Kelsey M. Hayes

Experience

Bid Protests

Ms. Hayes pursues and defends bid protests before GAO and the Court of Federal Claims, as well as at the agency-level.  Her notable achievements include:   

• Successfully challenging the scope of an agency’s proposed corrective action in response to earlier protests on the basis that the agency had not properly explained or described the concerns that gave rise to the agency’s decision to take corrective action.
• Successfully challenging an agency’s unequal evaluation, unequal discussions, and award decision on a five-year, $20 million indefinite-delivery, indefinite-quantity (IDIQ) contract before the Court of Federal Claims, resulting in the agency’s decision to cancel the award, reopen discussions with offerors, and entertain an additional proposal revision.
• Successfully challenging a solicitation requirement for joint venture entities to possess a top secret facility clearance as unduly restrictive of competition, where the joint venture offeror was composed entirely of entities with top secret clearances, leading the agency to amend the solicitation.
• Identifying flaws in an agency’s cost realism and risk assessment analysis, as required by the solicitation, for a nearly $70 million cost-plus-fixed-fee task order before GAO, resulting in the agency’s decision to terminate the order with the original awardee and award the client its protest fees and costs.
• Successfully defending the award of an $80 million contract for critical security services to be performed overseas, in a very challenging operational environment, by demonstrating the client’s approach indeed represented the best value to the government.

Claims and Disputes

Ms. Hayes has extensive experience analyzing and preparing requests for equitable adjustment (REAs), termination settlement proposals, and Contract Disputes Act (CDA) claims.  On behalf of clients, Ms. Hayes has successfully secured equitable contract adjustments under a variety of government contracts and agreements, to include service contracts, commercial item contracts, and GSA lease agreements.  Most recently, Ms. Hayes challenged and successfully overturned several negative Contractor Performance Assessment Reports (CPARs) for a number of clients, including CPARs prepared by the Navy and the U.S. Department of Energy (DOE).

Public Utilities and Energy Service Contracts

Ms. Hayes regularly works with public utility companies providing energy to the federal government under General Service Administration (GSA) areawide public utility contracts and other agreements.  She is well-versed in the statutory and regulatory requirements governing federal energy projects, including Utility Energy Service Contracts (UESCs), Energy Savings Performance Contracts (ESPCs), and Department of Defense (DoD) utilities privatization (UP) contracts. 

Cybersecurity

Ms. Hayes advises clients on the government’s rapidly evolving cybersecurity requirements applicable to contractors possessing or using government data, including Controlled Unclassified Information (CUI) and Federal Contract Information (FCI).  She stays informed on the latest with regard to cybersecurity, including updates and changes to the DFARS cybersecurity clauses (e.g., DFARS 252.204-7012, DFARS 252.204-7020, DFARS 252.204-7019, and DFARS 252.204-7021); recent enforcement actions and initiatives related to cyber, including the Department of Justice’s Civil-Cyber Fraud Initiative; and compliance requirements with regard to DoD’s Cybersecurity Maturity Model Certification (CMMC) program.

Intellectual Property and Data Rights

Ms. Hayes has a firm understanding of the intellectual property (IP) and data rights scheme governing federal government contracts, grants, and other agreements, including Cooperative Research and Development Agreements (CRADAs) and Small Business Investment Program (SIBR) awards.  She regularly advises clients on best practices for protecting and preserving rights in technical data and computer software, as well as strategies for maximizing commercial value.  Her notable achievements include:

• Securing a preliminary injunction against the Navy in federal district court after the agency provided unauthorized access to and use of a client’s proprietary and confidential software and database schema.
• Responding to a cure notice under a contract that granted the agency license rights but not ownership or delivery of the underlying source code.

Suspension and Debarment, Investigations, and Compliance

Prior to joining Burr & Forman, Ms. Hayes worked as a law clerk for GSA’s Office of Government-wide Policy in the Suspension and Debarment Division.  She leverages this experience to counsel clients and help them navigate suspension and debarment proceedings.  She has successfully represented both individuals and companies suspended or proposed for debarment.  Her notable achievements include:

• Successfully representing a DoD contractor and its principal after being suspended by demonstrating that the contractor and the principal were presently responsible under FAR part 9; no factual basis existed to impute others’ violations or misconduct to the contractor or the principal; and the suspension likely constituted improper punishment.
• Successfully defending an individual in response to a potential exclusion notice by demonstrating that the agency lacked adequate evidence to support the potential exclusionary action, as required by FAR part 9; the individual was presently responsible; and that suspension and debarment was not in the government’s interests.

Ms. Hayes also has experience advising and representing clients on both internal and government investigations involving allegations of fraud, the federal False Claims Act (FCA) and qui tam actions, and the Procurement Integrity Act (PIA).  Her recent experience includes:

• Assisting a multinational conglomerate corporation investigate allegations of bid rigging and FCA violations raised by an internal company whistleblower.
• Conducting an investigation of potential PIA violation related to a major procurement.
• Helping clients, including several small business contractors, respond to Department of Justice (DOJ) grand jury subpoenas and civil investigative demands.
• Regularly assisting clients with preparing compliance programs, codes of business ethics and conduct, and trainings on compliance issues.

Small Business Contracting

As a former Project Controller for a Service-Disabled Veteran-Owned Small Business (SDVOSB), Ms. Hayes appreciates the complexities of the SBA’s contracting assistance programs.  She is well-versed in SBA’s regulations relating to the SDVOSB program, the Women Owned Small Business (WOSB) program, Historically Underutilized Business Zones (HUBZone), and the 8(a) Business Development program, as well as the SBA’s Office of Hearings and Appeals’ (OHA) decisions interpreting the same. 

She specializes in analyzing size and affiliation issues, counseling contractors on SBA’s joint venture (JV) program, and defending, as well as filing, SBA size protests and appeals.  Her most recent successes include:

• Arguing before OHA that the SBA Area Office improperly applied SBA’s regulations and failed to consider relevant information when it determined that the client’s JV agreement failed to meet certain regulatory requirements governing mentor-protégé JV agreements.
• Defending a size protest and subsequent size appeal challenging the client’s size as other than small based on alleged violations of the ostensible subcontractor rule for a construction project.

Accounting, Cost and Pricing Issues

Ms. Hayes counsels clients on compliance with the Truthful Cost or Pricing Data statute (formerly the Truth in Negotiations Act or “TINA”) and Cost Accounting Standards (CAS). 

Other

Prior to practicing law, Ms. Hayes competed as a Division I student athlete and served as the editor-in-chief of the Public Contract Law Journal, which is published by the American Bar Association’s Section of Public Contract Law.