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

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.

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.

Bradley Wine

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

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

New DFARS Regulation on Small Business Affiliate Past Performance

Bid Protest Spotlight: Unclear Criteria, Data Rights, Conflicts

LinkedIN

The federal government sets aside many contracts for small businesses, but not all small business set-asides are created equal.  Instead, different size standards define small business status for different procurements.  The size standards vary from industry to industry, so a given firm may be a small business for one procurement at the same time it may be other-than-small for a different procurement for seemingly similar goods or services.To keep order, the Small Business Administration (SBA) maintains a manual of industrial codes – called North American Industry Classification System (NAICS) codes – that are assigned to particular classes of manufacturing and service industries.  Each NAICS code is associated with a particular size standard that changes over time.  Some size standards are based on a firm’s revenues and are expressed as dollar values – a firm is small if its average annual receipts do not exceed the specified number of dollars.  Others are based on the size of a firm’s workforce – a firm is small if its average number of employees does not exceed the figure associated with the particular NAICS code in question.For each procurement in excess of the micro-purchase threshold (currently $3,500 for most acquisitions), the contracting officer must designate within the solicitation a single NAICS code that best corresponds to the goods or services the agency is soliciting.  FAR 19.303.  The chosen NAICS code establishes the size standard for that procurement.  If the procurement is a small business set-aside, the size standard can determine (in large part) whether a particular offeror is eligible for award.As one might expect, an agency’s choice of NAICS code is often more art than science, and reasonable minds may disagree what the best NAICS code may be for a given procurement.  Because different NAICS codes may correspond to different size standards, the agency’s code choice in a set-aside procurement may result in a particular firm being eligible or ineligible to compete for award.  Exclusion from a competition is a powerful incentive for firms to challenge an unfavorable NAICS code selection.Unlike normal pre-award solicitation challenges, a challenge to a NAICS code is not a bid protest that can be filed with the Government Accountability Office (GAO), Court of Federal Claims, or the procuring agency.  Instead, an aggrieved potential offeror must file a NAICS Appeal with the SBA Office of Hearings and Appeals (OHA), within 10 calendar days after issuance of the solicitation containing the objectionable NAICS code.  See 13 C.F.R. § 121.1103.  OHA does not require the agency’s selected NAICS code to be perfect.  Rather, an appellant has the burden of proving that the chosen code is based upon a clear error of fact or law and does not best describe the principal purpose of the product or service being acquired.  If OHA issues an adverse decision, a party with standing may then appeal OHA’s decision to the Court of Federal Claims.Illustrative Case:  American West Laundry, Inc.A recent decision from OHA illustrates how a NAICS code appeal proceeds, and what remedies are available.  American West Laundry, Inc., SBA No. NAICS-5842 (2017), involved an Army solicitation for a contractor to perform bulk laundry services, including picking up dirty laundry from an Army hospital, cleaning and drying it at the contractor’s facility, and returning the laundry to the Army within 24 hours.  The Army set the procurement aside for small businesses, and assigned NAICS code 812331 (Linen Supply), with a size standard of $32.5 million in average annual receipts.Within 10 days after issuance of the solicitation, American West filed a timely NAICS appeal with OHA, arguing that the Army should have assigned NAICS code 812320 (Drycleaning and Laundry Services (except Coin-Operated)), with a much smaller size standard of $5.5 million in average annual receipts.  Reading between the lines, American West had less than $5.5 million in average receipts (and thus would meet the stricter size standard), but believed a number of its potential competitors (which might have less than $32.5 million in annual receipts under the more generous size standard) exceeded the stricter standard.  Reducing the size standard to $5.5 million would thus clear out a portion of the appellant’s competition.A second offeror, Division Laundry & Cleaners, intervened in the appeal to defend the agency’s choice of NAICS codes.  Reading between the lines, this firm likely was one of the companies that was small under the $32.5 million standard, but would have been other-than-small under the $5.5 million standard.  Division Laundry argued that the Army’s chosen code was correct because it included “businesses that provide laundered items, such as bed linens, towels, and hospital gowns,” which are the items this solicitation required to be laundered.  Division Laundry also argued that this is the code the agency had used in the past for similar procurements.SBA’s Office of General Counsel filed its own response in the appeal, arguing that both the Army and the appellant got the NAICS code wrong.  According to the SBA, the code should have been 812332 (Industrial Launderers), with an associated size standard of $38.5 million – higher even than the initially chosen NAICS code.  The SBA argued that this code included work related to hospital laundry services (such as the services required by this procurement) and, moreover, corresponded to a superseded code definition that (like the current procurement) included services where a contractor was responsible for replacing or repairing Government-owned items to be laundered if those items were no longer serviceable.Which of the three codes was correct?  Citing its own precedent, OHA found that the Army’s preferred code was incorrect because it described services where the contractor owns the laundered items and rents them to the Government – i.e., supplying linens to the Government.  Here, the Government owned the linens, and the contractor was only going to launder them.  OHA also found the SBA’s preferred code was incorrect.  Like the Army’s code, the SBA’s preferred code also applied only to launderers that “supply[], on a rental or contract basis,” the laundered items, but here the contractor was to provide laundry services for Government-owned items.  OHA did not find that slightly different definitions in the obsolete code manual cited by the SBA shed any light on the applicability of current NAICS codes.  Thus, the appellant’s preferred code (with its $5.5 million size standard) was the correct one, as only it applied to laundry services performed on Government-owned items and reasonably encompassed the solicited services.So, the appellant won.  That victory, however, had no effect on the solicitation at issue:  although the appeal was timely filed within 10 days after release of the solicitation, the date set for receipt of quotations was only two weeks after the solicitation’s issuance.  Because OHA issued its decision after the due date for quotations, the decision had no effect on the pending procurement, although regulations allow the decision to be applied to future solicitations for the same services.  13 C.F.R. § 134.318(b); FAR 19.303(c)(8).When to Appeal a NAICS CodeWhen and why would a company appeal a NAICS code?  As American West demonstrates, a desire for accurate taxonomy is not the primary motivation behind NAICS code appeals.  In general, we recommend that prospective offerors provide preferred NAICS codes to an agency as early in the acquisition process as possible, including in pre-solicitation responses or in questions and answers on draft solicitations.  If the solicitation is issued with a disadvantageous code, here are a few scenarios where an appeal may make good business sense:<ul><li style="padding-bottom: 16px;">The chosen NAICS code has an unfavorably high size standard. This was the issue in American West.  The choice between NAICS code 812331 (Linen Supply) and NAICS code 812320 (Drycleaning and Laundry Services (except Coin-Operated)) determined whether a very small firm like the appellant would have to compete only against other firms with annual revenues below $5.5 million, or against firms with revenues as high as $32.5 million.  A lower cutoff can knock a number of rivals out of set-aside competition altogether.</li><li style="padding-bottom: 16px;">The chosen NAICS code has an unfavorably low size standard. This is the other side of the coin.  If the agency’s chosen NAICS code has a size standard that your otherwise small business exceeds, you should consider whether a different NAICS code (with a higher size standard) better describes the set-aside procurement.</li><li style="padding-bottom: 16px;">A different NAICS code may drive a different Rule of Two analysis. Under the so-called Rule of Two, an agency must set aside for small businesses all acquisitions between $3,500 and $150,000, unless “there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery.”  FAR 19.502-2(a).  Similarly, an agency must set aside for small businesses any procurement in excess of $150,000 if there is a reasonable expectation that offers will be obtained from at least two responsible small business concerns, offering the products of different small business concerns, at fair and reasonable prices.  FAR 19.502-2(b).  If a procurement’s selected size standard is low enough, there may not be a reasonable expectation of receiving two small business offers – causing the solicitation to be issued on an unrestricted basis, and thus open to large businesses.  Where the choice of NAICS code might be expected to alter the Rule of Two analysis and a procurement status as a set-aside or non-set-aside, it may be advantageous to appeal the selected code so that the procurement will – or will not – be set aside for small businesses.</li><li style="padding-bottom: 16px;">It may make sense to intervene in someone else’s NAICS code appeal. Interested parties may participate in another party’s NAICS code appeal.  An intervention clearly makes sense when you are not happy with the assigned NAICS code, but it also may be advisable to participate in an appeal when you agree with the assigned code.  If you do not intervene in the appeal, and OHA renders a decision imposing a NAICS code that is unfavorable to you, you likely will be foreclosed from filing an appeal of the new NAICS code or from seeking judicial review.  See Palladian Partners, Inc. v. United States, 783 F.3d 1243 (Fed. Cir. 2015).</li></ul>

Anser Advisory

ARKA

Arlington Capital

Battle Investment Group

Behrman Capital

Cadmus

Chainalysis

CollabraLink

Definitive Logic

Emmes

Enlightenment Capital

Grant Thornton

Griffon Corporation

eTelligent

L3Harris

Jacobs

LinQuest Corporation

Micross

Sagewind

Sedgwick

Sigma Defense

teKnoluxion

The Building People

VariQ

specht_damien_blog_150x150.png

specht_damien_common_640x280.jpg

specht_damien_heroretina_2700x1160.jpg

specht_damien_mobileretina_750x1040.jpg

specht_damien_social_600x600.jpg

Damien is a partner in the firm’s Government Contracts & Public Procurement practice. He represents clients in all facets of government contracts transactions, as well as regulatory counseling, subcon

Damien Specht

Damien C. Specht

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

small-business-thumb.jpg

NAICS Code Appeals: One Size Does Not Fit All

The federal government sets aside many contracts for small businesses, but not all small business set-asides are created equal.  Instead, different size standar

small-business-2.jpg

NAICS Code Appeals: One Size Does Not Fit All