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.

Social

Search

GAO Protest Timeline

govcon-gao-protest-timeline-thumb.jpg

Govcon GAO Post Award Protest Timeline Article

Contract Disputes Act Claim Timeline

govcon-contract-disputes-timeline-thumb.jpg

The Bayh-Dole Act

govcon-bayhdole-thumb.jpg

Anatomy of a Protest

govcon-federalclaimsprotest-thumb.jpg

Allowability of Legal Costs

govcon-allowabilityoflegalcosts-thumb.jpg

Procurement Integrity Act

240715-procurement-integrity-act-resized.jpg

Govcon-Resources

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>

reynolds_tina_blog_150x150.png

reynolds_tina_common_640x280.jpg

reynolds_tina_heroretina_2700x1160.jpg

reynolds_tina_mobileretina_750x1040.jpg

reynolds_tina_social_600x600.jpg

Partner

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

Government Contracts + Public Procurement

Government Contracts and Procurement Attorneys

Band 1: National: Government Contracts

Tier 1: Government Contracts

Readers Choice Award: Government Contracting

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.

tucker_james_blog_150x150.png

tucker_james_common_640x280.jpg

tucker_james_heroretina_2700x1160.jpg

tucker_james_mobileretina_750x1040.jpg

tucker_james_social_600x600.jpg

Of Counsel

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.

ward_alex_blog_150x150.png

ward_alex_common_640x280.jpg

ward_alex_heroretina_2700x1160.jpg

ward_alex_mobileretina_750x1040.jpg

ward_alex_social_600x600.jpg

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

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

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.

gov-con-feature-image-thumb1.jpg

Welcome to the Government Contracts Insights Blog

Welcome to the Government Contracts Insights Blog

gov-con-feature-image_(1)1.jpg

The United States Capitol building

Morrison Foerster’s Government Contracts Insights blog provides an in-depth analysis of news, developments, and trends impacting government contracting and proc

Announcements & Press

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

Looks behind the headlines to explore the trends, identify the opportunities, analyze the issues, and provide guidance for science and technology-based companies.

MoFo Tech

Mofo Tech

News and thought leadership from lawyers who are adding value to the legal profession and the communities we call home.

  External-Link

MoFo + Blog

Mofo+

Stay on top of emerging issues and stay informed of developments related to the law and business of social media.

Socially Aware

Our Government Contracts Insights blog provides in-depth analysis of developments and trends impacting U.S. government contracting and non-U.S. public procureme

Government Contracts Insights

  Linkedin

MoFo LinkedIN

Blog - Govcon RSS

Stay Connected

Never miss a post from Government Contracts Insights. Enter your email below to stay up-to-date.

Subscribe

The latest updates and analysis from Morrison Foerster

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

Acquisition Regulations

Artificial Intelligence + Robotics

Compliance

Coronavirus

Cybersecurity & Data Privacy

Data Rights

Defense

Domestic Preferences

False Claims Act

Federal Procurement

Foreign Corrupt Practices Act

Grants

Health Care

Intellectual Property

International Public Procurement

Labor & Employment

Mergers & Acquisitions

National Security

Protests & Litigation

Resources

Schedule Contracting

Small Business

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

More

James A. Tucker

Marking Commercial Technical Data After Flight Safety

Is Change Around the Corner? One Proposal to Forge Sweeping Changes to Defense Contracting

FAR Reform Now Underway

Deregulating Federal Procurement: Implications of Three Recent Executive Actions

Kickstarting AI in the Federal Government: OMB’s Policy to Implement Executive Order 14179

In order to provide an overview for busy in-house counsel and compliance professionals, we summarize below some of the most important international anti-corruption developments from the past month, with links to primary resources. This month we ask: What did several federal courts have to say about the elements of a Foreign Corrupt Practices Act (FCPA) violation? What was the latest development in Mexico’s growing investigation into alleged bribery at its national oil company? Why was February a busy month for foreign bribery enforcement in Switzerland? The answers to these questions and more are here in our February 2020 Top 10.Read our <a href="https://www.mofo.com/resources/insights/200311-top-ten-anti-corruption.html" target="_blank" rel="noopener noreferrer">alert</a>.

koukios_james_blog_150x150.png

koukios_james_common_640x280.jpg

koukios_james_heroretina_2700x1160.jpg

koukios_james_mobileretina_750x1040.jpg

koukios_james_social_600x600.jpg

James Koukios is co-chair of Morrison Foerster’s Investigations + White Collar Defense Group and also serves as co-head of the FCPA + Global Anti-Corruption Practice.

James Koukios

James Koukios is co-chair of Morrison Foerster’s Securities Litigation, Enforcement, and White-Collar Defense Group and serves as Global Co-Head of the FCPA + Anti-Corruption Practice.

James M. Koukios

duross_charles_blog_150x150.png

duross_charles_common_640x280.jpg

duross_charles_heroretina_2700x1160.jpg

duross_charles_mobileretina_750x1040.jpg

duross_charles_social_600x600.jpg

Charles (Chuck) Duross serves as co-chair of the firm’s Investigations + White Collar Defense Practice Group and is a co-leader of the FCPA and Global Anti-Corruption practice.

Charles Duross

Charles (Chuck) Duross serves as co-head of Morrison Foerster’s FCPA + Global Anti-Corruption practice.

Charles E. Duross

fcpa-300x148.jpg

Top 10 International Anti-Corruption Developments for February 2020

Top 10 International Anti-Corruption Developments for March 2021

In order to provide an overview for busy in-house counsel and compliance professionals, we summarize below some of the most important international anti-corrupt

Top 10 International Anti-Corruption Developments for February 2020

The Biomedical Advanced Research and Development Authority (<a href="https://www.medicalcountermeasures.gov/">BARDA</a>), part of the U.S Department of Health and Human Services, Office of the Assistant Secretary for Preparedness and Response, has modified an existing broad agency announcement (BAA) through which it will award government funding to companies seeking to develop products designed to diagnose, prevent or treat coronavirus infections.Current OpportunityOn March 4, 2020, BARDA revised a pre-existing BAA to solicit proposals for COVID-19 diagnostic tests, vaccines, medicines such as therapeutics or antivirals (to either help prevent or to treat infections), and respiratory devices and ventilators.  A further revised version, BAA‑18‑100-SOL-00003, Amendment 14, was issued on March 9, 2020.  The current BAA requests COVID-19 related proposals by April 30.  (The BAA also has subsequent submission dates of July 31 and October 31, 2020, with the latter being the latest possible submission date for this BAA.)The Areas of Interest included in the amended BAA are:<ul><li>AOI 7.7.1 Diagnostic assay for human Coronavirus using existing FDA-cleared platforms</li><li>AOI 7.7.2 Point-of-care diagnostic assay for detection of SARS-CoV-2 virus</li><li>AOI 7.7.3 Diagnostic assay for detection of COVID-19 disease (SARS-CoV-2 infection)</li><li>AOI 8.3 COVID-19 Vaccine</li><li>AOI 9.2 COVID-19 Therapeutics</li><li>AOI 9.3 Immunomodulators or therapeutics targeting lung repair</li><li>AOI 9.5 Pre-exposure and post-exposure prophylaxis</li><li>AOI 10 Respiratory protective devices</li><li>AOI 11 Ventilators</li><li>AOI 17 Advanced Manufacturing Technologies</li></ul>Initial proposals are to take the form of a “Quad Chart” and a brief White Paper.  Quad charts must follow this format and include a visual depiction and description of the effort, objectives, benefits, milestones, and other requested information.  The White Paper is intended to provide a brief technical discussion of the offeror’s objective, approach, level of effort, and the nature and extent of the anticipated results.  (The full Quad Chart and White Paper requirements are described in the BAA-18-100-SOL-00003, Amendment 14, beginning at page 62.)Related Government EffortsBARDA is also facilitating a parallel, consolidated U.S. government <a href="https://www.medicalcountermeasures.gov/app/barda/coronavirus.aspx">website</a> for companies to submit brief descriptions of their diagnostics, therapeutics, vaccines, and other products or technologies being developed for COVID-19.  According to the site, it is intended as “a portal for the U.S. government 2019 novel Coronavirus (2019-nCoV) medical countermeasures task force to provide a single point of entry for the submission of market research packages from interested stakeholders.”In addition, BARDA opened a special, expedited broad agency announcement, an EZ-BAA, seeking diagnostics that use platforms already cleared by the FDA, such that these products could be authorized for use in as soon as 12 weeks.  If the government can identify products and technologies that have progressed beyond non-clinical studies, have established domestic large‑scale commercial Good Manufacturing Practices (cGMP) manufacturing capability, and have utilized a platform used to manufacture a product already approved by the FDA, that will significantly expedite time to market. Relatedly, the U.S. Food and Drug Administration (FDA) has issued two <a href="https://www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/emergency-use-authorization">emergency use authorizations</a> (EUA) of diagnostic tests from the Centers for Disease Control and Prevention (CDC) and the NYS Wadsworth Center.  An EUA is a unique authorization that enables the FDA to authorize otherwise unapproved products for use in a public health emergency.  That emergency was officially declared on February 3, 2020, opening the door for EUA submissions and authorizations to deal with the COVID-19 pandemic.  In addition, FDA also issued a <a href="https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-issues-new-policy-help-expedite-availability-diagnostics">new policy</a> on February 29 to help expedite the availability of diagnostic tools created laboratories certified under the Clinical Laboratory Improvement Amendments of 1988 (CLIA), 42 U.S.C. §263a to develop or offer high complexity tests.In addition, we understand that at least two companies are currently developing Coronavirus vaccines with assistance from BARDA and that another is working with the government on a treatment for people who are already sick.Additional BackgroundFor those unfamiliar with the organization, BARDA is a federal sub-agency tasked with the procurement and development of countermeasures against bioterrorism (also including chemical, nuclear, and radiological threats), as well as pandemic influenza and emerging diseases.  BARDA regularly publishes a series of BAAs through which it seeks submission of proposals at set intervals over a period of time from industry and research centers with novel ideas about ways to fight bioterrorism and disease.  BARDA evaluates these initial proposals and then selects those that it would like to pursue further.Eventually, awards of various values are made, based upon program priorities, proposals’ scientific/technical merits, how well the proposals fit BARDA’s areas of interest, and available funds.  Awards may be in the form or cost-reimbursement or other cost-based funding, or BARDA may award grants or make use of its Other Transaction Agreement (OTA) authority to issue that type of agreement.The BAA process generally proceeds as follows, although BARDA has indicated that the process may be altered somewhat during this unprecedented time:<ol><li>Company submits initial proposal by dates specified in BAA. (BARDA generally accepts proposals only four times per year).</li><li>Within 90 days of receipt of the initial proposal, BARDA notifies the company whether it would like a more detailed, Full Proposal.</li><li>The company prepares and submits a Full Proposal in accordance with the BAA instructions.</li><li>Within 180 days, BARDA either accepts the Full Proposal or reverts to the company with additional questions.</li><li>Once BARDA’s questions are answered, it asks the company to submit a Final Proposal Revision (“FPR”).</li><li>Assuming the FPR is acceptable, the FPR will be incorporated by reference into the final contract, OTA or grant. If BARDA has further questions, it will ask again and request another FPR.</li><li>If the parties agree to the FPR, a final agreement is presented by BARDA to the company, and the company will review and sign.  Sometimes contract or grant terms and conditions may be negotiated at this stage (if the company is unwilling or unable to accept the agreement as written), although most of the terms and conditions are non-negotiable in that they are statutory or regulatory requirements or otherwise considered mandatory by BARDA.</li></ol>Our Morrison & Foerster team has extensive experience assisting clients in responding to BAAs and negotiating contracts, grants, and OTAs.  We can provide guidance as to which type of vehicle may be most appropriate, and assist with compliance considerations for those companies without significant federal contracting experience or appropriate cost accounting and Federal Acquisition Regulation (FAR) compliance systems.  On the FDA front, we are actively engaging with FDA on the EUA process and advising clients on their diagnostic test development.  We can help with FDA communications, understanding inter-relationship among public health agencies, and assessing the opportunities presented for new product development in light of the COVID-19 pandemic. Please contact the authors for further information.

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

02_28_elc_blog_600px_v2.jpg

U.S. Government Announces New Federal Funding Opportunities Related to COVID-19

Updated Coronavirus (COVID-19) Guidelines For Employers

02_28_elc_blog_600px_v2

The Biomedical Advanced Research and Development Authority (BARDA), part of the U.S Department of Health and Human Services, Office of the Assistant Secretary f

U.S. Government Announces New Federal Funding Opportunities Related to COVID-19

This installment of our monthly <a rel="noopener noreferrer" target="_blank" href="https://www.law360.com/governmentcontracts/articles/1249921/bid-protest-spotlight-proper-scope-tardiness-and-weakness">Law360</a> bid protest spotlight features three noteworthy decisions from the Government Accountability Office (“GAO”) concerning reprocurement contracts, timeliness rules, and discussions.  Steel Point Solutions, LLC addresses the proper scope of reprocurement contracts.  Vizocom provides a cautionary tale for contractors regarding late proposal submissions.  Finally, Education Development Center, Inc. addresses the difficulties of challenging an agency’s determination that a particular weakness was not significant and therefore need not be raised during discussions.Steel Point Solutions, LLC<a name="_ednref1" href="#_edn1">[i]</a>In February 2019, the Defense Information Systems Agency (DISA) awarded a task order to Akira Technologies, Inc. (Akira) under a Federal Supply Schedule (FSS) services contract.  Several months later, DISA terminated the task order with Akira for default and determined reprocurement from the original competition and quotations was warranted.  DISA subsequently awarded a replacement task order to Creative IT solutions (CIS), the second lowest bidder.  The replacement task order had a period of performance that exceeded the remaining performance period under the task order awarded to Akira.Steel Point Solutions, LLC (SPS), a disappointed offeror from the original task order competition, protested.  SPS alleged, among other things, that DISA was required to compete the replacement task order because its performance period exceeded that of the task order it was replacing.The GAO agreed.  Although the GAO recognized that agencies have considerable discretion to repurchase goods and services for a substitute contract, it explained that agencies do not have the authority to repurchase goods or services in quantities that exceed the undelivered quantity remaining on the original contract.To illustrate the reasoning behind this rule, the GAO referred to FAR 12.403(c)(2), which states that the “Government’s rights after a termination for cause shall include all the remedies available to any buyer in the marketplace.”  Noting that one remedy available in the commercial marketplace is “cover”—which the Uniform Commercial Code defines as authorizing a buyer “to purchase goods in substitution for those due from the seller,” and then recover the price differential—the GAO concluded that reprocurements are limited to repurchasing goods or services to substitute for those ordered from the original awardee.In reaching this decision, the GAO expressly rejected DISA’s argument that it was not required to recompete the replacement task order because DISA had not received value from Akira prior to the default termination.  Noting that DISA had paid Akira, and that AKIRA provided “at least some of the contract deliverables,” the GAO concluded that DISA could not pretend as if the task order award to Akira had never happened.Takeaways:  Reprocurement contracts cannot exceed the scope of work remaining under the originally awarded contract, even where an agency believes the original awardee did not materially perform the contract.  Instead, where an agency intends to award a reprocurement contract that goes beyond the scope of the originally awarded contract, it must treat the reprocurement as a new acquisition subject to the standard rules for full and open competition.Vizocom<a name="_ednref2" href="#_edn2">[ii]</a>Vizocom, a San Diego company, was a potential offeror for a solicitation released by the Department of the Army.  The solicitation had explicit instructions for delivery, including an express directive that offerors obtain military installation access prior to proposal submission if they intended to hand-deliver their proposal.Vizocom intended to hand-deliver its proposal and hired a courier thirty minutes prior to the proposal submission deadline to make the delivery.  Vizocom also sent an email to the Army Contract Specialist to advise that Vizocom had dispatched a courier to deliver its proposal.  The courier, however, encountered delays attempting to deliver the proposal because she required a sponsor to enter the military installation.  Then, upon gaining access to the installation, the courier mistakenly went to the incorrect location for proposal delivery.  Ultimately, the Army did not receive Vizocom’s proposal until twenty minutes after the time specified in the solicitation, and the contracting officer rejected Vizocom’s proposal as late.Vizocom protested at the GAO, arguing that the solicitation’s addresses for proposal delivery were ambiguous and that the proposal was only late because of improper government action.  The GAO, however, disagreed, finding that Vizocom’s late delivery was the result of its own lack of planning, rather than any improper government action.Takeaways:  The GAO’s rules for late proposals are strict and unforgiving (although the Court of Federal Claims is more forgiving).  Offerors therefore should account for the worst-case scenario when determining when exactly to make a proposal submission.  Simply put:  it is better safe than sorry, especially at the GAO.Education Development Center, Inc.<a name="_ednref3" href="#_edn3">[iii]</a>The U.S. Agency for International Development (USAID) issued a solicitation for educational services in Somalia.  After receiving initial proposals, USAID entered into discussions with the offerors, and, as required by the Federal Acquisition Regulation, discussed significant weaknesses and deficiencies.  USAID ultimately awarded the contract to Creative Associates International.Education Development Center (EDC) protested the award, alleging, among other things, that USAID did not hold meaningful discussions.  Specifically, EDC alleged that USAID failed to identify three weaknesses in EDC’s initial proposal during discussions that EDC claimed were actually significant weaknesses that proved dispositive in the award decision.The GAO denied the protest.  Although the GAO acknowledged that an agency’s characterization of a weakness as significant is not controlling, the GAO found that the “context of the evaluation” showed that the assessed weaknesses were not, in fact, significant.  As evidence, the GAO pointed to the fact that none of the weaknesses assessed appreciably increased the risk of unsuccessful contract performance.  The GAO also noted that, notwithstanding the weaknesses, EDC received a “Very Good” rating, which indicated “EDC’s proposal demonstrated a strong grasp of the requirements, presented a low overall degree of risk of unsuccessful contract performance, and the proposal’s strengths outweighed its weaknesses.”In denying the protest, the GAO rejected EDC’s argument that the Source Selection Authority’s consideration of the weaknesses in the source selection decision necessarily meant that the weaknesses were significant and outcome determinative.  The GAO explained that, even where a weakness is determinative of award, it is not necessarily significant.Takeaways:  This decision underscores the inherent difficulty in claiming an assessed weakness is actually a significant weakness that the agency was required to raise during discussions.  It also exposes an area where a protester may have better chances of success at the Court of Federal Claims.  Unlike the GAO, the court “looks to whether the potential deficiency, significant weakness, or adverse past performance information would materially affect the offeror’s chance of receiving the award.”<a name="_ednref4" href="#_edn4">[iv]</a> Thus, under the Court’s precedent, “the agency must discuss weaknesses or deficiencies that ‘could have a competitive impact.’”<a name="_ednref5" href="#_edn5">[v]</a>  EDC may have had better luck in its protest under this standard.<a name="_edn1" href="#_ednref1">[i]</a> Steel Point Solutions, LLC, B-418224; B-418224.2, January 31, 2020<a name="_edn2" href="#_ednref2">[ii]</a> Vizocom, B-418246.2, February 14, 2020<a name="_edn3" href="#_ednref3">[iii]</a> Education Development Center, Inc., B-418217; B-418217.2, January 27, 2020<a name="_edn4" href="#_ednref4">[iv]</a> Precision Asset Mgmt. Corp. v. United States, 135 Fed. Cl. 342, 352 (2017)<a name="_edn5" href="#_ednref5">[v]</a> Id.<div class="medium-4 large-4 columns widget-area data-equalizer-watch" id="secondary"></div><div></div><div>*David Allman is a Law Clerk in the Washington, D.C. office and is not admitted to the bar.</div>

February 2020 Bid Protest Roundup (Law360 Spotlight)

nandivada_sandeep_blog_150x150.png

nandivada_sandeep_common_640x280.jpg

nandivada_sandeep_heroretina_2700x1160.jpg

nandivada_sandeep_mobileretina_750x1040.jpg

nandivada_sandeep_social_600x600.jpg

Sandeep Nandivada is a partner in the Litigation Department of Morrison Foerster’s Washington, D.C. office.

Sandeep N. Nandivada

Sandeep Nandivada

protests-and-litigation-600-300x148.jpg

February 2020 Bid Protest Roundup (Law360 Spotlight)

GAO Finds CIO-SP4 Solicitation Is Unduly Restrictive of Competition

This installment of our monthly Law360 bid protest spotlight features three noteworthy decisions from the Government Accountability Office (“GAO”) concerning re

February 2020 Bid Protest Roundup (Law360 Spotlight)

As the novel coronavirus, COVID-19, invades more and more of everyday life, the chance it will affect government contracts and government contractors becomes more and more likely. These effects might include workforce reductions from those out sick, travel restrictions, base closures, or telework.  Indeed, as reported earlier this week in <a rel="noopener noreferrer" target="_blank" href="https://www.nationaldefensemagazine.org/articles/2020/3/2/coronavirus-threatens-defense-supply-chain">National Defense magazine</a>, Representative Mac Thornberry recently predicted COVID-19 would threaten the defense supply chain as a result of the quarantine efforts and work stoppages in China.  Whether such supply chain issues come from components manufactured in China, South Korea, Europe, or the United States, the effects are likely to be felt all the same.What, then, must government contractors know?Excusable Delays and Schedule ExtensionsContractors should keep in mind the various excusable delay provisions contained in the FAR.  For example, FAR 52.249-14, which covers excusable delays for cost reimbursement contracts, states that a Contractor shall not be in default as a result of “causes beyond the control and without the fault or negligence of the Contractor.”  Listed among the examples of such causes is “epidemics” as well as “quarantine restrictions.” FAR 52.249-14(a)(5) & (6).  This protection also extends to failures on the part of subcontractors so long as the cause of the failure is beyond the control of both the Contractor and subcontractor and the Contractor did not fail with an order by the Contracting Officer to purchase the effected supplies or services from another source.  FAR 52.249-14(b).  Any excusable delay should result in an amendment to the schedule to take into account the delay; if it does not, the Contractor may be able to recover its increased costs of performing to the original schedule by submitting a constructive acceleration claim.For fixed price contracts, the FAR likewise provides that excusable delays prohibit the government from terminating the contract for default.  For example, under FAR 52.249-8(c) and (d), if the cause of the failure to perform is beyond the control and without the fault of the Contractor or a subcontractor (including, again, for epidemics and quarantine restrictions), the Contractor cannot be liable for any excess costs.  Moreover, subsection (g) of this clause explains that in the event of an excusable delay, any termination that is issued will be converted to a termination for convenience.  Given the worldwide spread of COVID-19, of course, Contracting Officers will likely be more amenable to adjusting the contract schedule rather than attempting to start anew with a different contractor.Contractors would be well-advised to keep in close communication with their contracting officers about any potential threats to their workforce or their supply chains as a result of COVID-19 to ensure that issues such as schedule adjustments can be negotiated early in the process, rather than waiting until there is a failure to perform.Price Adjustments for Stop Work or Government-Created DelayNotably, although the excusable delay provisions allow for a schedule adjustment, they do not provide for an adjustment to price (except, as noted, in the case of a constructive acceleration, where no schedule adjustment is provided).  Where contractors may be able to seek a price adjustment would be in the context of a government-issued stop work order or as a result of a government-caused delay.  For example, if base closures or travel restrictions result in a stop work order from the government, contractors may be able to seek an equitable remedy under the FAR’s stop work order provision.  FAR 52.242-15.  If the government creates delay through a base closure or travel restriction and does not issue a stop work order, the contractor may be entitled to a schedule adjustment for its excusable delay, as described above, or potentially a price adjustment for constructive acceleration if no schedule relief is provided.  The same would be true if, for example, government personnel becoming sick delays inspection or testing.  And although government-caused delays unavoidably stemming from COVID-19 do not, without a refusal to provide schedule relief, by themselves entitle a contractor to a price adjustment, if those delays become unreasonable in length, the contractor may seek compensation under the FAR’s Government Delay of Work clause.  FAR 52.242-17.Under these circumstances, contractors should carefully track any additional costs or any delays caused by the government delay or stop work order and be prepared to provide these to the Contracting Officer as part of a future request for equitable adjustment.Prioritization of DoD NeedsFinally, Contractors should keep in mind the potential use for rated orders under the Defense Priorities and Allocation System (“DPAS”).  The DPAS is a system of rating and assigning precedence to orders in tiers to ensure the Department of Defense’s most critical needs are prioritized as necessary to meet required delivery dates.  See 15 C.F.R. § 700.3; FAR 52.211-15. If a contractor that has both commercial and government contracts is performing DPAS-rated orders, the government could ask the contractor to fill the government’s orders first, potentially affecting the contractor’s ability to fulfill its commercial contracts. The government may also allow contractors a right to claim priority for materials or components that may be in short supply as a result of downstream supply chain issues.ConclusionWe likely have only seen the beginning of COVID-19’s effects on the global economy generally and U.S. government contracting specifically.  As in all cases, emergency situations in particular, the best course of action is to keep calm, ensure your program and contracts personnel communicate frequently and comprehensively with their counterparts in the government, and know your rights (and obligations) when it comes to delays, adjustments to contract price or schedule, and defense-related priorities.

bell_locke_blog_150x150.png

bell_locke_common_640x280.jpg

bell_locke_heroretina_2700x1160.jpg

bell_locke_mobileretina_750x1040.jpg

bell_locke_social_600x600.jpg

Locke Bell is a partner in the firm’s Government Contracts & Public Procurement practice.

Locke Bell

Coronavirus (COVID-19) Update: Keep Calm, Wash Your Hands, and Know Your Rights

As the novel coronavirus, COVID-19, invades more and more of everyday life, the chance it will affect government contracts and government contractors becomes mo

Coronavirus (COVID-19) Update: Keep Calm, Wash Your Hands, and Know Your Rights

Please join Morrison & Foerster LLP, Coalfire Federal, and Grant Thornton Public Sector on Thursday, February 27 at 12PM EST for a deep dive into the key aspects of the Department of Defense’s Cybersecurity Maturity Model Certification (CMMC) process and how it will affect your business. Register <a rel="noopener noreferrer" target="_blank" href="https://veracast.com/webcasts/mofo/mcle_programs/54143125.cfm">here</a>.Panelists will provide an overview of CMMC, discuss what contractors can do to prepare for third-party review, and outline what to expect, and when, based on what we know today.Presenters<ul><li><a href="https://protect-us.mimecast.com/s/zBRwCkROBgiRLzAwfQW2i9?domain=www2.mofo.com">Tina D. Reynolds</a> – Partner, Morrison & Foerster LLP</li><li>Mike Pitcher – Vice President, Technical Cyber Services, Coalfire Federal</li><li>Chris Ballister – Director, Grant Thornton Public Sector</li><li>Dave Simprini – Principal, Grant Thornton Public Sector</li></ul>We are collecting pre-webinar questions through the Veracast platform. Once you register, you may log-in and submit your questions for presenters to answer during the webinar.

12_30_cybersecurity_07.jpg

MoFo Webinar: Are You Ready for CMMC? Do You Need to Be?

DOJ Cyber-Fraud Initiative Highlights Potential Civil Liability for Failing to Meet Federal Cybersecurity Requirements

Please join Morrison & Foerster LLP, Coalfire Federal, and Grant Thornton Public Sector on Thursday, February 27 at 12PM EST for a deep dive into the key aspect

MoFo Webinar: Are You Ready for CMMC? Do You Need to Be?

Morrison & Foerster Government Contracts associate Sandeep Nandivada, with assistance from law clerk David Allman*, discuss FCA liability for prime contractors in this issue of the American Bar Association’s The Procurement Lawyer publication. See below for an excerpt:<blockquote>The specter of the civil False Claims Act (FCA) is, by now, well known to companies doing business with the federal government. The FCA creates liability for any entity that “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval,” or that “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim.” In Fiscal Year 2018, the U.S. Department of Justice recovered over $2.8 billion in FCA matters, including over $107 million from the defense industry.Less understood are the myriad ways in which a company can find itself on the wrong side of an FCA action. Government contractors frequently focus their attention inwardly, thinking they can improve their own internal ethics and compliance systems to ward off potential FCA suits. But FCA threats are not so limited in nature. A company can find itself in hot water based not just on its own conduct, but also on the conduct of its employees, agents, or subcontractors.This article discusses how subcontractor misconduct can give rise to FCA liability for prime contractors who have not committed any wrongdoing directly. The Supreme Court of the United States has explicitly held that, although a subcontractor does not have privity of contract with the government, it still may be subject to FCA liability by causing a prime contractor to submit a false claim to the government on the subcontractor’s behalf. But what of the prime contractor’s liability when one of its subcontractors has committed an FCA violation? Under what circumstances can a prime be held liable for its subcontractors’ misconduct?</blockquote>*David Allman is an associate in the Washington, D.C. office and is not admitted to the bar.<div class="col-lg-3 col-md-10 offset-md-1"><div class="row"><div class="col-12 col-lg-12 col-md-6"><div class="article-block-small article-block-contact"></div></div></div></div>

The Procurement Lawyer: Imputation of False Claims Act Liability to Prime Contractors

false-claims-300x148.jpg

The Procurement Lawyer: Imputation of False Claims Act Liability to Prime Contractors

MoForecast Podcast: Predictions on the False Claims Act (FCA)

Morrison & Foerster Government Contracts associate Sandeep Nandivada, with assistance from law clerk David Allman*, discuss FCA liability for prime contractors 

The Procurement Lawyer: Imputation of False Claims Act Liability to Prime Contractors