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

The Court of Federal Claims recently affirmed its jurisdiction to settle disputes over protective markings in Raytheon Co. v. United States.[i]  In that case, R

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

Court of Federal Claims Marks Its Territory, Confirms CDA Jurisdiction Over Proprietary Legends

Court of Federal Claims Marks Its Territory, Confirms CDA Jurisdiction Over Proprietary Legends | Government Contracts Insights

James A. Tucker

Locke Bell

The Court of Federal Claims recently affirmed its jurisdiction to settle disputes over protective markings in <a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019cv0883-25-0">Raytheon Co. v. United States</a>.<a name="_ednref1" href="#_edn1">[i]</a>  In that case, Raytheon asked the Court to review a contracting officer’s demand that Raytheon replace its common proprietary, not-subject-to-release-under-FOIA<a name="_ednref2" href="#_edn2">[ii]</a> marking with the “Government Purpose Rights” legend prescribed by the DFARS. <a name="_ednref3" href="#_edn3">[iii]</a> Among other claims, Raytheon argued the contracting officer’s final decision denied Raytheon certain procedural rights granted by 10 U.S.C. § 2321.<a name="_ednref4" href="#_edn4">[iv]</a> The Government sought to dismiss that claim, arguing that Raytheon’s procedural challenges were outside the Court’s jurisdiction under the Contract Disputes Act (“CDA”). Thankfully, the court rejected that argument and denied the motion to dismiss, giving some reassurance that the Government will still be held to challenges to the “healthy measure of due process” guaranteed for restrictive marking challenges and described in an earlier post.BackgroundThe dispute in Raytheon centered on the agency’s request that the contractor remove proprietary markings from a Vendor List submitted in 2016 as part of a contract to supply engineering services supporting the Patriot weapon system. The contract identified the Vendor List as a contract deliverable identifying all the sources Raytheon used to procure subcontracted items in support of the Patriot system “as a means for the Government to track parts selection, supplier qualifications, and identification of parts.” Raytheon’s markings stated the list was proprietary, privileged, submitted in confidence, exempt from disclosure under FOIA,<a name="_ednref5" href="#_edn5">[v]</a> and subject to the criminal protections of the Trade Secrets Act.<a name="_ednref6" href="#_edn6">[vi]</a> The Army challenged Raytheon’s use of these restrictive markings in September 2016, declaring the list contained technical data the government intended to use to fulfill other government contracts, and instructed Raytheon to remove the restrictions. Raytheon replied that it had “no obligation to diminish its competitive advantage” by removing the proprietary legends that protected its proprietary Vendor Lists from competitors.In March 2017, the Army again objected, warning that it would remove the legends at Raytheon’s expense, reject future submissions, and withhold 10% of the total contract price until Raytheon resubmitted the lists with proper markings. In June 2018, the contracting officer issued a final decision in response to Raytheon’s justification of November 2016, reasoning that the Vendor List qualified as technical data because it contained a list of parts and part numbers, which the Army used in conjunction with other technical drawings. The contracting officer therefore determined Raytheon’s markings failed to conform to DFARS Part 227 and needed to be replaced with GPR legends, and again repeated her earlier warning that failure to comply would result in future rejections and a 10% withholding.AnalysisRaytheon, seeking a declaratory judgment, filed a complaint with the Court of Federal Claims, challenging the final decision, alleging the Army violated procedural rights protected under 10 U.S.C. § 2321, and furthermore breached provisions of the contract, which incorporated the restrictive-marking validation procedures of DFARS 252.227-7037.<a name="_ednref7" href="#_edn7">[vii]</a>The Government moved to dismiss one count of Raytheon’s complaint for lack of jurisdiction under either the Tucker Act or the Contract Disputes Act (CDA). Specifically, the Government argued that the court lacked jurisdiction to consider Raytheon’s allegation that the Army violated its procedural rights under 10 U.S.C. § 2321. The court rejected all three parts of the government’s argument.First, the Government posited that the court lacked jurisdiction because the Tucker Act extends to statutory claims only where a plaintiff seeks monetary relief. <a name="_ednref8" href="#_edn8">[viii]</a> Because Raytheon did not seek money damages, but rather sought declaratory relief, the Government asserted that section 1491(a)(1) of the Tucker Act did not apply. The court found no merit in the argument because the Tucker Act, at section 1491(a)(2), and the CDA clearly grant the Court jurisdiction over such requests for declaratory relief. <a name="_ednref9" href="#_edn9">[ix]</a>Second, the court rejected the Government’s contention that jurisdiction over Count I did not exist under the CDA because Raytheon didn’t seek a determination on the Government’s rights to a GPR license. The court disagreed, finding the gravamen of Raytheon’s complaint was whether, in the absence of “the procedural protections mandated by the statute,” the agency could compel delivery of the Vendor Lists. To resolve the issue, the court looked to the Federal Circuit’s definition of a “claim,” which the CDA left undefined. Finding the higher court applied the term as defined in the Federal Acquisition Regulations (FAR), the court held that to be covered by the CDA, a claim “need not be based on the contract itself . . . as long as it relates to its performance under the contract.” Therefore, because Raytheon alleged a statutory right “to assert and justify its use of restrictive markings of its own choice” during contract performance, the contracting officer’s final decision directing Raytheon to affix GPR marks served to confer jurisdiction by resolving Raytheon’s “claim.”Third, the Government argued the court lacked the authority to include the language “invalid” or “null and void” in any judgment on the contracting officer’s final decision. The court decided to first test the merits of whether the contracting officer committed any procedural violations, and whether such violations prejudiced Raytheon, before addressing the proper scope of any declaratory relief it might provide.Finally the court summarily rejected the Government’s motion to dismiss for failure to state a claim. The Government contended Raytheon brought a private cause of action not supplied by § 2321. The court held that, rather than bringing a “freestanding private right of action to enforce . . . §2321,” Raytheon asserted a violation of § 2321 as the basis for its claim under the CDA.TakeawaysWhile appreciated for its affirmation that the Court of Federal Claims may issue declaratory relief where an agency runs astray from the procedural safeguards Congress has set out in statute, the Raytheon decision is most interesting for highlighting the procedural tension between defending one’s data rights and safeguarding other confidential information exempt from FOIA and protected by the Trade Secrets Act.The FAR and DFARS set out rules and procedures for marking technical data and computer software, as well as a clear disputes process for justifying those markings that winds its way to either the Court of Federal Claims or a board of contract appeals. But contractors often share very confidential information – for example, detailed cost or pricing data, personnel management information, or (as relevant here) vendor lists – that is not “technical data,” as defined in regulation and statute, but nevertheless is protected from disclosure by law. Contractors should always mark such data with a proprietary legend like the one used by Raytheon, and, typically, the Government will not object. More often, disputes over such markings arise through the regular FOIA process, where a competitor or some other third party requests release of the data, the Government acquiesces, and the contractor is forced to defend its proprietary markings in federal district court under the Administrative Procedure Act.In Raytheon, that mold was broken: the Government preemptively sought to remove Raytheon’s proprietary, FOIA-specific legends, so that it could share Raytheon’s information with others to fulfill other government contracts. Thus, because the Government’s final decision related to the markings themselves, and not the prospect of release under FOIA, the Court of Federal Claims, rather than a federal district court of general jurisdiction, appears to have been the appropriate forum for Raytheon’s appeal.This result is noteworthy – and good for Raytheon and other similarly situated contractors – because, by adhering to the data rights dispute procedures, it affords the contractor a year to decide whether to bring its appeal, with the Government all the while bound to the original restrictive marking. Were this a FOIA case in federal district court, Raytheon would have had significantly less time (often two weeks or even less) to decide whether safeguarding its confidential information warranted litigation.<a name="_edn1" href="#_ednref1">[i]</a> Raytheon Co. v. United States, 19-883C (Fed. Cl. Jan. 14, 2020).<a name="_edn2" href="#_ednref2">[ii]</a> In long form, the Freedom of Information Act, 5 U.S.C. § 552.<a name="_edn3" href="#_ednref3">[iii]</a> “Government purpose rights” are defined in DFARS 252.227-7013 as the right to both “use, modify, reproduce, release, perform, display, or disclose technical data within the Government without restriction,” and to “release or disclose technical data outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose that data for United States government purposes.” As anyone working for the Government will tell you, the United States government has many purposes – so the difference between “government purpose rights” and “unlimited rights,” for most intents and purposes, is minimal. In particular, it is the second provision, allowing disclosure to those outside the Government, which most vexes those seeking to protect their trade secrets, as it allows the Government to share otherwise trade secret information with one’s competitors – even in a publicly released solicitation – for purposes of increasing competition.<a name="_edn4" href="#_ednref4">[iv]</a> Specifically, 10 U.S.C. § 2321­ provides that the Secretary of Defense shall ensure a “thorough review” of any restriction asserted to technical data in “any contract for supplies or services” with the Department of Defense providing for the delivery of technical data. In challenging a restriction, § 2321(d)(3)(B) requires the government to provide written notice to the contractor, requiring “a response . . . justifying the current validity of the asserted restriction.”<a name="_edn5" href="#_ednref5">[v]</a> 5 U.S.C. § 552(b)(4) states that “trade secrets and commercial or financial information obtained from a person and privileged or confidential” are exempt from disclosure to the public.<a name="_edn6" href="#_ednref6">[vi]</a> 18 U.S.C. § 1905 makes it a federal crime for a federal employee to publish, divulge, disclose, or make known information related to trade secrets obtained in the course of his or her employment.<a name="_edn7" href="#_ednref7">[vii]</a> DFARS 252.227-7037 is a contract clause, mandated by regulation, and implements 10 U.S.C. § 2321 and establishes the contractual rights and duties of the parties in the context of a dispute over technical data restrictive markings. Among other things, the clause mandates that the government “require a response . . . justifying and providing sufficient evidence as to the current validity of the asserted restriction” before issuing any final decision finding a restrictive marking to be improper. DFARS 252.227-7037(e)(ii).<a name="_edn8" href="#_ednref8">[viii]</a> 28 U.S.C. § 1491 (a)(1) provides that, “The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department.”<a name="_edn9" href="#_ednref9">[ix]</a> Jurisdiction over claims arising under the CDA (41 U.S.C. §§7101–09) is granted to the U.S. Court of Federal Claims under 28 U.S.C. § 1491(a)(2), including claims over “nonmonetary disputes on which a decision of the contracting officer has been issued.”*Markus Speidel is a Law Clerk in our Washington, D.C. office and not admitted to the bar.

More

Less Oversight and Undefined Penalties: The NDAA’s Proposed Protest Reforms

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

LinkedIN