Kenneth D. Brody

Kenneth D. Brody

Location:
Reston, Virginia
Phone:
703-264-2220
Fax:
703-264-2226
Email:

AREAS OF PRACTICE

Kenneth D. Brody has forty years of experience in government contracts law, complex business and federal procurement litigation, commercial contracting, and employment law. He is a 1978 graduate of the Georgetown Law Center and is licensed to practice law in Virginia, Maryland, the District of Columbia, and New York. Ken's practice includes advising local and national companies on all aspects of procurement law, including disputes relating to performance under prime contracts, breaches of subcontracts, failures to make payments, equitable adjustments, and contract terminations. He has represented parties in more than a hundred bid protests before the Court of Federal Claims, GAO, SBA, and federal, state and local procurement agencies; and has frequently litigated contract disputes before government boards of contract appeals, private arbitrators, and state and federal courts. He also analyzes and prepares contract claims; regularly advises clients on procurement compliance issues, drafts and negotiates subcontracts, teaming agreements, joint venture agreements and various commercial agreements; and negotiates and mediates settlements of contract disputes.

BACKGROUND

Ken began practicing law with the Department of the Navy in 1979 as a contract specialist and attorney-advisor with the Naval Facilities Engineering Command. He became a trial attorney with the Navy Counsel's Litigation Office where he litigated major construction contract disputes, including large claims under Navy hospital and drydock projects, as well as federal employment and discrimination cases. After he left the government in 1988, Ken practiced procurement law and handled complex business litigation in Washington, DC as a partner in a national law firm before he moved to Northern Virginia in 1996 and became one of the founders of his current firm.

For the past seventeen years, he has also been an Instructor for the Virginia Procurement Technical Assistance Program (PTAP) affiliated with George Mason University, an organization aimed at promoting the development of emerging small businesses. He is also a regular volunteer legal counsel for the DC Bar Pro Bono Center's Small Business Legal Assistance Program for local neighborhood small businesses and nonprofit entities.

Ken has written extensively on topics in the procurement field including pieces on procurement reform and litigation under the False Claims Act, and is the author of the firm's Government Contracting Client Alerts which addresses current topics in government contracting law. Ken is also active in the Reston Chamber of Commerce where he has chaired the Government Contracting Committee. Ken established the Chamber's original annual teaming fair which has grown into a major regional business and government match-making event giving small businesses an opportunity to meet with procuring agencies and prospective teammates.

BAR ADMISSIONS

  • District of Columbia, 1978
  • New York, 1979
  • Maryland, 1987
  • Virginia, 1997
  • U.S. District Court, District of Columbia
  • U.S. District Court, District of Maryland
  • U.S. District Court, Eastern District of Virginia
  • U.S. Court of Appeals, 4th Circuit
  • U.S. Court of Federal Claims

EDUCATION

  • Georgetown University Law Center, Washington, D.C.
    • J.D. - 1978
  • State University of New York, Stony Brook, New York
    • B.A. - 1975
  • Stuyvesant High School, New York City - 1971

EXAMPLES OF CURRENT LECTURING

  • George Mason University, Procurement Technical Assistance Program
    Classes for emerging government contractors in negotiating and drafting Teaming Agreements and Subcontracts; Debriefings and Bid Protests; and the All Small Business Government-wide Mentor-Protege Program for federal contactors
  • DC Bar Pro Bono Center Small Business Legal Assistance Program
    Training Course for entrepreneurs interested in government contracting

EXAMPLES OF PAST LECTURES AND SEMINARS

  • United States Small Business Administration
    Taught classes around the country for SBA under the 7(J) Training Program on government contracting issues affecting small minority owned businesses
  • Government Contracting Networking Organizations
    Numerous presentations on issues affecting government contractors before organizations such as AFCEA, the Reston Chamber of Commerce, and the Washington Breakfast Club
  • National Contracts Management Association (NCMA)
    Presentation of NCMA's FAR Part 15 Rewrite Lectures before various NCMA chapters
  • Montgomery County Bar Association
    Representation of High-Tech Companies in the field of Government Contracting
  • Institute of Management Accountants
    Procurement Integrity and Ethics
  • United States Department of the Navy
    Government Contracts Law for contracting officers

EXAMPLES OF CASES

CASE RESULTS DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. THESE CASE RESULTS DO NOT GURANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY ANY LAWYER IN THIS FIRM.

  • C2C Innovative Solutions, Inc., B- 416289, B- 416289.2, 2018 WL 3854044
    Successfully demonstrated that Health and Human Services (HHS) failed to consider both an impaired objectivity and unfair access to information organizational conflict of interest for the awardee of a Qualified Independent Contractor (QIC) task order for preparation of claim reconsideration decisions under the Medicare program where the awardee's subsidiary would also be reviewing ALJ rulings overturning the parent’s reconsideration decisions. Also awarded attorney fees.
  • Iron Bow Technologies, LLC v. The United States, 36 Fed. Cl. 519 (COFC, 2018)
    Successfully defended government award against a bidder who challenged the Social Security Administration's (SSA) decision to eliminate bidder's proposal from consideration due to bidder's proposed printers presenting unacceptable supply chain risk to SSA based on control of bidder's printer supplier by Chinese government and congressional reports of China engaging in cyberespionage against United States.
  • RONCO Consulting Corp. v. Leading Edge Ventures, LLC, 2017 WL 6336609 (D.MD. 2017); 2018 WL 4095474 (D.MD. 2018)
    In a protracted process, obtained two separate arbitration awards for entitlement and damages for a small subcontractor against its prime contractor, a subsidiary of a large international security firm, based on a claim of premature termination of a subcontract before the prime had fulfilled its obligation to sponsor subcontractor for a facility clearance. Following the arbitration awards, successfully opposed the prime contractor’s effort to vacate the awards in Federal District Court, obtained a confirmation of the awards and judgment against the prime contractor, and also separately obtained an award of attorney fees from the District Court.
  • Team People LLC, B-414434 et al., 2017 CPD ¶ 190
    Successfully defended government award against claims of proposal misevaluation and bias. GAO held that where a protester alleges bias, it must not only provide credible evidence clearly demonstrating bias against the protester or in favor of the awardee, but must also show that this bias translated into action that unfairly affected the protester’s competitive position.
  • Interactive Technology Solutions, LLC, B- 413665.2 et. al. 2017 CPD ¶ 82
    Protest challenging agency's evaluation of the protester's proposal under the solicitation's non-price factors was denied where the record reflects that the evaluation was reasonable and consistent with the solicitation's terms and applicable law.
  • DigitalSpec, LLC, B- 412344, 2016 CPD ¶ 72,
    Successfully defended award against protest challenging the agency's evaluation of the protester's quotation.
  • Sevatec, Inc., B- 410665, 2015 CPD ¶ 332
    Brought a protest arguing that a DOD contracting officer should have requested that the Small Business Administration (SBA) determine whether small business prime contractor violated the ostensible subcontractor rule and thus did not qualify as an eligible small business, which ultimately led to the SBA filing its own size status protest.
  • TriCenturion, Inc.; SafeGuard Services, LLC, B- 406032, et. al, 2012 CPD ¶ 52,
    Successfully challenged HHS’s evaluation of the awardee's proposed staffing levels for cost realism under a procurement for integrity functions to reduce fraud and waste under the Medicare program. GAO found that the evaluation was unreasonable based on the inadequate contemporaneous record and on the lack of meaningful testimony in a hearing called for the purpose of addressing gaps in the agency's documentation. Also awarded attorney fees and costs.
  • Enterprise Information Services, Inc., B- 405152 et. al., 2011 CPD ¶ 174
    Successfully defended awardee against protest that its subcontractor had an unmitigated organizational conflict of interest arising from its contract with the procuring agency and alleged unfair access to information. GAO found that agency meaningfully considered OCI issue and found that nondisclosure agreements signed by employees with access to nonpublic information satisfactorily mitigated any potential unequal access to information OCI.
  • SMARTnet, Inc., B- 400651.2, 2009 CPD ¶ 34
    Successfully challenged a DOD certification requirement as unduly restrictive and was awarded costs and attorney’s fees.
  • Superlative Technologies, Inc., B-310489 et. al. 2008 CPD ¶ 12, 2008 CPD ¶ 123
    Successfully prevailed in two protests challenging DOJ’s improper cancellation of procurement and failure to implement appropriate corrective recommendation and awarded attorney’s fees and costs. In the first protest GAO found that DOJ did not reasonably cancel a solicitation based on procurement integrity and organizational conflict of interest concerns regarding the awardee, where the record demonstrated that DOJ subsequently awarded a sole-source contract to a team that included the same awardee and whose proposal was substantially similar to the awardee's proposal under the cancelled solicitation. Following a fact-finding hearing, the second protest was sustained based on DOJ’s failure to implement the GAO’s recommendations under the first protest.
  • MASAI Technologies Corporation, B-298880.4, 2007 CPD ¶ 179
    Successfully defended award decision against protest of agency selection on grounds of organizational conflict of interest.
  • Abadie v. D.C. Contract Appeals Bd., 916 A. 2d 913, (D.C.C.A. 2007)
    Successfully appealed and overturned D.C. Superior Court and Contract Appeals Board decisions unreasonably sustaining an untimely protest.
  • Browning Ferris, Inc. v. Providence Hospital, Civ. No. 005189, (D.C. Sup. Ct., 2002)
    Obtained summary judgment against defendant by demonstrating that its actions amounted to a material breach of the contract termination procedures.
  • OneSource Energy Services, Inc., B-283445, 2000 CPD ¶ 109
    Successfully protested GSA’s selection decision following a hearing based on the agency's improper evaluation of the protestor’s past performance information where the evaluation was based upon inaccurate information and improperly considered the protester's legitimate exercise of rights under its contract to be evidence of negative past performance
  • Synetics, Inc. v. The United States and NCI Information Systems, Inc., 45 Fed. CI 1 (COFC 1999)
    Successfully defended award in a protest action by a disappointed bidder who challenged the selection on grounds that the agency failed to follow the evaluation criteria.
  • Systems Integration & Research, Inc.; Presearch, Inc., B-279759.2, 99-1 CPD ¶ 54
    Successfully protested award of contract for technical services to a contractor which resulted in a new evaluation and award to protester, and then successfully defended protest of award by the original awardee.
  • Protests of Camber Corporation and Information Systems & Networks Corporation, 98-ODRA-0079 and 0080, (FAA 1998)
    https://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/adjudication/agc70/Casefiles/view/docs/98_79dr.pdf
    Successfully brought protest in a proceeding before the FAA’s Office of Dispute Resolution (ODRA) challenging award based on bait and switch of key personnel and misrepresentation in the awardee’s proposal.
  • Browning-Ferris Industries of Hawaii, Inc.--Costs., B-278051 et. al., 1998 WL 201221, (Comp. Gen.)
    Successfully protested terms of RFP and recovered attorney's fees as a result of belated corrective action.
  • Industrial Data Link Corporation, B-246682, 1992 WL 63465, (Comp. Gen.)
    Successfully defended decision to issue procurement as a small business set-aside.
  • Computer Sciences Corp., GSBCA No. 11497-P, 92-1 BCA 24703
    Successfully participated in the defense of the best value award of a multi-billion-dollar contract for the Reserve Component Automation System (RCAS) awarded by the Department of the Army to Boeing Computer Services.
  • Appeal of Mystech Associates, 91-3 BCA 24127
    Successfully litigated and eventually settled client’s equitable adjustment claim against government covering the added costs of performance caused by Government delays, disruptions and changes in scope of work under service contract.
  • Hattal & Associates, 70 Comp Gen. 632, B-243357, 91-2 CPD ¶ 90
    Successfully protested failure to award contract for technical services where solicitation provided that technical factors were more important than cost and agency made award to the low-cost, technically acceptable offeror without properly assessing relative technical merit.

Published Works

  • "Understanding the FAR Part 15 Rewrite", NCMA, September, 1997
  • "Protecting Your Trade Secrets", Acquisition Issues, April, 1991
  • "Recent Developments in the Area of 'Qui Tam Lawsuits", Federal Bar News & Journal, December, 1990
  • Government Contracting Client Alerts