Chambers USA 2016 Honors Blank Rome Maritime Attorneys and Practices

Mainbrace | June 2016 (No. 3)

Notable Practitioners for Shipping Litigation (New York)

Thomas H. Belknap, Jr. ranked as a band two attorney. Chambers USA states: “Thomas Belknap has experience working on insurance litigation and arbitration for a range of maritime clients. He also covers charter party disputes, salvage disputes, and cargo damage claims.”

John D. Kimball ranked as a band two attorney. Chambers USA states: “John Kimball focuses his practice on the representation of shipping clients in a wide range of contentious issues, including maritime casualties, charter party, and insurance coverage disputes. Interviewees describe Kimball as ‘extremely thorough and very experienced and knowledgeable.’”

Richard V. Singleton ranked as a band four attorney. Chambers USA states: “Richard Singleton has expertise in litigating maritime casualty cases, insurance matters and bankruptcies. One client reports: ‘It is his combination of being on top of the details and the law and also thinking strategically that keeps me going back.’”

Lauren B. Wilgus ranked as an associate to watch. Chambers USA states: “Lauren Wilgus works with domestic and international clients on maritime litigation and in alternative dispute resolution forums. Areas of experience include marine insurance matters and cargo damage claims.”

Chambers 2016: Blank Rome Maritime’s “esteemed” shipping litigation practice (New York) has “significant experience handling high- profile maritime litigation for national and international clients.” The practice is “highly regarded for crisis response and offering additional expertise in alternative dispute resolution.”

Client sources say: “They have the depth for anything you need, and a lot of backup if you need help. The service is always prompt and efficient.”

Notable Practitioners for Shipping Litigation (Outside New York)

Michael K. Bell ranked as a band three attorney. Chambers USA states: “Michael Bell is well known for his representation of large maritime clients on issues such as contract disputes, casualties and commercial litigation. He ‘has a great understanding of the industry itself and a strong command of maritime law,’ say sources.”

Keith B. Letourneau ranked as a band three attorney. Chambers USA states: “Keith Letourneau has expertise in vessel arrests, hazardous materials pollution and contract disputes involving shipyards and oil rigs. One client reports: ‘He is our first line of defense; he is knowledgeable and the particular knowledge he has is of the market and what is going on. That really helps us in negotiations.’”

Douglas J. Shoemaker ranked as a band three attorney. Chambers USA states: “Douglas Shoemaker is described as ‘pragmatic and a great communicator’ by a client. His practice covers areas such as navigational error, cargo damage defense and onboard investigations. He also has a strong arbitration practice.”

Jeremy A. Herschaft ranked as an up and coming attorney. Chambers USA states: “Jeremy Herschaft is a rising star of the maritime litigation space. He works with shipping and energy companies in a range of maritime issues. Areas of strength include charter party disputes, terminal-related matters and cargo claims.”

Chambers 2016: Blank Rome Maritime’s shipping litigation practice (outside New York) is a “strong practice recognized for an accomplished stable of attorneys with expertise across the full spectrum of maritime litigation matters.” The practice, with key offices in Houston, Texas, and Washington, D.C., “represents well-known clients including shipowners and operators, energy corporations and P&I clubs” and has an “accomplished Gulf Coast- based practice supported by the additional national strength of the wider firm.”

Client sources say: “It is my direct experience that the partners have great expertise in their respective areas. They have demonstrated strong professionalism.”

Notable Practitioners for Shipping Regulatory (Outside New York)

Jeanne M. Grasso ranked as a band two attorney. Chambers USA states: “Jeanne Grasso works with large corporations such as vessel owners, charterers, cargo owners and facilities. She has expertise in government enforcement actions, pollution incident response and regulatory compliance.”

Matthew J. Thomas ranked as a band three attorney. Chambers USA states: “Matthew Thomas is noted for his knowledge of international trade sanctions and related issues concerning maritime clients. He has experience working with shipowners, terminal operators and P&I clubs.”

Jonathan K. Waldron ranked as a band one attorney. Chambers USA states: “Jonathan Waldron has ‘extensive legal knowledge and a practical approach to everything—he is really knowledgeable about the industry, not just the law,’ reports one client. He is highly regarded for his work in areas such as maritime compliance, environmental regulation and response and vessel operations.”

Chambers USA 2016: Blank Rome Maritime’s “highly acclaimed” shipping regulatory practice is “well known for its representation of significant shipping clients in a range of regulatory matters.” The practice “has expertise in Jones Act compliance, environmental investigation defense of companies and individuals and government relations” and is “further noted for working with shipowners on related aspects of trade sanctions.”

Client sources say: Blank Rome’s shipping regulatory practice is “knowledgeable and professional.”

Blank Rome Wins Lloyd’s List 2016 Maritime Legal Services Award

Mainbrace | June 2016 (No. 3)

Blank Rome was recognized as the winner of the Lloyd’s List 2016 North American Maritime Award for Maritime Services – Legal” at the Lloyd’s List awards ceremony held on May 19, 2016, at Pier Sixty, in New York, NY. The maritime services award, as stated by Lloyd’s List, is awarded “for exceptional achievement or contribution to any service sector of the North American maritime industry by a company, individual or organisation.”

“We are very proud that for the second year, Lloyd’s List has honored us for the legal services we provide to our clients. In selecting Blank Rome for this highly prestigious award, Lloyd’s List’s panel of judges recognized that we offer a range and breadth of shipping knowledge to clients that is unmatched among U.S.-based law firms,” said John D.  Kimball, co-chair of the Firm’s maritime practice group.

 “We continue to be most grateful to Lloyd’s List for this recognition two-years in a row. We are delighted that our efforts to build and maintain a team-oriented national practice to handle all of the needs of our clients has been high- lighted again,” added maritime co-chair Jonathan K. Waldron.

This year’s annual awards event attracted more than 300 maritime industry representatives and celebrated the success of the North American maritime industry. For a full list of winners, please visit http://ibiawards.com/north-america/.

Former U.S. Energy Secretary & DOE Chief of Staff Join Blank Rome Government Relations

Mainbrace | June 2016 (No. 3)

Blank Rome Government Relations LLC (“BRGR”) is pleased to announce that the Honorable Spencer Abraham, former U.S. Secretary of Energy and former U.S. Senator from Michigan, and Joseph P. McMonigle, former Vice-Chairman of the International Energy Agency and former Chief of Staff at the U.S. Department of Energy, have joined Blank Rome Government Relations as Principals in the Washington, D.C., office. Continue reading “Former U.S. Energy Secretary & DOE Chief of Staff Join Blank Rome Government Relations”

Meet Blank Rome’s Government Contracts Practice

Mainbrace | June 2016 (No. 3)

Government contracting can be a maze. We’ll be your guide.

David M. Nadler and Brian S. Gocial

Regular readers of Mainbrace know that Blank Rome LLP has the largest and most comprehensive maritime legal practice in the United States, providing unparalleled knowl- edge and counsel to our maritime industry clients. With the recent addition of more than 100 attorneys from Dickstein Shapiro LLP’s New York and Washington, D.C., offices, Blank Rome now offers our maritime clients a nationally recog- nized, full-service government contracts practice with a deep bench of dedicated professionals who can assist our maritime clients in navigating the increasingly competitive world of contracting with the U.S. government. From bid protests, claims, dispute resolution, and litigation, to cyber- security, government audits and investigations, False Claims Act cases, mandatory disclosure issues, and suspension and debarment, Blank Rome’s attorneys can assist our maritime industry clients with the complex regulatory matters facing government contractors today in all aspects of government contracts, from contract formation through close-out.

Our Team and Multidisciplinary Capabilities

Led by Practice Chair Dave Nadler, a former Navy lawyer, Blank Rome’s government contracts practice features more than 20 attorneys focused on government contracts law and litigation who regularly deal with the U.S. Navy’s Military Sealift Command, U.S. Army’s Military Surface Deployment and Distribution Command, United States Coast Guard, Defense Logistics Agency Land and Maritime, United States Maritime Administration, Environmental Protection Agency, and other government agencies. Our government contracts team works closely with Blank Rome’s maritime and complementary national practices, including government relations, insurance coverage, labor and employment, white collar defense and investigations, and mergers and acquisitions, providing a broad base of knowledge and full range of experience to serve the maritime industry.

Our collective pool of talent encompasses a wide variety of backgrounds, including former U.S. Coast Guard and Navy officers, representatives and senior staff from  congressional committees, and high-level officials of the U.S. Maritime Administration, U.S. Customs and Border Protection, U.S. Securities and Exchange Commission, and the National Oceanic and Atmospheric Administration. Our government contracts attorneys understand the interplay between law and politics, and coordinate strategies with  Blank Rome Government Relations LLC to help clients anticipate and take advantage of the issues and opportunities that affect the maritime industry. Our team approach focuses on bringing the right resources and counsel to resolve our clients’ issues, whether it be advising on a new regulatory development or guiding a client through a bet- the-company government investigation.

Our Recent Noteworthy Representations

Most recently, our government contracts team represented a leading provider of ship repair and maintenance services on Guam, filing a bid protest at the Government Accountability Office after the U.S. Coast Guard awarded a multimillion dollar contract to a competitor for drydock repairs. As a result of our protest, the Coast Guard took corrective action, resulting in a contract award to our client.

Our government contracts attorneys also worked closely with our corporate lawyers to assist a leading middle-market private equity firm focused on the maritime sector in its acquisition of a leading provider of scaffolding systems and environmental containment solutions for the maintenance, repair, and overhaul of U.S. government vessels.

We also successfully resolved a False Claims Act case on behalf of the largest container shipping company in the world related to detention changes for cargo shipped to Iraq and Afghanistan. Currently, our government contracts team represents a shipowner in Federal District Court con- testing the default termination of a military charter.

Government Contracting Today

Government contracting in today’s marketplace presents both great opportunities and challenges. Government contractors face heightened risks presented by ever-changing regulations and aggressive enforcement. Blank Rome’s maritime and government contracts attorneys, combined with the Firm’s full-service commercial and corporate legal capabilities and significant litigation experience, allow us to offer our maritime clients a highly sophisticated set of legal solutions for maritime contractors both large and small, experienced government contractors, and those seeking to enter the government marketplace for the first time.

U.S. Export Controls Pose Risks for Offshore Energy Companies’ Return in Iran

Mainbrace | June 2016 (No. 3)

Matthew J. Thomas

In March, Blank Rome co-hosted a breakfast seminar in Dubai with Fichte & Co Legal Consultancy to discuss with local shipping and energy professionals the real risks and opportunities presented by the rollback of international sanctions on Iran. We were awed by the warm reception we received, the huge turnout (well over 250 clients and friends), and by the insightful questions and contributions of those who joined us. Continue reading “U.S. Export Controls Pose Risks for Offshore Energy Companies’ Return in Iran”

New China-Liberia Maritime Bilateral: Savings on Port Fees Just One Element of Broader Trade Cooperation

Mainbrace | June 2016 (No. 3)

Matthew J. Thomas

In a November 2015 state visit in Beijing, the leaders of the People’s Republic of China and the Republic of Liberia signed a historic bilateral maritime agreement offering significant benefits to Liberian ship- owners. Headlines on the bilateral highlighted the immediate economic impact of the agreement: a 28 percent discount on tonnage dues in Chinese ports, putting Liberian ships on parity with Chinese vessels, and potentially saving $75,000 to $150,000 in annual port costs for capesize, VLCC, and large container vessels. Less well-understood, however, are the reasons behind this new alliance, and where the relationship appears to be headed in the future. Continue reading “New China-Liberia Maritime Bilateral: Savings on Port Fees Just One Element of Broader Trade Cooperation”

DOJ Announces FCPA Pilot Program in an Effort to Incentivize Companies to Self-Report Misconduct

Mainbrace | June 2016 (No. 3)

Shawn M. Wright, Carlos F. Ortiz, Steven J. Roman, Ariel S. Glasner, and Mayling C. Blanco

 

 

 

On April 5, 2016, the chief of the Fraud Section for the U.S. Department of Justice’s (“DOJ”) Criminal Division issued a memorandum related to the DOJ’s prosecution of violations of the Foreign Corrupt Practices Act (“FCPA”). The memorandum highlighted the DOJ’s efforts to intensify its prosecution of FCPA violations by (1) increasing the Fraud Unit’s stable of prosecutors devoted to FCPA issues by 50 percent and creating teams of special FBI agents focused solely on FCPA matters, and (2) strengthening the DOJ’s collaboration with its foreign counterparts in order to combat bribery schemes worldwide. The memorandum also announced the start of a one-year pilot program designed to incentivize companies to voluntarily self-disclose FCPA-related misconduct. Continue reading “DOJ Announces FCPA Pilot Program in an Effort to Incentivize Companies to Self-Report Misconduct”

The Right to Countersecurity from a Debtor in Bankruptcy

Mainbrace | June 2016 (No. 3)

Thomas H. Belknap, Jr. and Michael B. Schaedle

United States maritime law offers a maritime plaintiff two principal means of obtaining security for its claims: Rule B attachment in respect of maritime claims, and Rule C arrest in respect of maritime liens. These rules are superficially similar, but each has different criteria and serves a different purpose. Each also gives the defendant the opportunity to obtain countersecurity on related counterclaims. But what happens when the plaintiff is in bankruptcy, subject to a bankruptcy court’s automatic stay of proceedings against it? Can a debtor be compelled to give countersecurity in such a case? This article discusses a recent decision from a bankruptcy court in Colorado (of all places) that helps answer this question.

The Admiralty Rules of Arrest and Attachment

First, the rules: maritime attachment and arrest remedies in the United States are as old as the general maritime law, which predates the Constitution, but in present times the applicable rules are contained in special maritime rules that supplement the Federal Rules of Civil Procedure. Rule B of those rules pertains to maritime attachment, which is available where a plaintiff has an in personam maritime claim against a party. Rule B allows the plaintiff to attach property belonging to that party in any district where the party is not subject to jurisdiction, but where its property can be found. (This quirky jurisdictional rule arises from the notion that Rule B is intended to serve twin aims: allowing a party to obtain jurisdiction over a defendant at least to the extent of property attached, and also to obtain security for its claim. Thus, it is only available in jurisdictions where the defendant is not otherwise subject to the court’s in personam jurisdiction.) Establishing a right to a Rule B attachment is quite simple: the plaintiff must show (1) that it has a prima facie maritime claim, i.e., a claim within the court’s admiralty and maritime jurisdiction; (2) that the defendant can- not be “found” in the district; (3) that the defendant has property within the district; and (4) that no statute bars maritime attachment in the circumstances.

Rule C of the Supplemental Admiralty Rules governs maritime arrest, which arises where a party seeks to enforce a maritime lien against an in rem defendant. This is most commonly a vessel, but a maritime lien can arise against cargo and other maritime property as well. Maritime liens are themselves a creature of U.S. maritime law and arise, for instance, in cases of maritime tort such as collision or crew injury, salvage, breach of certain maritime contracts such as charter parties, and for nonpayment for “necessaries” provided to a vessel.

Rules B and C are augmented by Supplemental Rule E, and the three rules together set out the procedures governing maritime attachment and arrest actions. Rule E is essentially a “mechanics” rule that governs such issues as when and how a party may challenge an arrest or attachment, how and in what amount alternate security may be posted to obtain release of attached or arrested property, and when property may be sold by interlocutory sale before judgment, such as when the attached or arrested property is perishable.

Rule E also grants the defendant the right to seek counter- security. Specifically, Rule E(7)(a) provides as follows:

When a person who has given security for dam- ages in the original action asserts a counterclaim that arises from the transaction or occurrence that is the subject of the original action, a plaintiff for whose benefit the security has been given must give security for damages demanded in the counterclaim unless the court, for cause shown, directs otherwise. Proceedings on the original claim must be stayed until this security is given, unless the court directs otherwise.

The premise of Rule E(7) is to place the parties on equal footing with respect to disputes arising out of the same “transaction or occurrence,” and though the rule does allow the district court some discretion where the plaintiff can show “cause” why it should not be required to post countersecurity (or why countersecurity should be posted in some amount other than the full amount of the counter-claims), an order directing countersecurity is very much the rule rather than the exception.

The Scenario: A Plaintiff in Bankruptcy

Now, back to our issue: suppose a dispute arises between an owner and a time charterer of a vessel, where the char- ter is governed by U.S. maritime law. The charterer has various breach of charter claims, but the owner also has a counterclaim for non-payment of hire. Further suppose the charterer files a petition for bankruptcy protection under Chapter 11 of the U.S. Bankruptcy Code, thereby invoking the automatic stay provisions under Section 362 of the Bankruptcy Code. That section bars creditors from pursuing claims or process against the debtor and its estate outside the bankruptcy case, including seeking security from the debtor without authorization under the Bankruptcy Code.

Further assume that the charterer, after commencement of the Chapter 11 case, avails itself of the right under Section 365 of the Bankruptcy Code to reject the charter. That section allows a debtor to exercise its business judgment to determine that an executory contract is burdensome to the estate and of no value. Rejection is treated under the Bankruptcy Code as a repudiation of the con- tract, returning the vessel to the owner’s service and giving the owner an accelerated prepetition damages claim for the balance of the charter period.

Then, following rejection, the charterer arrests the vessel, asserting its maritime lien claim and pressing for a judicial sale. Faced with this whipsaw, the owner wants to pursue countersecurity for its counterclaim, but can it do so in the face of the bankruptcy court’s automatic stay?

Those are the basic relevant facts in In re Haimark Line Ltd., 15-22180-JGR (Bankr. Col. 2015), a Chapter 11 bankruptcy case pending in the Bankruptcy Court for the District of Colorado. After commencing its Chapter 11 case, the charterer arrested the vessel in Florida, and Blank Rome’s maritime and bankruptcy groups worked together to assist the owner in pursuing the right to seek countersecurity in the Florida arrest action.

The Arguments on Owner’s Motion for Relief from the Automatic Stay

To pursue countersecurity, the owner first had to obtain relief from the bankruptcy court’s automatic stay. In its motion for such relief, the owner argued that Rule C and Rule E are part and parcel of the same remedy of maritime arrest and that the charterer, having knowingly invoked that remedy, should not be allowed to hide behind the bankruptcy court’s automatic stay to avoid the litigation “cost” associated with the arrest right—namely, the obligation to give countersecurity. The charterer countered by arguing that allowing the owner to obtain countersecurity on its claim would unfairly elevate the claim in status from an unsecured claim to a secured claim, thereby prejudicing other creditors of the bankruptcy estate.

The Ruling

The bankruptcy court granted the owner’s motion in an oral ruling on March 16, 2016, (transcript at Dkt No. 220). In rejecting the charterer’s arguments, the judge observed as follows:

Even if it’s found somehow that by allowing the stay to be lifted to allow the request for counter-security to be made and counter-security to be ultimately ordered, even if somehow that does convert some sort of unsecured claim to a secured claim, the Court finds that it’s difficult for the debtor to make that argument when the pursuit of the Florida [arrest action] was due to its own business judgment.

The debtor initiated the action. And in this Court’s view, it’s unfair to cut off [Owner’s] rights to defend itself in any manner provided by law, especially when the asset seized is a four-million-dollar vessel. [Tr. at pp. 13-14.]

The charterer thereafter filed a motion for reconsideration, contending that the court misconstrued the nature of the counterclaims and the countersecurity sought. In an (as yet) unpublished written ruling dated April 15, 2016, (Dkt. 246), the bankruptcy court denied the charterer’s motion, holding as follows:

The Debtor’s present motion is premised upon the argument that this Court held a fundamental misapprehension of “esoteric maritime law concept of countersecurity.” The Debtor, in effect, argues that while it [is] proper for this Court to allow the Arrest Action initiated by the Debtor to proceed, the District Court should be prevented from considering whether countersecurity is required. The Court respectfully disagrees.

***

The automatic stay under 11 U.S.C. § 362(a) should not be used to unilaterally deny [Owner] the benefit of traditional maritime security devises to which it may be entitled.

Conclusion

This holding—which appears to be a ruling of first impression in the United States—represents an important clarification of the scope of protection that should (or should not) be afforded a debtor by the Bankruptcy Code’s  automatic stay when, post-petition, it seeks to pursue claims against parties who also hold claims against the bankruptcy estate. Any debtor should take this ruling into account when deciding whether to pursue arrest or attachment actions where the target is also a creditor of the estate on a related counterclaim, and any such creditor may take heart that the bankruptcy stay is not an automatic bar to obtaining countersecurity in such circumstances.

Top Ten Bid Protest Considerations for the Maritime Industry

Mainbrace | June 2016 (No. 3)

David M. Nadler

It is no secret that federal procurement spending has dropped considerably in recent years. With fewer dollars being spent and fewer procurements, government contractors in the maritime industry are increasingly turning to the bid protest process for a second chance to compete for, and hopefully win, new contracts, and preserve their incumbent contracts. The statistics bear this out. Bid protest activity at the U.S. Government Accountability Office (“GAO”) has steadily increased year-over-year, with a record 2,639 protests filed in fiscal year 2015 alone. But more filings has not meant more sustained protests; the GAO sustain rate in 2015 fell to its lowest recent level of only 12 percent (though this does not account for voluntary agency corrective actions, which have remained steady).

These statistics, and the new federal procurement reality, reinforce the need for maritime contractors to think carefully about effective protest strategies and emerging issues to maximize their chances to successfully protest procurements (or defend contract awards). Below are ten key trends and tips for government contractors in the maritime industry to keep in mind:

1.   Common Protest Grounds Remain Winners

As reported by the GAO, the most common winning protest grounds in 2015 contended that the agency failed to follow stated evaluation criteria, engaged in an unreasonable technical evaluation, failed to adequately document its evaluation and award decision, unreasonably evaluated cost or price, and/or unreasonably evaluated past performance.

2.   Focus on Process

Protesters are more likely to prevail if they focus on flaws in the agency’s evaluation process. Subjective debates about the merits of an award are almost always unproductive because the GAO affords agencies considerable discretion on their conclusions regarding such matters; for example, whether the protester’s technical approach was poor, acceptable, good, or excellent. The GAO will sustain a protest if the protester can show prejudicial process errors, like that the agency failed to follow the solicitation’s stated evaluation criteria, relied on unstated criteria to discriminate among offerors, or reached conclusions that are not reflected in the evaluation record. Successful protest arguments often focus on objective process errors in the agency’s evaluation and award process. Highlighting these types of defects may also encourage an agency to take early corrective action and can improve the chances of a successful protest.

3.   Make Disparate Treatment Arguments

Whenever possible, protesters should seek to make arguments that their proposals were disparately evaluated relative to the awardee’s proposal. Such unequal treatment arguments are important because they give protesters a basis to request the awardee’s proposal as part of the agency report. Having the awardee’s information and comparing it side-by-side with yours and the agency’s respective evaluations will significantly improve the pro- tester’s chances of demonstrating that the agency engaged in improper disparate treatment.

4.   Supplemental Protests Are

Because a protester has limited information at the time of a contract award and initial protest, protesters should focus closely on developing issues that will position counsel to have a broader look at the record as the protest develops. For example, having the awardee’s proposal is important because it usually allows the protester to identify supplemental protest grounds. In many cases, protests are won, or corrective action is taken, on the basis of supplemental protest grounds rather than the initial protest.

5.   Mind Trends in LTPA Procurements

Recent years have seen an increasing use of fixed-price contracts in lowest-priced, technically-acceptable (“LPTA”) procurements, over the more traditional best-value procurements. Although offering the lowest price is a necessary part of winning the contract, price alone is not a sufficient condition to award. Contractors must still ensure that their proposed technical solutions demonstrate an adequate understanding of solicitation requirements and are realistic to meet the agency’s needs and schedule. In short, while price is important, offerors competing for LPTA contracts should ensure that their proposals are compliant with the solicitation’s terms, realistic, and whenever possible, demonstrate performance that exceeds minimum requirements or otherwise provides benefits and advantages not required by the solicitation. These potential discriminators, which the agency can recognize as strengths, are still very relevant considerations in LPTA settings.

6.   The CICA Stay Loophole

 A primary advantage of filing a protest at the GAO versus other forums has been the automatic stay of contract performance under the Competition in Contracting Act (“CICA”) during the pendency of the protest. As a practical matter, the stay has benefitted protesters who are incumbents because it has generally resulted in the agency issuing a bridge contract to the protester to continue the work for the duration of the protest. Agencies generally issue a bridge contract, rather than seek an override of the automatic stay, because of the heavy burden placed on the agency to obtain an override. However, where a multiple award ID/IQ contract is in place, and the protest concerns a new task order under the current contract, some agencies have started circumventing the traditional override process by sole sourcing a task order bridge contract to the non-incumbent awardee for less than $10 million. This allows the awardee, rather than the incumbent protester, to perform the contract while the protest is pending. Because the GAO generally lacks jurisdiction over task orders valued at less than $10 million, and the Court of Federal Claims has no protest jurisdiction over task orders at all, this approach effectively allows agencies to bypass the purpose of the CICA stay, which is to preserve the status quo until the protest has been resolved. Until Congress closes this loophole, the potential lack of a bridge contract during the protest period and the associated revenue loss should factor into the risk/benefit analysis for incumbents when deciding whether to protest.

7.   Intervention as Protest Insurance

Even though the majority of protests that proceed to a decision are denied, a contract awardee has a vested inter- est in the outcome that almost always warrants participation in the protest through intervention. No other party to a protest, even an agency that awarded you the contract, will be able to represent your interests as well as counsel admitted under a protective order. Intervention by outside counsel will afford an awardee representation who will have access to complete copies of protest filings, and enable the intervenor to actively assist in the defense of the protest. In short, if you can intervene in a protest, you should.

8.   Check the Clock

Bid protests are subject to strict timeliness rules that vary based on the type of procurement and forum. At the GAO, contractors typically have 10 days to file a post-award protest from when they knew or should have known their basis for protest. Timeliness rules are particularly important where protesters are seeking a stay of contract award or performance (as is almost always the case). For example, to obtain a stay of award under CICA on a procurement with a required debriefing, the protest must be filed—and the agency notified by the GAO of that filing—within five days of the date offered for the debriefing. The key takeaway: if you’ve learned adverse information regarding a procurement, the clock is ticking.

9.   Two Bites at the Apple

A common strategy is to first file your protest at the GAO, and depending on the developments during those proceedings or their outcomes by the GAO, to take another shot by refiling the protest at the Court of Federal Claims. Protesters who find their chances of success low at the GAO are free to withdraw their protests and refile them at the court. Indeed, a protester can refile its protest at the court even after the GAO has denied it. While the court recognizes GAO’s bid protest expertise, it does not consider GAO decisions binding or precedential. The court conducts a new review of any protests before it. Because the court arrives at its own factual and legal conclusions, it can, and often does, sustain a protest previously denied by the GAO.

10.  Keys to the Kingdom

Access to an agency’s source selection documents and the awardee’s proposal is paramount in maximizing your chances of success in a protest. While GAO rules limit a protester’s access to documents to only those that are relevant to its allegations, which may only lead to partial access, the Court of Federal Claims requires the government to automatically provide all documents related or used in the procurement as part of the administrative record in the case. Thus, while going to court is generally more expensive than the GAO, this key difference may justify that premium in bigger ticket protests where the entire procurement needs to be carefully reviewed.

Risk-Management Tools for Maritime Companies

Mainbrace | June 2016 (No. 3)

Compliance Review Program

Blank Rome Maritime has developed a flexible, fixed-fee Compliance Review Program to help maritime companies mitigate the escalating risks in the maritime regulatory environment. The program provides concrete, practical guidance tailored to your operations to strengthen your regulatory compliance systems and minimize the risk of your company becoming an enforcement statistic. To learn how the Compliance Review Program can help your company, please visit www.blankrome.com/  compliancereviewprogram.

Maritime Cybersecurity Review Program

Blank Rome provides a comprehensive solution for protecting your company’s property and reputation from the unprecedented cyber- security challenges present in today’s global digital economy. Our multidisciplinary team of leading cybersecurity and data privacy professionals advises clients on the potential consequences of cyber- security threats and how to implement comprehensive measures for mitigating cyber risks, prepare customized strategy and action plans, and provide ongoing support and maintenance to promote cybersecurity awareness. Blank Rome’s maritime cybersecurity team has the capability to address cybersecurity issues associated with both land-based systems and systems onboard ships, including the implementation of the BIMCO Guidelines on Cyber Security Onboard Ships. To learn how the Maritime Cybersecurity Review Program can help your company, please visit www.blankrome.com/ cybersecurity or contact Kate B. Belmont (KBelmont@BlankRome.com, 212.885.5075).

Trade Sanctions and Export Compliance Review Program

Blank Rome’s Trade Sanctions and Export Compliance Review Program ensures that companies in the maritime, transportation, offshore, and commodities fields do not fall afoul of U.S. trade law requirements. U.S. requirements for trading with Iran, Cuba, Russia, Syria, and other hotspots change rapidly, and U.S. limits on banking and financial services, and restrictions on exports of U.S. goods, software, and technology, impact our shipping and energy clients daily. Our team will review and update our clients’ internal policies and procedures for complying with these rules on a fixed-fee basis. When needed, our trade team brings extensive experience in compliance audits and planning, investigations and enforcement matters, and government relations, tailored to provide practical and businesslike solutions for shipping, trading, and energy clients worldwide. To learn how the Trade Sanctions and Export Compliance Review Program can help your company, please visit www.blankrome-maritime.com or contact Matthew J. Thomas (MThomas@BlankRome.com, 202.772.5971).