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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President Biden Will Require Certain Federal Contractors and Businesses to Mandate COVID-19 Vaccines or Regular Testing for Employees

President Biden Will Require Certain Federal Contractors and Businesses to Mandate COVID-19 Vaccines or Regular Testing for Employees | Government Contracts Insights

Andrew R. Turnbull

On September 9, 2021, President Biden issued a six-pronged <a href="https://www.whitehouse.gov/covidplan/">Path Out of the Pandemic </a>(the “Plan”) and Executive Order on <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/">Ensuring Adequate COVID Safety Protocols for Federal Contractors</a> (“EO”) that will require certain federal contractors and businesses with 100 or more employees to have their employees either fully vaccinated or subject to regular COVID-19 testing.  While the new requirements are expected to impact over 80 million workers in the private sector, the full details of these requirements remain to be seen.  The Plan directs the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to issue an Emergency Temporary Standard (“ETS”) in the coming weeks to provide further details on the new requirements.  Similarly, the EO instructs the recently created Safer Federal Workforce Task Force (the “Task Force”) to issue guidance later this month detailing the requirements for federal contractors.Expected CoverageThe Plan states that all businesses with 100 or more employees will be covered by OSHA’s ETS when issued.  While the ETS and EO will likely cover all employees who work onsite at a covered employer, it is unclear whether the requirements will extend to employees who work full-time from their home offices.The EO comes on the heels of the <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-president-biden-to-announce-new-actions-to-get-more-americans-vaccinated-and-slow-the-spread-of-the-delta-variant/">presidential mandate</a> announced on July 29, 2021 (the “July Mandate”) for federal contractor employees, but goes a step further.  The July Mandate required all federal contractor employees who work at federal facilities to attest to their fully vaccinated status or face repeated testing and other COVID-19 safety protocols, such as strict masking and social distancing requirements.  The EO extends COVID-19 safety protocols to certain employees of federal contractors and subcontractors, regardless of whether they work at a federal facility.  The EO, however, will not apply to all employees of federal contractors and subcontractors.  Instead, it only applies to employees of federal contractors and subcontractors working on or in connection with the following types of federal contracts:<ul><li>Procurement contracts for services, construction, or a leasehold interest in real property;</li><li>Contracts for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;</li><li>Contracts for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); and</li><li>Contracts entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.</li></ul>The EO expressly exempts the following types of contracts and workers:<ul><li>Federal grants;</li><li>Contracts or subcontracts that are at or below the simplified acquisition threshold, which is currently $250,000, subject to limited exceptions;</li><li>Subcontracts solely for the provision of products;</li><li>Contracts with Indian Tribes and the Indian Self-Determination and Education Assistance Act; and</li><li>Employees who perform work outside the United States or its outlying areas.</li></ul>The EO requires all executive departments and agencies to include a clause in each covered contract, modification, or renewal requiring the contractor for the duration of the contract to comply with guidance issued by the Task Force related to the contractor’s workforce.  The EO will require contractors to flow down this clause to all covered subcontracts at any tier.Anticipated RequirementsIt is anticipated that covered businesses will be required to have their employees either prove their fully vaccinated status or produce negative COVID-19 test results on at least a weekly basis before coming to work.  OSHA has also been instructed to require covered employers to provide paid time off for the time it takes employees to get vaccinated and recover if they are under the weather post-vaccination.  Employers in many healthcare settings that receive Medicare/Medicaid reimbursements will also be required to mandate COVID-19 vaccinations for their workers as a condition of those healthcare businesses receiving Medicare/Medicaid reimbursement.The EO is silent about the actual requirements for contractors and instead relies on the Task Force to provide the “definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions.”  Contractors, however, will likely be subject to similar vaccination or testing requirements that OSHA has been instructed to implement and requirements from the July Mandate for federal contractor employees working at federal facilities.Many of the details of these new requirements are still unknown, including:<ul><li>How employees will prove their vaccinated status or negative COVID-19 test results;</li><li>The confidentiality or privacy standards that will apply when collecting vaccination or testing information from employees;</li><li>Whether there will be any exemptions for employees beyond accommodations for disabilities or sincerely held religious beliefs;</li><li>Whether the standards will apply to employees who work full-time remotely;</li><li>Any new guidance or standards that will apply beyond those already issued by the Equal Employment Opportunity Commission for accommodating workers with disabilities or sincerely held religious beliefs;</li><li>Whether employers will be required to pay for COVID-19 testing; and</li><li>Whether there will be a ramp-up period for compliance.</li></ul>Businesses that do not comply could face OSHA fines of up to $14,000 per violation, but there are few other details about how these new requirements will be enforced or potential penalties or remedies that businesses may face for noncompliance.Projected Effective DatesAlthough the White House indicated that OSHA would issue its ETS in the coming weeks, no definitive timeline for the ETS has been announced.  It took nearly six months for OSHA to develop emergency standards for healthcare employees.  OSHA, however, will likely move quicker in issuing this ETS considering the significant spotlight on this issue and direction from the top.  After the ETS is issued, employers may have some period of time to come into compliance before OSHA begins enforcement, but employers should not expect much breathing room.  Indeed, employers were only given a few weeks to comply with OSHA’s emergency COVID-19 standards for healthcare employers.Unlike the OSHA’s ETS, the EO provides timelines for implementation of its new requirements:<ul><li>By September 24, 2021 – The Task Force must issue its guidance.</li><li>By October 8, 2021 – The Federal Acquisition Regulatory Council must amend the Federal Acquisition Regulations (FAR) to include the contract clause to implement the requirements of the EO and the Task Force.</li><li>By October 8, 2021 – Contracting agencies must take steps to include the new clause in contracts entered into, renewed, or modified after October 15, 2021.</li><li>October 15, 2021 – The new clause must be inserted into covered contracts that are issued, extended, or renewed on or after that date, subject to certain exceptions.</li></ul>What Should Employers Do Now?The ETS and EO may face legal challenges from employers, business groups, and state governments once they go into effect.  Whether those legal challenges will succeed remains to be seen.In the meantime, contractors and businesses covered by the Plan and EO should start planning for how they will implement and operationalize these new requirements.  Employers that have not mandated vaccines will need to start thinking about how to navigate the numerous legal and practical issues that come with vaccine mandates, including obtaining and tracking vaccination status, testing policies and requirements, wage and hour compliance, accommodations for disabilities and sincerely held religious beliefs, confidentiality and privacy issues, and, if unionized, bargaining with their employee representatives.  These new requirements should also be assessed in light of the numerous state and local COVID-19 safety protocols, which may conflict with the new requirements or provide additional protections or obligations.  Although employers that have already mandated COVID-19 vaccines for their workers may have addressed many of these issues, those employers should revisit their policies and procedures in light of these new developments.

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