Josh Mullen focuses his practice on government contracts and business litigation. He assists various government contractors with litigation and general counseling in all aspects of procurement law. Josh also represents clients across various industries in multiple courts with litigating complex commercial disputes.
His experience includes representing several government contractors with the filing of and intervening in various bid protests before the Government Accountability Office (GAO), the Court of Federal Claims, multiple state and municipal procurement departments, and in other courts. He also has represented several government contractors with both filing and defending size and status protests, including protests decided by various Small Business Administration (SBA) Area Offices across the United States, appeals to the SBA’s Office of Hearings and Appeals, and in the Court of Federal Claims. Josh also has handled several claims and disputes on behalf of contractors.
In addition to his bid protest and disputes practice, Josh assists multiple government contractors with general counseling, including counseling related to contract management and compliance; internal investigations; the navigation of the Federal Acquisition Regulations (FAR) mandatory disclosure obligations, including reports to the government in accordance with those obligations; negotiation and creation of various joint ventures, including several joint ventures under SBA’s mentor/protégé regulations; asset and stock purchases or sales; novation agreements; negotiation of various teaming agreements and subcontracts related to the performance of Federal Government contracts; and ethics and compliance counseling, training, and implementation of codes of conduct and compliance programs for multiple government contractors. He has provided guidance and counseling to multiple government contractors on a wide variety of federal, state, and local procurement regulations, including without limitation, contractors doing business with the Departments of Defense, Energy, Education, Health and Human Services, Homeland Security, Interior, Justice, State, Transportation, Treasury, and Veterans Affairs as well as the General Services Administration and NASA. Josh also has assisted several government contractors with counseling related to procurements involving the U.S. Army Corps of Engineers, U.S. Postal Service, the Tennessee Valley Authority (TVA), and various state and local governments.
Josh also routinely represents various clients with complex business disputes in state and federal courts across the United States primarily related to breaches of contract, employee non-compete and trade secret disputes, business torts, business fraud, and other various business disputes.
Representative Experience
Any result the lawyer or law firm may have achieved on behalf of clients in other matters does not necessarily indicate similar results can be obtained for other clients.
Government Contract Matters
- Represented clients in multiple bid protests before the Government Accountability Office (GAO), multiple state procurement departments, municipal governments, and in court.
- Represented a government contractor with negotiating and drafting a mentor-protégé agreement and a joint venture agreement under the SBA All Small Mentor-Protégé programme that ultimately resulted in the joint venture becoming one of 20 firms to receive an award under an ID/IQ contract that will provide total task order awards exceeding $13 billion over a ten-year period.
- Served as the government contracts counsel for the negotiation of an asset sale on behalf of two sister pharmaceutical companies. The purchaser was a buyer affiliated with and funded by a Chinese entity. Assets sold consisted of realty and personalty in Kentucky and Puerto Rico, and the purchase price, including tax credits and earnouts, equaled $36 million. Representation involved the assignment of contracts with state and federal government agencies, the negotiation of a master novation agreement and other assignment agreements, and other regulatory and compliance matters.
- Served as the government contracts counsel for a government contractor that purchased another government contractor. Involvement included the negotiation of the stock purchase agreement, review and evaluation of the existing government contracts to prepare the required notices and re-representations based on the closing of the sale, and advice on various other procedural and contractual matters.
- Advised GSA Federal Supply Schedule contractors on compliance with the commercial sales practices disclosure requirements and price reduction clause requirements of their GSA contracts.
- Assisted various clients with developing ethics and compliance programmes tailored to government contractors, including the preparation of codes of business conduct and conducting ethics and compliance training to teach employees about various FAR and agency acquisition regulation requirements.
- Counseled federal contractors about mandatory disclosure obligations under FAR 52.203-13, assisted with determining whether disclosure was required, and assisted with disclosures when required.
- Advised various government contract clients in connection with SBA size regulations, including without limitation, the preparation of operating agreements or bylaws to comply with socioeconomic programme requirements on ownership and control, SBA Mentor-Protégé agreements, joint ventures under the Mentor-Protégé programme, and advice about SBA affiliation rules.
- Represented a client before the Armed Services Board of Contract Appeals (ASBCA) relating to an affirmative government claim, which resulted in the client achieving a six-figure reduction in costs under a contract.
- Prepared subcontract management policies and procedures for federal contractors, including the preparation of representation and certification forms and subcontract agreements to ensure proper monitoring and management of subcontractors.
- Represented various government contract clients with asset sales and acquisitions, including the negotiation of novation agreements and advice about business structure.
- Drafted and negotiated several subcontracts and supply agreements under federal government prime contracts for prime contractor clients and subcontractor clients in various industries.
Litigation Matters
- Served as lead counsel in a bench trial versus a local major municipality related to significant property damage caused by the municipality, which the municipality denied. The trial resulted in a full judgment against the municipality in favor of our client for the entire amount of the claimed damage, plus court costs and interest.
- Litigated several complex construction disputes related to defective workmanship, schedule-related claims, unlicensed contracting, and property damage.
- Handled several insurance coverage disputes involving claims of bad faith, violations of the Tennessee Consumer Protection Act and breach of contract.
- Briefed and argued a motion to dismiss as lead counsel in a commercial dispute, which resulted in the full dismissal of the Plaintiff's claims for misrepresentation and Tennessee Consumer Protection Act violations against a real estate sales company in the trial court. Briefed and argued the same issues before the Tennessee Court of Appeals, resulting in the trial court judgment being affirmed.
- Briefed and argued a motion to dismiss that resulted in the complete dismissal of nine separate counterclaims that were asserted against the client. The claims included, but were not limited to, fraud and misrepresentation, fraudulent and deceptive takeover of a corporation, and breach of contract.
- Briefed and argued a Response to a Plaintiff's Motion to Amend that attempted to transform a first party insurance case into a major putative class action lawsuit that resulted in a denial of the Motion to Amend and a defeat of the Plaintiff's attempt to bring class action claims against the insurance company client.
- Briefed and argued a motion for summary judgment defending an insurance company in relation to an insurance coverage dispute that resulted in a full dismissal of all of plaintiff's claims.
- Served as lead counsel in various mediations, resulting on the positive resolution of various matters.
Professional & Civic Engagement
- Member, American Bar Association
- Vice Chair, Small Business & Other Socioeconomic Programmes Committee, Public Contract Law Section
- Member, Nashville, Tennessee Bar Association
- Member, Williamson County, Tennessee Bar Association
- Member, Federalist Society
- Member, Republican National Lawyers Association
Thought Leadership
Publications
- Author, "Clearing the Hurdles: Strategies for Filing Bid Protests of Tennessee Government Contracts," Tennessee Bar Journal, November 1, 2022
- Co-Author, “Federal Contractors Vaccine Mandate: What Government Contractors Need to Know,” November 18, 2021
- Co-Author, "Borrowers Should Build a Record to Prepare for PPP Loan Forgiveness Appeals," Banking Exchange, May 19, 2021
- Author, "Significant Amendments Consolidating SBA's Mentor-Protégé Programs and Revising SBA's Size Regulations Go into Effect on November 16, 2020," Westlaw, December 18, 2020
- Co-Author, "Congress Makes Significant Changes to Paycheck Protection Program," Westlaw, June 5, 2020
- Co-Author, "SBA Extends Safe Harbor Deadline to May 14, 2020 and Confirms that Foreign Affiliate Employees Must be Counted for Size Purposes," Global Trade Magazine, May 14, 2020
- Co-Author, "Increased Scrutiny of Paycheck Protection Program Loans Coming," CityBusiness, May 6, 2020
- Co-Author, "How to Minimize the Risks of Receiving a PPP Loan and Seek Forgiveness," CityBusiness, April 16, 2020
- Co-Author, "Forgive and Forget? Receiving a PPP Loan and Seeking Forgiveness," CityBusiness, April 15, 2020
- Co-Author, "Forgive and Forget? Important Practical Advice for Borrowers Receiving a PPP Loan and Seeking Forgiveness," CityBusiness, April 15, 2020
- Co-Author, "INSIGHT: New DoD Cybersecurity Certification Holds Key to Contracts," Bloomberg Law, March 23, 2020
- Author, "Coronavirus: What Government Contractors Should Do Now to Address Possible Delays or Suspensions of Work," Westlaw Journal of Government Contracts, April 6, 2020
- Co-Author, "Failure to Comply with the Cybersecurity Requirements of Your Government Contracts Can Lead to False Claims Act Liability," Westlaw Journal of Government Contracts, September 2019
- Author, "The Limitations on Subcontracting Rule: DOD Makes Immediate Change; FAR Council Issues Proposed Rule," Westlaw Journal of Government Contracts, February 2019
- Co-author – "Sunk: What Protection Does the Sinkhole Statute Offer Your Clients?," Tennessee Bar Journal, Volume 49, Number 10, October 2013
Speaking Engagements
- "Need to Know FY2023 NDAA Provisions for Government Contracting," May Meeting of the Huntsville NCMA Chapter, May 2023
- "Benefits and Pitfalls of Mentor-Protégé Joint Venture Agreements," May Meeting of the East Tennessee Chapter of the NCMA (NCMA East Tennessee), May 2023
- “SBA Size Protests – Process and Procedures,” NCMA of East Tennessee Winter Workshop, February 2022
- “Federal Bid Protests – Process and Procedures,” NCMA of East Tennessee Winter Workshop, February 2022
- “Ethics and Compliance Issues for Government Contractors,” Association of Corporate Counsel, Compliance and Ethics Membership Meeting, January 2022
- “Ethics and Compliance Issues for Government Contractors,” NCMA of East Tennessee Chapter Meeting, Oak Ridge, Tennessee, January 2022
- “Government Contracting for Construction Contractors – What to Expect,” AICPA & CIMA Construction and Real Estate Conference 2021, Las Vegas, Nevada, December 7, 2021
- "COVID-19 Liability Considerations & CARES Act Issues for Government Contractors," NCMA East Tennessee Membership Meeting, Oak Ridge, Tennessee, November 2020
- "Ethics and Compliance Issues for Government Contractors," NCMA Huntsville Chapter Membership Meeting, Huntsville, Alabama, September 2020
- "Self-Performance," NCMA East Tennessee Chapter Winter Workshop, January 2020
- Keynote Speaker – "Significant Recent FAR Updates and Expected Small Business Regulatory Changes," Energy Technology and Environmental Business Association (ETEBA) Membership Meeting, Knoxville, Tennessee, May 2019
- Panelist, "Another Day in the Life of a DOE Contractor Attorney – Managing Your Professional Ethics and the Ethical Obligations of Your Client," Department of Energy Contractor Attorneys' Association (DOECAA) 2019 Spring Conference, Washington, D.C., May 2019
- "Significant Federal Acquisition Regulation Changes," NCMA Huntsville Chapter Membership Meeting, Huntsville, Alabama, April 2019
- "Legal Aspects of Being a Small Business in the Federal Marketplace," United States Army Corps of Engineers Small Business Industry Day, March 2019
- Panelist, "Lessons Learned from SBA's All Small Mentor-Protégé Program," ABA Public Contract Law Meetings, November 2018
- Co-Presenter, "Government Contract Teaming Agreements," PTAC Construction Opportunities Conference, Nashville, Tennessee, October 2018
- "Joint Venturing for New Business Opportunities," Energy Technology and Environmental Business Association (ETEBA) Business Opportunities Conference, Knoxville, Tennessee, October 2018
- Keynote Speaker, "Ethics & Compliance Issues for Government Contractors," Energy Technology and Environmental Business Association (ETEBA) dinner, Knoxville, Tennessee, February 2018
- Co-Presenter, "Defending Sinkhole Insurance Claims in Tennessee," TennBarU CLE webcast, February 2014
- "Legal Writing Never Gets Erased: Best Practices for Complaints, Answers, Motions, Responses and Appellate Briefs," TennBarU CLE programme, March 2013
Honors & Awards
- Selected to the Mid-South Rising Stars list by Super Lawyers (Thomson Reuters), 2014 – 2019
- Selected as member of Tennessee Bar Association Leadership Law Class of 2017
- Selected as a member of the inaugural class of the Nashville Bar Foundation Leadership Forum, 2014 – 2015
