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David Z. Bodenheimer

Partner

dbodenheimer@crowell.com
Phone: +1 202.624.2713
1001 Pennsylvania Avenue NW
Washington, DC 20004-2595

David is nationally ranked by
Chambers USA and
recognized by
Thomson Reuters as a
D.C. Super Lawyer
in Government Contracts


David Z. Bodenheimer is a Government Contracts Group partner and litigator in Crowell & Moring's Washington, D.C. office. Mr. Bodenheimer brings over 35 years of hands-on experience in doing business with the federal government. Nationally ranked by Chambers USA in Government Contracts and described as "an impressive government contracts practitioner" and "a fabulous writer," he has found solutions for clients for everything from bet-the-company cases to the day-to-day complexities of government contracting.

Defective Pricing & Cost Disputes. With “considerable experience in defective pricing litigation” (Chambers), Mr. Bodenheimer handles a busy ASBCA docket of defective pricing and cost claims, DCAA audit allegations, and other disputes involving cost and pricing issues. He has been recognized in Chambers USA as “an exceptional costs and pricing attorney who is terrific with clients” and as "the top expert on defective pricing."

  • Recent Litigation. Litigated and resolved over $78 million in six ASBCA defective pricing and other cost claims over past five years, with Government recovering less than a penny on the dollar. See, e.g., Symetrics Indus., LLC, 15-1 BCA ¶ 36,070 (denying defective pricing claim).
  • Major TINA Precedent. Prevailed in the largest defective pricing claim litigated under the Truth in Negotiations Act (TINA). See Wynne v. United Technologies Corp., 463 F.3d 1261 (Fed. Cir. 2006), affirming 05-1 BCA ¶ 32,860 (denying $299 million defective pricing claim after 33-day trial and Federal Circuit appeal).
  • Dispute Resolution. Employed creative techniques to resolve defective pricing and cost claims, employing mini-trials and other ADR techniques (ASBCA Nos. 56655 & 56656), preparing detailed rebuttals to TINA claims and audit allegations, and serving as lead Navy counsel in using structured negotiation process to resolve $126 million defective pricing allegation.
  • Publications. Authored what the Nash & Cibinic Report called "the definitive text on TINA" – the Defective Pricing Handbook (Thomson Reuters), as well as leading Briefing Papers and articles on defective pricing and the False Claims Act.
  • Training & Lectures. Taught Federal Publications Inc.'s leading course on defective pricing and the False Claims Act for over a decade, as well as many private TINA courses for major defense and aerospace contractors.

Protest Litigation. Since his first protest in 1982, Mr. Bodenheimer has litigated and defended more than 60 protests in every forum (GAO, COFC, ODRA, GSBCA, and federal district courts), with some of the best being successfully resolved without a decision – e.g., agency corrective action reopening the competitive range in a $6 billion procurement and resulting in award to a Fortune 25 company. His reported decisions run the full gamut of protest issues.

  • Organizational Conflicts of Interest. AT&T Government Solutions, 2008 CPD ¶ 170 (precedent-setting case on contractor due process rights to prove OCI mitigation).
  • Technical Evaluation. BAE Systems, 2013 CPD ¶ 278 (misevaluation of technical risk on NextGen airborne jammers); LIS, Inc., 2010 CPD ¶ 5 (misevaluation of small business firm's technical excellence vs. technical acceptability).
  • Past Performance. Al Raha Group for Technical Services, Inc., 2015 CPD ¶ 134 (past performance win in $110 award); Supreme Foodservice GmbH, 2012 CPD ¶ 292 (past performance win in $8 billion competition); TriWest Healthcare Alliance, 2012 CPD ¶ 191 (protest defense in $20 billion award); DRS C3 Systems, LLC, 2008 CPD ¶ 103 (broad spectrum of past performance protests upheld).
  • Cost/Price Realism. HealthNet Federal Services, 2009 CPD ¶ 220 (price realism win on $16 billion procurement); CACI Technologies, 2014 CPD ¶ 44 (cost realism defense); IBM Corp., 2008 CPD ¶ 64 (cost/price evaluation errors proven).
  • Integrity & Responsibility. Acrow Corp. of America v. United States, 97 Fed. Cl. 161, aff'd on recon. 97 Fed. Cl. 182 (2011), dismissed on appeal (Fed. Cir. 2011) (defense of UK company against integrity and responsibility protest based on UK corruption charges); DME Corp., 2010 CPD ¶ 44 (dismissal of Procurement Integrity protest involving former employee).
  • Stay of Performance. Supreme Foodservice GmbH v. United States, 109 Fed. Cl. 369 (2013) (overturning improper stay override in $8 billion protest dispute); Air Transport Ass'n, Inc., et al., ODRA-08-466 (Aug. 28, 2008) (rare stay of award by ODRA in FAA procurement).

False Claims Act & Contract Litigation & Disputes. From his first hearing in 1982, Mr. Bodenheimer has spent more than 100 days in the courtroom litigating contract disputes, False Claims Act (FCA) suits, default terminations, prime/sub disputes, and other actions involving complex military and aerospace systems, information technology, damages calculations and methodologies, and other government contracts disputes.

  • Fraud Actions. Litigates FCA suits, including $657 million FCA claim after a 2-month trial and two appeals (782 F.3d 718 (6th Cir. 2015) (rejecting trial court's damages award) and $400 million FCA suit resolved for less than penny on the dollar after dismissal of parallel $64 million defective pricing claim (2017 WL 1457493 and 17-1 BCA ¶ 36585). See also United States ex rel. Ackley v. IBM, 76 F. Supp. 2d 654 (D. Md. 1999) (briefed and argued jurisdictional dismissal of qui tam relator's fraud claims); Peoples v. Eagle-Picher Indus., Inc., No. 96-5009-CV-SW-GAF (W.D. Mo. 2003) (briefed disqualification of qui tam relator's counsel, ultimately leading to dismissal of action).
  • Investigations. Defends fraud investigations, subpoenas, and audits (DCIS, AFOSI, Army CID, and various Inspector General offices) relating to defective pricing, Cost Accounting Standards, commercial items, ethics rules, battlefield contracting, labor charging, and government property.
  • Prime/Subcontractor Disputes. Advises both prime and subcontractors on contract and technology issues (e.g., software/data rights, procurement integrity breaches, teaming agreements, and commercial items) and litigates prime/sub disputes in both federal court and arbitrations. See, e.g., O'Gara Satellite Sys., Inc., vs. Telenor Satellite Serv., Inc., No. AW 04 CV 3841 (S.D. Md. 2005) (achieved no-cost resolution of lost-profits claim for satellite services after judicial mediation); McDonnell Douglas Corp. vs. SCI Corp., No. 91CV2077 (E.D. Mo. 1996-97) (conducted 2 weeks of courtroom cross-examination relating to A-12 prime/sub contract, leading to successful resolution and withdrawal of default termination).

Cybersecurity, Privacy, and Homeland Security. Recognized by Chambers USA as "a leading lawyer within the cybersecurity space" with "a strong practice in the cyber security area," Mr. Bodenheimer brings over a decade of experience in advising government contractors, information technology (IT) businesses, and Fortune 500 companies on cybersecurity, privacy, and information law in the public sector.

  • Federal Security Requirements. Prepared comprehensive analyses of federal information security and privacy standards (e.g., FISMA, FIPS, NIST, and Privacy Act), advised contractors on scope and compliance, and developed advocacy papers on risk assessments, security controls, cost-effectiveness standards, and management roles applicable to federal contractors.
  • DoD Security Requirements. Advised multiple Fortune 500 companies on DFARS Safeguarding Rule (minimum security requirements, incident reporting, flowdowns, & waiver process), NDAA § 941, NISPOM, TRICARE security rules, and prior versions of DoD information assurance requirements, such as DIACAP.
  • Cloud Computing & FedRAMP. Developed comprehensive analyses and advised major technology companies on federal cloud computing, FedRAMP information security, and DoD-unique cloud security requirements and their intersection with federal acquisition rules.
  • Mobile Devices & BYOD. Reviewed international, federal, and industry standards relating to mobile devices—including Bring Your Own Devices (BYOD)—and advised clients on applicable requirements and compliance.
  • Cybersecurity Disputes. Defended against default termination notice for security breach, litigated cybersecurity issues in various protest actions, and developed defense strategy against complaint alleging security vulnerabilities in IT devices sold by Fortune 100 companies.
  • Personnel Security & Offshoring. Reviewed federal agency regulations and standards and advised multiple government contractors and commercial companies on personnel security and screening controls, U.S.-only personnel security requirements, and restrictions on offshoring of federal data.
  • Security Breaches & Audits. Advised government contractors on security breaches, advanced persistent threats (APTs), agency actions to terminate network access and interconnections, and disputes over scope and legality of federal security audits, monitoring, and corrective action demands.
  • Congressional Testimony. Testified before House Congressional Committees regarding DoD cybersecurity, homeland security technology and the SAFETY Act, and TSA acquisition rules and exemptions.

Honors, Awards, and Recognition. Mr. Bodenheimer has been recognized for his pro bono commitments, public service, and professional work.

  • Veterans Consortium Pro Bono Service Honors, medals, and letters of appreciation for representing veterans before the Court of Appeals for Veterans Claims.
  • Fellows of the American Bar Foundation (nominations limited to top 1% of attorneys in each jurisdiction).
  • American Bar Association (ABA) Science & Technology Law (SciTech) Section Award for Increasing Diversity (2010).
  • ABA Committee of the Year Award, Public Contracts Law, Cybersecurity, Privacy & Data Protection Committee (2014-15).
  • ABA Past Leadership Positions: Chair, SciTech Section; SciTech Division Co-Chair (Security, Privacy, & Information Law); SciTech Committee Co-Chair (Homeland Security); Public Contract Law Section Committee Co-Chair (Cybersecurity, Privacy and Data Protection); ABA President's Cybersecurity Legal Task Force Representative.
  • Chambers USA National Ranking in Government Contracts.
  • Thomson Reuters DC Super Lawyer in Government Contracts.
  • Who’s Who Legal: Government Contracts, Information Technology, Data Security and Data Privacy.

Education

  • University of North Carolina, B.A. (1978)
  • University of North Carolina, M.B.A. (1982)
  • University of North Carolina Law School, J.D. (1982)

Affiliations

Admitted to practice: District of Columbia; North Carolina (inactive); U.S. Court of Appeals for Federal Circuit; U.S. Court of Federal Claims; U.S. Court of Appeals for Sixth Circuit; U.S. District Courts (D.C. and MD); U.S. Court of Appeals for Veterans Claims.

Memberships

  • American Bar Association (ABA)
    • Immediate Past Chair, Science & Technology Law Section (2018-19).
    • Chair, Science & Technology Law Section (2017-2018).
    • Past Division Co-Chair, Security, Privacy, & Information Law (SciTech Section).
    • Past Committee Co-Chair, Homeland Security (SciTech Section).
    • Past Committee Co-Chair, Cybersecurity, Privacy, & Data Protection (Public Contract Law Section).
    • Appointed member, ABA President’s Cybersecurity Legal Task Force (2013-2015).
  • Chamber of Commerce
    • Appointed member, National Security Task Force
  • International Association of Privacy Professionals (IAPP)
    • Previously qualified as Certified Information Privacy Professional

View More

"Defective Pricing Handbook, 2019-20 Ed.," Thomson Reuters; reviewed by The Nash & Cibinic Report Book (2019). Author: David Z. Bodenheimer.
Publication
"Legal Careers in Cybersecurity, Privacy, and Information Law: 6th Annual Program," American Bar Association Cross-Section Program (October 24, 2019). Moderator: David Z. Bodenheimer.
Speech/Presentation
Super Lawyers Recognizes 82 Crowell & Moring Lawyers Across United States (Sep.20.2019)
Firm News / Announcement
"Compliance Training in Defective Pricing & TINA," Client Training Course, Connecticut (May 22-23, 2019). Speakers: David Z. Bodenheimer & Mana Lombardo.
Speech/Presentation
"Defective Pricing & the False Claims Act," False Claims Bullet Points (May 21, 2019). Contacts: David Z. Bodenheimer, Brian Tully McLaughlin
Client Alert / Newsletter
"Accounting, Cost, and Pricing," Crowell & Moring's Ounce of Prevention Seminar (OOPS) 2019, Washington, DC (May 7, 2019). Moderator: Nicole Owren-Wiest; Speakers: David Z. Bodenheimer, Charles Baek, and Elizabeth Buehler.
Speech/Presentation
Chambers USA 2019 Ranks 53 Crowell & Moring Lawyers and 21 Practice Areas Among Best in U.S. (Apr.29.2019)
Firm News / Announcement
"Let's Talk FCA: Defective Pricing (April 2019)," Podcast: Let's Talk FCA (April 18, 2019). Contacts: David Z. Bodenheimer, Mana Elihu Lombardo
Client Alert / Newsletter
"Defective Pricing & The False Claims Act," Briefing Papers: Second Series (April 2019). Authors: David Z. Bodenheimer, Brian Tully McLaughlin, and Jason M. Crawford.
Publication
Law360 Names Crowell & Moring's Government Contracts Group a "Practice Group of the Year" for the Ninth Consecutive Year (Feb.22.2019)
Firm News / Announcement

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