Kelsey M. Hayes

Kelsey Hayes is a government contracts attorney and litigator in Holland & Knight's Tysons office. She regularly and successfully litigates bid protests, claims and disputes before the U.S. Government Accountability Office (GAO), the Boards of Contract Appeals, and U.S. Court of Federal Claims. Ms. Hayes also advises and counsels clients on a wide range of government contracts matters, including Federal Acquisition Regulations (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) compliance, the U.S. Small Business Administration's (SBA) regulations and contracting assistance programs, and risk mitigation.

Bid Protests

Ms. Hayes pursues and defends bid protests before GAO and the U.S. 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 U.S. General Services Administration (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 U.S. Navy and the U.S. Department of Energy (DOE).

Energy Contracting

With an ever-increasing focus on sustainable procurement, Ms. Hayes is prepared to advise clients on impending changes to the federal marketplace, including the government's latest initiatives aimed at aligning the management of federal procurement and real property to support climate action. 

Ms. Hayes regularly works with public utility companies providing energy to the federal government under 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 utilities privatization contracts. 

Cybersecurity

Working with Holland & Knight's Data Strategy, Security & Privacy Team, 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). 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 U.S. Department of Justice's (DOJ) Civil-Cyber Fraud Initiative; and compliance requirements with regard to U.S. Department of Defense's (DOD) Cybersecurity Maturity Model Certification (CMMC) program.

Suspension and Debarment, Investigations, and Compliance

Prior to joining Holland & Knight, 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 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 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 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. 

Ms. Hayes' experience focuses on 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

Miscellaneous

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 Section of Public Contract Law of the American Bar Association.