RESUME OF WILLIAM J. SPRIGGS
From 2011 to Present, 23 ASBCA and CBCA appeals. Over the past several years, Mr. Spriggs has successfully handled 23 appeals on behalf of clients before the Armed Services Board of Contract Appeals (ASBCA) and the Civilian Board of Contract Appeals (CBCA). Most of those cases were settled by agreement of the parties and four were litigated to final decision. Mr. Spriggs also has advised clients on many contract management and dispute resolution matters and served as an expert witness. He frequently assists clients in the preparation of requests for equitable adjustment and claims and has experience with ADR at the ASBCA and the CBCA.
During his career, Mr. Spriggs has served as founder and CEO of his own professional services firm which under his guidance he took from $2M in revenues and 15 people to $80M in revenues and 245 people. He has over 40 years experience managing his own business while at the same time serving as a federal procurement lawyer in cases for major corporations and small to medium sized businesses. As a government contracts attorney, he has handled cases involving claims, protests, disputes and appeals related to constructive changes, default terminations, convenience terminations, cost allowability and allocability, contract interpretation, protection of data rights and defective pricing. His services have enabled his clients to recover nearly $1,000,000,000 in profits on government contracts. The firm he founded and led saved its clients billions of dollars in losses.
While growing his firm’s business, Mr. Spriggs managed to maintain a profit rate in excess of 30 percent. He applied horizontal management techniques with project teams and administrative functions. The firm had zero claims against it. Mr. Spriggs resisted mergers and diversified the firm by key acquisitions. He maintained a merit based compensation system and an entrepreneurial approach to marketing and complete client satisfaction. He found a niche for small to medium sized firms offering superior performance at reasonable cost. His approach was to grow only as the needs of his clients dictated. He stuck to his core values of excellence in quality and totally successful results. His motto was growth, one step at a time.
Although he is known for his litigation skills, his emphasis has always been on government contract dispute avoidance and resolution by settlement. He is a counselor, lecturer and author. He is a recognized expert on the Federal Acquisition Regulation (FAR) and its various federal, state and local agency counterparts.
His representative clients include: Lockheed Martin, The Boeing Company, General Dynamics, Beech Aircraft, Cessna Aircraft, Koch Industries, General Time Corporation, AshBritt, Inc., Bourns, Inc., Recon Optical, Inc., Target Corporation, Homes by Bell-Hi, Inc., Pettibone Corporation, Pikesville Electric Corporation, Arvol D. Hays Construction Co., Inc., Goodfellow Brothers Construction Co., Inc., Eagle-Picher Industries, Inc., Cubic Corporation, Magnavox Electronic Systems Co., Inc., UNR Industries, Inc., Research, Analysis & Development, Inc., 3M, Inc., Gulf & Western Industries, Inc., and Spacesaver Systems, Inc.
His cases have involved
· weapons systems for the Army,
· disaster recovery services for FEMA and the Army Corps of Engineers,
· GOCO facility services for DOE,
· aircraft stress sensing systems for the Air Force,
· bomb fuses for the Navy,
· water supply to the Army in Iraq,
· rough terrain trucks for the Army,
· forklift trucks for the Army,
· conveyor systems and forklifts for the Postal Service,
· weapons instrumentation for the Navy,
· road reconstruction for the Department of Interior,
· submarines for the Navy,
· missiles for the Air Force,
· storage and distribution systems for DCMA,
· repair and home construction for HUD,
· aircraft engine parts for DCMA,
· information systems for the Navy,
· security systems for the FBI,
· tug boats for the Coast Guard and
· office furniture and filing systems for GSA.
Mr. Spriggs has a proven track record of enhancing client profitability, avoiding client losses from cost disallowances and default terminations and in resolving disputes on contract and regulation interpretation issues.
Enhancing Client Profitability
investigates contract performance against contractual requirements and analyzes whether customer acts or omissions give rise to constructive changes to contract requirements or breaches of implied contract obligations. As he investigates the facts, he examines various theories with a view to submitting requests for equitable adjustment under the changes clause. He then prepares, submits and negotiates settlement of the requests. On occasion, he has taken these cases to the next level of the dispute resolution process. He has over 70 published judicial decisions. Although he has taken dozens of cases to trial, he has settled the vast majority of them by negotiating a settlement. His recovery success rate overall exceeds 80% with over 90% of the cases settled without expensive litigation. His fee in these cases is recoverable as part of the settlements.
Avoiding Losses from Disallowances and Defaults
In a number of cases, Mr. Spriggs has assisted contractors and subcontractors in avoiding losses on government contracts and subcontracts by successfully negotiating cost disallowances issues with DCAA and in convincing contracting officers to convert terminations from default to convenience. Based on his knowledge of FAR Part 31 and the DCAA Contract Audit Manual, he has convinced auditors and contracting officers of the allowability of costs often based on the proper application of allocability principles. In this regard, he often teams with the forensic accounting firm of McGovern & Greene to add the element of expert accounting reports to his presentation. He always presents a comprehensive written argument followed by finely tuned negotiation techniques. His success rate in cost disallowance cases is nearly 100%. In cases of terminations for default, he presents a comprehensive statement of the facts together with all the excuses for failure to perform. Since every compensable change is an excusable cause of failure to perform, his presentations include requests for equitable adjustment under the changes clause of the contract. To buttress his argument, he includes a pro forma termination for convenience settlement proposal. He also negotiates termination for convenience settlement proposals. Based on his knowledge of FAR Part 31, he has successfully negotiated the allowability of costs, including his fee.
Resolving Disputes on Contract and Regulation Interpretation
Mr. Spriggs routinely advises clients on the meaning of contractual and regulatory language. Often, these complex documents require the discerning eye of an expert knowledgeable in the legal principles of interpretation. He has found that most disputes arise because the parties do not understand fully and have vastly differing interpretations on the meaning of language. Proper contract administration requires both sides to be sure contractual documents are clearly worded. The best way to resolve a dispute is to prevent it. So, Mr. Spriggs has concentrated on reviewing documents before and immediately after award to be sure their meaning is clear so as to head off possible disputes arising during performance. Since differing interpretations of contract language can give rise to compensable changes, he also reviews performance problems to determine if language disputes should be resolved in the context of requests for equitable adjustment. Regulations also are complex. Mr. Spriggs advises clients on proper interpretation of regulations such as data rights and in computer software. His vast working knowledge of all federal, state and local acquisition regulations has positioned him to field questions on a wide variety of subjects such as conflicts of interest, assignments, novations, commercial contracting, sole source procurements, source selection, protests and small business programs.
Relevant Representative Experience
· Reversing a termination for default. The Army terminated a weapons systems manufacturer for default based on alleged failure to pass tests and make progress. The contractor had made a valiant effort to pass the requisite tests which had been changed without the contractor’s knowledge or consent. Mr. Spriggs analyzed the situation and found that the cure notice was based on one type of test and the show cause and default notices were based on another type of test. Since a default for test failure or to make progress must be preceded by a proper cure notice, he argued the default was improper. He also assisted the client in preparing a termination for convenience settlement proposal and he augmented that proposal with detailed requests for equitable adjustment based on improper testing and impossibility of performance. He invited his colleagues at McGovern & Greene to assist in cost presentations and with DCAA audits. Throughout the audit process, he provided answers to questions from the auditors and prepared position papers on the allowability and allocability of costs, including his own costs of consultancy. He put together a comprehensive presentation of the facts and legal principles in preparation for negotiation of a settlement of the entire case. He first argued the impropriety of the default based on failure to issue a proper cure notice and excusable causes of failure to perform based on constructive changes. He also pointed out that even if the default were upheld, the constructive changes based on impossibility would survive. The DCAA auditors had disallowed costs based on the adjustment for loss formula. Mr. Spriggs pointed out that the formula does not apply when the government substantially contributes to the loss. Following the written presentation, he led the negotiation team which successfully settled the matter with the government converting the default to convenience and paying a substantial portion of the contractor’s costs (which included his consulting attorney fees) plus profit.
· Careful contract administration yields nearly a billion dollars. The Corps of Engineers attempted to terminate improperly a Katrina disaster recovery contractor. Mr. Spriggs devised a plan which successfully thwarted the attempts to terminate resulting in the contractor’s recovery of $750,000,000 in revenues on the contract. Then, seeing various constructive changes based on daily questions about contract interpretation, he prepared and submitted requests for equitable adjustment and claims for an additional sum in excess of $100,000,000. Most of the requests and claims were based on contract interpretation issues but the allowability of certain costs also came into play requiring him to work with DCAA to resolve cost allowability and allocability issues. One of the claims involved the unique theory that the contractor is entitled to relief under the Changes clause where the government and the contractor were equally ignorant of the underlying facts. Through that theory, a variation on the superior knowledge doctrine, Mr. Spriggs convinced the Corps of the efficacy of the theory of equal ignorance and settled the claim for 100 cents on the dollar. Later, Mr. Spriggs successfully prosecuted a protest of the advanced contracting initiative for the disaster recovery services.
· Proving DCAA auditors were wrong. DCAA auditors disallowed certain overhead costs as not allocable to a Government Owned Contractor Operated (GOCO) nuclear facility. The allocability issue centered around how much, if any, off site overhead would be allowed on the contractor’s employees located at the GOCO facility. Mr. Spriggs analyzed the situation and based on his experience in the arctic submarine tanker case (discussed below), he wrote a position paper explaining to the auditors that the allocability regulation was written in the disjunctive and that if the cost is necessary to the operation of the business in support of the statement of work, it is allocable to the government contract. Moreover, only potential direct benefit must be demonstrated. There is a benefit, general in scope, derived from costs necessary to the overall operation of the business. In meetings with DCAA, the auditors finally came around to the position that the offsite overhead was allocable to the GOCO contract.
· Government misuse of proprietary, confidential data. The Air Force received a contractor’s unsolicited proposal for aircraft frame stress sensing systems and wrote the contractor saying it would treat the submission as proprietary and confidential. Thereafter, the government published a synopsis of the concept and asked for expressions of interest from contractors. Mr. Spriggs argued that the contractor’s offer and the government’s acceptance formed an implied contract not to disclose the data. Alternatively, he argued the implied ccontract resulted directly from his client’s response to the government’s offer to consider unsolicited proposals. Detailed written presentations and extensive negotiations followed to no avail. Mr. Spriggs tried the case and won on a motion for summary judgment.
· Stopping a sole source acquisition. The government announced an intention to award a sole source acquisition of bomb fuses. Mr. Spriggs parsed the language of FAR Part 6 and the relevant precedents and determined adequate justification for the sole source award had not been properly analyzed and documented. The facts simply did not justify the award and an exception to the requirement of competition did not exist. After trying to convince the government of its error to no avail, he again sought relief in court and the court agreed, issuing a permanent injunction prohibiting the sole source award and granting the client the opportunity to compete.
· Creating a new theory of recovery. The Army contracted for water to be supplied troops in Iraq. The contract required the government to assist the contractor by providing adequate facilities space and accommodations necessary for contractor personnel to perform the contract. It then terminated the contractor for default for failure to meet the delivery schedule. The contract was awarded under FAR Part 12 dealing with commercial item contracting with special terms and conditions for such acquisitions. Mr. Spriggs, an expert on commercial item contracting, prepared the contractor’s response to the termination for default based on claims that the government breached the express and implied terms of the contract requiring the government to cooperate and provide the contractor with facilities and accommodations necessary for contract performance. He pointed out that under commercial contracting, the common law and Uniform Commercial Code (UCC) principles govern the relationship of the parties. He thus prepared a presentation based on the principles of traditional contract damages including incidental and consequential damages reaching far beyond the constructive change equitable adjustment principles involving the FAR Part 31 cost principles. The new theory arises almost of necessity given the fact, Mr. Spriggs argued, that FAR Part 12 essentially removes the changes clause. The case is pending.
· Defective government furnished drawings and specifications. The Army contracted for rough terrain forklift trucks according to detailed drawings and specifications. The contract required significant engineering effort and completion of first article testing. The contractor encountered errors in the government furnished data package and submitted dozens of requests for waivers (RFW) and engineering changes proposals (ECP). The government granted them in part and denied them in part. During and after first article testing, the DCMA product inspectors descended on the contractor’s plant and frequently interfered with the contractor’s performance. They also delay and disrupted the contractor’s performance. After completion of the work, but before final payment on the contract, the contractor sought the advice of Mr. Spriggs who put together a constructive changes presentation with voluminous attachments and enclosures. He then followed his time honored pattern of describing each contract requirement, exactly how the government constructively changed the requirement and how the changes affected the nature and cost of the work. He then put together a detailed presentation of all the associated costs, including his fee, plus profit. Each RFW and ECP was discussed in detail showing the technical engineering cause and the effect on production. In addition to the detailed factual description, he followed his usual procedure of making sure each constructive change and request for equitable adjustment was supported by legal theory. The legal principles used were defective government furnished data, commercial impracticability and overzealous inspection. Each RFW and ECP, he argued, was an admission of government liability. Extensive DCMA and DCAA technical and audit review followed. Mr. Spriggs insisted on receiving all of the technical evaluations and the audit report. Then, with those in hand, he responded, point by point, to each position taken by the government. He then set up negotiation sessions. At the first session, he presented the contractor’s entire case, from beginning to end, including all costs associated with the equitable adjustment. He insisted on presenting the case without interruption and he used several key contractor employees in the presentation. He then offered the government the opportunity to present its case. At the end of the government’s presentation, he presented the client’s rebuttal and asked for a reasonable settlement offer. After an intermission, offers of settlement were exchanged and the matter was favorably settled (Mr. Spriggs has written monographs on How to Write a Winning Request for Equitable Adjustment and How to Settle Disputes Effectively, Efficiently and Amicably.)
· Conflicts in performance specifications. The Army purchases air transportable, heavy duty forklift trucks under a performance, form, fit and function specification. The contractor encountered huge losses on the contract trying to design the truck to meet the weight restriction and still be powerful enough to meet the performance requirements. Mr. Spriggs was brought in. He analyzed a basic and simple conflict or error in the performance specification’s weight and power train requirements. In order to meet the power requirements, the design could not meet the weight restriction. So he prepared a constructive change request based on a basic defect in the government furnished data. The presentation and negotiation of the request followed the time honored pattern. He began his review with a request for all the government documents. He used the Freedom of Information Act and face to face persuasion. Mr. Spriggs found internal government documents agreeing with his position and he was able to successfully settle the matter by using these documents as trump cards.
· Saving a small business from bankruptcy. The Navy bought weapons guidance systems from a small business. It then terminated the contract for default and the Armed Services Board of Contract Appeals (ASBCA) converted the default to a termination for convenience. The company asked Mr. Spriggs to prepare its termination settlement proposal. He included requests for equitable adjustment in the proposal because the proposal exceeded the original contract price. This brought into play both the termination contracting officer (TCO) and the procurement contracting officer (PCO) with whom Mr. Spriggs then had to deal. The company then went into Chapter 11 of the Bankruptcy Act. The bankruptcy judge wanted to hear testimony from Mr. Spriggs on the nature of the contractor’s claims and the probability of recovery so Mr. Spriggs testified at length in New York before a bankruptcy judge as an expert on government contracts. The issue was whether the Navy claims would settle for enough to fund the Plan of Arrangement to get the client out of bankruptcy. Mr. Spriggs set about to settle the claims, setting up weekly meetings to discuss settlement. The parties remained far apart. The Navy refused to recognize any of the constructive changes. It was then Mr. Spriggs decided to violate the rule that the contractor never bid against its self. He got the Navy counsel aside and told him what number it would take to settle the case. He said it was the number required to fund the Plan of Arrangement in bankruptcy and was consequently nonnegotiable. Shortly thereafter, the Navy agreed to the number, the plan was funded, and the small business contractor emerged from Chapter 11, a viable company once again. But not for long. The company got back into financial trouble and again sought the advice of Mr. Spriggs. This time Mr. Spriggs petitioned the Contract Adjustment Board 5 times for relief under Public Law 85-804, eventually getting the client the relief it needed.
· The government pays the consultant’s fees. The Department of Interior (DOI) specified road surface material for road reconstruction in Maui, Hawaii which was unsuitable for the climate. Doing right by its mistake the DOI terminated the contractor’s contract for the convenience of the government. Having received a note from Mr. Spriggs reminding him that consultant’s fees are recoverable from the government, the contractor’s president called Mr. Spriggs. Thereafter, Mr. Spriggs put together the termination for convenience settlement proposal including all of the subcontractors’ claims, and, of course, including his own fees and expenses. There followed a most pleasant negotiation with the contracting officer in Denver at the conclusion of which Mr. Spriggs settled the settlement proposal for 97 cents on the dollar.
· The government pays for the contractor’s futile efforts to get commercial work. A shipbuilding contractor which was devoted 100% to government work faced a decline in its backlog and sought to diversify. A consortium of private companies asked the contractor to design a submarine tanker to transport oil. The contractor went to work designing the vessel and preparing its proposal to the consortium. It spent a considerable sum in the process and charged its costs to its overhead pool which was then allocated to all its existing work which was government work only. The government objected and the DCAA auditors disallowed all the costs. The consortium never accepted the tanker proposal. The contractor appealed and sought the counsel of Mr. Spriggs. The case turned on the allocability section of FAR Part 31. Mr. Spriggs argued that the criteria for allocability were stated in the disjunctive and that the costs were beneficial and therefore allocable to the government since they were necessary to the overall operation of the contractor’s business. Necessity was demonstrated in the need to acquire addition work which would ultimately bring the government’s costs down and preserve the contractor’s pool of talented engineers for the future and potential benefit of the government. The government continued to object. After cross examination of the DCAA auditor at trial during which Mr. Spriggs demonstrated the auditor had not been reading the regulation correctly, The ASBCA agreed with Mr. Spriggs and held that the costs were in fact allocable to the government in that they potentially could have benefitted he government. The decision became a landmark and has formed the basis for many successful arguments that costs are allocable based on potential benefit.
· Creating the government contractor defense in product liability cases. When the asbestos litigation crisis peaked, a group of current and former manufacturers of asbestos containing products sought the advice of Mr. Spriggs on how to involve the government, which had approved the use of asbestos, in the resolution of the problems its use had created. Over lunch one day, Mr. Spriggs outlined an approach most of the companies then followed to defend the underlying product liability cases and to seek the government’s contribution and indemnity for losses the companies had incurred. The idea was a variation on the time honored defective specification theory. Mr. Spriggs became known as the father of the government contractor defense theory in product liability cases. Although the theory was slow to take off, the Supreme Court eventually articulated it and courts have since applied it to all types of government contracts including services. The defense is an absolute bar to personal injury or property damage cases brought by third parties against government contractors following specific direction from the government. Mr. Spriggs was instrumental in asserting this defense in a third party suit brought against a government contractor in the aftermath of hurricane Katrina. He also believes the theory properly applies to subcontractors following the direction of prime contractors which are in turn following the government’s direction.
· Recovering profit on top of consultancy fees. A contractor encountered delay and changing requirements on a U.S. Postal Service (USPS) contract for mail storage and distribution systems including pallet racks and conveyor systems. After losing money on the contract, the contractor sought the advice of Mr. Spriggs. He went to work on a request for equitable adjustment which included delay and disruption costs, constructive acceleration of performance and costs of contract administration, including his fees. After negotiations languished, he took the matter to the Postal Service Board of Contract Appeals (PSBCA) where he won a complete victory including the recovery of his own fees plus the contractor’s normal profit applied on top of those fees.
· Using the battle of experts to the contractor’s advantage. The Air Force contracted for missiles under a contract with an incentive compensation clause which provided the contractor an incentive fee if the missile launch proved successful or if the cause of the failure could not be determined. The launch failed. Mr. Spriggs recovered the incentive fee for the contractor by showing it was impossible to determine the cause of the failure. By extending the battle of the experts, he proved his point that no one really knew what had happened.
· Advice on countless cost allowability questions. Cost allowability questions abound. The cost principles in FAR Part 31 come into play in all requests for equitable adjustment and terminations for convenience to say nothing of cost reimbursement contracts which are still alive and well. Mr. Spriggs has advised several contractors on various cost allowability issues including the allowability of bonding costs, compensation for personal services, cost of money, entertainment costs, idle facilities costs, independent research and development and bid and proposal costs, lobbying, professional and consultant services costs, selling costs, taxes, termination and travel costs. He also has successfully argued the applicability of the rule against retroactive disallowances to defeat all types of cost disallowances.
· The premium placed on proper contract administration. The Department of Housing and Urban Development (HUD) contracted to repair damaged homes and perform new home construction. The contractor encountered delay, disruption and extremely poor government contract administration. Then, the government terminated for default. Since a proper cure notice had not been provided, Mr. Spriggs persuaded the agency to rescind the termination for default and instead consider requests for equitable adjustment based on the government’s failure to properly administer the contract. The government had failed miserably to keep proper contemporaneous records of the work performed. The government also moved far too slowly under the emergency circumstances. Counseled to do so by Mr. Spriggs, the contractor practiced timely, accurate and complete record keeping and thereby prevailed on its recovery of additional money. Mr. Spriggs also established the ability to recover differing site condition costs when a limited site inspection is afforded. He also established the government responsibility for delay and disruption costs based on the theory the government impliedly warranted homeowners would not interfere with the work.
· Sometimes basic fairness prevails. In a unique contracting situation, the government, acting through the Navy, refused to pay for aircraft engine parts and services because a subcontractor refused to provide cost or pricing data. Mr. Spriggs argued that the subcontractor’s failure was irrelevant to the contractor’s claim to be paid. The ASBCA agreed and held that the contractor was entitled to a reasonable value of the work performed and that the failure of the subcontractor to submit the cost or pricing data did not defeat the contractor’s claim. It ordered that fair value had to be paid.
· Hidden ambiguities are construed against the government. The Army argued that the economic price adjustment clause did not apply to a first article test report. There was special contract language addressing the circumstances under which the clause would be applied. However, the language in the special clause was unclear. Mr. Spriggs argued that government contracts are contracts of adhesion whereby the government dictates and writes the terms and conditions. If language is not obviously ambiguous, the lack of clarity must be construed against the government. The Board agreed finding that the contractor could not reasonably have noticed the ambiguity during its review of the solicitation for the purpose of preparing its bid.
· Cost disallowances and default terminations are government claims. Cost allowability and default termination disputes involve claims by the government on which it bears the burden of proof. In a Trident submarine contract for information systems, Mr. Spriggs demonstrated that a cost disallowance is a government claim and there is no need for the contractor to certify its claim for reimbursement. Failures to pay routine vouchers also are not claims for the purpose of certification.
· No novation needed for transfers by operation of law. Mr. Spriggs also has handled recovery of unamortized labor learning costs in the termination of a bomb fuse contract. He also has established that it is unnecessary to require a novation of a contract agreement if the transfer of the contract is by operation of law. A merger is such a transfer and it therefore does not violate the Anti-Assignment statutes. Mr. Spriggs has on numerous occasions dissuaded the government from requiring a novation agreement when the transfer has taken place by operation of law.
· Enforcement of the Freedom of Information Act time limits. Mr. Spriggs has been involved extensively in controversies involving the Freedom of Information Act (FOIA). He has used FOIA as a shield to prevent the release of proprietary and confidential business information (reverse FOIA actions) and as a sword to obtain timely release of information. In one notable appellate case, he established the precedent for a client in the business of selling acquisition information that the government must promptly release abstracts of negotiated acquisition results.
Education: B.A. in English Literature from Abilene Christian University, President Sigma Tau Delta, Honorary English Society; J.D. from Washburn University School of Law where he served as an editor of the Washburn Law Journal.
Military: Mr. Spriggs served as a commissioned officer in the U.S. Marine Corps. Eight years in the reserves and three years on active duty.
Employment history:
· 2011-present, Spriggs Law Group
· 2009-2010, Buchanan Ingersoll & Rooney PC, Washington, D.C.
· 1982-2009, Spriggs & Hollingsworth, Washington, D.C.
· 1972-1982, Sellers, Conner & Cuneo, Washington, D.C.
· 1969-1972, Martin Marietta Corp. (now Lockheed Martin), Denver, Colorado
· 1968-1969, The Boeing Company, Wichita, Kansas
Admissions: District of Columbia Bar; Court of Federal Claims and Court of Appeals for the Federal Circuit; United States District Court for the District of Columbia; United States Supreme Court.
Memberships: DC Bar Association; American Bar Association; National Contract Management Association; Professional Services Council; National Defense Industrial Association; Fredericksburg Regional Chamber of Commerce; Prince William Chamber of Commerce.
Publications: Mr. Spriggs has written many articles over the years. His most recent publications may be found at http://spriggslawgroup.blogspot.com