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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The Tortured Regulations Department: SBA’s New Rule and Its Effect on Investments

Bid Protest Spotlight: Standing, Relationships, Responsibility

House’s Passage of the SAMOSA Act Signals Policy Shift Towards Government-Wide Enterprise Software Licensing

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Bid Protest Spotlight: Unclear Criteria, Data Rights, Conflicts

The Cybersecurity and Infrastructure Security Agency (CISA) of the Department of Homeland Security (DHS) recently published a <a href="https://www.cisa.gov/resources-tools/resources/secure-software-self-attestation-common-form" target="_blank">draft version</a> of a Secure Software Development Attestation Common Form. The draft Common Form is designed to confirm that software producers (i.e., the manufacturers/developers of software products) have followed minimum secure software development practices in compliance with guidance created by the National Institutes of Standards and Technology (NIST). Such affirmation was mandated by a White House Office of Management and Budget (OMB) memorandum issued September 14, 2022, as a prerequisite to acquisition of software by federal agencies. Interested parties have until June 26, 2023 to comment on the draft form.As we have <a href="https://govcon.mofo.com/topics/companies-selling-software-to-the-u-s-government-soon-must-attest-to-compliance-with-nist-guidance-on-software-supply-chain-security" target="_blank">previously advised</a>, the purpose of the self-attestation form is to enhance the security of the nation’s software supply chain, which has been proven vulnerable by incidents like the Colonial Pipeline and Solar Winds attacks. The Common Form marks one step towards increased transparency, stability, and security of the software acquired by the federal government, consistent with President Biden’s <a href="https://govcon.mofo.com/topics/210601-executive-order-on-cybersecurity" target="_blank">Executive Order 14028</a>, Improving the Nation’s Cybersecurity.What Does the Common Form Entail?The Common Form is composed of three sections. Section I requires a list of the software to which the attestation applies, including software product name, version number, and release/publish date. Section II collects information about the software producer (name, address, etc.) and the responsible primary contact. Section III requires a signed attestation by the Chief Executive Officer or delegate that affirms the producer complied with the standards and best practices established in NIST Special Publication (SP) <a href="https://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-218.pdf" target="_blank">800-218</a>, “Secure Software Development Framework” (SSDF).Specifically, the form requires producers to attest:<ol><li>The software is developed and built in secure environments;</li><li>The software producer made a good-faith effort to maintain trusted source code supply chains;</li><li>The software producer maintains provenance data for internal and third-party source code incorporated into the software; and</li><li>The software producer employs automated tools or comparable processes that check for security vulnerabilities.</li></ol>Agencies may also include additional requirements, such as a request for a Software Bill of Materials (SBOM) or other artifacts or documentation. Agencies may require such additional documentation or artifacts be either attached to the Common Form or maintained and updated at another agency-designated location online. It is anticipated that the Common Form will be a fillable PDF that will be submitted electronically by the software producer to CISA.What Software Is Covered by the Attestation Requirement?The Common Form covers three categories of software, based on its development date. A Common Form attestation is required for all software developed after September 14, 2022, in order to sell to the federal government. The Common Form is also required for existing software modified after September 14, 2022 with major version changes (e.g., using a semantic versioning schema of Major.Minor.Patch, the software version number goes from 2.5 to 3.0). Finally, the Common Form is required for software for which the producer delivers continuous changes to the software code (such as software-as-a-service products or other products using continuous delivery/continuous deployment).Software freely obtained directly by a federal agency (e.g., freeware or open-source software) and software developed internally by federal agencies require no attestation. However, open-source elements incorporated by software producers into a software deliverable must be part of the software producer’s attestation.If the relevant software has been verified by a certified FedRAMP third-party assessor organization (3PAO) or other 3PAO approved in writing by an appropriate agency official in accordance with relevant NIST guidance, the software producer does not need to submit an attestation, but must provide relevant documentation from the 3PAO instead.If it cannot fully attest to compliance with the SSDF, a software producer must provide documentation identifying the practice(s) to which it cannot attest. The purchasing agency then must document the practices the agency has in place to mitigate resulting risks and require a plan of actions and milestones (POAM) from the software producer to address compliance gaps.What Is the Estimated Burden?DHS <a href="https://www.govinfo.gov/content/pkg/FR-2023-04-27/pdf/2023-08823.pdf" target="_blank">estimates</a> the total opportunity costs to all software producers of completion of the Common Forms will be $923,623 annually, based on BLS labor rates and the following estimates. DHS anticipates receiving 2,689 initial form submissions and 1,345 resubmissions of the form—due to major software changes—per year. Each initial submission will impose a three-hour burden on a quality assurance analyst or tester to understand requirements and the gather information. Additionally, DHS estimates a Chief Information Security Officer (CISO) will require 20 minutes to review, and approve, the release of information in each initial submission.DHS assumes that half of initial submissions will result in resubmission for a major software change or update. Each resubmission DHS estimates will require a software quality assurance analyst or tester an additional hour and 30 minutes to complete and a CISO 20 minutes to review. Failure to ensure the accuracy of the attestation may result in a far greater burden, including potential False Claims Act liability and suspension or debarment.Next Steps for Software ProducersAffected software producers, as well as resellers of software products, systems integrators, and other affected parties, are encouraged to submit comments on the draft Common Form, the information requested therein, and the feasibility of the attestation. DHS and CISA are particularly interested in comments regarding the practical utility of the proposed information collection: whether DHS accurately estimated the burden on the producers, and ways DHS might enhance the quality, utility, and clarity of the information collected. The practicality of the attestation’s application to open-source components of software products may be particularly ripe for comment.Once the Common Form is required, software producers should bear in mind that completion of the form is mandatory and that failure to provide any of the information requested may result in the inability to sell the software to the federal government. Further, providing false or misleading information may constitute a violation of the criminal False Statements Act or could result in a violation of the False Claims Act in connection with a sale.

Federal Government Provides Further Guidance and Draft Attestation Form for Software It Acquires

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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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

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Federal Government Provides Further Guidance and Draft Attestation Form for Software It Acquires

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The Cybersecurity and Infrastructure Security Agency (CISA) of the Department of Homeland Security (DHS) recently published a draft version of a Secure Software Development Attestation Common Form. 

Forty-five years after enactment of the Contract Disputes Act of 1978 (CDA), contractors and agencies still often struggle to identify what is and isn’t a CDA claim—a term the CDA itself does not define. Until the CDA’s administrative dispute process is complete, a contractor is jurisdictionally barred from bringing its claim (or its challenge to a government claim) to a Board of Contract Appeals or the Court of Federal Claims. For contractors (and agencies) navigating the CDA’s superficially simple procedures and deceptively clear timelines, such uncertainty can jeopardize otherwise meritorious claims.    In <a href="https://cafc.uscourts.gov/opinions-orders/22-1035.OPINION.4-25-2023_2116161.pdf" target="_blank">Lockheed Martin Aeronautics Company v. Secretary of the Air Force</a>, the Court of Appeals for the Federal Circuit provides a clear answer to what a claim is, at least with respect to a contracting officer’s unilateral definitization of an undefinitized contract action (UCA).  Federal Circuit: A Unilateral Definitization Is Not a CDA ClaimUCAs or “letter contracts” are mechanisms that allow an agency to authorize critical contract performance to begin before the parties have settled on all contractual terms and conditions—even price. In a typical UCA scenario, the agency authorizes the contractor to begin work and reimburses a fraction of the contractor’s incurred costs, subject to a cost ceiling, and the parties agree promptly to determine definite terms and figure out a price while performance proceeds. As we have commented before (<a href="https://govcon.mofo.com/topics/undefinitized-contract-action-proposed-rule" target="_self">Undefinitized Contract Action Proposed Rule</a> and <a href="https://govcon.mofo.com/topics/the-basics-of-undefinitized-contractual-actions-ucas" target="_self">The Basics of Undefinitized Contractual Actions (UCAS)</a>), UCAs pose risks to contractors, have a history of abuse, and are supposed to be used only on those rare occasions when it is critical that work begin immediately and there is no time to negotiate definitive terms. See FAR 16.302; DFARS Subpart 217.74. In Lockheed Martin, two UCAs worth billions of dollars remained undefinitized for years before the Air Force unilaterally definitized their terms and set their prices at amounts with which the contractor disagreed. (The fact that the government awarded the contracts as UCAs in the first place and then left them undefinitized for years is a cautionary tale for another blog post.) The contractor treated the unilateral definitizations as government claims and appealed them directly to the Armed Services Board of Contract Appeals. The government moved for dismissal of the appeal for lack of jurisdiction, arguing the underlying claim was really a contractor claim that was never submitted to the contracting officer for a final decision—thus barring an appeal. Is a unilateral definitization a government claim that may immediately be appealed? Or must a contractor first submit its own mirror-image claim to the contracting officer for what the contractor contends the correct definitization amount should be? The latter approach would entail requesting a contracting officer’s final decision on the same question the contracting officer has already decided and proceeding to a Board or the Court of Federal Claims only after receiving a contracting officer’s final decision, which presumably will be the same decision already reflected in the contracting officer’s definitization determination. In a divided opinion, the Armed Services Board held that an earlier Board decision from 1988 compelled it to dismiss the appeal for lack of jurisdiction. Over the dissent of one Board judge, the majority found that the 1988 case was still good law and binding precedent. Based on that precedent, the Board held that, if a contractor disagrees with a contracting officer’s unilateral definitization of a UCA, the contractor must submit its own claim to the contracting officer and wait for a final decision. Until that process is completed, the Board held it lacks jurisdiction over an appeal of the dispute. The contractor appealed, and the Federal Circuit <a href="https://cafc.uscourts.gov/opinions-orders/22-1035.OPINION.4-25-2023_2116161.pdf" target="_blank">affirmed</a> the Board’s decision. The Court acknowledged “it is not always clear whether a claim has been made and, if so, which party made it” and lamented that the CDA itself provides only “minimal guidance” on what a claim may be. Following its own precedent, the Circuit cited the Federal Acquisition Regulation’s definition of a “claim” as a “written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract.” FAR 2.101. The Court found the government’s unilateral definitization of price simply followed the definitization procedures spelled out in the UCAs themselves. The Court determined the contractor was the only party “making a demand or an assertion seeking relief,” and, therefore, only the contractor had a potential claim—one that it must submit to the contracting officer for a final decision before seeking review of the claim by a Board or the Court. This surely is not the result the contractor hoped for, but at least it is a clear and easily applied rule for future contractors to follow.  TakeawaysOver the years, the lack of clarity about what a CDA claim is has caused contractors and agencies many troubles and generated abundant litigation. The uncertainty about definitization claims is now resolved, but plenty of other CDA uncertainty remains. There is the recurring problem of when a request for equitable adjustment is a claim (sometimes it is, and sometimes it isn’t, without a bright-line way to distinguish one from the other). Guessing wrong can cause one to miss crucial deadlines to assert a claim or file an appeal. There is also <a href="http://cafc.uscourts.gov/sites/default/files/opinions-orders/09-5024.pdf" target="_blank">the problem</a> of when one party’s defense to a claim might constitute a separate claim: if a defense is deemed a separate claim, the defending party must run the defense through the administrative disputes process before a Board or the Court may consider it; if the defense isn’t deemed a claim, the party is not required to jump over those procedural hurdles. As Judge Solomson of the Court of Federal Claims <a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2020cv1903-29-0" target="_blank">recently commented in yet another controversy</a> over the definition of “claim,” the lack of clear rules “gives rise to the jurisprudential equivalent of situational ethics, jurisdictional confusion and, thus, extensive litigation,” which is “unfortunate and imposes unnecessary costs on the procurement system and, in turn, the public fisc.” It also can lead to injustice, when a party that does its best to comply with the fuzzy rules but guesses wrong and cannot recover on a meritorious claim. In Lockheed, the contractor was prudent enough both to file its immediate appeal of the definitization as a government claim and submit a contractor claim to the contracting officer—meaning its claim eventually will be judged on its merits, notwithstanding the loss in the Federal Circuit. The contractor’s attorneys clearly were tracking the risks, watching the statute of limitations, and taking steps to mitigate the uncertainty.   Thanks to Lockheed, we now know how to handle definitization-related claims. But, until the powers that be resolve all the other areas lacking clarity, contractors and contracting officers alike would do well to seek good legal counsel when deciding whether a CDA claim may have accrued or been asserted.

Challenging Unilateral Definitizations of Undefinitized Contract Actions: What Is a Claim?

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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Challenging Unilateral Definitizations of Undefinitized Contract Actions: What Is a Claim?

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Forty-five years after enactment of the Contract Disputes Act of 1978 (CDA), contractors and agencies still often struggle to identify what is and isn’t a CDA claim—a term the CDA itself does not define.

On April 19, 2023, the U.S. Court of Appeals for the Ninth Circuit deviated from its sister circuits and reversed the Arizona district court’s preliminary injunction of the contractor COVID-19 vaccine mandate issued pursuant to Executive Order 14042 (“Contractor Mandate”). This decision has created a circuit split over not only the enforceability of the Contractor Mandate, but also the scope of the president’s authority to impose requirements on federal contractors under the Federal Property and Administrative Services Act (FPASA).The Fifth, Sixth, and Eleventh Circuits have all upheld lower courts’ preliminary injunctions of Executive Order 14042, as we reported <a href="https://govcon.mofo.com/topics/fifth-circuit-affirms-preliminary-injunction-of-contractor-vaccine-mandate" target="_blank">here</a>. Unlike its sister circuits, the Ninth Circuit rejected application of the major questions doctrine to the Contractor Mandate; the major questions doctrine addresses the notion that “Congress [must] speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Instead, the court found that Congress “delegated to the President”—as opposed to agencies—the “authority to ‘prescribe policies and directives that the President considers necessary’ to ‘provide the Federal Government with an economical and efficient system’ for ‘procuring . . . property and nonpersonal services, and performing related functions including contracting,’” which is what occurred here. (Emphasis in original.)The Ninth Circuit further found that even if the major questions doctrine applied, the doctrine itself would not bar the Contractor Mandate because the Mandate was not a “transformative expansion” of the president’s authority that might otherwise be prohibited under Supreme Court precedent. Contrary to the district court’s findings, the Ninth Circuit held that “nothing in the Mandate constitutes a regulation,” even if its applicability is broad in scope. Rather, the court explained, “the conduct the Contractor Mandate seeks to regulate is related to the government’s proprietary interest here: efficient and economic procurement of services.”  In the court’s view, simply because the Contractor Mandate might be considered overinclusive, underinclusive, or both, “that would not mean it is unrelated to efficient and economic procurement of services.” (Emphases in original.)Importantly, the Ninth Circuit rejected the other courts’ concerns over whether the federal government had previously sought to regulate the health decisions of American workers or to reduce absenteeism as improperly “equat[ing] inactivity with forbidden activity.” Relying on the circuit courts’ historical practice of upholding executive orders that promote antidiscrimination, regulate wage and price guidelines to combat economic inflation, and ensure compliance with immigration law as within the scope of FPASA, the court concluded that the requirement for federal contractors to take vaccination-related steps already required by many private employers was not a “transformative expansion,” particularly when, in the midst of an unprecedented global pandemic, those steps promoted economy and efficiency by reducing absenteeism, project delays, and cost overruns.The court also rejected the Fifth Circuit’s holding that the Contractor Mandate was “strikingly unlike” prior Executive Orders because “a vaccination cannot be undone at the end of the workday.” According to the Ninth Circuit, the “impacts of anti-discrimination or affirmative action programs, wage and price policies, and immigration law compliance mechanisms also do not end with the workday.” (Emphases added.)Last, applying the D.C. and Fourth Circuits’ tests, the Court held that the president acted within his authority in issuing the Contractor Mandate because the Office of Management and Budget’s determination showed there was a “sufficiently close nexus” and a “reasonable relationship” between the Contractor Mandate and FPASA’s goals of economy and efficiency. Unlike the Sixth and Eleventh Circuits, which each held that the government lacked authority to regulate contractor conduct, the Ninth Circuit adopted an interpretation of FPASA that allows the president to “prescrib[e] requirements that address contractors’ operations” and how those services are rendered.The Ninth Circuit’s decision has created a clear circuit split over the scope of the government’s authority to impose requirements on government contractors that go beyond the commercial terms for the product or service being acquired. The Ninth Circuit is the fourth appellate court to weigh in on the Contractor Mandate and the scope of the government’s power under FPASA. The Fifth, Sixth, and Eleventh Circuits have limited this scope, but this decision hands the government a lifeline to impose similar requirements on federal contractors, at least in the Ninth Circuit. Under the Ninth Circuit’s broad interpretation of economy and efficiency, so long as there is a sufficient nexus or reasonable relationship between the requirement and FPASA’s purpose, the government can impose certain social, health, and other requirements on federal contractors that are not strictly limited to the four corners of the product or service being acquired from those contractors.This decision presents an opportunity for the Supreme Court to address this issue, something it has not been asked to do due to the Biden administration’s decision not to seek review of any of the previous adverse court of appeals decisions.  Provided the issue does not become moot through, for example, revocation of the Contractor Mandate, Arizona and the other plaintiff-appellees will likely file a petition for a writ of certiorari. Given the unequivocal circuit split, the odds of Supreme Court review are high.At least until the Supreme Court weighs in, the Ninth Circuit’s decision cautions federal contractors to continue to be mindful of the federal government’s ability to impose requirements beyond the four corners of a contract, at least in certain parts of the country.*Law Clerk Thomas Lee contributed to this blog post

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

J. Ward

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Joe Palmore co-chairs Morrison Foerster’s Appellate and Supreme Court practice. 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

Joseph R. Palmore is co-chair of the firm's Appellate and Supreme Court Practice Group and Managing Partner for the Washington, D.C. office. 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

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Krista Nunez

Ninth Circuit Dissolves Preliminary Injunction of EO 14042 Contractor Vaccine Mandate