Acquiring a Government Contractor: Deal Structuring and Compliance Issues, Purchase Agreement Reps, Indemnities

Anti-Assignment Act, Novation, Small Business Concerns, Post-Closing Requirements

A live 90-minute premium CLE video webinar with interactive Q&A

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Wednesday, February 22, 2023

1:00pm-2:30pm EST, 10:00am-11:30am PST

or call 1-800-926-7926

This CLE webinar will discuss factors to consider when structuring an M&A transaction involving a government contractor. The panel discussion will include identifying contract requirements and whether the target is in compliance, how to mitigate risks in the purchase agreement, anti-assignment and novation rules, and post-acquisition notification requirements.

Description

In recent years the government contracting market has seen a spike in M&A activity. Given the specific laws and regulations that apply to federal government contractors, transactional attorneys must take a different approach when structuring the deal, conducting the due diligence, and drafting the purchase agreement.

Regulators may waive the Anti-Assignment Act in connection with a merger, but for asset deals a novation will be required, and there are specific rules and filing requirements which must be navigated. Subcontracts are not subject to the Anti-Assignment Act, but the buyer must review all subcontracts to ensure there are no other restrictions on assignment.

Federal government contractors are potentially subject to import and export restrictions, intellectual property rights, restrictions on recruiting and hiring, the Anti-Kickback Act, and wage and hour laws. The buyer must conduct due diligence to ensure compliance by the target, including review the target's code of conduct, employee handbook, and policies and procedures related to government contracts.

The purchase agreement should contain government contract-specific representations and warranties regarding compliance with existing contracts, potential criminal or civil liability, and compliance with various laws and regulations. The buyer should also seek an indemnity for the target's noncompliance with the requirements of its government contracts identified during due diligence or disclosed by the target in disclosure schedules.

Federal government contracts typically require notification of a change in ownership. If the target is a small business, the successor-in-interest must be able re-represent its small business size status. The acquirer should determine whether the merged entity will remain eligible for the small business contract.

Listen as our authoritative panel discusses due diligence, structuring, and purchase agreement provisions to consider when acquiring government contractors.

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Outline

  1. Government contracts M&A: the current market
  2. Structuring issues
    1. Anti-Assignment Act
    2. Novation
    3. Asset vs. stock purchase
    4. Acquiring a small business contractor
  3. Due diligence: assessing compliance
    1. Government regulations
    2. Contract reqiurements
  4. Mitigating risk under the purchase agreement
    1. Reps and warranties
    2. Indemnification

Benefits

The panel will review these and other key issues:

  • What are the key components of an effective due diligence process in M&A deals involving government contractors?
  • How can deal parties minimize liability exposure in M&A transactions involving government contractors?
  • What are the latest trends in M&A transactions involving government contractors and what factors are driving these trends?

Faculty

Chierichella, John
John Chierichella

Founder and Member
Chierichella Procurement Strategies

Mr. Chierichella's practice focuses on government contract matters, including claims and appeals, cost and CAS...  |  Read More

Szeliga, Keith
Keith R. Szeliga

Partner
Sheppard Mullin

Mr. Szeliga represents clients ranging from small businesses to the nation's largest defense contractors...  |  Read More

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