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 COVID-19 virus, COVID-related contract claims have not gone away.  In “Contracting in the Fog of War: Recovering Costs Caused by an Epidemic,” we reported on Pernix Serka Joint Venture v. Department of State, CBCA No. 5683, 20-1 BCA ¶ 37589 (April 22, 2020), in which the Civilian Board of Contract Appeals (CBCA) determined a contractor’s additional costs incurred due to the Ebola outbreak did not entitle the contractor to an equitable adjustment. 

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Contracting In The Fog of War: Recovering Costs Related to COVID-19 | Government Contracts Insights

Victoria Dalcourt Angle

Like the COVID-19 virus, COVID-related contract claims have not gone away.  In “<a href="https://govcon.mofo.com/topics/contracting-in-the-fog-of-war-recovering-costs-caused-by-an-epidemic" target="_blank" dir="ltr">Contracting in the Fog of War: Recovering Costs Caused by an Epidemic</a>,” we reported on Pernix Serka Joint Venture v. Department of State, CBCA No. 5683, 20-1 BCA ¶ 37589 (April 22, 2020), in which the Civilian Board of Contract Appeals (CBCA) determined a contractor’s additional costs incurred due to the Ebola outbreak did not entitle the contractor to an equitable adjustment.  In most cases, COVID-related claims have been similarly disappointing for government contractors.  This is particularly true under fixed-price contracts, where the contract price is not normally subject to any adjustment based on a contractor’s cost experience in performing the contract.  However, the Armed Services Board of Contract Appeals (ASBCA) recently held that a contractor was entitled to compensation for additional COVID-19-related costs arising under a fixed-price task order, based on the particular facts of the case.FactsIn StructSure Projects, Inc., ASBCA No. 62927 (Aug. 7, 2023), the U.S. Army Corps of Engineers (“Agency”) awarded StructSure Projects, Inc. (StructSure) a fixed-price task order to perform design and alteration services at a medical center on an Air Force base.  The order contained several contract line item numbers (CLINs) for various services, including the provision of temporary phasing facilities for use at the medical center during the alteration services.  After StructSure began work, and due to the COVID-19 pandemic, the government designated the task order non-mission-essential and precluded StructSure from any on-site activities for 44 days.StructSure submitted a request for equitable adjustment (REA) for the impacts of the suspension of work.  In response, the government issued a bilateral modification providing a non-compensatory time extension, resulting in a longer period of performance.StructSure submitted another REA asserting that the government used the temporary phasing facilitates and associated rental furniture and equipment during the time the project was classified as non-mission-essential and StructSure could not perform on site.  As a result, StructSure stated it incurred extended rental costs for the facilities, furniture, and equipment.  Originally those items were to be on site for only 13 months, but due to the stoppage of work and per the modification, the temporary phasing facilities were on site for 16 months.The government denied the REA, stating that, pursuant to the contract’s Default clause, FAR 52.249-10, the government may grant extra time in response to a pandemic or quarantine but not additional money.StructSure submitted a certified claim seeking reimbursement for the same costs, alleging it was entitled to the additional rental costs incurred because the government occupied the temporary phasing facilitates and utilized the rental furniture and equipment during the stoppage of work.The contracting officer’s final decision denied the claim for two reasons: (1) the Agency stated that the exclusion from the work site was not a change as it was considered a sovereign act of the government and therefore, pursuant to FAR 52.249-10, the contracting officer could issue a non-compensable extension for days lost, which the Agency did, and (2) StructSure was obligated to bear the costs here—despite the fact the medical facility continued to use the temporary phasing facilities during the period StructSure was not allowed access—because it had a fixed-price task order.DecisionThe ASBCA stated that under the contract’s Changes clause, FAR 52.243-4, the contracting officer was required to make an equitable adjustment and modify the award for any change causing an increase in the contractor’s costs.  In this case, the government modified the task order and changed the completion date, which required use of the temporary phasing facilities for a longer period of time.  As a result, the ASBCA concluded the government changed the task order CLIN to utilize the temporary phasing facilities for additional time, and StructSure was entitled to compensation for those additional rental costs.The government raised two primary challenges against StructSure’s claim.First, the government argued that the task order, including the CLIN requiring the provision of temporary phasing facilities, was fixed-price, and the risk of a pandemic is always borne by the contractor in a fixed-price task order, with the exception of the grant of a non-compensable extension of time pursuant to the default clause.  The ASBCA disagreed, explaining that the default clause would not apply to performance of this particular CLIN because StructSure provided the temporary phasing facilities during the 44-day stoppage of work.Second, the government contended that StructSure could not recover additional costs incurred due the sovereign acts defense.  The government argued that the defense applied because the base leadership suspended all non-mission essential activities due to the COVID-19 pandemic, not merely work relating to StructSure’s task order.  As a result, according to the government, StructSure was only entitled to a non-compensable delay, which the government provided in its bilateral contract modification extending the task order completion date.Under the sovereign acts defense, the government, when sued as a party to a contract, cannot be held liable for its general and public acts as a sovereign.  The defense precludes a contractor from monetary recovery for contract damages resulting from the government separately acting in its sovereign capacity.The defense only applies when: (1) the government’s sovereign act is public, general, and only incidentally falls upon the contract or order, and (2) the sovereign act renders performance impossible or impracticable.Here, the government’s actions in limiting base access to only mission-essential personnel due to COVID-19, and finding StructSure’s task order non-mission-essential and therefore precluding StructSure from on-site construction activity, were public and general sovereign acts.  However, supplying the temporary phasing facilities was a separate CLIN under the fixed-priced task order, and StructSure met its deliverable.  In other words, the Government’s decision to suspend access to the base for non-mission -critical contractors did not make supplying the temporary facilities impossible.  To the contrary, StructSure delivered the temporary phasing facilities, and the government used them for ongoing medical treatments.  Therefore, the ASBCA concluded the sovereign acts defense did not apply and StructSure was entitled to compensation for the additional rental costs.TakeawayStructSure Projects provides a potential avenue for recovery of COVID-19-related costs under the Changes clause where the government receives some additional benefit.  It also demonstrates the limitations of the sovereign acts defense where the contractor continues to perform its own obligations—in this case, providing the temporary facilities—despite the government’s sovereign act.  This case could be significant, as contractors continue to grapple with the impact of the pandemic.

Contracting In The Fog of War: Recovering Costs Related to COVID-19

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