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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Cyber Preparedness for Government Contractors: Opportunistic Hackers and the COVID-19 Pandemic

Cyber Preparedness for Government Contractors: Opportunistic Hackers and the COVID-19 Pandemic | Government Contracts Insights

Sandeep N. Nandivada

The COVID-19 pandemic has disrupted operations across the globe as government agencies and corporations grapple with the implications of remote work, workforce and workplace limitations, and employee health and safety.  But while this worldwide crisis has introduced new complexities and challenges, it also has presented an opportunity for hackers seeking to capitalize on the pandemic to maximize the impact of cyber attacks on government and private sector infrastructure.  We expect nation states’ and criminal groups’ activity to increase as they target newly vulnerable remote employees and IT teams distracted by the dramatic increase in usage.For example, the U.S. Health and Human Services Department recently suffered a cyber attack from what it suspects was a foreign nation state seeking to undermine the U.S. response to COVID-19.  Similarly, the Brno University Hospital in the Czech Republic experienced a cyber attack that forced the hospital to shut down its entire information technology network temporarily.In light of these and other cyber incidents, we have identified five “best practices” for government contractors navigating these uncharted waters.  Given the significant impact that  COVID-19 has already had on business continuity, government contractors should take the time now to assess their cyber preparedness and their plan to respond to and report a cyber incident.  Although contractors may not be able to eliminate the risk of a cyber attack, through proactive measures designed to facilitate expeditious and efficient cyber incident reviews and disclosures, contractors can at least ensure that they have procedures in place to respond swiftly to cyber incidents, even during these challenging times.1. Know your disclosure obligations. Although there is no universal federal law requiring government contractors to disclose cyber attacks or cyber incidents, government contractors performing contracts with the U.S. Department of Defense (DoD) generally are required to comply with <a href="https://www.law.cornell.edu/cfr/text/48/252.204-7012">DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting</a>.  This clause requires contractors to provide “adequate security” for information technology systems, defined as “protective measures that are commensurate with the consequences and probability of loss, misuse, or unauthorized access to, or modification of information.”  It also requires contractors to “rapidly report” – e., within 72 hours – any “cyber incident” which is defined as “actions taken through the use of computer networks that result in a compromise or an actual or potentially adverse effect on an information system and/or the information residing therein” after conducting a review for evidence of compromise.In addition to this DoD requirement, many other federal agency contracts include cyber reporting requirements.  Government contractors should be familiar with all such disclosure obligations in their federal contracts and subcontracts.  In addition, contractors should review disclosure requirements at the state level to determine their relevance and applicability.  All fifty states have data protection laws in place, and they generally all require disclosure when cyber incidents compromise personally identifiable information (e.g., Social Security numbers).2. Investigate cyber incidents carefully and deliberately before disclosure. DFARS 252.204-7012 requires cyber incident reviews to, at a minimum:  (1) identify “compromised computers, servers, specific data, and user accounts”; and (2) analyze “covered contractor information system(s) that were part of the cyber incident, as well as other information systems on the Contractor’s network(s), that may have been accessed as a result of the incident in order to identify compromised covered defense information, or that affect the Contractor’s ability to provide operationally critical support.”  Conducting such detailed reviews can be time-consuming and difficult to accomplish within the DFARS’ 72-hour disclosure window.  This is especially true during global crises such as the COVID-19 pandemic, when workforce and workplace limitations increase the difficulty of mobilizing resources and rapid communication and responses.Fortunately, the 72-hour disclosure window in DFARS 252.204-7012 is triggered only after the “discovery of any cyber incident.”  Thus, while still moving quickly and deliberately, contractors can (and should) take the time necessary to complete a reasonably diligent investigation to determine whether a cyber incident, as defined in the clause, has actually occurred, before any disclosure obligation arises.3. Obtain a Medium Assurance Certificate. In the event a cyber attack occurs and the ensuing cyber incident review results in a determination that disclosure is legally required, government contractors must report the cyber incident to DoD by completing the form at <a href="https://dibnet.dod.mil">https://dibnet.dod.mil</a>.  Before a contractor can make such a disclosure, however, it must have a Medium Assurance Certificate issued by one of the External Certification Authorities approved by DoD (<a href="https://public.cyber.mil/eca/">https://public.cyber.mil/eca/</a>).  Contractors with active facility security clearances are likely to already have this capability but, in any event, it is prudent for all contractors to check.  For those without the certificates in hand, it would be prudent to obtain the required certification in advance of a cyber incident, to avoid unnecessarily delaying submission of a cyber incident report.4. Compile inputs in advance for cyber incident reports. When submitting a cyber incident report to DoD, contractors must provide certain information for each affected contract and subcontract, including:  contract and subcontract numbers, clearance levels, contracting officer contact information, and government program manager contact information.  Compiling such information can be difficult under ordinary circumstances, but may be especially difficult during crises such as the COVID-19 pandemic due to workplace and workforce limitations and communication impediments.  Contractors should maintain a database of contract and subcontract information that they can easily leverage in the event of a cyber incident.5. Revisit communication and cyber response protocols. Government contractors should maintain standard operating procedures for communications, including disclosures, and decision-making related to cyber incidents.  These procedures should identify specific individuals with responsibility for particular actions, identify required approvals, and otherwise provide sufficient detail to ensure the company can respond swiftly to a cyber incident.  Given the impact that the COVID-19 pandemic has already had on business continuity and operations, government contractors should revisit their existing procedures to ensure that they remain feasible in light of remote work, workforce and workplace limitations, and employee health and safety precautions.Please contact any of the authors for more information about cyber incident reporting obligations.

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