Public Contracting

McAfee & Taft has a strong team of attorneys specializing in the governmental contracting sphere, utilizing a multi-disciplinary approach combining expertise in administrative and business litigation, construction law, corporate transactions, and intellectual property. McAfee & Taft represents contractors, subcontractors, suppliers and other vendors coming from a wide array of industries, including construction, telecommunications, software and service providers.

Our attorneys have established a diverse practice with experience appearing on their clients’ behalf with respect to public contracting entities at every level, from large-scale federal agencies to state purchasing authorities down to local municipal bodies. Whether the dispute requires cooperative negotiation or aggressive litigation in administrative of judicial proceedings, McAfee & Taft can provide skillful and tailored representation in this complex and highly regulated legal area.

Among the many practice areas within public contracting and procurement engaged in by our attorneys are the following:

Contract Negotiations, Bid Preparation and Submissions

The McAfee & Taft Public Contracting team has the proficiency to walk potential government contractors through the numerous statutory and regulatory authorities governing securing a contract award while assuring compliance with the applicable federal or state authorities, including:   

• Federal Acquisition Regulations (FAR), 48 C.F.R. Chap. 1 – The federal rules that implement numerous statutes that apply to federal procurements, including the Contract Disputes Act, the Truth in Negotiations Act, the Competition in Contracting Act, and the Buy American Act.
• Oklahoma Central Purchasing Act, 74 Okla. Stat. § 85.1 et seq. – Statutory scheme governing expenditures of Oklahoma agencies acquiring goods or services. The OCPA applies to all “acquisitions” by state agencies, broadly defined to include “items, products, materials, supplies, services, and equipment a state agency acquires by purchase, lease-purchase, lease with option to purchase, or rental.”
• Oklahoma Public Competitive Bidding Act, 61 Okla. Stat. § 101 et seq. – Oklahoma’s statutory authority for “public construction contracts,” defined as “any contract, exceeding Fifty Thousand Dollars ($50,000.00) in amount, awarded by any public agency for the purpose of making any public improvements or constructing any public building or making repairs to or performing maintenance on the same.”
• State Consultants Act, 61 Okla. Stat. §§ 61-65 – Sets for procedures that most state agencies must follow in contracting for the services of construction management and design consultants (which include architects, engineers and land surveyors).

Bid Protests and Defense

One of the most common matters requiring legal representation is contesting the award of a state contract for goods or services. Both the primary governmental contracting statutory and regulatory schemes contain a complex, occasionally inscrutable, set of mandatory rules and procedures that bind both the state agencies as well as other bidders. These rules are rife with potential legal snares, as even seemingly small deviations can give rise to grounds to dispute the award. The McAfee & Taft team is fluent in these laws, and is well equipped not only to guide clients through the process, but to wield these requirements offensively to protest an improper bid or to defend against allegations of the same.

Freedom of Information Act (FOIA) and Open Records Act (ORA) Matters

Often the most vital pieces of information to evaluate a governmental contract award are not readily available, and occasionally require aggressive action to obtain. At both the federal and state levels, public transparency laws allow for the request of the documents and information that may be dispositive for your issue, but often the simple request is not enough. When this occurs, the attorneys in the Public Contracting team are well-versed in filing the appropriate lawsuit, which can occasionally even include the recovery of fees.

For one example, in early 2020 the Oklahoma Office of Management and Enterprise Services (OMES) issued a contract award that seemed dubious, and one of the other bidders filed an Open Records Act request to review various aspects of the bid. OMES delayed production for nearly three months. The bidder retained McAfee & Taft, who filed an Open Records Act lawsuit, resulting in the production of hundreds of documents within days that confirmed OMES had significantly departed from appropriate bidding procedures.

Contract Disputes and Termination

McAfee & Taft attorneys can litigate claims under the Contract Disputes Act, which governs disputes arising from federal contracts. The CDA sets out its own procedures for such contests, from the initial step of a Contracting Officer issuing the Final Decision all the way to the United States Court of Federal Claims. Further, contract disputes can involve governmental contract termination for convenience or Miller Act Claims.

Procurement Fraud and False Claims Act Allegations/Defense

Allegations of procurement fraud can often turn into large penalties and the loss of future revenue. McAfee & Taft can not only interpose a stout defense when these allegations are made, but can provide counseling at the contracting stage to avoid these allegations from ever occurring.