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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GAO Protest Timeline

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Govcon GAO Post Award Protest Timeline Article

Contract Disputes Act Claim Timeline

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The Bayh-Dole Act

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Anatomy of a Protest

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Allowability of Legal Costs

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Procurement Integrity Act

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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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Our government contracts and procurement attorneys counsel businesses on legal and compliance issues encountered when doing business with government entities.

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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.

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James A. Tucker

Telesto: Another Call For Clarity In Other Transactions Protest Jurisdiction

Strengthening the American Drone Industrial Base

Bid Protest Spotlight: Jurisdiction, Price Range, Late-Is-Late

Trump Issues Executive Order on Cybersecurity Rolling Back Some Prior Policies and Introducing New Ones

GAO Reaffirms Agencies’ Discretion to Award Sole-Source SBIR Phase III Contracts (Even to a Successor-in-Interest)

August 2022 Bid Protest Roundup: Affiliate Experience, JV Registration

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 litiga

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August 2022 Bid Protest Roundup: Affiliate Experience, JV Registration

GAO Finds CIO-SP4 Solicitation Is Unduly Restrictive of Competition

In this month’s bid protest roundup, we consider: (1) an exception to the normal rule governing reliance on affiliate experience and past performance; and (2) two different bid protests of very similar solicitation terms that reached opposite conclusions concerning whether a joint venture offeror must be registered in the System for Award Management (SAM). 

In a long-awaited decision, on August 26, 2022, the United States Court of Appeals for the Eleventh Circuit significantly narrowed the scope of a nationwide preliminary injunction of the vaccine mandate in Executive Order 14042, the Biden Administration’s effort to impose on federal contractors a variety of COVID-19 safety protocols, including a vaccine requirement. Despite agreeing with plaintiffs that their challenge to the vaccine mandate was likely to succeed, the Eleventh Circuit nonetheless concluded that nationwide relief was unwarranted, instead limiting the preliminary injunction to the parties before the Court: seven States (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia), their agencies, and members of the construction-industry trade group Associated Builders and Contractors.Read the <a href="https://www.mofo.com/resources/insights/220830-eleventh-circuit-preliminary-injunction-contractor-vax-mandate" target="_self">full client alert</a>.

Eleventh Circuit Narrows Scope of Nationwide Preliminary Injunction of Contractor Vax Mandate

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Joe Palmore co-chairs Morrison Foerster’s Appellate and Supreme Court practice and is resident in the firm’s Washington, D.C. and New York offices. Chambers USA describes him as “an outstanding oral advocate,” who is “calm, focused, effective and doesn’t back down,” and has “complete command of the facts.” Joe “writes great briefs” (Chambers USA), with one client recounting that “the Court mirrored the language he thoughtfully chose in its ultimate order” (Legal 500).

Joseph R. Palmore

Joe Palmore co-chairs Morrison Foerster’s Appellate and Supreme Court practice and is resident in the firm’s Washington, D.C. and New York offices. Before joining Morrison Foerster, Joe was an Assistant to the Solicitor General at the United States Department of Justice and the Deputy General Counsel of the Federal Communications Commission (FCC).

Joseph Palmore

IAP Worldwide Servs., Inc.

Flight Support, Inc.

DynCorp Int’l LLC

Raytheon Co.

DynCorp International, LLC v. United States

URS Federal Servs., Inc.

DynCorp International, LLC

Planned Sys. Int’l, Inc.

Threat Mgmt. Group, LLC

Vencore Servs. & Solutions, Inc.

Jacobs Tech., Inc.

Cubic, Inc.

American Institutes for Research v. State of New Mexico

CACI-WGI, Inc.

Fluor Intercontinental, Inc. v. IAP Worldwide Servs., Inc.

IAP World Servs., Inc.

Size Appeal of IAP World Servs., Inc.

Al-Ghanim v. IAP Worldwide Servs., Inc.

O’Gara Training & Servs., LLC

IAP Worldwide Servs., Inc. v. Johnson Controls, Inc.

AAR Mobility Sys.

Matt Martin Real Estate Mgm’t, LLC v. United States

Pyramid Real Estate Servs., LLC v. United States

Harrington, Moran, Barksdale, Inc.

Homesource Real Estate Asset Servs., Inc. v. United States

Ocean Ships, Inc.

Keystone Sealift Servs., Inc.

ITT Corp., Sys. Div.

IAP Worldwide Servs., Inc. v. Fluor Intercontinental, Inc.

FedSys, Inc.

Academy Facilities Mgm’t v. United States

Academy Facilities Management -- Advisory Opinion

Evans Security Solutions, Inc.

Contingency Mgm’t Group, LLC and IAP Worldwide Servs., Inc.

Kellogg Brown & Root Services, Inc.

Liberty Power Corp.

J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. 

J. Ward

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Eleventh Circuit Narrows Scope of Nationwide Preliminary Injunction of Contractor Vax Mandate

Another Ticking Clock: Additional District Court Preliminarily Enjoins EO 14042 | Increasing Need for OMB Update on GA Court Clarification Order

In a long-awaited decision, on August 26, 2022, the United States Court of Appeals for the Eleventh Circuit significantly narrowed the scope of a nationwide preliminary injunction of the vaccine mandate in Executive Order 14042.

Infusing billions of dollars into the U.S. semiconductor industry and appropriating billions more for scientific research and development, what is now colloquially referred to as the <a href="https://www.congress.gov/117/bills/hr4346/BILLS-117hr4346enr.pdf" target="_blank">CHIPS and Science Act of 2022</a> was signed into law by President Biden on August 9, 2022. According to the White House, the Act aims to “strengthen American manufacturing, supply chains, and national security, and invest in research and development, science and technology, and the workforce of the future,” to help America “win the race for the 21st century.” <a href="about:blank">[1]</a> The Act has two parts, the first, cleverly named Creating Helpful Incentives to Produce Semiconductors (“CHIPS” Act), authorizes more than $50 billion in federal funding to bolster domestic semiconductor and microchip manufacturing and research. The second and larger division, the Research and Development, Competition, and Innovation Act (now just called the “Science Act”), infuses $170 billion in new research and innovation funding to a variety of federal agencies. Many of those funds, in turn, will be available to contractors and grantees searching for additional monies to support research and development initiatives.The CHIPS ActThe CHIPS Act provides $52.7 billion over five years to accelerate semiconductor research, development, manufacturing, and workforce development. The funding has been allocated to select agencies as follows:<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/bltd642a55ba94668b5/630cf30a847c967c7c96bd27/220826-chips-chart1.jpg?format=auto&amp;quality=60" alt="CHIPS chart"/></div>* Estimate only; tax credit not included in $52.7 billion appropriation.One somewhat controversial aspect of the CHIPS Act is the claw-back provision included in the tax credit incentive. The Act creates a 25 percent tax credit for investments in semiconductor manufacturing, including the manufacturing of specialized tooling required for chip production. The claw-back provision prevents recipients of these incentive funds from expanding or building new manufacturing capacity or making other “significant transactions” that support semiconductor industries in “countries of concern” (currently defined to include China, Russia, Iran, and North Korea) for ten years, lest they face enforcement action by Commerce to recover all incentives provided. Details remain murky, however, as Commerce will need to enact implementing regulations to define relevant terms and determine the details around how these guardrails will work.Priorities for implementation are emerging. On August 25, 2022, President Biden issued an <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2022/08/25/executive-order-on-the-implementation-of-the-chips-act-of-2022/">Executive Order</a> that set forth the administration's priorities, to be reached through collaboration between the White House; State, local, tribal, and territorial governments; the private sector; research universities; labor unions; and our allied countries. These priorities include:<ul><li>Protecting taxpayer resources by ensuring that funding recipients will be held accountable for compliance with funding opportunity requirements;</li><li>Meeting economic, sustainability, and national security needs, including by building domestic microelectronic manufacturing capacity;</li><li>Ensuring long-term leadership in the microelectronics sector, through support for research and innovation;</li><li>Catalyzing private-sector investment in production, breakthrough technologies, and worker and workforce development;</li><li>Generating benefits impacting a wide range of stakeholders, including the traditionally underserved, through creation of well-paying, high-skilled union jobs and opportunities for startups, small businesses, and minority-owned, veteran-owned, and women-owned businesses and by partnering with State, local, tribal, and territorial governments and with institutions of higher education; and</li><li>Strengthening and expanding regional manufacturing and innovation ecosystems, including by investing in suppliers, manufacturers, workforce development, basic and translational research, and related infrastructure and cybersecurity throughout the microelectronics supply chain.</li></ul>The Executive Order also established a Steering Council to coordinate CHIPS Act-related policy. The Council will be co-chaired by the Assistant to the President for Economic Policy, the Assistant to the President for National Security Affairs, and the Director of the Office of Science and Technology Policy. Other Steering Committee members will include a wide cross-section of government agency representatives, including the Secretaries of State, Treasury, Defense, Commerce, Labor, and Energy; the Director of the Office of Management and Budget; the Administrator of the Small Business Administration; the Director of National Intelligence; the Assistant to the President for Domestic Policy; the Chair of the Council of Economic Advisers; the National Cyber Director; and the Director of the National Science Foundation.The Science ActThe Science Act, heralded as “the largest five-year investment in public R&D in the nation’s history,” provides four federal agencies with nearly $170 billion to support “curiosity driven” and “use-inspired and translational” research and development. <a href="about:blank">[2]</a> The passage of the Science Act marks the reversal of an unfortunate trend of diminishing federal R&D spending, both as a percentage of GDP and in comparison with other advanced economies. Among the goals of the Science Act, in addition to general advancement of research, are the creation of new technology hubs, increasing participation in research by underrepresented populations and geographies, and bolstering efforts to combat theft of U.S. intellectual property. As with the CHIPS Act, where the Science Act establishes new programs or initiatives, federal agencies will need to promulgate implementing regulations before dispensing the authorized funds.The following chart illustrates the breakdown of new funding for four recipient agencies:<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt1b8351e671693ab2/630cf38e1ee78a063c5972f8/220826-chips-chart2.jpg?format=auto&amp;quality=60" alt="CHIPS chart"/></div>* The Science Act extends authorization and support for several existing NASA programs, including the Artemis Moon Program and International Space Station, but does not authorize new funding. The Science Act creates some new opportunities for government contractors and grant recipients. Some of the new and expanded areas of R&D funding are:<ul><li>An NSF Directorate for Technology, Innovation, and Partnerships to invest in strategic translational science, including artificial intelligence, quantum computing, advanced manufacturing, 6G communications, energy, materials science, and other critical technologies ($20 billion);</li><li>NSF studies of ocean acidification activities, including long-term data stewardship and access to ocean and coastal acidification data ($20 billion);</li><li>NIST work to advance research and standards in quantum information science, artificial intelligence, cybersecurity, advanced communications technologies, and semiconductors ($6.9 billion);</li><li>Tripled NIST funding for the Manufacturing Extension Partnership, to support small- and medium-sized manufacturers with cybersecurity, workforce training, and supply chain resiliency ($2.23 billion);</li><li>A NIST National Supply Chain Database to assist the businesses with supplier scouting, with the goal of minimizing supply chain disruptions;</li><li>Commerce to create 20 “regional technology and innovation hubs” in areas that are not leading technology centers, focused on technology development, job creation, and expanding U.S. innovation capacity ($10 billion);</li><li>DOE basic energy research programs for artificial photosynthesis, energy storage, nuclear matter, and carbon materials and sequestration to advance energy technologies ($14.5 billion);</li><li>DOE research, development, and demonstration in building technologies, sustainable transportation, advanced manufacturing, industrial emissions reduction technology, advanced materials, and renewable power ($11.2 billion);</li><li>DOE High Energy Physics Program ($6.5 billion);</li><li>DOE Advanced Scientific Computing Research Program for high-end computing systems and computer sciences research ($6 billion);</li><li>DOE Fusion Energy Sciences Program ($5 billion); and</li><li>DOE Biological and Environmental Research program for earth and environmental systems, including the development of engineered ecosystems ($4.5 billion).</li></ul>‎ConclusionThe CHIPS Act marks a shift in federal policy regarding industrial subsidies. Long averse to the potentially market-distorting subsidies favored by other countries, the United States has now embraced the mechanism (at least for this critical sector of the economy). The Science Act is the most comprehensive infusion of resources into research and development in a long while. Significant opportunities for businesses and research institutions will arise from this legislation. We will carefully monitor proposed and final implementing regulations, and track where agencies allocate funding, and what opportunities, inventions and discoveries can be attributed to these programs.<a href="about:blank">[1]</a> Office of the White House, FACT SHEET: CHIPS and Science Act Will Lower Costs, Create Jobs, Strengthen Supply Chains, and Counter China (August 9, 2022).<a href="about:blank">[2]</a> The CHIPS and Science Act Fact Sheet as prepared by House Leadership

CHIPS and Science Act Makes Available Billions of Dollars for the United States Science and Technology Sectors

Tina is a partner in Morrison & Foerster’s Government Contracts practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmace

Tina Reynolds

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Associate

Markus Speidel is an associate in Morrison & Foerster’s Government Contracts & Public Procurement group, in Washington, D.C. Markus assists clients across a wide range of contract matters, including contract claims and disputes, bid protests, compliance counseling, and investigations.

Markus Gerhard Speidel

Markus Speidel