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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Although, as of late, the coronavirus and its impact have been top of mind for government contractors and, indeed, the entire world, the Department of Defense (

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Department of Defense March Towards CMMC Continues

Department of Defense March Towards CMMC Continues | Government Contracts Insights

Although, as of late, the coronavirus and its impact have been top of mind for government contractors and, indeed, the entire world, the Department of Defense (DoD) has continued undeterred with its planned implementation of the Cybersecurity Maturity Model Certification (CMMC) program.  Below we highlight some recent developments, preview upcoming activities pertaining to CMMC, and offer some recommendations about what contractors can do now to prepare.DoD Has Issued, and Updated, the CMMC Model.On January 31, 2020, the long-promised CMMC version 1 was issued, along with accompanying appendices.  An updated version (v.1.02) was released on March 18, 2020 to correct various administrative errors.  The detailed assessment guide to accompany the CMMC model is expected soon.  Information from DoD about CMMC is regularly published on the official website:  https://www.acq.osd.mil/cmmc/index.html.The CMMC Accreditation Body Is Up and Running.In January 2020, the CMMC Accreditation Body (CMMC-AB) was registered as a Maryland 501(c)(3) nonprofit organization.  It has a Board of Directors consisting of industry-leading experts and a chairperson from the University of Virginia, Darden School Foundation.  Its website is www.CMMCAB.org.The DoD has tasked the CMMC-AB with running the operational aspects of CMMC, including the selection and training of those persons who will conduct CMMC evaluations.  The relationship between DoD and CMMC-AB is defined in a Memorandum of Understanding that has not been made public.To date, no certified third party assessment organizations (C3PAOs) have been selected or identified.  However, the CMMC-AB has indicated that it expects to start training assessors in the coming months, likely through a combination of online and in-person activities.  Assessors will receive a license from the CMMC-AB after completing the required training and passing an examination.  The assessors will not work for CMMC-AB but will have to be associated with a C3PAO.  Licenses will vary depending on the certification level for which the assessor has been trained.  To conduct assessments at the highest levels, assessors will need to have more experience, although the CMMC-AB has not yet determined the specific experiential requirements.  Training for certification of CMMC levels 1 through 3 will happen first, with the more complex training for levels 4 and 5 to follow.On April 22, 2020, the CMMC-AB released its first RFP, for continuous monitoring services.  Responses to the RFP were due on May 1, with selection anticipated by May 8.The CMMC-Implementing DFARS Rule is Imminent.According to recent public statements by the DoD, the DFARS rule implementing CMMC is expected “any day now.”  Industry associations and major contractors are eagerly awaiting the interim rule, and will be certain to supply extensive comments to shape the final rule.The First Requests for Information Pertaining to CMMC Are Still Expected This Summer.DoD representatives have repeatedly indicated that the first programs to implement CMMC, the so-called “Pathfinder programs,” will be identified this summer in RFIs laying out the expected forthcoming CMMC requirements.  DoD has indicated that it is in active discussions with the prime contractors expected to be part of the Pathfinder programs, so if incumbents have not heard from DoD it may be safe to assume that their programs will not be selected.  DoD has also indicated that it will not slow down any program for CMMC, so if the guidance is not in place and/or assessors are not yet trained before a program needs to be renewed, the CMMC requirement may drop out and another program will be selected for Pathfinder status.DoD Has Provided Additional Guidance Concerning Controlled Unclassified Information.The absence of a clear definition of controlled unclassified information (CUI) and the lack of a process for identifying CUI has confounded contractors charged with implementation of the current DFARS cybersecurity rule in 252.204-7012.  DoD recently attempted to minimize this confusion with a new DoD Instruction, <a href="https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/520048p.PDF">DoDI 5200.48, “Controlled Unclassified Information</a>.”  This DoDI cancels the prior DoD Manual 5200.01 vol. 4, “DoD Information Security Program: Controlled Unclassified Information.”  DoDI 5200.48 establishes an official DoD CUI Registry, and outlines responsibilities and logistics for the handling, marking and dissemination of CUI.  Most helpfully, with respect to contractors, the instruction makes clear that the obligation to mark CUI is in the first instance on DoD.  DoD must mark any CUI provided to contractors, and the requirement to mark CUI that is generated by contractors or other non-DoD entities will be specified in the applicable contract.In addition, the DoD CISO for Assistant Secretary for Defense Acquisition, Katie Arrington, has recently indicated that the DoD intends to do a lot less sharing of CUI with contractors in the future, sharing information that will be housed on contractor systems only when clearly necessary.  In turn, we recommend that contractors closely examine their supply chains and determine whether or not they need to share CUI as widely as they have been.DoD Has Created an Exception from CMMC for Purely Commercial Off-the-Shelf Products.Although DoD initially indicated it would not do so, the agency has recently carved out an exception to CMMC for companies that exclusively supply commercial off-the-shelf (COTS) products that will not be altered in any way for use by the government.<a name="_ftnref1" href="#_ftn1">[1]</a>  Thus, for example, the supplier of chicken or fuel to a military installation does not need to be CMMC certified.  Companies should be careful not to assume they or their subcontractors will fall within this narrow exception.  Commercial items more broadly, including commercial services, are not exempt from CMMC, and companies that provide such products and services will need to be CMMC certified to continue supplying to DoD.CMMC May Expand Beyond DoD.Other federal agencies are showing interest in the CMMC process.  For example, the recent Department of Health and Human Services CIO SP4 draft solicitation has CMMC as an optional item, presumably to accommodate potential future use of the CIO SP4 contract vehicle by DoD customers.  The recently released Cyberspace Solarium Commission <a href="https://www.solarium.gov/">report</a> suggests implementation of CMMC for civilian agencies and recommends that the FAR adopt more rigorous and adaptable cybersecurity standards.<a name="_ftnref2" href="#_ftn2">[2]</a>  In addition, the report suggests that the Sarbanes-Oxley Act should be amended to include cybersecurity reporting requirements.<a name="_ftnref3" href="#_ftn3">[3]</a>So what should companies be doing now to prepare for CMMC?Most importantly, companies should identify what level of CMMC certification they will need.  Those that currently access, process, generate or store CUI will going forward need to be certified at least at CMMC Level 3, which has additional requirements beyond the current NIST SP 800-171 framework.  All DoD contractors and subcontractors at any tier, with the exception of exclusively COTS product providers, will need to be certified at least at Level 1.If your company is not part of a Pathfinder program it will not be among the first to be certified, but that does not mean that the company should wait to start getting its IT systems updated to meet the requisite level’s requirements.  Companies should conduct gap analyses to determine what policies, procedures and requirements may be missing, and then come up with plans of action to address any deficiencies long before certification has to take place.  Once the process for getting into queue for assessment is identified, those companies that are ready to assess should quickly line up, as the initial demand for assessment will be significant.We also recommend that contractors coordinate and consult with their agency customers to determine what level of certification will be needed going forward and to push for identification of precisely what contract-related data needs to be protected as CUI.  DoD has indicated that only a very small percentage of programs will require Level 4 and 5 certification (the most recently suggestion by DoD is .06% of programs at each level).  However, if you are a contractor or subcontractor working on mission critical systems with national security or defense implications, it is likely that you may fall into this small minority of entities that need to be ready for higher-level certification.  This certification process will start later, but it will be imperative that the company is prepared to be assessed in order to continue to be considered for these programs.Finally, even non-DoD contractors must consider that eventually the reach of CMMC, or some close analogue, is going to expand beyond DoD to civilian agencies.<a name="_ftn1" href="#_ftnref1">[1]</a> See CMMC FAQs, responses to FAQs 19 and 20, available at: https://www.acq.osd.mil/cmmc/faq.html.<a name="_ftn2" href="#_ftnref2">[2]</a> See U.S. Cyberspace Solarium Commission March 2020 report at p. 89 (§ 4.4.3), available at <a href="https://www.solarium.gov/">https://www.solarium.gov/</a>.<a name="_ftn3" href="#_ftnref3">[3]</a> See id. at p. 90 (§ 4.4.4).

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