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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The common theme of this month’s Law360 Bid Protest Roundup is a seemingly hot topic these days: joint ventures.  One recent Government Accountability Office (“GAO”) decision and one recent U.S. Court of Federal Claims (“COFC”) decision both touch upon past performance issues related to joint ventures. The third decision, also a COFC decision, focuses on the requirement that joint ventures must be registered in SAM.gov at the time of proposal submission.

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February 2023 Bid Protest Roundup: Lessons For Joint Ventures | Government Contracts Insights

Alissandra Young McCann

The common theme of this month’s Law360 Bid Protest Roundup is a seemingly hot topic these days: joint ventures.  One recent Government Accountability Office (“GAO”) decision and one recent U.S. Court of Federal Claims (“COFC”) decision both touch upon past performance issues related to joint ventures. The third decision, also a COFC decision, focuses on the requirement that joint ventures must be registered in <a href="https://sam.gov/" target="_blank">SAM.gov</a> at the time of proposal submission.AttainX, Inc. <a href="#_ftn1" target="_self" id="_ftnref1">[1]</a>In AttainX, Inc., the GAO addresses how agencies must evaluate the prior experience and past performance of joint venture members when a joint venture competes for small business set-asides. AttainX, Inc. protested the award of a task order to MiamiTSPi, LLC under the General Services Administration (“GSA”)’s 8(a) STARS III government-wide acquisition contract. MiamiTSPi was an 8(a) small business joint venture, comprising an 8(a) small business (as the managing member and majority owner) and a non-8(a) small business. Among other grounds, AttainX protested the GSA’s evaluation of the awardee’s experience as unreasonable.The solicitation provided for the evaluation of vendors’ similar experience, requiring vendors to submit a minimum of two similar experience examples “that reflect and identify experience on [current or recent] projects.” For each project example submitted, “the contractor shall explain in a detailed narrative how the characteristics of the selected contract relate to the overall project for which they are being considered.”  MiamiTSPi submitted examples from the non-8(a) member and the non-8(a) member’s separate joint venture. AttainX argued that the GSA assigning MiamiTSPi an “acceptable” rating for similar experience was unreasonable because the awardee did not submit examples from its 8(a) member.Although nothing in the solicitation required each member of joint ventures to submit experience examples, the GAO found that the Small Business Administration (“SBA”)’s regulations require agencies to “consider work done and qualifications held individually by each partner to the joint venture as well as any work done by the joint venture itself previously.”  13 C.F.R. § 125.8(e). This language has traditionally been interpreted to mean that an agency cannot negatively evaluate a joint venture for past performance or past experience if the joint venture itself does not have relevant past performance, but instead must consider the experience of the members to the joint venture. However, the GAO stated this language “require(s) the agency to evaluate each joint venture member individually when the joint venture itself does not demonstrate it has the required experience.” (emphasis added).  Thus, because MiamiTSPi did not submit any experience for the joint venture itself or the managing member, and the underlying evaluation record did not demonstrate that the GSA had considered this lack of experience, the GAO sustained AttainX’s protest ground that the GSA’s evaluation of MiamiTSPi’s proposal was unreasonable.TakeawaysThis case will have major implications on small business joint ventures, especially mentor protégé joint ventures where the managing member (the protégé) oftentimes relies on the mentor’s past experience to qualify for contracts it otherwise would not qualify for on its own. In adopting the provision that agencies must consider the experience of the members if the joint venture does not have any experience, SBA’s intent was to ensure that small business joint ventures, and thus the small business members thereof, were not shut out from gaining experience it otherwise would not have been able to obtain.   That said, SBA has also explained that its rules require a small business protégé to have some experience in the type of work to be performed under the contract. It is important to remember, though, SBA’s regulations also provide a “procuring activity may not require the protégé firm to individually meet the same evaluation or responsibility criteria as that required of other offerors generally.” Moreover, GAO held that the agency was required to consider each joint venture member’s experience (or lack thereof) where the joint venture does not have experience itself. It did not go as far as holding that each member is required to have experience to be eligible for award. AccelGov, LLC v. United States <a href="#_ftn2" target="_self" id="_ftnref2">[2]</a>AccelGov, LLC v. United States is a recent COFC case involving two joint venture members competing against each other for follow-on work to a task order their joint venture had previously performed.AccelGov, LLC (“AccelGov”) protested the GSA’s decision to award an information technology contract to Technical and Management Resources, Inc. (“TMR”). AccelGov is a joint venture comprising 22nd Century Technologies, Inc. (“22nd Century”), Agovx, and other unnamed member(s). 22nd Century and TMR were members of the incumbent joint venture contractor, Advance Alliant Solutions Team (“AAST”). Although TMR was the managing partner of AAST, 22nd Century served as the lead for performance of the incumbent work, providing most of the personnel and managing most of the billable work. In fact, of the approximately $27 million earned on the incumbent contract, TMR only earned about $2 million.In its proposal for the present solicitation, TMR listed the incumbent contract as one of its three examples of its prime contractor past experience. TMR stated that it was the managing partner of AAST and managed the contract but did not disclose that 22nd Century served as the lead for the contract performing most of the work. AccelGov, which had also listed the incumbent contract as past experience in its quote, asserted TMR made material misrepresentations about its past experience. Related to this protest ground, AccelGov filed a motion seeking to supplement the Administrative Record through interrogatories to TMR to establish TMR’s alleged material misrepresentation. The Court, interestingly, granted this request.Unfortunately for AccelGov, though, the Court ultimately found on the merits that GSA had rationally assigned AccelGov several weaknesses, leaving AccelGov unable to establish prejudice even if TMR made a material misrepresentation.TakeawaysAlthough the Court did not decide on the merits of AccelGov’s misrepresentation protest ground, this case serves as a warning to joint venture members to pay close attention to how they describe their past performance stemming from their joint ventures. This is especially true when competing against the other member of that joint venture. The fact that the Court granted AccelGov’s request to supplement the record with interrogatories to establish the misrepresentation, which is not common, shows that these material misrepresentation protest grounds are not ones the Court will take lightly.Thalle/Nicholson Joint Venture v. United States <a href="#_ftn3" target="_self" id="_ftnref3">[3]</a> Thalle/Nicholson Joint Venture (“Thalle/Nicholson”) protested the United States Army Corps of Engineers (“USACE”)’s decision to award a contract to Shimmick Construction Company (“Shimmick”). Specifically, it challenged USACE’s determination that Thalle/Nicholson’s proposal was ineligible for award due to its failure to register in the System for Award Management (“SAM”). FAR 52.204-7, incorporated into the solicitation by reference, requires offerors “to be registered in SAM when submitting an offer or quotation, and shall continue to be registered until time of award.” The solicitation also required offerors to meet all solicitation requirements, “including terms and conditions, representations and certifications, and technical requirements.” It warned offerors that “failure to meet a requirement may result in an offer being ineligible for award.” Thalle/Nicholson, a joint venture between Thalle Construction Co., Inc. and Nicholson Construction Co., submitted its proposal on November 3, 2021.  Although the joint venture was not itself registered in SAM at that time, both of its members were. As such, the proposal included a statement that each member of the joint venture “completed representations and certifications in SAM,” and attached individual proof of each member’s SAM registration. During discussions, USACE issued Evaluation Notices (“ENs”) to all offerors, including Thalle/Nicholson. However, these ENs did not mention any deficiencies related to Thalle/Nicholson’s SAM registration (or lack thereof). Then, a week after the Source Selection Evaluation Board (“SSEB”) issued a revised SSEB Report, USACE called Thalle/Nicholson to inquire about the joint venture’s SAM registration status. Thalle/Nicholson confirmed the joint venture was not registered in SAM, but informed USACE it would register the joint venture if USACE confirmed an award to Thalle/Nicholson. The following week, USACE notified Thalle/Nicholson its proposal was ineligible for award, citing FAR 52.204-7. In its protest, Thalle/Nicholson argued that failure to be registered in SAM was not a reasonable basis for elimination from competition, and that USACE, in effect, made an impermissible responsibility determination. The Court disagreed, explaining that the unambiguous language of FAR 52.204-7 required Thalle/Nicholson to be registered in SAM when it submitted its offer. Moreover, the solicitation expressly informed offerors that failure to meet solicitation requirements could result in “an offer being ineligible for award.” The Court also rejected the joint venture’s argument that “SAM registration relates to responsibility, not responsiveness,” and indicated that even if it adopted Thalle/Nicholson’s position, “the only remedy for non-compliance with the SAM registration requirements . . . would be for the offeror to provide information that demonstrates it was registered in SAM when it submitted its offer.”  This, Thalle/Nicholson could not do.Similarly, the Court denied Thalle/Nicholson’s argument that USACE improperly failed to have informed the joint venture of the SAM registration issue during discussions. While it agreed with the protester that USACE should have raised the issue during discussions, the Court found Thalle/Nicholson could not establish prejudice by this failure because Thalle/Nicholson could not have remedied its non-compliance (i.e., not being registered at the time of proposal submission).TakeawaysThalle/Nicholson is a hard lesson learned in the strict requirement of FAR 52.204-7. Although members of a joint venture may individually be registered in SAM, this is insufficient if the joint venture itself is not also registered. This is an especially important lesson during times such as these, where many contractors are experiencing delays registering in SAM. Joint ventures should take care to register in SAM well in advance of submitting their proposals, as a failure to do so will lead to a rejection of their proposals. MoFo law clerk Thomas Lee contributed to this article.<a href="#_ftnref1" target="_self" id="_ftn1">[1]</a> <a href="http://www.gao.gov/assets/820/817444.pdf" target="_blank">AttainX, Inc.</a><a href="http://www.gao.gov/assets/820/817444.pdf" target="_blank">, B-421216, B-421216.2, Jan. 23, 2023, 2023 WL 1860802</a>.<a href="#_ftnref2" target="_self" id="_ftn2">[2]</a>  <a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2022cv1433-56-0" target="_blank">AccelGov, LLC v. United States</a><a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2022cv1433-56-0" target="_blank">, No. 22-1433, 2023 WL 2062939 (2023)</a>.<a href="#_ftnref3" target="_self" id="_ftn3">[3]</a> <a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2022cv0755-54-0" target="_blank">Thalle/Nicholson Joint Venture v. United States</a><a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2022cv0755-54-0">,</a><a href="https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2022cv0755-54-0" target="_blank">No. 22-755, 2023 WL 2028825 (2023)</a>.<div></div>

February 2023 Bid Protest Roundup: Lessons For Joint Ventures

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