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 Small Business Administration (SBA) Office of Hearings and Appeals (OHA) has yet again clarified that a company’s size change in connection with a merger-and-acquisition event generally does not prevent the company from continuing to bid on set-aside orders under its General Services Administration Federal Supply Schedule (FSS) contract. 

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OHA Rules Company Remains Eligible for Award of Small Business Set-Aside Schedule Orders Even After Acquisition by a Large Business | Government Contracts Insights

James A. Tucker

Damien C. Specht

The Small Business Administration (SBA) Office of Hearings and Appeals (OHA) has yet again clarified that a company’s size change in connection with a merger-and-acquisition event generally does not prevent the company from continuing to bid on set-aside orders under its General Services Administration Federal Supply Schedule (FSS) contract. The new OHA decision is <a href="https://govt.westlaw.com/sbaoha/Document/I8d9ea4a623ae11efbca2c5940cc64a9b?viewType=FullText&transitionType=Default&contextData=%28sc.Default%29" target="_blank">Size Appeal of LinTech Global, Inc., SBA No. SIZ-6287 (2024)</a>. The decision highlights widespread confusion—including within SBA itself—as to what the governing regulations mean.The case involved a company that was awarded a GSA FSS contract in 2020. At that time, it certified as small under NAICS Code 541512. In mid-2022, the company was awarded a small business set-aside Blanket Purchase Agreement (BPA) under its FSS contract. In late 2022, the company was acquired and experienced a change in control. In early 2023, it timely recertified as other-than-small pursuant to FAR 52.219-28 and 13 C.F.R. § 121.404(g)(2). A few months after recertifying as large, the company bid on a small business set-aside task order under its FSS BPA. The contracting officer did not seek recertifications in connection with the order. The company was selected as the apparent awardee, which sparked a size protest from a disappointed bidder.The SBA Area Office dismissed the size protest as untimely because the contracting officer had not requested a recertification in connection with the order. The SBA Area Director, however, then filed her own size protest (which is always timely), asserting that the contractor became ineligible to bid on any FSS set-aside procurements once it recertified as other-than-small in connection with the FSS contract itself. The SBA Area Office sided with its Area Director and determined the company to be ineligible to bid on the FSS order because it was no longer small.The company appealed to OHA. Citing the text of 13 C.F.R. § 121.404(g), the company argued that its required recertification under the FSS contract did not alter its eligibility to bid on small business set-aside orders under the FSS contract, absent a request to recertify in connection with a particular order—which did not occur here. SBA’s Office of the General Counsel took the opposition position and defended the Area Office’s adverse size determination:<blockquote>SBA has been clear since updating its rules for [MACs] that recertification because of merger and acquisition means replacing the original certification on the contract, and that after the firm recertifies it would no longer be eligible for contracts (task orders) set-aside for small businesses. . . .</blockquote><blockquote>Contrary to [Appellant’s] argument, the [e]ffect of recertifying size for a [MAC] (whether priced, unpriced, restricted, unrestricted, whether schedule or not) has not changed since 2013.  Large companies cannot buy into small business contracting and contracts.  Mergers and acquisitions require a recertification, and that recertification replaces the original certification and renders the large business ineligible for future small business contracts (in this case task orders).</blockquote>Size Appeal of LinTech Global, Inc., SBA No. SIZ-6287 at *11-*12 (2024). SBA argued that, whatever one might say about the clarity of the regulation, its intent has been “extremely clear” for many years and the intent of the “base rule” for multiple-award contracts can be summed up as “when a recertification occurs [in connection with a merger-and-acquisition event], the new certification replaces the old, and the old certification ‘no longer exists.’” Id. at *11.  SBA argued the regulation, with its multiple nested paragraphs and various permutations, is meant to enshrine a longstanding “overarching policy goal” that “large entities should not be permitted to buy their way into small business set-asides through a merger or acquisition.”  Id. at *18.OHA acknowledged SBA’s policy and intent arguments, but rejected them as contrary to the text of the regulation itself: “In order to be given legal effect, though, SBA’s general policy must be reflected in the regulations themselves. The plain text of § 121.404(g), and OHA case precedent, confirm that Appellant here was eligible to compete for, and be awarded, the instant task order.” Id.Rather than be swayed by policy arguments, OHA hewed to its prior case law, consistent with the GAO’s recent decision in <a href="https://www.gao.gov/assets/870/864489.pdf" target="_blank">Washington Business Dynamics, B-421953, B-421953.2, Dec. 18, 2023</a> (which we covered <a href="/topics/gao-finds-company-s-bpa-bid-remains-eligible-for-award-despite-a-transactional-recertification-and-change-in-size-status-in-connection-with-its-underlying-federal-supply-schedule-contract" target="_self">in this blog</a> a few months ago). Rejecting SBA’s formulation of the “extremely clear” “base rule,” OHA provided a different summary rule:<blockquote>[D]ue to an acquisition, Appellant became other than small after its MAC was originally awarded but prior to submitting an offer for a task order that [is] set-aside for small businesses.  Appellant’s acquisition triggered a requirement to recertify at the contract level, thereby limiting the procuring agency from exercising options or counting awards towards small business goals.  13 C.F.R. § 121.404(g).  Neither the plain language of the regulation nor OHA case law, though, bars the contractor from competing for, or being awarded, future task orders, even if those orders are set aside or restricted for small business.</blockquote>Id. The outcome would have been different if the ordering contracting officer had requested a size recertification at the order level. But, absent such a request, the company remained eligible to bid on and be awarded set-aside orders under its FSS contract.Takeaways:<ul><li>An agency’s intended policies and contrary intentions must be reflected in the clear terms of its promulgated regulations.</li><li>As a general rule, subject to exceptions, a previously small FSS contractor may continue to bid on set-aside FSS orders even after it recertifies as a large business following a transaction. Absent a request for recertification at the FSS order level, the recertification affects size goaling credits, and not award eligibility under the current regulations.</li><li>The regulations governing award eligibility following a transaction are complicated, filled with exceptions, and difficult even for lawyers to untangle. Unless SBA reissues the regulations in much simpler and clearer form, small businesses being acquired and companies doing the acquiring would do well to seek counsel from attorneys who are well versed in these rules.</li><li>The same company may be eligible for new set-aside awards under one contract, but ineligible under another contract. And, even under the same contract, eligibility may depend on the particulars of specific orders.</li></ul>

OHA Rules Company Remains Eligible for Award of Small Business Set-Aside Schedule Orders Even After Acquisition by a Large Business

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