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 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 Reynolds is 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, as well as research organizations and universities, with a focus on general contract counseling and compliance, intellectual property and cybersecurity matters, federal grant funding, and state and local government contracting matters.Tina routinely advises clients on:<ul><li>Contract negotiations and prime-subcontractor relationships</li><li>Sources of supply and country of origin requirements</li><li>Organizational conflicts of interest and other ethics considerations</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>Freedom of Information and Public Records Act requests</li></ul>She also conducts due diligence and other activities related to the acquisition of government contracting concerns, and drafts and negotiates teaming agreements, subcontracts, licensing agreements, and cooperative research and development agreements, Small Business Innovative Research (“SBIR”) and Small Business Technology Transfer Program (“STTR”) agreements, and other transaction authority (“OTA”) agreements.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 U.S. Department of the Navy, Office of the General Counsel, Navy Litigation Office.<h4>Recent Representative Experience</h4><ul><li>Negotiated the largest CHIPS Act federal funding agreement between a multinational semiconductor corporation and the U.S. Department of Commerce. </li><li>Negotiated a prime contract and major subcontracts related to the Department of Energy’s next generation supercomputer program, including extensive IP rights and associated patent rights waivers. </li><li>Negotiated a 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>Assisting clients with the FedRAMP authorization process and the development of license agreements for software products sold to federal, state, and local government agencies. </li><li>Providing cyber incident response counseling to some of the largest companies and organizations impacted by security incidents, many involving nation state threat actors. </li><li>Advising clients on Bayh-Dole reporting of inventions and IP strategies for contracts and grants. </li><li>Conducting due diligence for major government contract mergers and acquisitions, including, for example, Salesforce’s $8 billion acquisition of Informatica and Palo Alto Networks’ $25 billion acquisition of CyberArk. </li><li>Advising clients on litigation strategy for False Claims Act matters, including those being handled by the U.S. Department of Justice (DOJ) cyber fraud initiative.</li></ul>

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Our government contracts and procurement attorneys counsel businesses on legal and compliance issues encountered when doing business with government entities.

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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 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 former 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 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 former 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.

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.

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On September 22, 2020, President Trump signed an Executive Order on Combatting Race and Sex Stereotyping (the “EO”), prohibiting federal contractors and certain

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President Trump Issues Executive Order Banning Federal Contractors from Race and Sex Stereotyping Training

President Trump Issues Executive Order Banning Federal Contractors from Race and Sex Stereotyping Training | Government Contracts Insights

Andrew R. Turnbull

Locke Bell

On September 22, 2020, President Trump signed an Executive Order on Combatting Race and Sex Stereotyping (the “EO”), prohibiting federal contractors and certain federal grant recipients from holding diversity and EEO training for their workforce that includes “divisive concepts,” such as training employees that the U.S. or an individual is “inherently racist, sexist, or oppressive, whether consciously or unconsciously.”  The EO follows a September 4, 2020 White House memorandum criticizing federal agencies for having “divisive, un-American” training sessions on “white privilege” and “critical race theory” and demanding that they end racial sensitivity trainings.  The EO also comes at a time when many contractors have been increasing their diversity and anti-bias trainings in response to racial and social justice issues brought to the forefront over the last several months.While the precise parameters of the types of training prohibited by the EO are not clear, contractors should review their diversity and anti-bias training initiatives in light of these new requirements.  If implemented, the EO requirements will be included in federal prime contracts entered on or after November 21, 2020, and will require prime contractors to flow the requirements down their subcontractors and vendors.CoverageThe EO applies to all government contracts, except for contractors qualifying for certain limited exemptions under Section 204 of Executive Order 11246, which are the same exemptions that apply to federal contractors’ Equal Employment Opportunity requirements.  There are no limits in the EO for commercial or commercial-off-the-shelf item contracts.  The EO also appears to apply to trainings for all employees of covered contractors, regardless of whether those employees support a federal contract.RequirementsThe EO includes a new contractual provision that must be included in covered contracts entered after November 21, 2020.  The provision requires contractors to prohibit “any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including the concepts that:<ul><li>one race or sex is inherently superior to another race or sex;</li><li>an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;</li><li>an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;</li><li>members of one race or sex cannot and should not attempt to treat others without respect to race or sex;</li><li>an individual’s moral character is necessarily determined by his or her race or sex;</li><li>an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;</li><li>any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or</li><li>meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.”</li></ul>The EO defines “race or sex stereotyping” broadly to mean “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his race or sex.”  The term “race or sex scapegoating” is defined in the EO as “assigning fault, blame, or bias to race or sex, or to members of a race or sex because of their race or sex.”Contractors will also be required to send each labor union or representative of its employees a notice, provided by the applicable agency’s contracting officer, advising the labor union or representative of the contractor’s obligations under the EO.  Copies of those notices must be posted for employees and applicants of covered contractors.  The EO also requires contractors to flow these obligations down to their covered subcontractors and vendors, unless they are exempted under the rules, regulations, or orders of the Secretary of Labor.Enforcement and RemediesOFCCP will play a significant role in enforcing the EO requirements on federal contractors.  OFCCP is required by the EO to establish a hotline to investigate complaints about contractors using training practices prohibited by the EO.  It also requires OFCCP to publish on or before October 22, 2020, a request for information from federal prime and subcontractors as well as their employees regarding training, workshops, or similar programming provided to employees.The U.S. Attorney General is also tasked with determining if training banned by the EO may contribute to a hostile work environment and give rise to claims under Title VII of the Civil Rights Act.  The EO instructs the U.S. Attorney General and EEOC to issue guidance, if appropriate, to assist employers “in better promoting diversity and inclusive workplaces consistent with Title VII.”Contractors that violate the EO can face harsh consequences, including termination, suspension, or debarment from federal contracting.Effective DateBy its own terms, the EO is effective immediately, but the requirements applicable to federal contractors will only be included in contracts awarded after November 21, 2020.  The EO does not specifically require that regulations be issued to implement the EO.ImplicationsWhile the EO states it does not prevent contractors “from promoting racial, cultural, or ethnic diversity or inclusiveness,” contractors should review their diversity and anti-bias training programs for areas that could be considered “divisive concepts” under the EO.  Many contractors use some form of unconscious bias training in their programs and have recently increased their diversity and anti-bias training efforts in wake of the racial and social justice issues over the last several months.  While the precise bounds of the EO training requirements, especially in relation to existing federal and state EEO training requirements, are not clear, it is very possible contractor diversity and anti-bias trainings stray into areas that could be characterized as suggesting an individual is unconsciously racist or sexist or making an employee feel discomfort or guilt by association on account of his or her race or gender.Given the politicized posture of the EO, contractors may face investigations of their diversity and anti-bias training as some employees may be more inclined to lodge complaints with the OFCCP, even if the contractor’s training complies with the EO.  While OFCCP will be required to enforce the EO, bureaucratic inertia may slow some enforcement efforts, as OFCCP staff generally favor promoting diversity and anti-bias training, not curtailing them.The EO will almost certainly be challenged by various political or interest groups on statutory and constitutional grounds.  Whether those challenges will be successful remains to be seen.  Regardless, the upcoming election could determine the fate of the EO.  If Trump is reelected, the Trump administration will push forward with implementation of the EO and fight any legal challenges.  If former Vice President Joe Biden is elected, however, the EO will likely be rescinded at some point, even if implemented briefly by a lame duck Trump administration.

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