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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Like the rest of the nation, and indeed the whole world, contractors today are fighting a war against an invisible enemy.  As we observed in a previous post, re

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Contracting in the Fog of War: Recovering Costs Caused by an Epidemic

Contracting in the Fog of War: Recovering Costs Caused by an Epidemic | Government Contracts Insights

Victoria Dalcourt Angle

Like the rest of the nation, and indeed the whole world, contractors today are fighting a war against an invisible enemy.  As we observed in a <a href="https://govcon.mofo.com/coronavirus/limits-on-a-contractors-ability-to-recover-for-unforeseen-risks-in-the-age-of-covid-19/" target="_blank" rel="noopener noreferrer">previous post</a>, responding to COVID-19 raises wartime contracting issues on the home front and abroad.  In “<a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltdc107bc777a4b3f5/627318da8e09542a15b7df63/190424-contracting-fog-war.pdf">Contracting in the Fog of War</a>,” we reported on IAP Worldwide Servs., Inc., ASBCA Nos. 59397 et al., 17-1 BCA ¶ 36763 (May 17, 2017), in which the Armed Services Board of Contract Appeals (ASBCA) agreed with a contractor’s claim that the government had constructively accelerated performance in the face of excusable delays due to Pakistan’s closure of its borders to military shipments into Afghanistan.  The ASBCA concluded there that the contractor was “entitled to an equitable adjustment reimbursing it for expenses actually and reasonably incurred in complying with the acceleration orders.”  17-1 BCA ¶ 36763.  In this post, however, we discuss the Civilian Board of Contract Appeals’ (CBCA) recent decision that a contractor’s additional costs incurred due to the Ebola outbreak did not entitle the contractor to an equitable adjustment.  The case could have important implications for COVID-related claims, and may offer an important lesson for contractors.In <a href="https://www.cbca.gov/files/decisions/2020/SOMERS_04-22-20_5683__PERNIX_SERKA_JOINT_VENTURE%20(Decision).pdf" target="_blank" rel="noopener noreferrer">Pernix Serka Joint Venture v. Department of State</a>, CBCA No. 5683 (April 22, 2020), Pernix Serka Joint Venture (PSJV) was performing a firm, fixed-price contract for the Department of State (DOS) when the Ebola virus hit.  The contract required PSJV to construct a rainwater capture and storage system in Freetown, Sierra Leone.  The contract included an excusable delays clause providing that PSJV would be allowed time, but not additional costs, for excusable delays.  Examples of excusable delays included acts of God, epidemics, and quarantine restrictions.  PSJV received a notice to proceed from DOS on December 17, 2013, and began contract performance.  By July 2014, the Ebola outbreak had spread to Sierra Leone.PSJV sought guidance from the DOS contracting officer (CO) as to how to respond to the outbreak.  The CO, however, did not provide any guidance.  Instead, the Agency stated that PSJV would need to make its own decisions about whether PSJV should evacuate the jobsite to protect the health and safety of its personnel.  On August 8, 2014, the World Health Organization (WHO) declared the outbreak an “international public health emergency.”  That same day, PSJV decided to shut down the project and evacuate its personnel.PSJV notified DOS of its decision to temporarily shut down the project.  In response, DOS stated: “Since you are taking this action unilaterally based on circumstances beyond the control of either contracting party, we perceive no basis upon which you could properly claim an equitable adjustment from the Government with respect to additional costs you may incur in connection with your decision to curtail work on this project.”In March 2015, PSJV returned to the project site with additional medical facilities and services to protect its employees.  PSJV then submitted two requests for equitable adjustment (REAs) to the CO for the cost impacts associated with the Ebola outbreak.  The CO denied the first REA, stating, “there is no contractual basis for an adjustment to the contract price.”  The CO did not take action on the second REA.In January 2017, PSJV submitted a certified claim for $1,255,759.88.  The claim sought “(1) $608,891 in additional life safety and health costs incurred due to differing site conditions, disruption of work and the need to maintain a safe work site for the Pernix Serka Joint Ventures work and Government personnel, and (2) $646,868.88 in additional costs incurred resulting from that disruption of work, and the need to demobilize and remobilize at the work site.”  PSJV offered several theories for why these unforeseen costs should fall on the Government, including a cardinal change theory, a constructive change theory, and a constructive suspension of work theory.  PSJV did not assert a constructive acceleration claim.  The DOS moved for summary judgment, arguing that PSJV bore the risk of any unexpected costs not attributable to the Government under its firm, fixed-price contract, and the CBCA agreed.First, the Board stated, “PSJV’s firm, fixed-price contract obligated PSJV to perform and receive only the fixed price.”  The contract explicitly stated that acts of God, epidemics, and quarantine restrictions would entitle PSJV to additional time, but not additional costs.  Therefore, PSJV cannot shift the risk of additional performance costs to the Government.  Furthermore, the contract did not “require the Government to provide PSJV with direction on how to respond to the Ebola outbreak.”  The Agency left it up to PSJV to decide whether to evacuate the worksite, and under the firm, fixed-price contract, PSJV bore the risk of any additional costs.Second, the Board addressed PSJV’s theory that it “was forced to perform in cardinal change conditions.”  A “cardinal change” is “a breach that occurs if the Government effects a change in the contractor’s work ‘so drastic that it effectively requires the contractor to perform duties materially different from’ those found in the original contract.”  PSJV asserted a cardinal change occurred when the Bureau of Overseas Building Operations (OBO), a branch within DOS, expected PSJV to work in Ebola crisis conditions without any guidance or direction from OBO, or a suspension of work.  PSJV further alleged that a cardinal change occurred when OBO pressured PSJV to return to the project site, which required PSJV to add safety measures that were not in its approved work plan.  The Board found this argument unavailing because, “[d]espite the difficulties encountered during the Ebola outbreak, the Government never changed the description of work it expected from the contractor.”  DOS informed PSJV that it would not order PSJV to evacuate the site and that PSJV would need to make its own decision as to whether it needed to demobilize from the site or take other steps to protect its personnel.  Furthermore, the implementation of additional safety measures after remobilization did not alter the contract.  PSJV remained obligated to perform at the contract price.Third, the Board addressed PSJV’s constructive change theory that it “was constructively ordered to provide medical and life safety measures outside the scope of the contract.”  A constructive change occurs when a contractor performs work beyond the contract requirements without a formal change order.  To recover on a constructive change claim, a contractor must show that (1) it performed work beyond the contract requirements and (2) the Government directed the contractor to perform the additional work without following the procedures in the Changes clause.  PSJV argued that both the demobilization and remobilization of its personnel and the additional safety measures put in place due to the Ebola epidemic should be considered constructive changes.  PSJV’s arguments failed, however, because the Government did not order it to take any action in response to the Ebola epidemic.Finally, the Board briefly addressed PSJV’s constructive suspension of work claim.  In its opposition brief, PSJV argued that the outbreak resulted in a constructive suspension of work.  However, the Board found this claim untimely because it did not arise from the same set of operative facts as the theories raised in PSJV’s certified claim.  For these reasons, the Board denied the appeal.Key Takeaways and Missed OpportunitiesIn this case, the Agency put the contractor in a difficult position by not providing it any guidance or direction on how to respond to the outbreak.  The Agency did not tell the contractor to do anything, so the contractor had no constructive change claim.The Board might have reached a different conclusion had the company been in a position to pursue a constructive acceleration claim.  A constructive acceleration claim requires: (1) a delay which entitles the contractor to additional time for performance (such as an excusable delay), (2) contractor notice to the government of such delay and a request for an extension of time, (3) an action or statement by the government that can be construed as an acceleration order, and (4) reasonable efforts by the contractor to accelerate work, resulting in additional costs.In the IAP case, the agency’s failure to promptly grant an extension request (which the contractor was entitled to receive due to excusable delay) constituted constructive acceleration.  While there is no guarantee it would have succeeded, PSJV might have been able to pursue a constructive acceleration with the proper groundwork, which would likely have involved the contractor (a) advising DOS that the schedule impact caused by the outbreak was unknown, (b) expressly asking DOS to agree to an excusable delay for the length of the epidemic and until the CO was able to establish a new, reasonable schedule, and then (c) refusing to restart operations until the epidemic was over unless the Agency ordered a restart.  Instead, the contractor played into the Agency’s hands by making the unilateral decision to cease work and then to restart operations with added safety measures.

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