Morrison Foerster’s Government Contracts Insights provides our in-depth analysis of developments and trends impacting government contracting. Through Insights, our attorneys offer a real-time assessment of the statutory, regulatory, legal, and business-related developments and trends that are shaping the industry. We also examine a full array of non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.Morrison Foerster’s nationally recognized Government Contracts and Public Procurement practice represents the world’s leading companies in the aerospace and defense, intelligence, cybersecurity, information technology, financial and professional services, education, healthcare, infrastructure, and logistics support sectors. We are enlisted to address our clients’ most complex and important legal issues. Our work includes contract and subcontract negotiation and other transactional matters, business and regulatory compliance counseling, internal investigations, bid protests, and a wide array of enforcement and litigation matters. Our clients range from Fortune 50 companies to small and medium-sized companies just entering the public sector. We advise both U.S. and non-U.S. companies involved in municipal, state, federal, and non-U.S. procurement matters.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Tina is Co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmaceutical companies, with a focus on general contract counseling and compliance, particularly concerning intellectual property, and cybersecurity matters and federal grant funding.Tina counsels contractors on compliance with federal, state and local acquisition and ethics regulations and with the evolving myriad of requirements pertaining to data security and cybersecurity. She has been involved with numerous internal investigations and compliance reviews, and with mandatory and voluntary disclosures to agencies, and litigation of False Claims Act matters.Tina routinely advises clients concerning:<ul><li>Prime-subcontractor relationships</li><li>Sources of supply and country of origin requirements</li><li>Price reductions and price reporting issues</li><li>Organizational conflicts of interest</li><li>Safeguarding of intellectual property and other proprietary interests</li><li>Licensing and data rights issues</li><li>Handling of classified materials and controlled unclassified information</li><li>Agency suspension and debarment proceedings</li></ul>She also assists clients with due diligence and other activities related to the acquisition of government contracting concerns, and with the drafting and negotiation of teaming agreements, subcontracts, licensing agreements, and cooperative research and development agreements. She also assists clients applying for federal grants (including SBIR and STTR agreements), and those who seek to obtain other transactional authority agreements, as well as those competing for state and local government work.Tina’s litigation experience includes government contracts claims litigation in federal courts and before boards of contract appeals, bid protests before the Government Accountability Office and the Court of Federal Claims, and complex disputes in federal courts, including civil fraud and False Claims Act litigation and reverse Freedom of Information Act litigation.Prior to joining Morrison Foerster, Tina worked at another large national firm and as a trial attorney in the Office of the General Counsel of the Navy, Navy Litigation Office.<h4>Representative Experience</h4><ul><li>Negotiation of largest CHIPS Act federal funding agreement between multinational semiconductor corporation and U.S. Department of Commerce.</li><li>Negotiated prime contract and major subcontracts related to the Department of Energy’s next generation supercomputer program, including extensive IP rights negotiations and negotiation of associated patent rights waivers.</li><li>Negotiated series of other transaction authority agreements with DARPA and associated subcontracts with more than a dozen research universities on behalf of a firm biotech client, including complex IP rights allocations and material transfer agreements.</li><li>Assist clients with FedRAMP authorization process and with development of license agreements for software products sold to federal, state and local government agencies.</li><li>Cyber incident response counseling to some of the largest companies and organizations impacted by security incidents.</li><li>Advises clients on Bayh-Dole reporting of inventions and IP strategies for contracts and grants.</li><li>Conducts due diligence for major government contract mergers and acquisitions.</li></ul>

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Tina is co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She counsels a wide variety of government contractors on compliance with federal acquisition and ethics regulations. She drafts and negotiates contracts on their behalf and has been involved with numerous internal investigations and compliance reviews, and with bid protest, contract claims, and False Claims Act litigation. She also advises on M&A transactions involving government contractors.

Tina D. Reynolds

Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office.Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters. He has represented both protesters and awardees in scores of protests before the Government Accountability Office, the Court of Federal Claims, and procuring agencies, in acquisitions ranging from small business procurements to multibillion-dollar contracts of global significance. His representative protest matters span the aerospace sector, the Intelligence Community, base operations and logistics, healthcare, nuclear and environmental work, and information technology and software acquisitions. His protests have included both classified and unclassified programs. In addition to prevailing in published decisions, Jim has also secured favorable corrective action on behalf of clients in a wide variety of protests that were resolved without a published decision.Jim’s work also focuses on disputes over cost allowability and compliance with the Cost Accounting Standards, and he has appeared before the Armed Services and Civilian Boards of Contract Appeals, in size and status protests before Small Business Administration (SBA) area offices, and appeals before the SBA Office of Hearings and Appeals. Jim regularly counsels clients on contract interpretation, organizational conflicts of interest, and small business compliance.Jim graduated with high honors from the George Washington University Law School, where he focused his studies on federal procurement law, was a member of the Law Review, and interned with the General Services Administration’s suspension and debarment office. Jim also holds a degree in theology magna cum laude from the Pontifical Gregorian University in Rome and a bachelor’s degree in classical languages and literature summa cum laude from the University of Kentucky, where he graduated Phi Beta Kappa.

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Jim maintains an active practice in bid protests before the Government Accountability Office and contracting agencies and counsels clients in contract disputes and compliance obligations.

Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office. Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters.

James Tucker

<div style="margin-bottom: 15px;" class="videoWrapper"><iframe class="sticky-video" title="Meet Alex Ward, Government Contracts Practice Co-Chair" src="https://www.youtube-nocookie.com/embed/TkliwdSlTaQ?rel=0" frameborder="0" allow="autoplay; encrypted-media" allowfullscreen="1" title="iframe"></iframe></div>J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. His practice covers a full range of government contracts matters, including investigations, bid protests, claims, general litigation, corporate transactions, and counseling. Alex strives in all matters is to provide his clients the highest level of efficient and effective representation.Alex represents contractors in internal and external investigations, disclosures to the government, and qui tam litigation, with great success in reducing or eliminating his clients’ exposure through active engagement with the government. His work in this area includes obtaining numerous declinations and dismissals of False Claims Act cases in their earliest stages, sparing his clients the cost, risk, and exposure of litigation.He has also served as lead counsel in dozens of bid protests involving military and civilian agency procurements of a wide range of products and services, including all manner of pre- and post-award protests in the GAO, the U.S. Court of Federal Claims, and state tribunals, as well as appeals to the U.S. Court of Appeals for the Federal Circuit and size protest appeals before the SBA’s Office of Hearings and Appeals.Alex handles all aspects of the claims process, from the initial assessment and drafting of requests for equitable adjustment through litigation in the Boards of Contract Appeals and the Court of Federal Claims. Alex’s practice also covers the full gamut of other controversies confronting government contractors, including prime-sub, teaming partner, employer-employee, competitor, and indemnification disputes. His litigation work also includes a wide variety of pro bono engagements, in which he has represented both individual and institutional clients in matters ranging from immigration and criminal defense to sustainable procurement and protection of the environment.Prior to joining the firm, Alex served in the U.S. Army as a commissioned officer and an Assistant to the General Counsel of the Army responsible for civil works and international matters, and as a clerk for judges on the U.S. Courts of Appeals for the Armed Forces and the D.C. Circuit. He is a member of the Boards of the Morrison & Foerster Foundation and the Chesapeake Bay Foundation and of Law360’s Government Contracts Editorial Board.

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Alex is co-chair of Morrison Foerster’s Government Contracts and Public Procurement practice. His practice covers a full range of government contracts matters, including bid protests, claims, investigations, corporate transactions, and counseling.

J. Alex Ward

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Morrison Foerster’s Government Contracts Insights blog provides an in-depth analysis of news, developments, and trends impacting government contracting and procurement. Through Insights, attorneys from our nationally recognized Government Contracts and Public Procurement practice will offer a real-time assessment of the statutory, regulatory, legal, and business-related developments that are shaping the industry. This blog will also examine a full array of U.S. and non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.Read about our <a href="http://govcon.mofo.com/editors/">Authors</a>.Never miss a post. Subscribe to get real-time updates.

Brad is a partner in Morrison Foerster’s Litigation Department, Managing Partner of the Austin office, and Chair of the firm’s Israel practice. He is the former Co-Chair of the firm’s Global Litigation Practice and the Government Contracts + Public Procurement Practice.

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A Second Look: Parties Spar Over Vaccine Mandate in Eleventh Circuit Appeal from EO 14042 Injunction

A Second Look: Parties Spar Over Vaccine Mandate in Eleventh Circuit Appeal from EO 14042 Injunction | Government Contracts Insights

Joseph R. Palmore

Krista A. Nunez

It has been more than two months since the U.S. District Court for the Southern District of Georgia <a href="https://govcon.mofo.com/labor-employment/georgia-court-issues-nationwide-injunction-of-executive-order-14042-2/">issued a nationwide preliminary injunction of Executive Order 14042</a>, the Biden Administration’s effort to impose a vaccine requirement on federal contractors. Since then, the district court has <a href="https://govcon.mofo.com/coronavirus/double-take-nationwide-preliminary-injunction-of-eo-14042/#_ftn1">clarified the scope of its injunction</a>, and a number of <a href="https://govcon.mofo.com/coronavirus/patchwork-preliminary-injunctions-interpreting-contractor-compliance-obligations-under-eo-14042/">other trial courts have weighed in</a>. But the fate of EO 14042 is still far from settled. The next major test will come in the U.S. Court of Appeals for the Eleventh Circuit, where the government has appealed the Georgia trial court’s order granting the preliminary injunction. Oral argument is not scheduled to take place until April, but now that the parties (and a few amici curiae) have had a chance to submit their appellate briefs, it’s worth taking a moment to examine the legal issues at play. A brief summary of each party’s arguments on appeal follows:The federal government identifies the following three issues for the Eleventh Circuit’s review: (1) whether EO 14042 is a lawful exercise of the President’s authority under the Federal Property and Administrative Services Act, or the Procurement Act; (2) whether the plaintiffs failed to establish the equitable requirements for preliminary injunctive relief; and (3) whether the scope of the preliminary injunction is overbroad.<ul><li>On the first question, the government argues that because the Procurement Act authorizes the President to “prescribe policies and directives” that he considers “necessary” to ensure “an economical and efficient system” for procurement, and COVID disrupts work by causing absences or spreading illness, EO 14042’s vaccine mandate serves the statute’s goals. The “major questions” doctrine—under which the trial court presumed that Congress would have specifically authorized a vaccine mandate if it had intended to provide such power via the Procurement Act—applies only when, unlike here, the Executive Branch exercises regulatory authority and when it is unclear whether the statute delegates power to the Executive Branch. Likewise, the Procurement Act’s economy-and-efficiency standard does not create non-delegation problems because that standard supplies an intelligible principle guiding the President’s actions. And federal contracting does not implicate federalism concerns at all.</li><li>As for the equities informing injunctive relief, the government argues that plaintiffs never established irreparable injury because compliance costs are insufficient to constitute irreparable harm, while enjoining the mandate would harm productivity in vital contracts such as those relating to national security and public health.</li><li>Finally, the government argues that the nationwide injunction is overbroad and should have been limited to parties to this suit under fundamental constitutional and remedial principles.</li></ul>In response, appellees state plaintiffs (Georgia, Alabama, West Virginia, Kansas, Idaho, South Carolina, Utah) and Associated Builders and Contractors, Inc. (Associated), defend the district court’s order in separate briefs.<ul><li>State plaintiffs argue that EO 14042 exceeded the President’s authority because the Procurement Act authorizes only modest control over the government’s internal operations, not extensive power to set health and safety measures at private companies. The government did not adequately explain its efficiency rationale, the states argue, and, in any event, the guidance and FAR deviation clause implementing the vaccine mandate violated procedural requirements by never going through notice-and-comment.</li><li>The equities also favored an injunction, the states say, because the EO forces them to choose between losing hundreds of millions of dollars in federal contracts or firing employees who cannot be replaced.</li><li>The injunction is proper in scope, the states argue, because only one plaintiff in a group needs to establish standing to seek relief, and all the states enter into contracts with the federal government.</li><li>Associated, meanwhile, relies heavily on the <a href="https://www.mofo.com/resources/insights/220113-supreme-court-nixes-osha.html">U.S. Supreme Court’s decision halting the Occupational Safety and Health Administration’s vaccine-or-test mandate</a> in arguing that EO 14042 exceeded the President’s authority. Both cases implicate constitutional limitations on executive authority and the lack of a clear congressional mandate. Because the Supreme Court has already concluded that COVID is a universal problem, not a special workplace risk, Associated argues that the same considerations make the government unlikely to prevail on the merits here.</li><li>Equitable considerations also favor plaintiffs, Associated contends, because of the potential for disqualification from bidding and the incurrence of considerable administrative costs necessary for compliance, while Omicron variant COVID infections are in decline.</li><li>Like the states, Associated also argues that the universal scope of the injunction is appropriate because federal contracting occurs nationwide.</li></ul>In addition to the parties’ submissions, two amici curiae have also filed briefs, both in support of plaintiffs-appellees.<ul><li>The Chamber of Commerce brief focuses on statutory authority, arguing that the Procurement Act does not support the exercise of authority in EO 14042 for the same reasons discussed in appellant’s briefs. And like Associated, the Chamber draws a direct parallel to the Supreme Court’s treatment of the OSHA mandate.</li><li>In their brief, state amici (Florida, Alaska, Arkansas, Arizona, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Dakota, Tennessee, and Texas) expand on the arguments that the government committed procedural errors in implementing EO 14042. In addition to the notice and comment point, state amici also contend that the government improperly allowed the Safer Federal Workforce Task Forceto set the terms of the mandate, and that the resulting policy was arbitrary and capricious in violation of the Administrative Procedure Act for failing to recognize countervailing policy arguments.</li></ul>The federal government addressed most of these various arguments in its reply brief.<ul><li>On statutory authority, the government replies that nothing in the Procurement Act’s text or case law interpreting it supports plaintiffs’ restrictive reading, and that there is no real difference between contracting requirements that directly enhance economy and efficiency and those that do so indirectly via health measures.</li><li>The government’s reply also responds, for the first time on appeal, to plaintiff states’ and amici states’ arguments that EO 14042 suffers from procedural defects. The district court never reached those issues, the government notes. But in any event, neither the Task Force Guidance nor the FAR Council memo are final agency action because they lack immediate legal force without further action. In addition, the OMB’s acting director’s separate determination was not subject to notice and comment requirements because she was exercising authority delegated directly by the President. And she complied with that statutory framework anyway by expressly waiving the notice and comment requirement in light of compelling circumstances.</li></ul>The Eleventh Circuit is set to hold oral argument on April 8 and could issue a decision any time after that. While this case is the first to reach full briefing in a court of appeals, other federal appellate courts—including the Fifth, Sixth, and Eighth Circuits—will soon be considering these issues, too. Of course, if the OSHA vaccine-or-test mandate is any indication, <a href="https://www.mofo.com/resources/insights/220113-supreme-court-nixes-osha.html">the Supreme Court may ultimately have the final word</a>. As always, we will continue to monitor and provide updates on these developments.

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