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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Anatomy of a Protest

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Tina is Co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmaceutical companies, with a focus on general contract counseling and compliance, particularly concerning intellectual property, and cybersecurity matters and federal grant funding.Tina counsels contractors on compliance with federal, state and local acquisition and ethics regulations and with the evolving myriad of requirements pertaining to data security and cybersecurity. She has been involved with numerous internal investigations and compliance reviews, and with mandatory and voluntary disclosures to agencies, and litigation of False Claims Act matters.Tina routinely advises clients concerning:<ul><li>Prime-subcontractor relationships</li><li>Sources of supply and country of origin requirements</li><li>Price reductions and price reporting issues</li><li>Organizational conflicts of interest</li><li>Safeguarding of intellectual property and other proprietary interests</li><li>Licensing and data rights issues</li><li>Handling of classified materials and controlled unclassified information</li><li>Agency suspension and debarment proceedings</li></ul>She also assists clients with due diligence and other activities related to the acquisition of government contracting concerns, and with the drafting and negotiation of teaming agreements, subcontracts, licensing agreements, and cooperative research and development agreements. She also assists clients applying for federal grants (including SBIR and STTR agreements), and those who seek to obtain other transactional authority agreements, as well as those competing for state and local government work.Tina’s litigation experience includes government contracts claims litigation in federal courts and before boards of contract appeals, bid protests before the Government Accountability Office and the Court of Federal Claims, and complex disputes in federal courts, including civil fraud and False Claims Act litigation and reverse Freedom of Information Act litigation.Prior to joining Morrison Foerster, Tina worked at another large national firm and as a trial attorney in the Office of the General Counsel of the Navy, Navy Litigation Office.<h4>Representative Experience</h4><ul><li>Negotiation of largest CHIPS Act federal funding agreement between multinational semiconductor corporation and U.S. Department of Commerce.</li><li>Negotiated prime contract and major subcontracts related to the Department of Energy’s next generation supercomputer program, including extensive IP rights negotiations and negotiation of associated patent rights waivers.</li><li>Negotiated series of other transaction authority agreements with DARPA and associated subcontracts with more than a dozen research universities on behalf of a firm biotech client, including complex IP rights allocations and material transfer agreements.</li><li>Assist clients with FedRAMP authorization process and with development of license agreements for software products sold to federal, state and local government agencies.</li><li>Cyber incident response counseling to some of the largest companies and organizations impacted by security incidents.</li><li>Advises clients on Bayh-Dole reporting of inventions and IP strategies for contracts and grants.</li><li>Conducts due diligence for major government contract mergers and acquisitions.</li></ul>

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Tina is co-chair of Morrison Foerster’s Government Contracts & Public Procurement practice. She counsels a wide variety of government contractors on compliance with federal acquisition and ethics regulations. She drafts and negotiates contracts on their behalf and has been involved with numerous internal investigations and compliance reviews, and with bid protest, contract claims, and False Claims Act litigation. She also advises on M&A transactions involving government contractors.

Tina D. Reynolds

Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office.Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters. He has represented both protesters and awardees in scores of protests before the Government Accountability Office, the Court of Federal Claims, and procuring agencies, in acquisitions ranging from small business procurements to multibillion-dollar contracts of global significance. His representative protest matters span the aerospace sector, the Intelligence Community, base operations and logistics, healthcare, nuclear and environmental work, and information technology and software acquisitions. His protests have included both classified and unclassified programs. In addition to prevailing in published decisions, Jim has also secured favorable corrective action on behalf of clients in a wide variety of protests that were resolved without a published decision.Jim’s work also focuses on disputes over cost allowability and compliance with the Cost Accounting Standards, and he has appeared before the Armed Services and Civilian Boards of Contract Appeals, in size and status protests before Small Business Administration (SBA) area offices, and appeals before the SBA Office of Hearings and Appeals. Jim regularly counsels clients on contract interpretation, organizational conflicts of interest, and small business compliance.Jim graduated with high honors from the George Washington University Law School, where he focused his studies on federal procurement law, was a member of the Law Review, and interned with the General Services Administration’s suspension and debarment office. Jim also holds a degree in theology magna cum laude from the Pontifical Gregorian University in Rome and a bachelor’s degree in classical languages and literature summa cum laude from the University of Kentucky, where he graduated Phi Beta Kappa.

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Jim maintains an active practice in bid protests before the Government Accountability Office and contracting agencies and counsels clients in contract disputes and compliance obligations.

Jim Tucker is of counsel in Morrison Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office. Jim’s practice runs the gamut of litigation and counseling in federal procurement matters, with an emphasis on bid protests, Cost Accounting Standards disputes, and small business matters.

James Tucker

<div style="margin-bottom: 15px;" class="videoWrapper"><iframe class="sticky-video" title="Meet Alex Ward, Government Contracts Practice Co-Chair" src="https://www.youtube-nocookie.com/embed/TkliwdSlTaQ?rel=0" frameborder="0" allow="autoplay; encrypted-media" allowfullscreen="1" title="iframe"></iframe></div>J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. His practice covers a full range of government contracts matters, including investigations, bid protests, claims, general litigation, corporate transactions, and counseling. Alex strives in all matters is to provide his clients the highest level of efficient and effective representation.Alex represents contractors in internal and external investigations, disclosures to the government, and qui tam litigation, with great success in reducing or eliminating his clients’ exposure through active engagement with the government. His work in this area includes obtaining numerous declinations and dismissals of False Claims Act cases in their earliest stages, sparing his clients the cost, risk, and exposure of litigation.He has also served as lead counsel in dozens of bid protests involving military and civilian agency procurements of a wide range of products and services, including all manner of pre- and post-award protests in the GAO, the U.S. Court of Federal Claims, and state tribunals, as well as appeals to the U.S. Court of Appeals for the Federal Circuit and size protest appeals before the SBA’s Office of Hearings and Appeals.Alex handles all aspects of the claims process, from the initial assessment and drafting of requests for equitable adjustment through litigation in the Boards of Contract Appeals and the Court of Federal Claims. Alex’s practice also covers the full gamut of other controversies confronting government contractors, including prime-sub, teaming partner, employer-employee, competitor, and indemnification disputes. His litigation work also includes a wide variety of pro bono engagements, in which he has represented both individual and institutional clients in matters ranging from immigration and criminal defense to sustainable procurement and protection of the environment.Prior to joining the firm, Alex served in the U.S. Army as a commissioned officer and an Assistant to the General Counsel of the Army responsible for civil works and international matters, and as a clerk for judges on the U.S. Courts of Appeals for the Armed Forces and the D.C. Circuit. He is a member of the Boards of the Morrison & Foerster Foundation and the Chesapeake Bay Foundation and of Law360’s Government Contracts Editorial Board.

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Alex is co-chair of Morrison Foerster’s Government Contracts and Public Procurement practice. His practice covers a full range of government contracts matters, including bid protests, claims, investigations, corporate transactions, and counseling.

J. Alex Ward

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Morrison Foerster’s Government Contracts Insights blog provides an in-depth analysis of news, developments, and trends impacting government contracting and procurement. Through Insights, attorneys from our nationally recognized Government Contracts and Public Procurement practice will offer a real-time assessment of the statutory, regulatory, legal, and business-related developments that are shaping the industry. This blog will also examine a full array of U.S. and non-U.S. public procurement issues, mindful that our clients compete in a global marketplace.Read about our <a href="http://govcon.mofo.com/editors/">Authors</a>.Never miss a post. Subscribe to get real-time updates.

Brad is a partner in Morrison Foerster’s Litigation Department, Managing Partner of the Austin office, and Chair of the firm’s Israel practice. He is the former Co-Chair of the firm’s Global Litigation Practice and the Government Contracts + Public Procurement Practice.

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

Bid Protest Spotlight: Standing, Relationships, Responsibility

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

New DFARS Regulation on Small Business Affiliate Past Performance

Bid Protest Spotlight: Unclear Criteria, Data Rights, Conflicts

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On May 2, 2024, the U.S. Department of Defense (DoD) issued an important class deviation that provides necessary relief for contractors endeavoring to comply with ever-changing cybersecurity requirements. The deviation applies to Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting, and alters the requirement that contractors must comply with the most current version of National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171, Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations, in existence at the time of solicitation issuance. Absent the deviation, as soon as NIST implements a new final version of SP 800-171, the new version would take immediate effect. The deviation eliminates this absurd and impractical result.As currently drafted, DFARS 252.204-7012 states that, for non-cloud-based covered contractor information systems that are not part of an IT service or system operated on behalf of the U.S. government, contractors must implement whichever version of NIST SP 800-171 is “in effect at the time the solicitation is issued or as authorized by the Contracting Officer.” DFARS 252.204-7012(b)(2)(i). Since February 2020, this requirement has meant that contractors must implement NIST 800-171 Revision (Rev.) 2. As NIST is set to release the final version of NIST SP 800-171 Rev. 3 imminently, under the standard -7012 clause, the release of Rev. 3 would have required contractors to implement it immediately for any subsequent solicitations and contracts. The DoD issued this class deviation in recognition of the need to “provide industry time for a more deliberate transition” to NIST SP 800-171 Rev. 3. Under the deviation, contractors must comply with NIST SP 800-171 Rev. 2, instead of the version of NIST SP 800-171 in effect at the time the solicitation is issued, until further notice. The class deviation is effective immediately and will remain in effect until rescinded.Although the deviation is limited in scope – changing a mere 16 words from the standard DFARS clause – it offers welcome relief to DoD contractors. Based on the initial draft of NIST SP 800-171 Rev. 3, it contains several significant changes from its predecessor (see our <a href="https://govcon.mofo.com/topics/nist-releases-revised-cybersecurity-controls-and-requirements-for-protection-of-controlled-unclassified-information-resident-in-contractor-information-technology-systems" target="_blank">Summary of the Initial Public Draft of Revision 3</a>).<a href="#_ftn1" target="_self">[1]</a> These changes include eliminating the distinction between basic and derived security requirements; updating security controls; increasing the specificity of security requirements; updating security requirements to reflect changes to NIST SP 800-53, Security and Privacy Controls for Information Systems and Organizations, and NIST SP 800-53B, Control Baselines for Information Systems and Organizations; and introducing the concept of organization-defined parameters. Implementing NIST SP 800-171 Rev. 3 therefore is not a simple task, a fact the DoD appears to have recognized.The class deviation is also consistent with the DoD’s planned approach for implementation of the Cybersecurity Maturity Model Certification (CMMC) program. Level 2 CMMC certification requirements mirror existing contractor obligations to protect controlled unclassified information (CUI) under DFARS 252.204-7012, and the <a href="https://www.federalregister.gov/documents/2023/12/26/2023-27280/cybersecurity-maturity-model-certification-cmmc-program" target="_blank">proposed rule for the CMMC program</a> itself refers to NIST SP 800-171 Rev. 2. It therefore would not have made sense for the DoD to require compliance with Rev. 3 under the -7012 clause while allowing Level 2 CMMC certification to proceed based on Rev. 2. Our expectation is that DoD will ultimately amend the relevant DFARS clauses in the future to tie both Level 2 CMMC certification<a href="#_ftn2" target="_self">[2]</a> and -7012 clause compliance to NIST SP 800-171 Rev. 3. Until then, contractors can continue to focus on NIST SP 800-171 Rev. 2 with an eye toward Rev. 3 compliance in the future.<a href="#_ftnref1" target="_self">[1]</a> NIST issued a <a href="https://csrc.nist.gov/pubs/sp/800/171/r3/fpd" target="_blank">Final Public Draft</a> on November 9, 2023. The Final Public Draft further refined the content from the <a href="https://csrc.nist.gov/pubs/sp/800/171/r3/ipd" target="_blank">Initial Public Draft</a> to reduce the number of organization-defined parameters, reevaluate the tailoring categories and tailoring decisions, and restructure and streamline the discussion sections.<a href="#_ftnref2" target="_self">[2]</a> For more on CMMC, read our <a href="https://govcon.mofo.com/topics/an-overview-of-the-defense-department-s-long-awaited-proposed-regulations-for-its-cybersecurity-maturity-model-certification-program?_gl=1*8n5txw*_ga*MjA5MDkwNzI1OS4xNzExNTQ2MTIz*_ga_3HVRG7GH76*MTcxNDc0ODY5Ni4yNi4wLjE3MTQ3NDg2OTYuMC4wLjA." target="_blank">Overview of DoD’s CMMC Proposed Rule</a>.

A Sigh of Relief: DoD Issues Class Deviation for DFARS 252.204-7012

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Sandeep Nandivada is a partner in the Litigation Department of Morrison & Foerster’s Washington, D.C. office.

Sandeep N. Nandivada

Sandeep Nandivada

Tina is a partner in Morrison & Foerster’s Government Contracts practice. She represents a wide variety of government contractors including information technology, defense, biotechnology, and pharmace

Tina Reynolds

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A Sigh of Relief: DoD Issues Class Deviation for DFARS 252.204-7012

DOD Proposes Enhanced Debriefing Regulations

On May 2, 2024, the U.S. Department of Defense (DoD) issued an important class deviation that provides necessary relief for contractors endeavoring to comply with ever-changing cybersecurity requirements. 

For the second time in as many years, the Department of Defense (DOD) has issued a <a href="https://www.federalregister.gov/documents/2024/02/15/2024-01220/defense-federal-acquisition-regulation-supplement-dfars-buy-american-act-requirements-dfars-case" target="_blank">final rule</a> that brings its Buy American Act (BAA) requirements into alignment with the Federal Acquisition Regulation (FAR). The final rule amends the Defense FAR Supplement (DFARS) Part 225 to introduce a stepwise increase in the percentage of domestic components needed for manufactured end products to qualify as domestically manufactured. The rule leaves untouched the higher threshold for products composed wholly or predominantly of iron or steel. As under the FAR rule, offerors unable or unwilling to meet the increased domestic content threshold remain eligible for award but must compete against the price preference given to domestic end products.New DOD contracts that are subject to the Buy American Act will require components from domestic or qualifying countries to make up at least 65% of a manufactured end product’s cost for the end product to qualify as “domestically manufactured” if delivered between 2024 and 2028. The threshold rises to 75% domestic or qualifying country components for manufactured end products delivered in 2029 and beyond. Previously, a domestic end product needed to contain only 55% domestic components to meet the definition of “domestically manufactured.”The final rule brings the DFARS into alignment with the regulations that apply to non-DOD procurements for the first time since October 2022, when a <a href="https://govcon.mofo.com/topics/220331-far-council-tightens-requirements" target="_blank">FAR rule took effect</a> that introduced the same stepwise increase in domestic content thresholds.  For contractors that sell to both the DOD and civilian agencies, the new alignment between the FAR and DFARS will make BAA requirements more consistent but may make compliance more expensive, given that stricter requirements now apply across the board.The new DFARS rule makes the following changes to BAA requirements for covered DOD contracts:<ul><li>Domestic end products must contain at least 75% domestic components, calculated by the value of components, beginning in calendar year 2029.  For calendar years 2024 through 2028, only 65% domestic components are required.  These thresholds replace the 55% threshold for domestic components that was set in a June 2022 final rule.  An earlier Obama-era rule had set the domestic component threshold at 50%.</li><li>The DFARS rule contains a fallback provision that will allow some contractors to wait until 2030 to comply with the new requirements, just as the FAR rule does.  Contractors may qualify for the 55% fallback rule if no domestic products are available at a higher threshold or if the cost to acquire compliant goods would be unreasonable.</li><li>The new DFARS rule provides for enhanced price preferences for critical items and critical components; however, the enhanced price preferences cannot take effect until the FAR defines which items and components are critical.  Once that list has been defined at FAR 25.105, the enhanced price preference rule will increase reporting requirements for interested contractors.</li><li>One difference between the DFARS and FAR Buy American requirements remains in place: components produced in more than two dozen qualifying countries outside the United States count towards qualifying as a domestic end product. In addition, end products from qualifying countries count as domestic end products. Thresholds for qualifying country end products will increase according to the same schedule as for domestic end products. Qualifying countries include those with a reciprocal defense procurement memorandum of understanding or another international agreement with the United States.</li></ul>Domestic sourcing requirements have become more difficult to navigate following repeated amendments over the last several years.  A single DOD contractor selling the same product might have to up to three versions of the Buy American rule across otherwise equivalent contracts.  The rule change applies only to new contracts; older versions of the Buy American clauses in existing contracts will remain in effect.  As a result, contractors should carefully monitor the requirements that apply to each contract—and each performance year in each contract—and prepare to comply with the 75% threshold.Contracts with a period of performance that spans a change in content threshold will require a change in domestic content during the contract’s performance.  That is, if a three-year contract begins in 2028, those manufactured end products delivered in 2028 must have at least 65% domestic content, but then must increase to at least 75% domestic content if delivered in 2029 and after. The DOD recognized that some contractors, especially those with indefinite-delivery, indefinite-quantity (IDIQ) contracts, might be unable to meet changing domestic content thresholds throughout the performance of a contract.  Alternate domestic content tests will be available for those contracts.  Contractors who receive the alternate test, with permission of the senior procurement executive, will only have to meet the domestic component threshold that applied at award of the IDIQ contract.The following DFARS clauses are amended by the new rule:<ul><li>DFARS 252.225-7000 Buy American—Balance of Payments Program Certificate</li><li>DFARS 252.225-7021 Trade Agreements</li><li>DFARS 252.225-7035 Buy American—Free Trade Agreements—Balance of Payments Program Certificate</li><li>DFARS 252.225-7036 Buy American—Free Trade Agreements—Balance of Payments Program</li><li>DFARS 252.225-7044 Balance of Payments Program—Construction Material</li><li>DFARS 252.225-7045 Balance of Payments Program—Construction Material Under Trade Agreements</li></ul>Updated versions of each clause are dated February 2024.The rule does not alter the exception to the component test for commercially available off-the-shelf (COTS) end products from the United States or qualifying countries. Similarly, the rule does not alter the higher threshold for end products that consist wholly or predominantly of iron or steel: 95% of the components in those end products, as measured by the cost of components, must be manufactured in the United States or qualifying countries.The new domestic content requirements and enhanced price preferences are likely to increase reporting requirements for defense contractors.  We will continue to watch for updates, including the definitions of critical items and components for which the enhanced price preference will apply.Ethan Sterenfeld, a Law Clerk, contributed to the writing of this post.

DFARS Realigns with FAR Buy American Requirements

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Associate

Markus Speidel is an associate in Morrison & Foerster’s Government Contracts & Public Procurement group, in Washington, D.C. Markus assists clients across a wide range of contract matters, including contract claims and disputes, bid protests, compliance counseling, and investigations.

Markus Gerhard Speidel

Markus Speidel

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DFARS Realigns with FAR Buy American Requirements

SBA Issues Final Rule on Appeals Process for PPP Loan Review Decisions

For the second time in as many years, the Department of Defense (DOD) has issued a final rule that brings its Buy American Act (BAA) requirements into alignment with the Federal Acquisition Regulation (FAR).

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

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

Jim Tucker is of counsel in Morrison & Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office.
Jim’s practice runs the gamut of litiga

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

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

Earlier this month, the U.S. Department of Defense (DOD) issued a <a href="https://www.govinfo.gov/content/pkg/FR-2022-03-18/pdf/2022-05531.pdf">final rule</a> to add the 2018 National Defense Authorization Act’s enhanced post-award debriefing rights to the Defense Federal Acquisition Regulation Supplement (DFARS). The rule took effect immediately on March 18, 2022, and formalizes procedures DOD has largely been following for the past several years. The new regulation supersedes <a href="https://www.acq.osd.mil/dpap/policy/policyvault/USA000563-18-DPAP.pdf">Class Deviation 2018-O0011</a>, which previously addressed a subset of the statutory enhanced debriefing rights. Most defense contractors will notice no difference between life under the old class deviation and life under the new DFARS provisions.Here are the key takeaways:<ul><li>The heart of the final rule is the statutory requirement (also present in the class deviation) to provide offerors in covered DOD procurements two business days following a required post-award debriefing in which to submit written post-debriefing questions to the procuring agency. The offeror’s protest clock does not begin to run until after the agency has provided written responses to the offeror’s timely submitted written questions. In accordance with the Federal Circuit’s precedent in Nika Technologies Inc. v. United States, protest timelines are not extended if the offeror does not submit timely post-debriefing questions.</li><li>The final rule further clarifies that both successful and unsuccessful offerors are entitled to the enhanced post-award debriefing in covered procurements.</li><li>The enhanced debriefing rights apply both to contract awards and to task and delivery order awards under Indefinite Delivery, Indefinite Quantity contracts, as long as the award is worth $10 million or more.</li><li>As required by the underlying statute, all debriefed offerors in procurements valued in excess of $100 million are automatically entitled to receive at least a copy of “the agency’s written source selection decision document, redacted to protect the confidential and proprietary information of other offerors for the contract award.” In addition, in procurements valued between $10 million and $100 million, debriefed offerors that are small businesses or nontraditional defense contractors are entitled to receive at least the redacted source selection decision document, if they request it. Agencies are free to provide additional, properly redacted evaluation and source selection documents to debriefed offerors of any size or status.</li></ul>A few caveats:<ul><li>As is always the case, an offeror is not entitled to a debriefing of any sort if it does not timely request one.</li><li>The new rule and the enhanced debriefing process are mandatory only for DOD agencies. Civilian agencies, however, are free to adopt these procedures.</li><li>The enhanced debriefing rights apply only to post-award debriefings. Agencies, however, are free to adopt modified versions of these procedures for pre-award debriefings.</li><li>The final rule does not apply to procurements where debriefings are not required (such as Federal Supply Schedule order competitions under FAR Part 8, or situations where an offeror has missed the deadline to request a required debriefing). But, here too, agencies are free to adopt these procedures for use in non-required “debriefings.” Offerors should keep in mind, though, that an agency’s voluntary use of the same or similar procedures in a non-required debriefing generally will not entitle the offeror to extended protest deadlines.</li></ul>

DOD Adds Enhanced Post-Award Debriefing to the DFARS

Earlier this month, the U.S. Department of Defense (DOD) issued a final rule to add the 2018 National Defense Authorization Act’s enhanced post-award debriefing

DOD Adds Enhanced Post-Award Debriefing to the DFARS

Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (FY 2018 NDAA) ushered in enhanced post-award debriefing requirements for covered Department of Defense (DOD) procurements. DOD formally implemented part of those requirements in 2018 in <a rel="noopener noreferrer" target="_blank" href="https://www.acq.osd.mil/dpap/policy/policyvault/USA000563-18-DPAP.pdf">Class Deviation 2018-O0011</a>, which required DOD agencies to give debriefed offerors two business days in which to pose written questions on the debriefing, and required agencies to respond to those questions within five further business days. Under the statute and the class deviation, if an offeror submits timely post-debriefing questions, the protest clock does not begin to run until the agency has responded to those questions. We’ve discussed those timelines here before.On May 20, 2021, <a rel="noopener noreferrer" target="_blank" href="https://www.govinfo.gov/content/pkg/FR-2021-05-20/pdf/2021-10581.pdf">DOD published a proposed rule</a> to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to enshrine the changes already contained in the existing class deviation and to implement the remaining enhanced debriefing rights set forth in the FY 2018 NDAA. The statute anticipated that these regulations would have been implemented within six months of enactment of the statute – but better late than never. Because many DOD agencies have proactively been doing these things already, many DOD offerors will notice few, if any, practical changes once the new rule is finalized.Key features of the proposed rule are:<ul><li>Codification of the current class deviation’s post-debriefing question-and-answer period, with a clear explanation of the timelines that apply for purposes of protests and stays of contract performance.</li><li> A new regulation and solicitation provision clarifying that, when timely requested, a written or oral debriefing is required for all DOD contracts, including commercial-item (and commercial-off-the-shelf item) acquisitions, valued at $10 million or more.</li><li>A new clause for multiple-award contracts, guaranteeing contract holders the same enhanced debriefing rights for task order competitions where the task order is valued at $10 million or more.</li><li>For contracts valued at more than $100 million, the debriefing information must include the disclosure of an appropriately redacted written source selection decision document.</li><li>For offerors that are small businesses or nontraditional defense contractors, the contracting officer must provide the redacted source selection decision document, upon request, even in procurements valued at between $10 million and $100 million. As proposed, this requirement appears to apply only when the contract itself is awarded to another small business or nontraditional defense contractor.</li></ul>These changes all derive from the FY 2018 NDAA, and many DOD agencies are already doing these things. It bears repeating that agencies are free to, and some already do, provide even more robust debriefings than these regulations and the NDAA would require. Other best practices include providing an appropriately redacted source selection decision document even in acquisitions below the $100 million threshold, providing offerors with copies of the evaluation reports for their own proposals, and holding the debriefing open for questions and answers in some acquisitions valued at less than $10 million, as well as in pre-award debriefings. And, although these regulations will apply only to DOD, civilian agencies are free to adopt them as well, either on a one-off basis, through internal policy, or by amendment of their own FAR supplements. It remains to be seen whether Congress or the FAR Councils eventually roll out these DOD requirements to agencies governmentwide.As <a rel="noopener noreferrer" target="_blank" href="https://business.defense.gov/Portals/57/OFPP%20Myth-busting%203%20-%20Further%20Improving%20Industry%20Communication%20with%20Effe.._.pdf?ver=2017-12-05-152530-177&timestamp=1512506152466">the Office for Federal Procurement Policy has emphasized,</a> and as experience bears out, greater transparency promotes better acquisitions. It also reduces the risk of an unsuccessful offeror filing an unnecessary protest because the agency has deprived it of any basis for concluding that a procurement was fair. More transparent debriefings also help agencies catch and correct procurement errors before a protest has to be filed. All of this contributes to a more efficient and equitable public procurement process.Comments on the proposed rule are due by July 19, 2021.

DOD Proposes Enhanced Debriefing Regulations

Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (FY 2018 NDAA) ushered in enhanced post-award debriefing requirements for covered Dep

Federal contractors received some good news from the Federal Circuit this holiday season.  The court held, in Boeing Co. v. Secretary of Air Force, that the Department of Defense (DoD) Federal Acquisition Regulation Supplement (DFARS) data rights clauses do not prohibit a contractor from applying its own proprietary markings to technical data in addition to the government-specific markings prescribed by the clauses.  This is true, according to the court, even for technical data describing technologies the government has paid the contractor to develop, i.e., “unlimited rights data.”  The decision marks a victory for contractors seeking to leverage their intellectual property rights in such data in the commercial marketplace or in the government supply chain, but the decision’s true impact remains to be seen on remand to the Armed Services Board of Contract Appeals.The DFARS data rights clauses—most prominently, DFARS 252.227-7013 for noncommercial technical data and DFARS 252.227-7014 for noncommercial computer software—establish strict marking procedures contractors must follow to protect their proprietary interests in data delivered to the government.  Failure to apply the exact legends in the clauses can have drastic consequences, including wide distribution and loss of trade secret protection.  But there has long been disagreement within the government and industry about whether additional markings may be applied.  The DFARS legends address the government’s rights, but what about other parties that might get hold of the data?In Boeing, contractors finally have an answer, at least from the Federal Circuit.  According to the court, the plain language of the DFARS clauses demonstrates their marking instructions apply “only in situations when a contractor seeks to assert restrictions on the government’s rights,” not the rights of others outside the government.  Thus, a proprietary legend addressed to third parties is fine, so long as it does not seek to restrict the government’s rights.But when does a third-party legend begin to encroach on the government’s license rights?  That next logical question—easily the most interesting in this case, and certainly the one with the most practical impact—the court left open, instructing the Board to address it through fact-finding on remand.  The facts in Boeing set a prime stage for this analysis; explaining why requires some brief table-setting.Looking only to contracts with DoD, and setting aside specially negotiated licenses (preferred by statute but less often used), the government typically receives one of three licenses in noncommercial technical data: limited rights, government purpose rights, or unlimited rights.  Noncommercial software follows a similar model, but swaps “limited rights” for “restricted rights”; the rights include in the latter are tailored to software, but both essentially mean the government is prohibited from distributing technical data or software to third parties outside the government.  With government purpose rights, it can do so for any government purpose (e.g., soliciting new systems or replacements from your competitors), and with unlimited rights, it can do so “in any manner and for any purpose whatsoever” and—importantly, here—“have or authorize others to do so,” too.  As a result, the scope of the government’s license has significant bearing on a contractor’s ability to exclude others from receiving and using its data and, in turn, the contractor’s ability to maintain those data as trade secrets.Trade secrets are often the most valuable intellectual property interests a contractor has in its technical data and software.  Although varying some by jurisdiction, a trade secret is typically defined by two key elements: (1) deriving independent economic value for not being generally known or readily ascertainable by others, and (2) being subject to reasonable efforts to maintain secrecy.  Thus, constraining the government to limited or restricted rights is critical to maintaining an enforceable trade secret, and many courts have acknowledged the government’s having unlimited rights in data likely destroys any trade secret therein.<a href="#_ftn1" name="_ftnref1">[1]</a>  In fact, the Board, in its decision below, finding Boeing’s proprietary marking was not authorized, noted that, because “the government is under no obligation to protect the confidentiality of [unlimited rights] data and can give it to whomever it chooses or even publish it on the Department’s website,” Boeing “does not possess a trade secret in such technical data.”  (ASBCA Nos. 61387, 61388)  The Federal Circuit’s decision does not contradict or overturn this rule, at least expressly; the court, perhaps intentionally, does not once mention trade secrets.This does not mean a contractor does not possess some proprietary interest in unlimited rights data.  Courts repeatedly have affirmed that “unlimited” rights are not “exclusive” rights,<a href="#_ftn2" name="_ftnref2">[2]</a> and the government’s unlimited rights in data do not divest a contractor of its ability to use or to license others to use the data.<a href="#_ftn3" name="_ftnref3">[3]</a>  But the scope of the proprietary interest, and a contractor’s ability to enforce it in court, are far from clear and often very fact-specific.Returning to Boeing, the technical data at issue (deliverables related to Boeing’s work on the F-15 Eagle Passive/Active Warning Survivability System) were indisputably unlimited rights data.  As a result, the government has “rights to use, modify, reproduce, perform, display, release, or disclose [the] technical data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.”  Boeing did not dispute these rights, and claimed its proprietary marking—which states “Non-U.S. Government recipients may use and disclose [the data] only as authorized by Boeing or the U.S. Government”—does not seek to restrict them.  The government disagreed, arguing the marking restricts the government’s rights by requiring express government authorization for distribution of data, which the government argued would be “highly burdensome on the Government and, therefore [would be] inconsistent with its unlimited rights.”Given the breadth of an unlimited rights license—which includes, for example, not only a right to disclose data to others, but also to authorize others to further disclose the data “for any purpose whatsoever”—it may be difficult for contractors to craft proprietary legends that do not encroach on the government’s rights, at least where unlimited rights data are involved.  The legend at issue in Boeing seems to toe about as close to that line as possible, and it will be very interesting to see where the Board lands on remand.  Its ultimate decision will affect not only contractors in Boeing’s position, but those throughout the supply chain who seek to support their government customers without getting entangled in costly litigation over third-party intellectual property rights.As we continue to monitor this case on remand, contractors should in the meantime remind their employees of two important rules:<ul><li>Always mark technical data and software in strict accordance with the rules in the DFARS (or FAR if contracting with a civilian agency); and</li><li>Take care in using others’ data only as authorized, whether based on the legends printed on the data or express directions from your customer.</li></ul><a href="#_ftnref1" name="_ftn1">[1]</a> See, e.g., L-3 Commc’ns Westwood Corp. v. Robichaux, 2008 WL 577560, at *7 (E.D. La. Feb. 29, 2008) (“The Court finds that because plaintiff provided the government with unlimited rights to all of the source codes at issue, they are no longer trade secrets.”); Conax Fla. Corp. v. United States, 824 F.2d 1124, 1128 (D.D.C. 1987) (“[I]f the drawings belong to the government without limitation, [plaintiff] has no trade secrets to be protected.”); HiRel Connectors, Inc. v. United States, 2005 WL 4958589, at *4 (C.D. Cal. Jan. 4, 2005) (“The Government’s unlimited right to use form, fit, and function data in any way it wished establishes that as a matter of law, such information cannot be protected as a trade secret.”).<a href="#_ftnref2" name="_ftn2">[2]</a> Regents of Univ. of Colo. v. KDI Precision Prods., Inc., 488 F.2d 261, 264 (10th Cir. 1973).<a href="#_ftnref3" name="_ftn3">[3]</a> Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 1044 (9th Cir. 1983) (unlimited rights “were neither sole nor exclusive and did not divest [the contractor] of the residual right to continue to use the technology itself and to share it with other private parties”); see also FAR 52.227-14(d)(1).

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Locke Bell is a partner in the firm’s Government Contracts & Public Procurement practice.

Locke Bell

The Federal Circuit, in Boeing, Backs Contractors’ Proprietary Markings, but Leaves Open an Important Question on Scope

Federal contractors received some good news from the Federal Circuit this holiday season.  The court held, in Boeing Co. v. Secretary of Air Force, that the Dep

The Federal Circuit, in Boeing, Backs Contractors’ Proprietary Markings, but Leaves Open an Important Question on Scope

The Defense Contract Management Agency (DCMA) will institute a new Defective Pricing Pilot Team, according to a September 30, 2020, <a href="https://www.acq.osd.mil/dpap/policy/policyvault/USA002090-20-DPC.pdf">memo</a> issued by Kim Herrington, Acting Principal Director of Defense Pricing and Contracting at the Office of the Under Secretary of Defense.  The DCMA Defective Pricing Pilot Team will assist Government Procuring Contract Officers (PCOs) in resolving audits initiated by the Defense Contract Audit Agency (DCAA) pursuant to the Truth in Negotiations Act.<a name="_ftnref1" href="#_ftn1">[1]</a>When a PCO receives notice of a DCAA audit dated after September 30, 2020, he or she may request assistance from DCMA in undertaking functions set out in FAR 15.407-1(b), (d), and (e) – determining and reporting whether certified cost or pricing data submitted was in fact defective, concluding whether a contract price reduction is appropriate, and determining the appropriate contract price adjustment.If DCMA accepts a PCO’s request for assistance, the Defective Pricing Pilot Team will have the authority to take all necessary actions to resolve and disposition the DCAA audit, including issuing final decisions and executing price adjustments in coordination with the PCO.  Prior to the September 30, 2020, memo, the authority to take these actions resided with the contracting officer alone.It is not yet clear whether the Defective Pricing Pilot Team will be a centralized national group or whether there will be members of this group in DCMA offices across the globe.The Defective Pricing Pilot Team may deal with recurring, complex defective pricing issues, so this concentrated expertise and newly granted authority may lead to more expeditious resolution of DCAA defective pricing audits.The DCMA and DCAA share a common mission to effect successful, cost-efficient procurements, and the success of the DCMA Defective Pricing Pilot Team could mean more function-specific collaborative workflows between the two agencies.<a name="_ftnref2" href="#_ftn2">[2]</a>Read the September 30, 2020 memo <a href="https://www.acq.osd.mil/dpap/policy/policyvault/USA002090-20-DPC.pdf">here</a>.<a name="_ftn1" href="#_ftnref1">[1]</a> 10 U.S.C § 2306(a) and 41 U.S.C. § 3501- 3509<a name="_ftn2" href="#_ftnref2">[2]</a> https://www.dcma.mil/News/Article-View/Article/1609484/dcma-dcaa-chicago-build-on-shared-vision/*Michaela Thornton contributed to this blog post. Michaela is a full-time law student at The George Washington University Law School and a Law Clerk with Morrison & Foerster’s government contracts practice group.