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A Soft Landing for Canadian Companies

Wiliams MullenWiliams Mullen

Eliot Norman Eliot Norman

enorman@williamsmullen.comenorman@williamsmullen.com

Richmond, Virginia Richmond, Virginia

001.804.783.6482001.804.783.6482

December 1-2, 2009December 1-2, 2009

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Wall St: February 2009

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• Main Street: February 2009

– Symbolized by the Bridge Collapse in Minneapolis

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Our Support Services• Company formation:

– International Tax– Help with Choices: LLC or Corporation– Strategic M&A or Joint Ventures

• Cross-Border Transactions: – Immigration: using NAFTA to your advantage– Customs Issues – Supply Chain Legal Logistics

• Strategic Acquisitions—Joint Ventures • Intellectual Property

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Our Support Services• Compliance and Risk Management

– Employment policies– Products Liability – Legal Advantages of Richmond, Virginia Location– trategic Partnering

• Strategic Advantages – How to Position your company to take advantage of new

opportunities– Government contracts: Securing Teaming Partners– Networking & Links to other Support Professionals

• Seizing New Opportunities

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3rd Generation Photovoltaic Cells

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American Recovery and Reinvestment Act of 2009 (ARRA)

• Signed into law by President Obama on February 17, 2009

• Provides a total of $787 billion in funds• Unprecedented level of

funding designed to help create and save jobs, jumpstart the economy, and build the foundation for long-term economic growth

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ARRA: Spending Provisions

• Funds designated to the following sectors:

– Energy and Environment: $98 billion– Transportation: Rail, roads and bridges: $49

Billion

– Defense and Security: $16.448 billion

– Agriculture and Rural Development: $15.986 billion

– Biomedical research $10 billion

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Where is the Money Going?What are the Opportunities?

• Going to Many Sectors where Canadian companies are already market or technology leaders

• Urban Transit and Rail Transportation • Water quality and Wastewater Treatment Plants • Environmental, Natural Resources, • Energy Efficiency and Renewable Energy (wind, solar)• Medical Research, Biomedical Research, Medical

Technologies particularly Health Care IT • Building out the Broadband Infrastructure • Green Investments and Green Buildings• List is enormous and diverse, affecting nearly all

sectors—from border security to vaccines

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GREEN BUILDING

• Over $46.05 billion in funding for energy-efficiency retrofits and renewable energy projects

• $100 million for US Navy and Marine Corps facilities for energy conservation and alternative energy projects

• Expansion of homeowner tax credit program:– Energy-efficiency improvement tax credit increase from 10% to

30% of the costs of the improvements up to $1500 per year in 2009 and 2010

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Our Support Services for Stimulus Act Projects

• Strategic Partnering – How to Position your company to take advantage of

new opportunities

– Government contracts: Securing Teaming Partners

– Networking

• Ensuring that Canadian companies compete on level playing field with U.S. companies

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ARRA or Stimulus Act: Its Impact on our National Practice at Williams Mullen

• Clients raised concern about participation of international suppliers. This affects our national energy/environmental project development practice, from waste-to energy projects to municipal waste water treatment systems. With over 100 completed projects, will new projects be in jeopardy?

• Clients also see opportunities: Wind and Solar, Clean Energy. Stimulus Funds, Tax Credits and Grants, Green Buildings, with pending legislation authorizing Carbon “Cap and Trade”

• Government contract practice: US clients are now moving from commercial work to government jobs, particularly infrastructure, green buildings , transportation, rail, health care, IT,

• Our International Group: receiving calls from foreign suppliers: Can we export to the United States for government-funded projects? Do we have to manufacture in the United States? Do we need to restructure our supply chain?

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Projects handled by Williams Mullen where participation by European

companies can be important1. Waste-to-Energy Conversion Plant ,

Honolulu, HI (>$300 million)

2. Biomass Gasification Facility,

Midwestern US (estimated $100 million)

3. Waste-to-Energy Conversion Plant

Southeastern US (approx $225 million)

4. Consolidated Solar Power Facility

Western US (est. $1 billion)

5. Landfill gas-to-energy project

Eastern US ($200 million+)

6. Regional Wastewater System Privatization Project

Midwestern US ($200 million +)

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Our Agenda

1. Where is the Money being spent?

Where are the new opportunities?

2. How Much has Been Spent So far?

3. Can European Companies

participate in Stimulus Act

Projects?

4. Steps for Success: legal considerations

and practical strategies

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ARRA: Energy and Natural Resources

• $3.4 billion for Fossil Energy R&D

• $6 billion for new loan guarantees aimed at standard renewable projects such as wind or solar projects and for electricity transmission projects

• $11 billion for electrical grid projects

• $5 billion for Weatherization Assistance Program to make low-income housing more energy efficient

• $2 billion in grant funding for the manufacturing of advance battery systems and components, produced in the USA

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ARRA: Environmental

• $340 million for Watershed and Flood Prevention construction

• $6 billion is directed towards environmental cleanup of former weapon production and energy research sites

• $1.2 billion for EPA’s nationwide environmental cleanup programs

• $1.38 billion to support loans and grants for needed water and waste disposal facilities in rural areas

• $1 billion for the Bureau of Reclamation to provide clean, reliable drinking water to rural areas

• $4.6 billion in funding for Corps of Engineers

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ARRA: Health Care

• $19 billion for Medicare and Medicaid to ensure widespread adoption and use of interoperable health information technology (IT)

• $24.7 billion to subsidize COBRA health insurance premiums (at 65% level for 9 months) for workers who have lost their jobs

• $10 billion to the National Institute of Health to conduct biomedical research

• $1.1 billion for comparative effectiveness research to evaluate the relative effectiveness of different health care services and treatment options

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ARRA: Health Care (cont’d)

• $2 billion for Health Information Technology (HIT) grants, training, infrastructure, dissemination of best practices, telemedicine, and clinical education

• $50 million for pandemic flu/BARDA

• $1 billion for prevention and wellness programs to fight preventable diseases and conditions

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• $650 million for Digital-to-Analog Converter Box Program for additional implementation and administration of program, including coupons, consumer outreach and support

• $650 million to the Department of Education for educational technology State grants

• $200 million to the Department of Veterans Affairs for information technology systems

ARRA: Technology and Communications (con’t)

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ARRA: Technology and Communications

• $2.5 billion for the Department of Agriculture for distance learning, telemedicine, and programs that increase broadband access and usage

• $4.7 billion for the National Telecommunications and Information Administration Broadband Technology Opportunities Program for competitive grants to accelerate broadband deployment in unserved and underserved areas, with at least $200 million for competitive grants for expanding public computer center capacity and at least $250 million for competitive grants for innovative programs for sustainable broadband adoption

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Clean Energy

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The New (Green) Deal:

Clean Energy and the Stimulus Bill

“The country that harnesses the power of clean, renewable energy will lead the 21st century.”

U.S. President Barack Obama, February 24, 2009

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ARRA Clean Energy Strategy

• Spur innovative technology

• Reduce greenhouse gases

• Re-establish U.S. manufacturing capability focused on energy

• Reconstitute aging power and water infrastructure

• Canadian companies should be able to participate in this strategy because of their technological advances advances in Europe

• Key: the right base of operations in the United States

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The old energy project

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The new energy project

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ARRA Clean Energy: Level of Funding

• Direct appropriations for energy-related projects and technologies equal to approximately ($72 billion)

• Tax credits and other financial incentives for projects and energy equipment ($22 billion)

• The U.S. Treasury direct grants equal to potentially 30% of total qualifying energy property investment

• Expansion and “rapid deployment” of DOE loan guarantee program ($6 billion appropriation; $60 billion in loans)

• Expansion and establishment of new bond mechanisms ($4 billion for energy projects)

• Massive funding for state and local energy programs

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ARRA Energy-Related Focus

• Energy efficiency• Green buildings• Renewable energy projects• “Smart Grid” technology & infrastructure,

including $11 billion for electrical grid projects • Clean coal deployment $3.4 billion for Fossil

Energy R&D• Advanced biofuels and green vehicles• Cleantech

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Examples of Opportunities

– Direct Investment– Investment Tax Credit (“ITC”)– Production Tax Credit (“PTC”)– Federal Block Grants– Advanced Energy Project Credits– Clean Renewable Energy Bonds– Qualified Energy Conservation Bonds– Potential Carbon “Cap and Trade”,

Carbon Management benefits

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Funding State and Local Programs

ARRA allocates approx. $12 billion for State and Local Governments to implement energy programs:

Not all the money is at the Federal Level

– Weatherization Financial Assistance Program ($5 billion)

– Green Building ($4.5 billion) – Energy Efficiency and Conservation Block Grant

Program ($3.2 billion)– State Energy Funding Program (discretionary

funding for “shovel ready” energy and water projects)

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Advanced Energy Project Credits

• ARRA establishes 30% Investment Tax Credit for any Qualifying Advanced Energy Project that re-establishes, expands or constructs a manufacturing facility to produce the following equipment:

• Renewable energy systems (including solar, wind and geothermal)

• Fuel Cells

• Microturbines

• Electric/hybrid Cars, Batteries & Equipment

• Renewable Grids/Smart Grids

• Carbon Capture & Sequestration

• Renewable Fuels Refining or Blending

• Energy Conservation Technologies

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Stimulus Act Case Study – Wind Energy

Iberdrola Renovables (Spain) – World’s largest wind energy firm– 2nd largest wind energy producer in U.S.– Headquartered in Valencia, Spain– Has formed U.S. subsidiary to import

components and exploit its technology– Expects to receive $400 to $500 million in

ARRA (Stimulus Act) grants for U.S. projects before the end of the year

– Has remained profitable despite downturn and falling fossil fuel prices

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Our Agenda

2. How Much has Been Spent So far?

3. Can European Companies

participate in Stimulus Act

Projects?

4. Steps for Success: legal considerations

and practical strategies

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How Much Has Been Spent?

• Very small percentage to date at federal, state or local levels

• Examples: Dept. of Energy: 1.4% of $45.2 billion; Commerce: 6.7% of $7.9 billion; Transportation Dept: 5.4% of $48.1 billion; EPA (Environmental) 1.4% of $7.2 billion.

• Much Federal Spending to date has been in grants to States and Cities who have yet to fund projects. Over $370 Billion has yet to be allocated for future spending. This creates “sales opportunity”. Government is even inviting proposals for projects.

• Conclusion; it is not too late, still early in the game

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Can European Companies Participate in ARRA?

• Common Perception: Given the purpose of ARRA, and its Buy American Provisions, Stimulus Projects must be reserved for U.S. companies and U.S. manufactured products

• ARRA states: Any ”project for …public building or public work” can use Stimulus funds only if all the iron, steel and manufactured goods are produced in the United States.” Buy American?

• But ARRA also says that : “This section shall be applied in a manner consistent with U.S. obligations under international agreements:” WTO obligations apply.

• Reality: Significant exceptions to Buy American exist and can benefit EU companies: • Proof: We need look no further than Iberdrola Renovables

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Can European Companies Participate in Stimulus Projects?

• Answer: A Qualified “Yes.” • Certain Buy American Act Restrictions may not apply to EU

companies because EU countries are members of the WTO (World Trade Organization) and signatories to the WTO Government Procurement Agreement, as is the United States Government and 37 of its State Governments or other governmental authorities

• Waivers are also available to avoid restrictions of Buy American Act

• Where the Buy American Act applies, it may still allow components in manufactured goods to be sourced from outside the United States where the finished product is made in the USA.

• Result: European companies are starting to bid on projects and/or are entering into teaming arrangements with U.S. companies

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Steps for Steps for Successful Successful

ParticipationParticipation

L’US Stimulus Act of 2009

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Steps for Success1. Feasibility Audits

– Development of practical business plan– Identification of ARRA projects that match the plan

2. Legal analysis of the application of WTO Agreements

3. Legal analysis of the application of “Buy American Act” provisions

4. Strategic positioning of EU company for ARRA projects

5. Adoption of strategies that will enable an EU company to effectively participate in U.S. government contracts

6. Compliance with U.S. Government contract laws and regulations after contract award

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Step 1: Feasibility Audits• U.S. counsel can assist your company or its legal

or business consulting team in Europe in developing a coherent business plan that addresses important issues under the U.S. Stimulus Act – government contracts issues

– protection of intellectual property

– U.S. and international tax issues

– protection against business risks

– identification of potential projects

– Potential changes in your supply chain for getting to the U.S. market

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Examples of Specific Examples of Specific Projects Projects

American Recovery and

Reinvestment Act of 2009

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Feasibility: Examples of Specific Projects

• Solar Roof, Federal Courthouse, Richmond, Virginia $1 million to $5 million

• Global Seismological Network Support Services, $14 million

• Disposal of Nuclear Waste, Los Alamos National Laboratory $10 million

• IT consulting, Social Security Administration $95 million

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Examples of Federal Projects in One Sector: Waste Water

Treatment: Numerous Waster water Treatment facility Projects ranging

from $5 million to $50 million • Maintenance and repair of wastewater treatment facility

(New York) • Improvements in waste water disposal system (South

Carolina) • Repair of equipment at waste water treatment facility

(Texas)

• Replacement of Water purification and sewage treatment equipment (New Mexico)

• Wastewater System Improvements (Illinois)

• Architect/Engineering Services for Design of Waster Treatment Facilities (South Dakota)

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Feasibility: Examples of Specific Projects

• Green Building, Office Project Design, San Juan, Puerto Rico: $118 million

• Grid Power Distribution System, Philadelphia, PA

• Geospatial Products and Services, Denver, Colorado $250 million

• Water Supply and Sewer, US Fish and Wildlife Service, up to $200 million

• Steam Lines, Electrical Systems, US Dept. of Energy, $387 million

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Examples of Projects at State Level

• Expansion & Rehabilitation, Waste Water Treatment Plant (Kansas) $8 million

• Rehabilitation of Bridges $11 million (Missouri)

• Bicycle Path Design and Construction $2 million (North Carolina)

• Roof Replacements $21 million (Federal project in North Carolina) )

• Airport Runway Lighting $2 million (South Carolina)

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Feasibility: Examples of Specific Projects

• Our services:

• Research and Identification of projects eligible at local, state and federal levels that correspond to your “business plan”– Examples

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Identifying Projects and Accessing Stimulus Act Money

• Our services – We use National, State, and Local websites

to become aware of upcoming projects in specific locations on behalf of national and international clients

– We use our contacts with Federal and State governments regarding project proposals

– We then Monitor Projects at Local and State Levels

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Example of Williams Mullen State/Federal Project Research

• Each Report contains: – Project Description– Project Type– Specifics– Identify whether Federal/State/ Municipality– Location and Publication Date– Estimated Value of the Project– Market– Bid Number– Contact Information

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The WTO –GPA The WTO –GPA (Government (Government Procurement Procurement

Agreement) and its Agreement) and its application to US application to US

Stimulus Act Projects Stimulus Act Projects

American Recovery and

Reinvestment Act of 2009

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Application of “Buy American” provisions would contradict U.S. obligations under international agreements;

The United States and most European countries, including France, are signatories to the OMC (Organisation Mondial De Commerce (WTO)

The OMC prohibits Application of the BUY AMERICAN ACT to Stimulus Act procurements by Federal Agencies and 37 State or other government authorities

“Buy American” provisions affecting Stimulus Act public construction projects do not prevent French company from being contractor or supplier when:

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• GPA requires U.S. government procurements to treat French goods no differently than U.S. goods, so long as:-- GPA covers particular procuring governmental entity; and-- GPA covers particular kind of procurement at issue.

• United States and France (i.e., European Communities with regard to its 27 member States) are signatories of World Trade Organization Government Procurement Agreement (GPA);

Regarding U.S. obligations under international agreements:

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Result: French company is eligible to bid, because Annex 1 to GPA lists U.S. Department of Transportation (but not Federal Aviation Administration) among covered central government entities.

Example 1: U.S. Department of Transportation (but not Federal Aviation Administration) solicits bids for project.

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Result: French company is eligible to bid, because Annex 2 to GPA lists Pennsylvania Department of Transportation (but not Virginia Department of Transportation) among covered sub-central government entities.

Example 2: Pennsylvania Department of Transportation (but not Virginia Department of Transportation) solicits bids for project.

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WTO GPA (STATES (OMC-AMP ETATS)

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Another Advantage under the WTO-GAP (l’OMC-AMP)

• The exclusion of your foreign competitors

• Non-WTO-GPA countries cannot sell into the United States foreign manufactured goods for Stimulus Act Projects, absent a waiver: Examples:– China, India, Vietnam, Malaysia,

Thailand – Brazil, Argentina

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Result: French company is eligible to bid, because Annex 3 to GPA lists Port of Baltimore (but not City of Charleston) among other covered entities.

Example 3: Port of Baltimore (but not City of Charleston) solicits bids for project.

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• Application would increase project’s overall cost by more than 25%.

• Application would contradict “the public interest.”; or

• U.S. companies do not produce goods “in sufficient and reasonably available quantities” and of “satisfactory quality”; or

•WAIVERS

Additional Loopholes:

Buy American” provisions affecting stimulus-package public construction projects do not prevent French company from being contractor when:

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Between 7 April 2008 and 17 September 2009, 18 Federal Register notices from U.S. government entities including Environmental Protection Agency, Department of Commerce and Department of Agriculture have granted:-- 13 “unavailability” waivers; and -- 5 “public interest” waivers.

Remember: “International agreements” do not provide only exception to “Buy American” requirements.

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Stimulus Act: Lets Assume That Buy American Act Applies

• A French or other European company can still participate in the procurement under the Stimulus Act if:

• 1. There has been a “substantial transformation” of its products in the United States into a new or different “manufactured good distinct from the materials from it was transformed.”

• 2. NOTE: “There is no requirement with regard to the origin of components or subcomponents in manufactured goods or products, as long as the manufacture of the goods occurs in the United States.”

• 3. De minimis exceptions: 5% of value for incidental products (EPA)

• Summary: Each case has to be evaluated individually in terms of the products involved, the identity of the procuring agency, whether the Buy American Act provisions apply, and whether exceptions or waivers to the Buy American Act provisions exist

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Buy American Act: Traditional Government Contracts

• For Non-Stimulus Act Government Projects, at times different Buy American Act rules apply

• The general test is whether the product has more than 50% US content (value added) so as to qualify as « US origin » . Under the traditional Buy America rules, applicable to non-Stimulus Act Projects, it does not matter if the product is manufactured outside the United States as long as more than 50% of its content is US origin.

• Caution: exceptions and variations exist to these general rules.

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German Turbo-Generators for Waste-to-Energy Power Plants

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Buy American Act: Stimulus Act Project

• For a German manufacturer of small generators, we have assisted the client to submit several bids for municipal waste-to-energy projects and to exploit the "Buy America" provisions. 

• The client makes bio-diesel and methane-burning engines in Germany.  These engines (30% of product value) are paired with generators made in the EU (25% in value) or made in Mexico (15% of value).   Computer control systems, scrubbers and assembly are added in the US (45% to 55% in value). The final product, the turbo-engine, may or may not qualify as a US origin product, depending upon whether it represents a « substantial transformation » or whether the US content (value added) is over 50%.

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Buy American Act: Stimulus Act Projects

• The German client supplied its turbo-engines to government projects funded under the Stimulus Act. Williams Mullen assisted the client to navigate "Buy America" rules in a strategic manner:

– At the bid stage, we provided support to educate local officials and allow the client to submit proposals;

– Pre-bid we evaluated specific projects and products to determine whether

• For waste-to-energy systems containing less than 50% US content (value added), we obtained Buy America waivers;

• For systems with 50% or more US value-added, we qualified the goods as "US origin”  based upon the substantial transformation of the product in the United States,  thereby blocking several non-"US origin" competitors from obtaining contracts.

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Buy American Act: final thoughts • Conclusion: Your U.S. lawyers, as in the German turbo-

generator example, should assist to determine:

– if "Buy America" rules even apply under WTO-GPA?

– Which « Buy America Act » rules apply: Stimulus Project or non-Stimulus Project

– if a waiver is needed;

– if the final product can qualify as "US origin" in order to avoid competition with other imports or

– If the final product qualifies as a US manufactured good under the “substantial transformation” rules

• Deciding which route to take implicates global sourcing, local assembly, foreign investment and supply chain decisions.  Qualified counsel should be able to address all of these diverse issues.  

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Steps for Steps for Successful Successful

ParticipationParticipation

L’US Stimulus Act of 2009

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Steps for Success1. Feasibility Audits

– Development of practical business plan– Identification of ARRA projects that match the plan

2. Legal analysis of the application of OMC Agreements

3. Legal analysis of the application of “Buy American Act” provisions

What Remains to Discuss

4. Strategic positioning of an EU company for ARRA projects

5. Adoption of strategies that will enable an EU company to participate effectively in U.S. government contracts

6. Compliance with U.S. Government contract laws and regulations after contract award

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Positioning your Company for Stimulus Projects in the United

States

• Lets assume that : you have identified the types of projects that correspond to your “Business Plan” at the Local, State or Federal level.

• Next key strategy: identification of “Teaming Partners” to create partnership or teaming agreements working with American contractors

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Teaming Arrangements: Advantages

• US company knows the market, is following the projects, has relationship with Government Agency (e.g. EPA)

• US company acts as contractor with that EPA on all or selected projects

• EU company acts as contractor’s exclusive subcontractor for EPA projects or selected EPA projects

• EU company agrees to be preferred supplier of key components or services

• EU firm responsible for preparation of technical, management and cost/price materials, and services in support of any contract that may be awarded by the EPA to Contractor pursuant to any or all Proposals;

• Conclusion: teaming with a company that knows the rules of the game (government contracts). Eliminates unnecessary competition and duplication of effort

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Teaming Agreements: conclusion

• As European company you want to avoid competitive bidding on projects

• Your Teaming Partner may have already secured contract, may be using alternatives to competitive bidding

• Benefits flow to your firm• Williams Mullen services: identification of

Teaming Partners; negotiation of Teaming Agreements; Advice on government contract law affecting your subcontract;

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Positioning Your Company for Stimulus Projects

• Advice on forming a U.S. subsidiary

• Advice on a Strategic Acquisition or Joint Venture: – Favorable factors– Unfavorable factors

• Qualification of the European company as a sub-contractor or supplier on the project

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How to best Position How to best Position Your Company for Your Company for

Government Government ContractsContracts

American Recovery and

Reinvestment Act of 2009

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GOVERNMENT CONTRACTING:

• Standard Competitive Bidding model may not apply to the many government contracts or subcontracts

• Alternatives: – Sole Sourcing– IDIQ– GSA Schedule– Teaming Arrangements as preferred

subcontractor

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GOVERNMENT CONTRACTING: What can I do?

• Position your EU company to avoid Requests for Proposals and competitive bids, where possible (Federal projects)– Use IDIQs– Become a “GSA Schedule Contractor”– Propose projects; can sell to Contracting

Officer• Be Best Positioned and Pre-qualified• Be Ready to Negotiate, Responsible (financially &

technically)

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GOVERNMENT CONTRACTING:Goal in Speaking to Contract Officer• Sole Source Opportunities

– Most contracts <$750k can be awarded without formal competition

– Most contracts $750k-$1.5M can be awarded with limited competition

– Contracts >$1.5M will be awarded after competitive bidding in most cases. Thus, this is an area where Teaming Agreement with U.S. contractor makes sense.

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GOVERNMENT CONTRACTING:Unsolicited Proposal

• Provides a vehicle to propose solutions to the Government’s requirements

• Mechanism to obtain work/define needs• Mechanism to “shape” procurements• Stimulus Act: government is looking for projects to

justify spending the money

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GOVERNMENT CONTRACTING:USE of I.D.I.Q.

• Indefinite Delivery, Indefinite Quantity contract (I.D.I.Q.)– Multiple Award Contract– Dollars are used to fund Task Orders– Task Orders may or may not be open to

competition – Award of Task Orders may be protested by

competitors– Williams Mullen services: position your

company for IDIQ contracts and protect the procurement from protests

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GOVERNMENT CONTRACTING:GSA Schedule Contracts

• Catalogue for the Government to go shopping, like “Amazon.com or ebay.com

• Eliminates competitive bidding• Williams Mullen Services: as part of feasibility audit or study, determine

whether your company can qualify on the GSA schedule and how you can best sell to the government, just like any other commercial customer

• Advice re Teaming Arrangements, Joint Ventures, Acquisitions also applies Provides a vehicle to propose solutions to the Government’s requirements

• Example: inflatable boats

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Excerpt from GSA Catalogue (Schedule)

• Aerospace systems & components & equipment Flight communications related systems, aircraft systems  Heavy construction machinery & equipment  Marine transport  Motor vehicles Passenger, material transport, cycles, trucks and equipment  Power sources  Transportation components & systems  Vehicle bodies & trailers  Additional Vehicles & Watercraft

• (For Nearly all Federal Agency purchases under Stimulus Act: Buy American Act restrictions do not apply because of the application of the OMC rules)

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Inflatable Boat from GSA Schedule

• 27' Extreme Patrol/SAR Aluminum-Hull Rigid Inflatable Boat (A-RIB) with a 42oz polyurethane collar or Foam Hybrid Collar. Set-up for inboard(s) or outboard(s) machinery package. Select center console or full cabin configuration. See option ...Manufacturer: NORTHWIND MARINE INC.Contractor: NORTHWIND MARINE, INC.  [GS-07F-0416N] (s) $113,622.00 EA120 days delivered ARO

•

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After your Government After your Government Contract begins, what Contract begins, what U.S. government laws U.S. government laws

and regulations apply to and regulations apply to your business? your business?

American Recovery and

Reinvestment Act of 2009

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LEGAL ISSUES:For European Companies

• Williams Mullen Services:

• Provide a basic guide in these areas: – Federal Procurement Laws– Federal Acquisition Regulations– International Contracting– Immigration, Labor and Employment Laws– Operation of U.S. Subsidiary

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LEGAL ISSUES:Areas of concern

• Government recordkeeping requirements

• Auditing by the government

• Ethics and Compliance mandate, 2009

• Prevailing wage/CBA requirements

• Only deal with authorized agents of the U.S. Government

• Increased civil and criminal penalties

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LEGAL ISSUES: Areas of Concern (cont’d)

• Unique contracting issues: – The Disputes Clause– Change orders in writing – Spend no more than the money you have

been specifically allocated Termination Clauses

– Prompt Payment• Be careful of any Socio-Economic Program

Requirements, affirmative action for minority workers

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LEGAL ISSUES: Federal Procurement Laws

• Government contracts are highly regulated • Laws applicable to government contracts are

heavily enforced against both companies and individuals, alike

• Violations could result in: – Criminal proceedings resulting in substantial fines,

restitution and even prison– Civil fraud proceedings– Suspension or disbarment– Termination for default– Contractual remedies

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How Experienced Counsel Can Help EU Companies Participate in Stimulus Act

Projects

Before the Project Begins or the Contract Award is Made: • Feasibility Audit to best position your company• Identification of best opportunities under ARRA• Establishment of Teaming Arrangements to maximize

your access to Stimulus Act Projects• Legal guidance concerning application of OMC GPA

(Government Procurement Agreement)– Supply Chain planning to avoid Buy American Act

issues; or – Representation of EU companies in obtaining

waivers of Buy American Act Provisions

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How Experienced Counsel Can Help Make your ARRA Project

Successful After Selection of the Project or Contract Award

• Guidance after contract award on how to comply with U.S. government contract laws/regulations in all industry sectors

• Act as Project Counsel for large and small energy, waste water treatment, green building and environmental Infrastructure projects-- one of the largest areas for Stimulus Act spending

• U.S. Carbon Management, Finance and “Cap and Trade” representation in the clean energy sector

• Advice on Grants and Tax Credits for Clean Energy Projects

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Government Contracts: final points

• Stimulus Act creates enormous opportunities • You can find the Money and the projects• With proper legal advice, you can avoid the limitations of the

Buy American Clause in the Stimulus Act , even excluding certain foreign competitors

• Government Contracting laws create added responsibilities • High Quality is expected, providing advantage for

European companies• Trends are towards technologies favoring EU: green

buildings, rail, energy efficiency, Research & Development

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Thank YouThank YouQuestions? Questions?

Eliot Norman Williams Mullen1666 K St. NWSuite 1200 Washington, DC 001.804.783.6482 enorman@williamsmullen.comwww.williamsmullen.com6909704_1.ppt