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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Although it was already apparent, recent events have made it even clearer that cybersecurity is an essential concern for government contractors.  The coming yea

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Top Cybersecurity Considerations for Government Contractors in 2021

Top Cybersecurity Considerations for Government Contractors in 2021 | Government Contracts Insights

Although it was already apparent, recent events have made it even clearer that cybersecurity is an essential concern for government contractors.  The coming year is poised to include many cybersecurity-related changes and developments.  Below we highlight just a few:Continued Rollout of Department of Defense’s CMMC ProgramThe Department of Defense (DoD) <a href="https://www.govinfo.gov/content/pkg/FR-2020-09-29/pdf/2020-21123.pdf">interim rule</a> for its Cybersecurity Maturity Model Certification (CMMC) Program went into effect November 30, 2020.  Although full CMMC implementation will not be achieved until 2025, a number of steps must be taken by contractors in the coming year.  First, registration and reporting of assessment scores in accordance with the DoD Assessment Methodology (based on National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171) in the Supplier Performance Risk System (SPRS) are now required of all DoD contractors and subcontractors that handle controlled unclassified information (CUI).  (More on these CMMC and SPRS requirements is available <a href="https://govcon.mofo.com/cybersecurity-and-data-privacy/department-of-defense-issues-cmmc-interim-rule-setting-up-a-two-part-process-for-review-of-contractor-it-systems/">here</a>.)  Second, the first “pathfinder” contracts requiring CMMC review have been <a href="https://www.defense.gov/Newsroom/Releases/Release/Article/2447770/cybersecurity-maturity-model-certification-pilots-for-fiscal-year-2021/">announced by DoD</a>.  Contractors and subcontractors seeking to obtain these contracts, expected to be awarded in late 2021, will need CMMC certification by date of award in order to participate.  More contract opportunities that require CMMC certification will be forthcoming this calendar year, meaning the race is on for contractors to come into compliance and line up for assessment, lest they be excluded from DoD contracting altogether.We expect other federal agencies to closely watch the CMMC rollout, and perhaps themselves adopt the same or a similar third-party cybersecurity authorization requirement for contractors in the coming year.Post-SolarWinds Fallout The hacking of SolarWinds’ Orion product, and the subsequent havoc wreaked upon government agencies and private industry alike are sure to shape cybersecurity policy for years to come.  The government has now <a href="https://www.cisa.gov/news/2021/01/05/joint-statement-federal-bureau-investigation-fbi-cybersecurity-and-infrastructure">definitively attributed</a> the hack to the Russian government.  In the coming year we expect even more rigorous scrutiny of supply chain considerations, and closer examination of software and cloud-based offerings sold to the government.  Federal Risk and Authorization Management Program (FedRAMP) authorization is likely to become more challenging and other cybersecurity standards for contractors may become more demanding.  Supply chain-related certifications with respect to information technology use also may be implemented, following the pattern of the telecommunications equipment restrictions of the Fiscal Year (FY) 2019 National Defense Authorization Act (NDAA) Section 889.In what is perhaps a preview of things to come, the recent pandemic stimulus package enacted by Congress as a Consolidated Appropriations Act includes a provision that requires government agencies to conduct “an assessment of any risk of cyber-espionage or sabotage” associated with the acquisition of any high-impact or moderate impact information system “including any risk associated with such system being produced, manufactured, or assembled by one or more entities identified by the United States Government as posing a cyber threat, including but not limited to, those that may be owned, directed, or subsidized by the People’s Republic of China, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, or the Russian Federation.”Legislative Changes Impacting Cybersecurity for Government ContractorsThe FY 2021 NDAA contains a number of provisions related to cybersecurity designed to improve U.S. cybersecurity defenses and to protect U.S. systems and critical infrastructure from malicious actors, both state-sponsored and not.  Most prominently, more than two dozen of the recommendations of the <a href="https://www.solarium.gov/">Cyberspace Solarium Commission</a> were adopted.  These include the establishment of a National Cyber Director housed in the Executive Office of the President and of an Integrated Cybersecurity Center to coordinate federal cybersecurity centers within the Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency, and the adoption of a biennial national cyber exercise that will involve federal, state, private sector and international stakeholders. Other provisions recognize the need for greater coordination and cooperation between government and industry pertaining to cyber threats. See <a href="https://www.solarium.gov/press-and-news/ndaa-override-press-release">here</a> for a comprehensive list of the 27 FY 2021 NDAA provisions pertaining to cybersecurity.In December 2020, the <a rel="noopener noreferrer" target="_blank" href="https://www.congress.gov/bill/116th-congress/house-bill/1668/text">Internet of Things (IoT) Cybersecurity Improvement Act</a> was also signed into law.  This statute provides incentives to manufacturers to address cybersecurity gaps and directs NIST to develop standards and guidelines for federal government use of IoT devices.  Ultimately, subject to limited exceptions, federal agencies will not be able to procure IoT devices that do not meet the applicable NIST standards and guidelines.  On December 15, NIST issued four draft guidance documents, including three interagency reports (NIST Interagency Reports 8259B, 8259C, and 8259D) and <a rel="noopener noreferrer" target="_blank" href="https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-213-draft.pdf">Draft SP 800-213, IoT Device Cybersecurity Guidance for the Federal Government</a>, as part of the process of establishing IoT device cybersecurity requirements.  The public comment period for the draft publication extends through February 12, 2021.Just last week, the House passed H.R. 21, the FedRAMP Authorization Act of 2021, which codifies the FedRAMP program and instructs the General Services Administration to make modifications to the risk-based approach to certifying cloud computing products and services for use by the federal government.  The bill has yet to be considered by the Senate.Additional cybersecurity-related legislation is certain to be on the horizon this year.Possible (and Welcome) Changes to the Program for Marking and Securing CUIIn 2010, President Obama issued <a rel="noopener noreferrer" target="_blank" href="https://obamawhitehouse.archives.gov/the-press-office/2010/11/04/executive-order-13556-controlled-unclassified-information">Executive Order No. 13556, Controlled Unclassified Information</a>, directing the Executive Branch to establish a uniform program for safeguarding non-classified government information, or CUI, in order to replace the ad hoc patchwork approach then used by federal agencies in the absence of any uniform policies and procedures.  The executive order called for the National Archives and Records Administration (NARA) to spearhead the effort in concert with all executive agencies.  It took NARA six years to issue its comprehensive CUI program guidance, which ultimately identified over 100 categories and subcategories of CUI, each with specific marking and handling requirements.  However, since NARA’s guidance was issued in 2016, relatively little progress has been made on actually implementing the uniform CUI program, especially with respect to federal contractors.  While NARA issued program guidance in 2016, agencies were not required to implement the NARA program until the end of 2020.While some agencies, including the DoD and the Department of Homeland Security in particular, have issued CUI guidance and/or have imposed formal CUI-related cybersecurity requirements on contractors, many other agencies have simply failed to implement a comprehensive CUI program. Also, no Federal Acquisition Regulation (FAR) clause has been issued to uniformly apply CUI requirements to contractors.In December 2020 – just days before the NARA implementation deadline – the Director of National Intelligence (DNI) <a rel="noopener noreferrer" target="_blank" href="https://fas.org/sgp/othergov/intel/ratcliffe-cui.pdf">formally requested</a> that the President rescind Executive Order No. 13556.  Notably, the DNI did not request an extension or exemption for intelligence agencies, but instead requested that the entire CUI program be scrapped.  In his request, the DNI slammed the program as “exponentially more complex” than prior procedures and “vastly overcomplicated,” and argued that implementation within just the intelligence community will cost “over a billion dollars.”  The DNI suggested that many other agencies may be in agreement with the intelligence community, noting that several agencies also objected to the 2020 deadline as infeasible.We do not yet know how President Biden and other agencies may respond to the DNI’s request.  It does seem apparent that something should be done about the CUI program as, in its current form, the CUI rules simply sow confusion and create excessive administrative burdens for agencies and contractors alike.Potential Sanctions for Ransomware PaymentsAs cyber criminals’ use of ransomware escalates, victims must now not only grapple with the threat of potential release or deletion of their data, but also with the possibility of U.S. government sanctions if payment is made to sanctioned individuals or organizations.  In October 2020, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) issued <a rel="noopener noreferrer" target="_blank" href="https://home.treasury.gov/system/files/126/ofac_ransomware_advisory_10012020_1.pdf">an advisory</a> that paying ransoms to cyber criminals could violate U.S. law.  OFAC now includes as part of its <a rel="noopener noreferrer" target="_blank" href="https://home.treasury.gov/policy-issues/financial-sanctions/other-ofac-sanctions-lists">sanctions lists</a> a growing number of cyber-criminal organizations with which U.S. companies and individuals cannot do business. These entities are primarily affiliated with North Korea, Iran, and Russia.  Individuals and entities found to have breached the sanctions restrictions can face punishment of up to $20 million in fines.  It is possible to obtain a license to permit a ransom payment, but OFAC has made clear these will not be issued with regularity:  “Ransomware payments benefit illicit actors and can undermine the national security and foreign policy objectives of the United States. For this reason, license applications involving ransomware payments demanded as a result of malicious cyber-enabled activities will be reviewed by OFAC on a case-by-case basis with a presumption of denial.”

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