nancy Dix heads up the firm’s Government Contracts Practice in the San Diego Office. She represents clients in a broad range of government contract matters including bid protests, claims, prime/subcontract disputes, appeals to Boards and courts, suspension and debarment matters, government investigations, and qui tam suits. She also provides general counseling and advice on a variety of government contract, cost charging and regulatory matters.

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Ms. Dix also heads the Trademark Prosecution group in our San Diego office and represents and advises clients on protecting their trademarks and other intellectual property. She also litigates intellectual property disputes including licensing, trademark and trade dress, trade secret, unfair competition and copyright matters.

Ms. Dix was selected as one of the top attorneys in San Diego in a poll of County attorneys conducted in 2005 by the San Diego Daily Transcript. She is also listed in The Best Lawyers in America and as a Super Lawyer.

Ms. Dix is one of the Pro Bono Coordinators for the firm's San Diego (Downtown) office.

PRIOR EXPERIENCE • Attorney, Howrey & Simon, Washington, D.C. (1987-1989)

• As an associate at Howrey & Simon, responsible for a broad range of commercial counseling, government contract and litigation matters, involving antitrust and commercial disputes, bid protests, claims, appeals, government audits and investigations.

• Manager of Project Finance (Command Support Division), TRW Electronics & Defense Sector (E&D), Fairfax, Virginia (1985-1987)

• As manager of Project Finance, responsible for division compliance with government and internal financial regulations and procedures as well as analysis of potential acquisition targets and strategic planning.

• Legislative Assistant to Senator John A. Chafee, TRW E&D Sector/United States Senate (1984)

• As TRW’s representative to the Congressional Assistant Program, Legislative Assistant to Senator Chafee for the Senate Committee on Energy and Natural Resources. She analyzed issues before the Committee, prepared briefings, ran hearings, advised the Senator on a variety of issues and managed bills through the legislative process.

• Manager of Financial Planning (DSP), TRW E&D Sector, Space & Technology Group, Redondo Beach, California (1981-1983)

• Responsible for financial planning and forecasting for the seven DSP contracts representing over $200M in yearly sales with reporting responsibility for sales awards, delivered sales, ROC, IRR, manpower planning, indirect expenses, receivables, personnel administration and support for proposal negotiations.

• Senior Business Administrator, TRW E&D Sector, Space & Technology Group, Redondo Beach, California and Tehran, Iran (1976-1981)

• From 1976-1981 had increasing responsible business administrative positions on several TRW programs with responsibility for performance measurement, internal management reporting and financial forecasting.

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COURTS AND FORUMS • United States Supreme Court


• United States District Court for the Northern District of California

• United States District Court for the Central District of California

• United States District Court for the Southern District of California

• United States District Court for the District of Columbia

• United States Court of Appeals for the Fourth Circuit

• United States Court of Appeals for the Ninth Circuit


PUBLICATIONS • "Contracting With the Federal Government", Trade Secret Litigation and Protection in California,

ch. 22, Intellectual Property Section of the State Bar of California (2005)

• Nancy O. Dix, Fernand A. Lavallee and Kimberly C. Welch, “Fear and Loathing of Federal Contracting: Are Commercial Companies Really Afraid to do Business With the Federal Government? Should They Be?” Public Contract Law Journal. (Fall 2003)

CIVIC AND CHARITABLE • San Diego Military Advisory Council (SDMAC), Founder, Past-President and Board Member

• San Diego Fleet Week Foundation, Advisory Committee

• San Diego Chamber of Commerce, former Chair Military Affairs Advisory Committee

• ABA Public Contract Law Section

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Earl J. Silbert Partner


PRACTICES Professional Liability Foreign Corrupt Practices Act and Anti-Corruption Practice White Collar Government Controversies Litigation Securities Enforcement Tax Controversy

EDUCATION • Harvard Law School (1960) LL.B. cum laude

• Harvard University (1957) B.A. Phi Beta Kappa, magna cum laude

ADMISSIONS District of Columbia Massachusetts

EXPERIENCE Earl J. Silbert is a partner with the law firm of DLA Piper in Washington, DC. He was formerly a principal with the law firm of Schwalb, Donnenfeld & Silbert in Washington, DC, from 1979 to June 1998.

Mr. Silbert is co-chair of the firm’s White Collar group. He concentrates on white collar crime investigations and trials, civil and criminal tax, securities, defense procurement, environment, health care, and representation of lawyers and law firms on ethical, malpractice, and partnership issues. Prior to entering private practice, he served for nearly twenty years in the government as United States. Attorney for the District of Columbia (1974-1979), in the Tax Division and Deputy Attorney General's Office of the Department of Justice, and as an Assistant United States Attorney. While in the United States Attorney’s Office, Mr. Silbert, together with two other Assistant US Attorneys, served as the first Watergate prosecutor.

A graduate of Harvard College and Harvard Law School, Mr. Silbert has served on the faculty of numerous American Bar Association and other continuing legal education programs, and has written

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extensively in the areas of white collar crime, the attorney-client privilege, work product doctrine for corporations and their employees, RICO, and other litigation issues.

Mr. Silbert is past president of the American College of Trial Lawyers, a former chairperson of the Federal District Court Committee on Grievances for the District of Columbia, and a former president of the National Association of Former US Attorneys.

He currently serves as a member of the Superior Court of the District of Columbia Advisory Commission on Sentencing. He also served as a member of the Practitioners Advisory Group to the United States Sentencing Commission.

The respected English publisher Chambers & Partners cites Mr. Silbert in Chambers USA: America's Leading Lawyers for Business, noting he is "viewed as one of the deans of the white-collar Bar." Also in 2007, Washingtonian magazine named him to its list of Washington's top lawyers. He has been named a Washington, DC Super Lawyer and among the Top 100 Super Lawyers in the Washington area. He has been listed among Lawdragon's 500 Leading Lawyers in America.

PRIOR EXPERIENCE • Tax Division, U.S. Department of Justice

• Assistant U.S. Attorney

• Office of Deputy Attorney General, Department of Justice

• Principal Assistant U.S. Attorney, District of Columbia

• U.S. Attorney, District of Columbia

• Principal, Schwalb, Donnenfeld Bray & Silbert, P.C.

PUBLICATIONS • Co-author, with Demme Joannou, “Under Pressure to Catch the Crooks: The Impact of Corporate

Privilege Waivers on the Adversarial System,” American Criminal Law Review, Summer 2006

PROFESSIONAL MEMBERSHIPS • President, American College of Trial Lawyers

• President, National Association of Former United States Attorneys

• President, Assistant U.S. Attorney's Association for the District of Columbia

• Fellow, American College of Trial Lawyers (Chairperson, District of Columbia, and Regent)

• Master of Bench, Edward Bennett Williams Inn of Court

• Former Master of Bench, Fahy Inn of Court

• Practitioners Advisory Group, United States Sentencing Commission

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• District of Columbia Advisory Commission on Sentencing

• Former Chair, Grievance Committee, United States District Court, District of Columbia

• Former Chair, Hearing Committee, Board of Professional Responsibility, District of Columbia

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Nancy Luque Partner

400 Capitol Mall, Suite 2400 Sacramento, California 95814-4428 (916) 930-3283 T (916) 403-1639 F

500 Eighth Street, NW Washington, DC 20004 (202) 861-3909 T [email protected]

PRACTICES Litigation White Collar Foreign Corrupt Practices Act and Anti-Corruption Practice Government Controversies Securities Enforcement Securities Litigation

EDUCATION • University of San Diego (1976) J.D.

• San Diego State University (1973) B.A.

ADMISSIONS California District of Columbia

EXPERIENCE Nancy Luque is a trial lawyer who concentrates in white collar criminal defense, represents major corporations requiring internal investigations for fraud, corruption, money-laundering and corporate governance issues; and she has represented major defense contracting firms, pharmaceutical companies, hospital corporations and nursing homes in Department of Justice criminal investigations of false claims, fraud, and kickbacks.

She has also represented corporations and individuals under investigation by the Department of Justice for fraud in connection with civil false claims, and she has defended qui tam lawsuits brought against corporations and individuals.

She currently represents individuals and corporations under investigation by the Department of Justice for allegations of tax evasion, government contract (accounting) fraud, violations of the Foreign Corrupt Practices Act, and securities fraud.

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The Department of Justice awarded Ms. Luque its Special Achievement Award For Excellence in 1984, 1985, 1987, and 1988. Washingtonian magazine has selected her three times in the past decade including in 2006, as one of the top lawyers in Washington, D.C. She is listed in Best Lawyers in America in the area of criminal defense law.

Recent Matters:

• Representation of numerous public corporations in internal investigations involving fraud and money-laundering.

• Representation of CFO and COO of a major corporation in largest FCPA criminal case ever brought, and in the parallel SEC proceedings.

• Representation of a major corporation and its CEO in connection with criminal and civil charges of economic espionage.

• Representation of an individual in connection with bribery of a congressman.

PRIOR EXPERIENCE • Partner, Luque Sheinbach (2002 – 2004)

• Partner, Reed Smith (1995 – 2002)

• Partner, Katten Muchin Zavis (1991 – 1995)

• Associate, Washington Perito & Dubuc (1989 – 1991)

• Assistant U.S. Attorney, U.S. Attorney’s Office for the District of Columbia (1983 – 1989)

• Deputy Chief, Grand Jury Division

• Trial Attorney, U.S. Department of Justice, Antitrust Division (1979 – 1982)

PUBLICATIONS • Editor, White Collar Crime Committee Newsletter, American Bar Association, Criminal Justice

Section, White Collar Crime Committee

• Coauthor, "Joint Defense Agreements: Protecting the Privilege and the Future," Criminal Justice Magazine, Winter 1990 (reprinted in BNA Criminal Practice Manual, November 1991)

• "Grand Jury: Conflicts and Document Production," National Institute Health Care Fraud 1993, a publication of the American Bar Association

• "Sentencing Guidelines," National Institute Health Care Fraud 1994, a publication of the American Bar Association

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PROFESSIONAL MEMBERSHIPS • Chair, American Bar Association, Criminal Justice Section, White Collar Crime Committee

• National Association Criminal Defense Lawyers

• Past President, Assistant U.S. Attorneys Association

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Peter R. Zeidenberg Partner


PRACTICES Litigation Securities Enforcement Foreign Corrupt Practices Act and Anti-Corruption Practice White Collar

EDUCATION • Boston College Law School (1985) J.D. cum laude

• University of Wisconsin (1981) B.A.

ADMISSIONS District of Columbia

EXPERIENCE Peter R. Zeidenberg is a litigation partner in the Washington, DC office of DLA Piper, whose primary focus is defending individuals and businesses in white-collar criminal matters and related issues involving corporate governance and internal fraud investigations.

Prior to joining DLA Piper in 2007, Mr. Zeidenberg spent 17 years as a federal prosecutor, both at the US Department of Justice, where he served in both the Public Integrity Section of the Criminal Division and, before that, at the United States Attorney’s Office in the District of Columbia. Mr. Zeidenberg was also a state prosecutor for five years in Middlesex County, Massachusetts.

While at the Department of Justice, Mr. Zeidenberg investigated and prosecuted local, state and federal officials. His trial experience includes some of the highest profile criminal cases handled by the DOJ. Mr. Zeidenberg served as a Deputy Special Counsel in the investigation and prosecution of Lewis “Scooter” Libby. Mr. Zeidenberg gave the government’s closing argument and handled direct examination of half of the government witnesses in the Libby case.

Mr. Zeidenberg also prosecuted the case of United States v. David Safavian, in which the former Chief of Staff of the General Services Administration was tried for obstruction of justice and false statements in connection with the Jack Abramoff investigation. He also coordinated and supervised investigations conducted by the FBI, CIA, and Office of Inspector Generals from GSA, DOJ, DEA and SIGAR (Special Inspector General for Iraq Reconstruction).

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From 1991 to 2001, Mr. Zeidenberg worked as an Assistant United States Attorney in the District of Columbia, where he spent the majority of his time prosecuting violent crimes, winning convictions in 16 out of 18 first-degree murder cases he tried. In addition, he won life sentences for all six defendants he prosecuted in a nine-month long RICO prosecution of a murderous drug-gang. Mr. Zeidenberg has first-chaired approximately 100 jury trials.

In 2002, Mr. Zeidenberg was awarded the Director’s Award for Superior Performance as an Assistant United States Attorney by the Executive Office of United States Attorneys. He also received 10 Department of Justice Special Achievement Awards.

Mr. Zeidenberg’s clients have included foreign banks and international corporations and individuals accused of fraud, conflict of interest, and insider trading. He has extensive experience conducting internal investigations involving FCPA and OFAC violations.

Representative Engagements

• Representation of the president of a Fortune 500 company on allegations of insider trading.

• Representation of a foreign bank in a DOJ investigation of alleged OFAC violations.

• Representation of a DOJ official investigated by the DOJ for alleged conflict of interest. Successfully persuaded the DOJ to decline prosecution.

• Representation of an officer of a European manufacturing corporation alleged to have conspired with an international cartel to fix prices.

• Internal investigation on behalf of an international defense company doing business in the Middle East regarding possible violations of the FCPA.

• Representation of individuals in a DOJ investigation into alleged violations of Federal Election Commission laws.

• Representation of a publicly traded corporation alleged to have committed bid-rigging.

PRESENTATIONS AND SEMINARS • “Conducting Global Business in a World of Global Regulators and Prosecutors,” Navigate the

Regulatory Minefield – Are You Next? (November 2007)

• “Anticipating the Government’s Next Move,” Government Contracts, Investigations, and White Collar Litigation (December 2007)

• “Foreign Corrupt Practices Act,” Government Contracts, Investigations, and White Collar Litigation (December 2007)

PROFESSIONAL MEMBERSHIPS • Barrister, Edward Bennett Williams Inn of Court

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Robert Wardle Consultant

3 Noble Street London EC2V 7EE +44 (0)20 7153 7051 T +44 (0)20 7796 6839 F [email protected]

EXPERIENCE Robert's particular area of expertise lies in Criminal investigation and prosecution, particularly in relation to fraud, corruption and cartel activity. Robert has wide experience of dealing with law enforcement and regulators both in England and Wales and overseas

Robert was a member of the Serious Fraud Office in London from its inception in 1988. In April 2003 until April 2008 he was Director of the Serious Fraud Office. He was involved in a number of high profile investigations and prosecutions including Polly Peck, the third Guinness appeal, and as Director was responsible for the work of the office including high profile investigations into allegations of corruption. His decision to close the investigation into BAe Systems Plc in relation to Saudi Arabia on public interest grounds was recently affirmed by the House of Lords.

Robert is acknowledged by the press and media as preeminent in the fraud world and is frequently asked for comment or interviews.

Robert has been a Solicitor since 1976. He was a member of many Government Committees and Working Groups, the latest being the Steering Group on the Implementation of the Fraud Review

Robert is regularly asked to speak at conferences and seminars to a wide range of groups including lawyers, financial services and regulators on subjects varying from the Fraud Act 2006, prosecuting overseas corruption, the Fraud Review, confiscation and restraint, law reform including the law on overseas corruption and juries. He was also regularly interviewed by the media on the work of the Serious Fraud Office and future developments in the fight against fraud.

When heading the Policy Division he dealt with the Law Commission on a proposed single offence of fraud and the abolition of conspiracy to defraud. He was also on the Committee which produced the consultation paper on juries and worked with the FSA to produce regulatory guidance. Responsible for liaison with the Law Society (later the SRA). As Director he gave evidence to the Joint Committee examining the Corruption Bill and was throughout involved with the development of the law on the Proceeds of Crime Act, plea bargaining, extending the powers of the Crown Court.

Over the past 10 years he has been involved in the development of legislation in the criminal justice field as it relates to fraud. The Serious Fraud Office is at the cutting edge of criminal justice and decisions he made were subject to judicial review - for example in the case of the "Enron Three" where the USA sought the extradition of three bankers for allegations of fraud.

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He dealt with the third Guinness appeal which turned on the retrospective effect of the Human Rights Act. As Director he was subject of a judicial review of his decision to halt the investigation into BAe Systems Plc in relation to a contract with Saudi Arabia. The case was eventually heard by the House of Lords which affirmed that he had acted lawfully and courageously in deciding to bring the investigation to a halt on public interest grounds.

Key experience:

• Over 30 years as a prosecutor, 20 of which were in the Serious Fraud Office, have given Robert Wardle unrivalled experience in investigating and prosecuting fraud. His time at the SFO included five years in Policy where he was closely involved in all aspects of law reform and groundbreaking cases. He has a network of contacts across regulators, accountancy and forensic firms; with overseas prosecutors, investigators and regulators as well as within Government.

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Keynote Address

“Homeland Security: Then and Now” James M. Loy Senior Counselor, The Cohen Group Deputy Secretary of Homeland Security (2003-2005) Administrator, Transportation Security Administration (2002-2003) Commandant, U.S. Coast Guard (1998-2002)

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James M. Loy Senior Counselor [email protected]

Deputy Secretary of Homeland Security (2003-2005) Administrator, Transportation Security Administration (2002-2003) Commandant, U.S. Coast Guard (1998-2002)

In 2005, Admiral James Loy completed a 45-year career in public service, retiring as Deputy Secretary of Homeland Security. In this capacity, he was involved in all aspects of consolidating 22 separate agencies into one unified Cabinet department as well as managing the day-to-day activities of the agency.

Prior to the establishment of the Department of Homeland Security in 2002, Admiral Loy served in the Department of Transportation as Deputy Under Secretary for Security and Chief Operating Officer of the Transportation Security Administration (TSA), and later as Under Secretary for Security. In these roles, he served as the first administrator of the newly created TSA, which is responsible for protecting the Nation's transportation systems to ensure freedom of movement for people and commerce.

Admiral Loy retired from the U.S. Coast Guard in 2002, having served as its Commandant since May 1998. As head of the 90,000 person organization, he restored readiness through workforce development and modernized the Coast Guard’s fleet of ships and aircraft.

Prior to his service as Commandant, Admiral Loy served as the Coast Guard Chief of Staff from 1996 to 1998, during which time he redesigned the headquarters management structure and overhauled the Coast Guard planning and budgeting process to focus more sharply on performance and results. From 1994 to 1996, he was Commander of the Coast Guard's Atlantic Area, supervising U.S. forces during the mass Haitian and Cuban migrations of 1994, and leading Coast Guard forces participating in Operation Restore Democracy.

A career seagoing officer, Admiral Loy has served tours aboard six Coast Guard cutters, including command of a patrol boat in combat during the Vietnam War and command of major cutters in both the Atlantic and Pacific Oceans.

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His military commendations and civilian honors are numerous, including the Department of Transportation Distinguished Service Medal; four Coast Guard Distinguished Service Medals; the Defense Superior Service Medal; the Bronze Star with Combat "V"; the Combat Action Ribbon; the Naval Order of the United States’ Distinguished Sea Service Award, the Seaman’s Church Institute Silver Bell Award, the Navy League prestigious Admiral Arleigh Burke Leadership Award, the Intrepid Foundation Lifetime Achievement Award, and many other distinctions. Admiral Loy graduated from the U.S. Coast Guard Academy in 1964 and holds Master's degrees from Wesleyan University and the University of Rhode Island. Admiral Loy is a member of the Board of Directors of Lockheed Martin, L-1 Identity Solutions, Inc and RIVADA Networks, Inc.

Admiral Loy is a native of Altoona, Pennsylvania.

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ADDENDUM

New FAR Rules on Contractor Business Ethics and Mandatory Disclosure

A Summary Guide to Contentious Procurement

Contentious UK Public Procurement Expertise

New FAR Rules onContractor Business Ethicsand Mandatory Disclosure

Richard P. RectorChair, Government Contracts PracticeDLA Piper LLP (US)

2

Background

Late 2007: Final Rule on Contractor EthicsIn December 2007, US Government created mandatory requirements for contractor Codes of Conduct, ethics training, and internal control systems

Applicable to contracts over $5 million and 120 days in durationNot applicable to commercial-item contracts and contracts performed entirely overseas ... portions not applicable to small businessesEffective December 24, 2007 … implemented in FAR Subpart 3.10Many large contractors had compliance systems that met requirements …principal impact was on mid-sized and small contractors

3

Background

2007/2008: Proposed FAR Rules on Mandatory DisclosureIn separate rules (Nov. 2007 and May 2008), Government proposed “mandatory disclosure” of Federal criminal violations

Further changes to FAR Subpart 3.10Would replace “voluntary disclosure” system in place since mid-80s …significant change for all Federal contractorsChange suggested by DoJ … policy of voluntary disclosure was allegedly ignored by contractors for past 10 years Significant pushback from industry on need for change, as well as scope and application of proposed ruleIn May 2008, rule expanded to require disclosure of federal criminal violations and civil False Claims Act (FCA) violations

4

Background

Mid-2008: Legislation on Mandatory DisclosureIn June 2008, Congress weighed in with the “Close the Contractor Fraud Loophole Act”Enacted as part of the Supplemental Appropriations Act (Pub. L. 110-252, Title VI, Chapter 1)Required mandatory disclosure of violations of federal criminal law andoverpayments to contractors

No requirement for disclosing civil FCA violationsAlso required extension of FAR 3.10 to commercial-item contracts and contracts performed outside US

November 2008: Final Rule on Mandatory DisclosureIssued November 12, 2008 (73 Fed. Reg. 67,064)Takes effect December 12, 2008Final word on mandatory disclosure … requires immediate attention from Federal contractors

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Overview of Final Rule:Mandatory Disclosure

New Rule sets forth three separate requirements for mandatory disclosure:Disclosure required by contract clause -- FAR 52.203-13(b)(3)Disclosure required by internal control system -- FAR 52.203-13(c)(2)(ii)(F)Disclosure required to avoid suspension or debarment – FAR 3.1003(a)(2), (3)

Disclosure obligations are similar, but not identicalSuspension/debarment disclosure is most critical

Requires broadest disclosuresApplies immediately on December 12, 2008 to all Federal contractors

Best practice: modify compliance system to meet the suspension/debarment disclosure obligation at all times

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Overview of Final Rule:Mandatory Disclosure

To avoid suspension/debarment, all Federal contractors must disclose:

Violations of certain procurement-related criminal violations

Violations of civil False Claims Act

Significant overpayments to contractor

Disclosure obligation creates an immediate “lookback” requirement for all Federal contractors

Obligation is effective on December 12, 2008, and disclosure is required for three years after “final payment” on a contract

Have all violations and significant overpayments been disclosed on existing contracts? And on contracts closed within the past three years?

Is a previous disclosure to the “Government” (rather than to Inspector General and Contracting Officer) sufficient?

Best practice: immediately assess need for disclosures on closed/existing contracts … consider documenting bases for assessment … disclose as necessary

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Overview of Final Rule:Compliance Programs

Exemptions for overseas contracts and commercial-item contracts substantially modified

No exemption to compliance program requirements for contracts performed entirely overseasAll contracts and subcontracts greater than $5 million and 120 days must include Code of Conduct requirementSmall businesses and commercial-item contracts still exempt from requirements for ethics training/awareness and internal control systems

Requirements for training/awareness and internal control systems, if applicable, are more detailedBest practice: design a single compliance program to meet the highest-level requirements applicable on any contract

8

Overview of Final Rule:Compliance Programs

Compliance program requirements are now consistent with US Federal Sentencing Guidelines, but not identical

FAR rules are more detailed and include obligations not set forth in the Guidelines (e.g., display of hotline posters, mandatory reporting)Sentencing Guidelines establish two standards not specifically reflected in FAR

Working knowledge and oversight of the compliance program by the highest governing body within the company (e.g., Board of Directors)Use of incentives for employees to comply with the program

Best practice: design compliance program to meet requirements of both FAR rules and Federal Sentencing Guidelines

9

Specific Disclosure Requirements:Suspension/Debarment

A contractor may be suspended/debarred for …A knowing failure …By a principal …To timely disclose …To “the Government” …Credible evidence of…

A violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations found in Title 18 of the U.S. Code … orA violation of the civil FCA … orA significant overpayment (other than overpayments related to contract financing payments)

In connection with the award, performance, or closeout of contract or a subcontract

Must disclose until 3 years after final payment on contract or subcontract

10

Specific Disclosure Requirements:Suspension/Debarment

Criminal violations restricted to Title 18 procurement lawsWouldn’t include Title 41 violations (e.g., Procurement Integrity Act, Anti-Kickback Act)

“Credible evidence”Is not defined and is not a term of art in Federal criminal law.Reflects a higher standard than “reasonable grounds to believe”Implies that contractor will have opportunity to take time for preliminary examination of evidence before deciding to disclose to the Government

Disclosure required to “the Government” rather than specifically to the Inspector General/Contracting Officer

Important for purposes of “lookback” disclosures?“Principal”

Defined as an officer, director, owner or person having primary management or supervisory responsibilitiesCan include Chief Ethics Officer or Director of Internal Audit

Disclosures not released under FOIA w/o notice to contractor

11

Specific Disclosure Requirements:Contract Clause/Internal Control System

Contractor must …Timely disclose in writing ...To agency Office of Inspector General and Contracting Officer ... Whenever the contractor has credible evidence …That a principal, employee, agent, or subcontractor has committed …

A violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations found in Title 18 of the U.S. Code … orA violation of the civil FCA

In connection with the award, performance, or closeout of contract or a subcontract awarded thereunder

Must disclose until 3 years after final payment on contract or subcontract

12

Specific Disclosure Requirements:Contract Clause/Internal Control System

Disclosure required to agency Inspector General, with copy to Contracting Officer

If violation relates to more than one contract, disclose to agency with largest contractIf violation relates to an order, disclose to ordering agency and agency responsible for basic contract

Criminal violations restricted to Title 18 procurement lawsOverpayments not addressed

“Credible evidence” standardContract clause must be flowed down to all subcontracts greater than $5 million and 120 days in duration

No requirement that contractors review or approve subcontractors’ Codes of Conduct or internal control systemsBut contractors should verify that a Code and a compliance program exist as part of standard oversight of subcontractorsSubcontractors disclose directly to Government … disclosure through the prime contractor is not required

13

Expanded Requirements forInternal Control Systems

Unless contractor is a small business, or contract is for a commercial item, contractor must have an internal control system that provides:

Adequate resources and assignment of responsibility at sufficiently high level to ensure effectiveness of compliance programReasonable diligence to prevent the hiring of a “principal” that has taken actions inconsistent with contractor’s Code (i.e., background check regarding criminal behavior of any type)Periodic reviews/audits of compliance with Code of Conduct and special requirements of Government contractingA hotline (with anonymity and confidentiality if desired) and instructions that encourage employees to make reports to hotlineDisciplinary actionTimely disclosure of violations of civil FCA and Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations found in Title 18 of the U.S. Code“Full cooperation” with Government agencies responsible for audits, investigations, or corrective action

14

Expanded Requirements forInternal Control Systems

“Full Cooperation”Disclosure of information sufficient for law enforcement to identify the nature and extent of the offense, as well as the individuals responsibleIt includes providing timely and complete responses to requests for documents and access to employees with informationReasonable to expect that compliant contractors “will encourage employees both to make themselves available and to cooperate with the Government investigation”Does not require

Waiver of attorney/client privilege or work product doctrineWaiver of an individual’s Fifth Amendment right against self-incrimination

Does not prevent a contractor from:Conducting an investigationDefending itselfIndemnifying its employees for legal costs (depending on state law)

15

Contractor Actions

1. Address “Lookback” Disclosure Obligation (December 2008)

Assess need for disclosures on existing contracts and contracts closed within past three yearsConsider whether prior disclosures were adequate under new rulesProtect privilegeConsider documenting bases for assessmentMake disclosures as necessary

16

Contractor Actions

2. Modify existing compliance program to meet new rulesEnsure that compliance program meets highest-level FAR requirements applicable on any contract, as well as Federal Sentencing GuidelinesCreate process for reasoned, informed decisionmaking on potential disclosuresEnsure that internal control system and training program addressreportable violations and significant overpaymentsEnsure that internal control system meets all FAR requirements (e.g., full cooperation, background checks on principals)

17

Contractor Actions

3. Brief Board of Directors and principals on obligations under newrules.

4. Consider whether obligation to make mandatory disclosures is a risk that should be reported in public filings

5. Assess procedural impacts on internal investigations (e.g., protection of privilege, employee interviews)

6. Address subcontractor management issues-- flowdown of contract clause-- diligence on subcontractors’ ethics programs

A Summary Guide to Contentious Procurement in Europe

Private and Confidential

November 2008 www.dlapiper.com

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Contents

Introduction.......................................................................................................................1

Summary table for all jurisdictions ....................................................................................3

G/Tender Style Docs/A Summary Guide to Contentious Procurement 26 November 2008 D1V4

1

Introduction

This guide highlights in a summary format some of the procedural differences which could have a major tactical/legal impact on the way to conduct regulated procurements in 11 of the major jurisdictions across the European Union.

The attached summary is not a replacement for a detailed understanding of the relevant regime in each European jurisdiction. It will, however, help procurement professionals to compare and contrast the relevant procedures with those that exist in their own jurisdiction and therefore hopefully understand how tactics can and should be adapted on a case by case basis.

The core law on procurements has now been standardised at a European level so that the basic processes for the conduct of regulated procurements are now the same across the European Union. Nonetheless, in practice how that law is implemented and how it interacts with the relevant domestic law within each member state still varies radically.

Over time decisions of the European Court and regulatory action by the European Commission should help to further harmonise the way in which procurements are conducted and deliver a more level playing field for all bidders whether from inside or outside the European Union. The new Remedies Directive will also assist with this process.

In the meantime, it is vital that any bidder entering the European arena should understand precisely the market they will be operating in and how key procedural and legal differences may impact on the tactics to be adopted in any given situation.

In Germany, Austria, Norway, Belgium and Denmark, for example, there are specialist Administrative Review Tribunals to deal with most procurement law challenges. These are designed to provide a quick, cheap, low risk process for challenges and to ensure that all challenges are dealt with by a tribunal that is expert in the conduct of procurements. This structure has been adopted so as to facilitate the bringing of challenges both during and at the end of the procurement process with a minimum of delay and commercial disruption and with a view to using the threat of such challenge as a mechanism to force public bodies at all levels within those jurisdictions to conduct procurements in a proper and fair manner.

This "pro-bidder" structure must be contrasted with, for example, the position in the United Kingdom and some other jurisdictions where challenges must be brought before the full courts. In the United Kingdom this means that any challenge will inevitable be more costly and high risk (especially if trying to force an expedited change of approach during a contest or if seeking some form of interim relief to block a contract award). The result is that procedural risk/cost can be a major disincentive to bidders mounting legal challenges in all but the clearest and strongest of cases.


2

The trade-off between these different approaches is that in those jurisdictions where challenges are brought before administrative tribunals the power of those tribunals is often limited to giving administrative directions to the procuring authority to cure a breach of the procurement rules (note, however, that in France the Tribunal as a theoretical power to cancel an awarded contract). On the other hand in the United Kingdom and some other jurisdictions a successful court challenge can either force change or lead to an immediate award of substantial compensation without the need for a separate court claim for damages.

The result is that in the United Kingdom the threat of a successful legal challenge is often a sufficient deterrent to a breach of procurement rules as public bodies cannot risk being forced to pay substantial damages. This must be contrasted with those jurisdictions with administrative tribunals where pubic authorities will often risk defending proceedings as the adverse consequences of doing so are limited.

There are, as this summary shows, many other key distinctions between the different jurisdictions that need to be understood. In particular the timing for the bringing of a challenge and when the right to challenge may be lost and/or what other preliminary formalities need to be complied with before a challenge can be initiated are all key variables. The availability of interim relief to block a contract award at the end of a tender process and the risks of seeking such relief as well as the scope of any damages that might be recovered following a successful claim are also major variables.

The object of the exercise in analysing and understanding these matters is not simply to encourage challenges but to use the threat of effective challenge as a pro-active tool to ensure that the time and money invested in contested procurements is spent knowing that you have participated in a "fair" process and have manoeuvred to best advantage to maximise your chances of ultimate success.

For further information on any issues covered in this summary please contact:

Paul Stone Telephone: +44 (0)113 369 2700 Email: [email protected]


3

Summary table for all jurisdictions

Austria Belgium Denmark England and Wales

France Germany Italy Netherlands Norway Scotland Spain European Commission

Review Body: Administrative or Courts?

Admin. review body (BVA), with some supporting actions in courts

Both, but challenges are mainly submitted to an admin. court

Challenges are mainly submitted to an admin. review body (Board)

Courts Courts Challenges are mainly submitted to an admin. review body (PR Body)

Challenges are mainly submitted to courts

Courts Both admin. body (Board) and District Courts

Courts Both, but before court action is taken, a claim must first be made to admin. body

Investigation by Commission, followed by court (ECJ)

Need to notify contracting authority before or at same time as starting challenge?

Not at federal level, but prior notice may be needed at state level

Yes - must notify contracting authority, But failure to do so is not punished

Yes - must notify contracting authority no later than time of starting challenge

Prior notice essential for main type of challenge (Regs.) and advisable for most challenges

No No Generally no

Prior notice is advisable but failure to give notice is not punished

No Prior notice essential for main type of challenge (Regs.)

See above No


4

Austria Belgium Denmark England

and Wales France Germany Italy Netherlands Norway Scotland Spain European

Commission Deadline for challenge?

Yes - depends on type of challenge - usually 14 days, but may have only 7 days

Extreme urgent procedures (main type of challenge) must be submitted within 15 days. Other must be started promptly, depending on type of procedure (60 days to 5 years)

Generally no close deadlines, but challenge should be started promptly

Main types of challenge must be started promptly (certainly within 3 months)

Challenges must be started promptly (within 2 months in admin. court )

Complaints to PR Body must be started immediately - without delay

Main types of challenge must be started promptly (within 60 days)

Yes, within 15 days of authority's decision to award the contract. Damages action within 5 years

Board - within 6 months. Damages claims to court - within 3 years

Main type of challenge must be started promptly (certainly within 3 months)

Yes - depends on type of challenge, but may be as short as 10 days

No formal deadline, but delay may result in no investigation of complaint


5



Commission Time taken to reach decision, after start of challenge?

BVA decision normally available within 6 weeks

Generally one month for extreme summary proceedings before the admin. court. Courts

Board decision normally available within 6 months

Decision usually made within 1 year - much sooner in urgent cases

Generally 1-2 years for summary proceedings

Decision of PR Body normally available within 4-8 weeks

Time taken varies greatly from case to case

Procurement review action within 6 weeks, other cases can take between several months to 2 years

Board decisions - usually within 3 months. Courts - around 6 months

Decision of court usually made within 1-2 years - sooner in urgent cases

Admin. body decisions usually due within 3 months. Courts can take 1-5 years

[May take 1-2 years for Commission to reach decision, before any referral to ECJ]

Interim relief available (suspension)?

Yes - but from the courts, not BVA

Yes – but only ordered by civil courts

Yes, but Board rarely grants suspension

Yes Yes Yes - routine bar on award of contract whilst PR Body investigates

Yes Yes Yes, but only from Courts and if claim is started before contract is concluded

Yes Yes Yes


6



Commission Power to cancel contract?

Courts may cancel a concluded contract, but BVA cannot

Before admin. court: no. The contract is rather rarely cancelled before civil courts

No - neither Board nor courts can cancel a concluded contract

For main type of challenge (Regs.) - No

Before admin. court - Yes, but contract is rarely cancelled

PR Body cannot cancel a contract - separate court action required

Yes - requests for cancellation of contract are likely to be granted

Yes No For main type of challenge (Regs.) - No

Yes - the contracting authority may cancel the contract on grounds of public interest

Yes, but in practice the ECJ has not yet done so

Damages available?

Not from BVA - separate court action required

Not from admin. court. Must submit complaint to civil court

Yes Yes No PR Body cannot award damages - separate court action required

Yes Yes, but rare in administrative proceedings

Yes, but only before Courts and after contract has been concluded

Yes Yes No


7



Commission Legal costs recoverable if challenge successful?

No, only admin. costs may be recovered

No, only admin. costs may be recovered, unless successful challenge before civil court but only a small proportion

Yes Yes - majority normally recoverable

Yes - but usually only a small proportion

Yes Yes - but usually low amounts (limited to statutory tariffs)

Yes Yes, but only before Courts

Yes - majority normally recoverable

Not before admin. bodies, but courts may award limited costs

[?No]

Contentious UK public procurement expertise An overview

Private and Confidential

November 2008 www.dlapiper.com

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Contents

Our UK expertise ..............................................................................................................1

Recent case examples .....................................................................................................3

Appendix 1........................................................................................................................5

contentious uk public procurement expertise.doc 26 November 2008 D1V1

1

Our UK expertise

We have one of the largest, strongest and broadest dispute resolution practices in the UK. The team comprises over 550 dispute resolution lawyers (including over 130 partners) based in Birmingham, Edinburgh, Glasgow, Leeds, Liverpool, London, Manchester and Sheffield.

We specialise in the resolution of complex business and regulatory problems. The breadth of litigation expertise across our organisation means that we can provide advice and representation in a wide range of specialist areas including:

H Administrative and public law H International trade and transport

H Aviation H IT and telecommunications

H Banking and financial services H Marine

H Business support and restructuring H Media (including libel)

H Commercial H Product liability

H Construction and engineering H Professional liability

H Corporate and securities H Real estate

H Fraud and asset recovery H Regulation

H Human resources H Safety, health and environment

H Insurance and reinsurance H Sports

H Intellectual property H Trade regulation and competition

H International arbitration H White collar crime

Many of the senior individuals within the team are recognised as leading practitioners in the UK editions of The Legal 500 and Chambers and Partners.


2

Contentious UK public procurement expertise

Our UK team has significant experience of advising both public and private sector bodies on contentious and quasi contentious procurement law issues. This includes advising on the making of challenges to and defending both regulated and unregulated procurement procedures. We are experts at advising clients on how to manage procurements to minimise the risk of challenge and/or on how to use the threat of a challenge to try to ensure that tendering processes are conducted fairly and without apparent bias.

In the case of unregulated procurements we have significant experience of using our general public law experience, to the advantage of disappointed bidders, to challenge the misconduct of commercial tenders whilst seeking to ensure that the client's ultimate commercial objectives are attained.

We have experience of answering challenges both at a domestic level and in terms of answering complaints to the European Commission. We also have good links with the OGC (Office of Government Commerce) and are well placed to liaise with them on our clients behalf.

We have significant experience of advising public authorities on internal governance and related issues in connection with tendering processes and the management of major projects as well as advising on investigations and inquires by both district auditors and the National Audit Office

We have recently been appointed to provide advice, including advice on public law and governance issues to clients including The Olympic Delivery Authority, which we have been advising on a range of high profile public law issues and the newly constituted Nuclear Decommissioning Authority in the UK (confidential).

It should be noted that information from our regulated procurement practice has been forwarded under separate cover by Steven Norris, National Head of Regulated Procurement.

2


3

Recent case examples

A selection of our recent cases are detailed below:

H Acting for Transport for London and the Mayor of London in successfully defending judicial review proceedings challenging the decision to introduce congestion charging in central London, one of the largest, most politically controversial and high profile judicial reviews. Also advising on project risk management and on preparation of scheme legislation including on the associated consultations, as well as on issues of governance, scrutiny, human rights, environmental assessment and planning issues for roadside infrastructure, enforcement and related issues

H Acting for the Department of Health National Programme for IT, the world's biggest civil IT project which is recognised globally as a path finder project, on a judicial review challenge by Fuji Film UK Ltd on a challenge to a regulated procurement and giving on going advice on related issues

H Acting for the Home Office in High Court proceedings brought against it by Matra Communications of France over the award of the £1.8 billion contract for the provision of the UK's Public Safety Radio Communications Project

H Advising the Transys consortium (ICL, EDS, Cubic and WS Atkins) in relation to various litigation issues arising from the new ticketing system for London Transport (contract value £1.4 billion). In particular, considering various complex issues arising from software implementation, IPR exchange and shareholder obligations under both lead and sub-contracts including rights of termination of certain consortium members

H Acting Gamesa Energia UK Ltd on an expedited judicial review challenge to the National Assembly for Wales and the Forestry Commission for Wales on a judicial review challenge in connection with the welsh wind farm procurement programme

H Acting for a Government department on a complaint to the EC Commission in relation to alleged procurement law breaches by the department in connection with a major IT procurement

H Providing advice in relation to privatisation of state owned shipyards tendering and consequent claims under investment treaties

H Acting for Estech Limited on the withdrawal by Hereford and Worcester County Councils from a combined procurement for a major waste management and treatment plant

H Acting for Goals Soccer Centres in connection with it's exclusion from a tendering process to construct a new multi million pound soccer and sports facility for a school in Solihull

H Defending a government in arbitration proceedings relating to the tendering process regarding the sale of a state owned steel plant


4

H Advising a major US company, and its UK, Italian, French and Belgian subsidiaries,

tendering for government contracts in Europe, on the impact of a potential civil finding (judicial/administrative) of dishonesty against the US parent company

H Providing risk management advice to the DTI's Small Business Unit in connection with the launch of their www.supply2.gov.uk portal. This portal has subsequently been recognised by the European Commission as the best practice means of public authorities advertising lower value contracts to businesses

H Providing advice on military defence contracts in relation to allegations of corruption

H Advising NHS Trusts on potentially contentious procurement issues in connection with their prospective appointment of consultants to inspect construction of a new PFI hospital

H Advising a Local Authority on allegations of corruption in contaminated land clearance tendering

H Acting for an IT company in connection with a negotiated withdrawal from a consortium agreement at a preferred bidder stage in a tendering process

H Further examples are provided in the team CV's attached in Appendix 1.

4


5

Appendix 1

Team CVs


6

PAUL STONE Partner, Commercial Litigation Group, Leeds

Direct dial: +44 (0)113 369 2700

Email: [email protected]

Contact details

Direct fax: +44 (0)113 369 2799

Mobile: +44 (0)7971 142302

Secretary: Andrew Crosby-Heald

Direct dial: +44 (0)113 369 2232

Summary profile

Paul is a senior litigation partner based in DLA Piper Leeds Office. He has acted for a number of public sector clients advising on public law issues, including on risk management and dispute avoidance and in addition has wide-ranging experience of corporate and commercial litigation.

Professional experience

September 1985 to April 1986

Charles Russell & Co (London) - Company and Commercial Department

April 1986 to September 1993

Clifford Turner/Clifford Chance (London) - Company/Commercial Litigation Department

October 1993 to date

DLA Piper (Leeds/Sheffield)

Education/qualifications

University Oxford University

Degree 1982 BA Hons Jurisprudence


7

Expertise

Paul has acted for a range of public sector clients advising them on a wide range of public law and judicial review related claims and issues, as well as advising on internal investigations, inquiries by the Public Accounts Committee of the House of Commons and Distinct Auditor inquiries.

He also provides specialist advice on commercial and corporate disputes. The latter includes advice on shareholder actions, fraud investigations and warranty claims. He also has considerable experience advising in connection with expert valuations and related matters following on from corporate transactions.

Paul also advises on media/defamation matters, product liability litigation and on crisis management.

Paul has also undertaken a significant number of professional negligence and related cases against actuaries and lawyers advising on pension related issues. Paul has also advised on a range of pension related disputes concerning pension transfer values and similar issues arising in connection with corporate transactions.

Paul is an experienced negotiator and litigation tactician who is committed to achieving early solutions to his clients’ problems. Paul has considerable experience of preparing for and representing clients in mediation at all stages of the litigation process.

Procurement

Paul has particular expertise in providing contentious and quasi contentious public procurement advice both in relation to the Public Procurement Regulations and general principles of public law and governance. Purely by way of example, recent cases on which he has advised include the following: H Paul acted for the NHS National Programme for Information Technology on a major

procurement exercise, successfully defending a judicial review challenge brought by Fuji Film UK Limited. He also advises the National Programme on a wide range of other contentious issues and quasi contentious procurement and contractual issues.

H Welsh Forestry Wind Farm Procurement - Advising on an expedited judicial review of a decision to exclude a prospective bidder at the Pre-Qualification Questionnaire Stage.

H Advising a Government department on a complaint to the EC Commission in relation to alleged procurement law breaches in connection with a major IT procurement.

H Acting for Estech limited on the withdrawal by Hereford and Worcester County Councils from a combined procurement for a major waste management and treatment plant.


8

H Representing Goals Soccer Centres in connection with it's exclusion from a

tendering process to construct a new multi million pound soccer and sports facility for a school in Solihull.

H Acting for an IT company in connection with a negotiated withdrawal from a consortium agreement at the preferred bidder stage in a tendering process.

Paul presents widely across the UK on public procurement issues. Recently, Paul presented a seminar series on the introduction of the 2006 regulations, challenging procurements and the impact of the Alcatel judgment.

Other Major Public Law Transactions

Paul acted for the Mayor of London and Transport for London in successfully defending judicial review proceedings brought by Westminster City Council in relation to congestion charging in London. He also advised on:

H risk management issues relating to the development of the Mayors Transport Strategy and the making of the Scheme Order;

H consultation in the Scheme Order and preparation of Transport for London’s Report to the Mayor;

H drafting the Scheme Order and the scope of exemptions, enforcement issues and related matters;

H scrutiny by the GLA Assembly, confidentiality and legal privilege, and internal governance issues within Transport for London;

H co-ordinating DLA Piper’s general legal advice on issues relating to the Scheme including competition law, data protection, intellectual property, planning, street signage, enforcement and other issues;

Paul has led the team acting for Rockware Glass Limited in challenging (by way of judicial review) Chester City Council and Quinn Glass Limited in relation to the construction of the largest combined bottle manufacturing, filing and warehousing facility in Europe. This has involved advising in both legal proceedings and acting in conjunction with DLA Upstream in political lobbying and campaigning.

Appearing with the Vice-Chancellor of Huddersfield University before the Public Accounts Committee of the House of Commons.


9

Recommendations

Paul has consistently been listed as one of the leading litigation lawyers in Yorkshire by both Chambers and The Legal 500 over the last 10 years. Paul is described by Chambers as having a “talent for coming up with ideas that others would not think of …".

Paul is also identified by Chambers as the only "leader" outside London in the field of public and administrative law focusing on advice in commercial contexts.

Paul has recently been awarded "Dispute Resolution Lawyer of the Year" at the Yorkshire Lawyer Awards 2006.


10

STEPHEN SLY Office Managing Partner, Sheffield

Direct dial: +44 (0)114 283 3472


Contact details

Direct fax: +44 (0)114 276 5246

Mobile: +44 (0)7971 142414

Secretary: Julie Rockcliffe

Direct dial: +44 (0)114 283 3220

Summary profile

Stephen is a partner in the litigation and arbitration group based in Sheffield. He is also Office Managing Partner for Sheffield. He has considerable experience in handling commercial litigation, arbitration and all forms of alternative dispute resolution. In particular, he focuses on litigation and dispute resolution, domestic and international arbitration, product liability, fraud and asset recovery and alternative dispute resolution.

Stephen has advised a range of corporate and public sector bodies and managed cases through a number of the specialist divisions of the courts including the Technology & Construction Court, the Commercial Court, the Regional Mercantile Courts and the Administrative Court.

Stephen holds seminars for clients and intermediaries on procurement challenges, shareholder disputes and on fraud and asset recovery and on most facets of litigation and dispute resolution. He is a qualified member of the Chartered Institute of Arbitrators. In 1998 he was appointed as a Deputy District Judge on the North Eastern Circuit.


2007 - date Office Managing Partner, Sheffield - DLA Piper UK LLP

1999 - date Partner - DLA Piper UK LLP

1995 - 1999 Managing Partner - Russell & Creswick Solicitors, Sheffield

1990 - 1995 Partner - Russell & Creswick Solicitors, Sheffield

1987 - 1990 Solicitor, Russell & Creswick Solicitors, Sheffield


11


University University of Sheffield

Degree LLB (Law)

Date of admission November 1987

Expertise

Stephen's key experience includes:

Advising UK company regarding a US$20 million product liability claim with multiple co-defendants, proceedings in two states in the USA and dealing with the implications of the financial collapse of the client's excess product liability insurers; leading strategy to ensure depositions of key witnesses held in the UK and achieving settlement terms so that funding agreement reached between co-defendants to avoid client making any payment beyond its primary level of insurance.

Acting for contractor in £15 million challenge regarding a Department of Trade & Industry procurement; including liaison with political lobbying functions and media/PR campaign; matter resolved without proceeding through courts.

Acting as a mediator in a £30 million shareholder dispute between private and institutional investors.

Acting for a public authority in claims to recover overpayments made to a series of contractors in relation to a housing improvement scheme affecting 200 properties and their owner/occupiers; conducting parallel claims against client's fidelity insurer and coordinating proceedings against series of contractor and owner/managers to achieve recovery of all monies. These also required a claims review of corporate governance and vires issues for the authority concerned.

Acting for main contractor in relation to substantial disputes arising out of design and build obligations of soccer stadia within UK; including management of claims from various subcontractors; including adjudication and ultimately a successful conclusion by way of mediations.

Representing a local authority in commercial arbitration with waste management contractor involving significant issues in relation to technical engineering evidence; disputed issues in respect of quantity surveying and forensic accountancy.

Acting for contractors (both construction sector and IT) in relation to delay analysis and change control/variation issues. Includes representing IT contractor in High Court proceedings against UK Government department regarding termination of £100 million IT contract. In particular assessing substantial volumes of documentary evidence to determine principal issues of cause and effect, leading strategies for engagement of technical and financial experts.


12

Membership

Stephen is a qualified Member of the Chartered Institute of Arbitrators


13

STEVEN NORRIS National Head of Regulated Procurement/Legal Director

Direct dial: +44 (0) 121 262 5711


Contact details

Direct fax: +44 (0) 121 262 5711

Mobile: +44 (0) 7968 558602

Secretary: Katie Copley

Direct dial: +44 (0) 121 262 5982

Summary profile

Steven specialises in EU/UK public and utilities procurement law and has considerable experience in this area. He is ranked top in the UK for public procurement law in Chambers Legal Directory 2008. Chambers state that Steven is "truly excellent and committed" in this field and that clients find that he has an "almost encyclopaedic knowledge of public procurement law."

As DLA Piper's National Head of Regulated Procurement, Steven has been involved in a very broad range of high profile projects. Steven has provided specialist regulated procurement advice to several central Government Departments. He has also acted for many local authorities, universities, colleges and other bodies governed by public law together with a number of utilities. Steven was heavily involved in Transport for London's traffic congestion charging project; the Department of Health's National Programme for IT; and HM Revenue & Customs Lorry Road User Charge project. He has also provided regulated procurement advice to the IT consultancy division of the Office of Government Commerce. Steven is the preferred regulated procurement lawyer of Connecting for Health, the Department of Health agency which is responsible for managing the NHS National Programme for IT. He is also currently involved in advising the Olympic Delivery Authority on regulated procurement issues in connection with the London 2012 Olympics.


14


2007 DLA Piper UK LLP

Legal Director and national role as National Head of Regulated Procurement (based in Birmingham)

Technology, Media and Commercial Group

2001-2006 DLA / DLA Piper Rudnick Gray Cary UK LLP, Commercial and Projects Group National role as National Head of Regulated Procurement

2000-2001 DLA, Leeds Solicitor, Commercial and Projects Group

1999-2000 DLA, Birmingham Solicitor, Corporate Group/Commercial and Projects Group

1996-1999 Pinsent Curtis, Birmingham Solicitor, Commercial Department

1994-1996 Pinsent Curtis, Birmingham and Brussels Trainee Solicitor, various departments


University Churchill College University of Cambridge

Degree M.A. (Cantab.) (Law)


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Expertise

Steven has been involved in advising a broad range of clients on diverse aspects of the procurement regulatory regime. This has included, inter alia, the Department of Health, the Olympic Delivery Authority, the Northern Ireland Office, the Office of Government Commerce, the Department for Work & Pensions, the Department for Education and Skills, HM Customs & Excise, NHS Supplies Authority, the Foreign and Commonwealth Office, National Wind Power, DERA, the Benefits Agency, Western Riverside Waste Authority, the Ministry of Defence, Liverpool Vision, Connex, Transport for London, the National Association of Citizens Advice Bureaux, NPower Yorkshire Ltd, West Yorkshire Passenger Transport Executive, Lancaster University, London Borough of Tower Hamlets, StrataGas, Portsmouth City Council, South Hampshire County Council, Banner Business Services Limited - one of the successor companies to HMSO, the Inland Revenue, Innogy Plc, Cheshire Police Authority, the University of Wales Bangor, Harrogate Healthcare NHS Trust, Transport Initiatives Edinburgh (the transport development company of City of Edinburgh Council), the Larach Alliance of Scottish housing associations, English Partnerships, Edge Hill College, the Department of Education in Northern Ireland, Accenture, Acambis, the Royal Shrewsbury NHS Trust, Doncaster Metropolitan Borough Council, North Wales Police, the Earth Centre, Bassetlaw District Council, KPMG, DSG Retail Ltd (Dixons, PC World etc group), Government of Jamaica, London Development Agency, Greater Merseyside Enterprise, Learning & Skills Council for England and Wales, Kirkintilloch Initiative Ltd, Liverpool University, Partick Housing Association, Belgian Post Group, Nottinghamshire County Council and Nottingham City Council, Royal Borough of Kensington and Chelsea, the Land Registry, Luton Borough Council, Cangene Corporation, Sheffield City Council, Rotherham Metropolitan Borough Council, Sefton Metropolitan Borough Council, Leeds City Council, the Department of Health, Social Services and Public Safety (Northern Ireland), the Coal Authority, the Qualifications and Curriculum Authority, Community Gateway Association, the Royal Bank of Scotland, British Waterways and Manchester University.

Steven was heavily involved in assisting Transport for London in relation to regulatory matters relating to the traffic congestion charging scheme in London. He was also (and remains) closely involved with the various procurements connected with the Department of Health's National Programme for IT (the world's largest IT procurement project) and has taken a leading role in assisting the IT Consultancy Division of the Office of Government Commerce with matters of procurement law. Steven is currently involved in advising the Olympic Delivery Authority on regulated procurement issues in respect of the London 2012 Olympics.

Steven has liaised on a regular basis with procurement experts in both the Internal Market Directorate-General of the European Commission and in the Office of Government Commerce.


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Steven has spoken on regulated procurement issues at a number of events for clients, fellow lawyers, representatives of industry, accountants and students. He has, for example, spoken at seminars/conferences for the Olympic Delivery Authority, the Department of Health, the Northern Ireland Central Procurement Directorate, the Learning & Skills Council for England and Wales, NHS Supplies Authority, The Construction Study Centre, Birmingham University, Deloitte & Touche, and the IBC IT Summer Law School at Cambridge.

Steven chaired the 2007 White Paper EU Procurement Conference : "Applying the EU Procurement Rules to Major Projects."

Steven has also been interviewed/filmed by Legal Network Television for a specialist programme on EU public procurement law.

Memberships

Steven is a member of The Law Society of England and Wales.

Publications

Steven has contributed a number of articles on EU/UK procurement legal matters, most notably to Supply Management, the Public Procurement Law Review, Euromoney, Utility Europe and the European Union Public Services Review.


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HAZEL MOFFAT Partner, Public Law - Litigation & Regulatory Group, Edinburgh

Direct dial: +44 (0)131 345 5196


Contact details

Direct fax: +44 (0)131 242 5505

Mobile: +44 (0)7738 295431

Secretary: Judith Keys

Direct dial: +44 (0)131 345 5190

Summary profile

Hazel Moffat is a partner in the regulatory group in Edinburgh specialising in public law and parliamentary matters. Before joining DLA Piper, Hazel was previously assistant and project manager to the UK Law Commissions on the Department of Trade and Industry sponsored project to reform UK Company Law and a senior associate at Shepherd & Wedderburn and head of its public law group advising clients such as the Scottish Parliament, Scottish Enterprise, Treasury Solicitors and the Health and Safety Executive. As a member of the Scottish Parliament's Specialist Drafting Unit for non-executive bills, she has drafted members bills as well as extensive amendments to government legislation on behalf of objectors and stakeholders in both Scotland and Westminster. She regularly speaks at and chairs seminars in London and Scotland on public law, human rights and freedom of information alongside ministers, MP's and the deputy information commissioner. Hazel developed and implemented the freedom of information training programme for all staff, senior management and MSPs at the Scottish Parliament during 2004-2005. Hazel was named Young Lawyer of the Year in 2005 at the Law Awards of Scotland.


2006 to date Partner, DLA Piper

2000 to 2006 Senior Associate and Head of Public Law, Shepherd & Wedderburn

1998 to 2000 Solicitor, McGrigor Donald (including 12 months on secondment to UK Law Commissions).

1996 to 1998 Trainee solicitor, McGrigor Donald


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University Aberdeen

Degree LLB (Hons)

Expertise

Public and administrative law including statutory powers, vires and statutory interpretation.

Bringing and defending judicial review actions of decisions taken by public sector and regulatory bodies.

Human rights and privacy advice and compliance.

Freedom of information advice, training and audits, legislative drafting and bill amendments and objections.

Advice on devolution matters, parliamentary processes at Holyrood and Westminster.

Major transactions Advising Connecting for Health in connection with privacy, data protection and public law matters arising in connection with the National Programme for IT in the NHS in England.

Advising the General Teaching Council for Scotland on a major review of its political classification as a Non Departmental Public Body and its legal framework as a professional regulator.

Advising the Scottish Parliamentary Corporate Body on freedom of information, privacy and procedures including devising and delivering training to all Parliament staff and management.

Advising Scottish & Newcastle on regulatory dealings with water companies and the Environment Agency in England.

Advising Miller Group on aspects of the termination the Skye Bridge tolls agreement and its termination.

Advising Tayside Police on anti-terrorism, security and human rights matters arising in connection with the policing of the G8 Summit in Gleneagles in July 2005.

Defending the Royal and Ancient Golf Club of St Andrews against threatened judicial review proceedings in a high profile case.

Acting for the Commissioner for Public Appointments in Scotland on establishing the new regulatory framework for public appointments and all other matters.

Advising the Scottish Charity Regulator in connection with its powers under existing and forthcoming charity law and on a wide range of governance matters.


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Advising Treasury Solicitors on the powers of Scottish notary publics in the context of a multi-million pound litigation.

Advising the Health & Safety Executive on the legislative competence of Scottish Parliament legislation in areas of health and safety and in relation to memorandum of understanding with other Regulatory bodies.

Advising Audit Scotland on investigations into public spending by local authorities and executive agencies in Scotland.

Drafting amendments on behalf of Scottish Power plc to the Energy Act 2004; on behalf of pharmaceutical companies to the Smoking etc (Scotland) Act and on behalf of independent hospitals to health legislation.

Advising the Consumers Association (Which? Magazine) on proposals to reform the regulation of the Scottish legal market including assistance in drafting consultation responses and parliamentary evidence.

Addressing staff of the Northern Ireland Assembly on Scottish and UK Freedom of Information regimes.

Advising telecoms operators on challenging subordinate legislation passed by the Scottish Parliament to regulate the siting of mobile phone masts.

Major clients

Connecting for Health; Scottish Newcastle plc; General Teaching Council for Scotland; Scottish Parliament; Scottish Enterprise, Commissioner for Public Appointments in Scotland; Health & Safety Executive; Treasury Solicitors; Audit Scotland; Miller Group; Scottish Power plc; Water Industry Commission for Scotland; Royal and Ancient Golf Club of St Andrews.

Memberships

Law Society of Scotland

Editorial Panel of The Firm Magazine

Editorial Board of Privacy & Data Protection Journal (UK)


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Publications

Speaker and chair of Westminster Explained seminar series on Freedom of Information and the Commission for Equality and Human Rights 2003-2006 alongside Lords Clark, Filkin and Falconer; Joan Ruddock MP; the Deputy UK and Irish Information Commissioners and others.

Numerous seminars on freedom of information in Scotland and the UK, privacy, regulation of investigatory powers and human rights.

Published several articles in CA Magazine on policy and legal updates in Scotland.


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NINA BENSON Associate Solicitor, Litigation Group, Leeds

Direct dial: +44 (0)113 369 2709


Contact details

Direct fax: +44 (0)113 369 2799

Mobile: 07968 558870

Secretary: Julie Cohen

Direct dial: +44 (0)113 369 2233

Summary profile

Nina is a senior associate based in the Litigation Team in DLA Piper's Leeds Office. Nina specialises in the avoidance and resolution of substantial disputes. Cases concerning public authorities and public law form a major part of her work, as well as commercial cases.

Nina joined DLA Piper in 1996, and during this time has spent a number of extended periods working embedded within client teams. From September 2001 to April 2003, Nina worked on the introduction of the central London congestion charging scheme, primarily advising on development of and consultation on charging scheme legislation and the defeat of judicial review challenges. Subsequently, for 12 months from July 2004, Nina undertook similar work advising Her Majesty's Revenue & Customs on the Lorry Road User Charge programme.


September 1995 to May 1996

Bull Housser and Tupper, Barristers and Solicitors, Vancouver, Canada - articled student

September 1996 to date

DLA (Sheffield and Leeds) in the Commercial Litigation Department from March 1998, and including placements with: National Express Group from September 1997 to March 1998 Transport for London from September 2001 to April 2003 HMRC from January to July 2005


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University Oxford University, New College

Degree 1993 BA Hons Jurisprudence

Major clients and transactions

Procurement

Welsh Forestry Wind Farm Procurement - Advising the leading European wind farm developer on expedited judicial review proceedings against Welsh Assembly Government regarding conduct of their tendering process for the development of Forestry wind farms.

Advising a major US company, and its UK, Italian, French and Belgian subsidiaries, tendering for government contracts in Europe, on the impact of a potential civil finding (judicial/administrative) of dishonesty against the US parent company.

DTI's Small Business Service - Risk management advice on the launch of their portal www.supply2.gov.uk. This portal has subsequently been recognised by the European Commission as the best practice means of public authorities advertising lower value contracts to businesses.

NHS trusts - Advising on potentially contentious procurement issues arising in connection with the appointment of consultants to inspect construction of a new PFI hospital.

Public Law

The Central London Congestion Charging Scheme (Scheme) - Based within TfL's Strategy and Policy team, advising on:

H the Mayor's Transport Strategy, primary legislation (Greater London Authority Act) and preparation of the Scheme Order and supporting secondary legislation. As well as working with the client (TfL) and its other advisors, this work was undertaken in liaison with officers from other public bodies, including the Greater London Authority and the Department for Transport. It included advice on preparation of related consultation documents and on stakeholder dialogue to effectively address and report on consultation responses;

H compliance with European laws, including State Aid issues arising in relation to exemptions and discounts, addressing Environmental Impact Assessment requirements (namely in connection with Scheme infrastructure and signage), plus Human Rights issues;


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H the practical arrangements and documents governing relationships with other public

bodies (for example, memorandums of understanding with local authorities) and commercial entities (for example, terms and conditions for accredited breakdown recovery operators);

H defending the Scheme from judicial review challenges, brought by Westminster City Council and a local residents association and supported by others (for example, the RAC and a transport "expert") - The Scheme was highly sensitive to delay, but securing expedition of the proceedings and successfully defending them enabled the Scheme to be introduced on time.

Lorry Road User Charge Programme (Programme) (now part of the National Road Pricing initiative) - advising HM Revenue and Customs on the development of draft legislation for this Programme, and on related risk management and minimising scope for legal challenge. Specific issues included:

H provision for Programme infrastructure on highways and at ports; and

H compliance with EC Directives (existing and draft) plus State Aid issues.

Rockware Glass Limited - Advising on the development and operation (in breach of planning and other controls) by a competitor of the largest glass plant in Europe. The competitor indicates that it has now invested £300 million in this new plant. Planning permission and the IPPC permit to operate were both ruled unlawful in successful judicial review challenges. In clear breach of the regulatory regime, the competitor had been seeking to avoid incurring the capital and operating costs of secondary abatement equipment until 2009. A recent Court of Appeal hearing has emphatically rejected the competitor's appeal so that it must now do so, and use that equipment, without further delay.

Welsh Forestry Wind Farm Procurement - Advising on an expedited judicial review of a decision to exclude a prospective bidder at the Pre Qualification Questionnaire stage.

Chester City Council - Advising the Council and its transport company on competition proceedings against Arriva.

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