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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This installment of our monthly Law360 bid protest spotlight features three noteworthy decisions from the Government Accountability Office (“GAO”) concerning re

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February 2020 Bid Protest Roundup (Law360 Spotlight)

February 2020 Bid Protest Roundup (Law360 Spotlight) | Government Contracts Insights

Sandeep N. Nandivada

This installment of our monthly <a rel="noopener noreferrer" target="_blank" href="https://www.law360.com/governmentcontracts/articles/1249921/bid-protest-spotlight-proper-scope-tardiness-and-weakness">Law360</a> bid protest spotlight features three noteworthy decisions from the Government Accountability Office (“GAO”) concerning reprocurement contracts, timeliness rules, and discussions.  Steel Point Solutions, LLC addresses the proper scope of reprocurement contracts.  Vizocom provides a cautionary tale for contractors regarding late proposal submissions.  Finally, Education Development Center, Inc. addresses the difficulties of challenging an agency’s determination that a particular weakness was not significant and therefore need not be raised during discussions.Steel Point Solutions, LLC<a name="_ednref1" href="#_edn1">[i]</a>In February 2019, the Defense Information Systems Agency (DISA) awarded a task order to Akira Technologies, Inc. (Akira) under a Federal Supply Schedule (FSS) services contract.  Several months later, DISA terminated the task order with Akira for default and determined reprocurement from the original competition and quotations was warranted.  DISA subsequently awarded a replacement task order to Creative IT solutions (CIS), the second lowest bidder.  The replacement task order had a period of performance that exceeded the remaining performance period under the task order awarded to Akira.Steel Point Solutions, LLC (SPS), a disappointed offeror from the original task order competition, protested.  SPS alleged, among other things, that DISA was required to compete the replacement task order because its performance period exceeded that of the task order it was replacing.The GAO agreed.  Although the GAO recognized that agencies have considerable discretion to repurchase goods and services for a substitute contract, it explained that agencies do not have the authority to repurchase goods or services in quantities that exceed the undelivered quantity remaining on the original contract.To illustrate the reasoning behind this rule, the GAO referred to FAR 12.403(c)(2), which states that the “Government’s rights after a termination for cause shall include all the remedies available to any buyer in the marketplace.”  Noting that one remedy available in the commercial marketplace is “cover”—which the Uniform Commercial Code defines as authorizing a buyer “to purchase goods in substitution for those due from the seller,” and then recover the price differential—the GAO concluded that reprocurements are limited to repurchasing goods or services to substitute for those ordered from the original awardee.In reaching this decision, the GAO expressly rejected DISA’s argument that it was not required to recompete the replacement task order because DISA had not received value from Akira prior to the default termination.  Noting that DISA had paid Akira, and that AKIRA provided “at least some of the contract deliverables,” the GAO concluded that DISA could not pretend as if the task order award to Akira had never happened.Takeaways:  Reprocurement contracts cannot exceed the scope of work remaining under the originally awarded contract, even where an agency believes the original awardee did not materially perform the contract.  Instead, where an agency intends to award a reprocurement contract that goes beyond the scope of the originally awarded contract, it must treat the reprocurement as a new acquisition subject to the standard rules for full and open competition.Vizocom<a name="_ednref2" href="#_edn2">[ii]</a>Vizocom, a San Diego company, was a potential offeror for a solicitation released by the Department of the Army.  The solicitation had explicit instructions for delivery, including an express directive that offerors obtain military installation access prior to proposal submission if they intended to hand-deliver their proposal.Vizocom intended to hand-deliver its proposal and hired a courier thirty minutes prior to the proposal submission deadline to make the delivery.  Vizocom also sent an email to the Army Contract Specialist to advise that Vizocom had dispatched a courier to deliver its proposal.  The courier, however, encountered delays attempting to deliver the proposal because she required a sponsor to enter the military installation.  Then, upon gaining access to the installation, the courier mistakenly went to the incorrect location for proposal delivery.  Ultimately, the Army did not receive Vizocom’s proposal until twenty minutes after the time specified in the solicitation, and the contracting officer rejected Vizocom’s proposal as late.Vizocom protested at the GAO, arguing that the solicitation’s addresses for proposal delivery were ambiguous and that the proposal was only late because of improper government action.  The GAO, however, disagreed, finding that Vizocom’s late delivery was the result of its own lack of planning, rather than any improper government action.Takeaways:  The GAO’s rules for late proposals are strict and unforgiving (although the Court of Federal Claims is more forgiving).  Offerors therefore should account for the worst-case scenario when determining when exactly to make a proposal submission.  Simply put:  it is better safe than sorry, especially at the GAO.Education Development Center, Inc.<a name="_ednref3" href="#_edn3">[iii]</a>The U.S. Agency for International Development (USAID) issued a solicitation for educational services in Somalia.  After receiving initial proposals, USAID entered into discussions with the offerors, and, as required by the Federal Acquisition Regulation, discussed significant weaknesses and deficiencies.  USAID ultimately awarded the contract to Creative Associates International.Education Development Center (EDC) protested the award, alleging, among other things, that USAID did not hold meaningful discussions.  Specifically, EDC alleged that USAID failed to identify three weaknesses in EDC’s initial proposal during discussions that EDC claimed were actually significant weaknesses that proved dispositive in the award decision.The GAO denied the protest.  Although the GAO acknowledged that an agency’s characterization of a weakness as significant is not controlling, the GAO found that the “context of the evaluation” showed that the assessed weaknesses were not, in fact, significant.  As evidence, the GAO pointed to the fact that none of the weaknesses assessed appreciably increased the risk of unsuccessful contract performance.  The GAO also noted that, notwithstanding the weaknesses, EDC received a “Very Good” rating, which indicated “EDC’s proposal demonstrated a strong grasp of the requirements, presented a low overall degree of risk of unsuccessful contract performance, and the proposal’s strengths outweighed its weaknesses.”In denying the protest, the GAO rejected EDC’s argument that the Source Selection Authority’s consideration of the weaknesses in the source selection decision necessarily meant that the weaknesses were significant and outcome determinative.  The GAO explained that, even where a weakness is determinative of award, it is not necessarily significant.Takeaways:  This decision underscores the inherent difficulty in claiming an assessed weakness is actually a significant weakness that the agency was required to raise during discussions.  It also exposes an area where a protester may have better chances of success at the Court of Federal Claims.  Unlike the GAO, the court “looks to whether the potential deficiency, significant weakness, or adverse past performance information would materially affect the offeror’s chance of receiving the award.”<a name="_ednref4" href="#_edn4">[iv]</a> Thus, under the Court’s precedent, “the agency must discuss weaknesses or deficiencies that ‘could have a competitive impact.’”<a name="_ednref5" href="#_edn5">[v]</a>  EDC may have had better luck in its protest under this standard.<a name="_edn1" href="#_ednref1">[i]</a> Steel Point Solutions, LLC, B-418224; B-418224.2, January 31, 2020<a name="_edn2" href="#_ednref2">[ii]</a> Vizocom, B-418246.2, February 14, 2020<a name="_edn3" href="#_ednref3">[iii]</a> Education Development Center, Inc., B-418217; B-418217.2, January 27, 2020<a name="_edn4" href="#_ednref4">[iv]</a> Precision Asset Mgmt. Corp. v. United States, 135 Fed. Cl. 342, 352 (2017)<a name="_edn5" href="#_ednref5">[v]</a> Id.<div class="medium-4 large-4 columns widget-area data-equalizer-watch" id="secondary"></div><div></div><div>*David Allman is a Law Clerk in the Washington, D.C. office and is not admitted to the bar.</div>

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