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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Lawyers often view a writ of mandamus to a Court of Appeals as a last-gasp—indeed, almost hopeless—stratagem.  But sometimes they are granted, particularly when

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Unprecedented Discovery Orders Vacated: Fourth Circuit Confirms Government Contractors Do Not Waive Privilege by Disclosing Facts Uncovered during an Internal Investigation under the FAR’s Mandatory Disclosure Rule

Unprecedented Discovery Orders Vacated: Fourth Circuit Confirms Government Contractors Do Not Waive Privilege by Disclosing Facts Uncovered during an Internal Investigation under the FAR’s Mandatory Disclosure Rule | Government Contracts Insights

Victoria Dalcourt Angle

Lawyers often view a writ of mandamus to a Court of Appeals as a last-gasp—indeed, almost hopeless—stratagem.  But sometimes they are granted, particularly when the district court order they challenge is even more extraordinary.  That is what just happened in <a href="https://cases.justia.com/federal/appellate-courts/ca4/20-1241/20-1241-2020-03-25.pdf?ts=1585161022">In re Fluor Intercontinental, Inc., No. 20-1241 (4th Cir. March 25, 2020)</a>.  In this case, the attorney-client privilege came under attack in a recent decision in the District Court for the Eastern District of Virginia, when the court found that a government contractor, Fluor Intercontinental, Inc., had waived its attorney-client privilege by making a mandatory disclosure to the government.  The district court then required the contractor to disclose privileged files from the internal investigation that preceded the company’s disclosures.Fluor appealed to the Fourth Circuit, requesting a writ of mandamus directing the district court to vacate its orders compelling disclosure of documents and other information related to Fluor’s privileged internal investigation.  The Fourth Circuit granted Fluor’s petition, concluding that the contractor had not waived attorney-client privilege when it submitted its mandatory disclosure to the government.The mandatory disclosure rule, FAR 52.203-13, requires a contractor to timely disclose, in writing, whenever it has credible evidence of, among other things, violations of the civil False Claims Act.  Requiring contractors that disclose potential wrongdoing to produce privileged materials would likely conflict with the purpose of the disclosure requirements by encouraging companies to submit vague and incomplete disclosures.  The Fourth Circuit’s decision protects contractors’ right to shield confidential communications with its attorneys from discovery and aligns with the policy objectives behind the disclosure requirements.  Still, this is a cautionary tale, with lessons for companies and their lawyers when conducting internal investigations and making disclosures to the government.Proceedings at the District Court for the Eastern District of VirginiaThis case arises from Fluor’s internal investigation and subsequent termination of a worker’s employment.  Fluor conducted an internal investigation of an alleged conflict of interest involving an employee, Steven Anderson, and a company, Relyant Global, LLC, to which Fluor planned to award a contract.  Fluor’s legal department supervised the investigation and provided legal advice about the requirement to report any wrongdoing to the government.Following the investigation, Fluor terminated Anderson’s employment and sent a summary of the investigation findings to the Inspector General of the Department of Defense (DoD-IG) in compliance with FAR 52.203-13.  As mentioned above, FAR 52.203-13 requires contractors to “timely disclose, in writing, to the agency Office of the Inspector General . . . whenever . . . the Contractor has credible evidence that a principal, employee, agent, or subcontractor of the Contractor has committed— . . .  [a] violation of the civil False Claims Act (31 U.S.C. 3729-3733).”Anderson sued Fluor in district court, asserting claims of wrongful termination, defamation, and negligence stemming from Fluor’s internal investigation and disclosure to the government.  During discovery, Anderson moved to compel production of files related to Fluor’s internal investigation.  Fluor objected and asserted that the attorney-client privilege and the attorney‑work product doctrine protected files relating to the internal investigation.The district court found that Fluor’s disclosures to the government were voluntary and concluded that Fluor waived the attorney-client privilege when it made its disclosure to the DoD‑IG.  In particular, the court focused on the following four statements:<ul><li>“Anderson had a financial interest in and appears to have inappropriately assisted [a] Fluor supplier and potential subcontractor” (emphasis added)</li><li>“Fluor considers this a violation of its conflict of interest policy and Code of Business Conduct and Ethics” (emphasis added)</li><li>“Anderson used his position as the [Afghanistan] project manager to pursue Relyant concrete contracts with the German military, and Mr. Anderson used his position as the [Afghanistan] project manager to obtain and improperly disclose nonpublic information to Relyant” (emphasis added)</li><li>“Fluor estimates there may have been a financial impact to the Government because Mr. Anderson’s labor was charged to the contract task order while he engaged in improper conduct.” (emphasis added)</li></ul>The district court explained that, because “these statements are legal conclusions which characterize Plaintiff’s conduct in a way that reveals attorney-client communications,” they thereby waived the attorney-client privilege.  While Fluor’s disclosure to the government purported to reveal mere facts, the district court determined that, because these four statements are “conclusions which only a lawyer is qualified to make,” they revealed attorney-client communications.Fluor moved for reconsideration of the district court’s order.  First, Fluor argued that its disclosure to the DoD-IG was mandatory under the FAR’s Mandatory Disclosure Rule (MDR).  Second, Fluor asserted that the court erred in treating its statements characterizing the disclosure as “voluntary” as binding judicial admissions.  Third, Fluor argued that its disclosure did not reveal attorney-client communications or protected information.The district court denied Fluor’s motion to reconsider.  The court was unpersuaded that Fluor mistakenly used the word “voluntary.”  The court held that the MDR only requires a timely disclosure, in writing, whenever there is credible evidence of a prohibited act, so any disclosure made by Fluor beyond this was voluntary.  Furthermore, the court decided that Fluor’s third‑party disclosure to the government waived the attorney-client privilege, and the MDR did not provide any additional privilege protection.  The court thus ordered Fluor to produce the materials for which it had waived privilege, including communications, witness statements, reports, and summaries of interviews from the underlying investigation relating to the subject matter of the four statements.Appeal to the U.S. Court of Appeals for the Fourth CircuitFluor filed a petition for a writ of mandamus in the Fourth Circuit directing the district court to vacate its orders compelling disclosure of documents and other information related to Fluor’s internal investigation.  Fluor argued that a government contractor does not waive attorney-client privilege or work product protection by disclosing facts uncovered during an internal investigation under the MDR.  Although a writ of mandamus is an extraordinary remedy, the Fourth Circuit granted Fluor’s petition and directed the district court to vacate the portions of its prior orders that required Fluor to disclose privileged information from the investigation.In its March 25, 2020 opinion, the Fourth Circuit court found that the district court erred in concluding that Fluor’s disclosure revealed attorney-client communications and thus waived attorney-client privilege.  Specifically, the Fourth Circuit took issue with the district court’s conclusion that, because the four statements identified above are “conclusions which only a lawyer is qualified to make,” they revealed attorney-client communications and thereby waived attorney-client privilege.  The circuit court explained, “[t]o find waiver, a court must find that there has been ‘disclosure of a communication or information covered by the attorney-client privilege or work-product protection.’”When is Privilege Waived?To illustrate waiver of attorney-client privilege, the circuit court drew a distinction between Fluor’s disclosure and the disclosure in In re Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988).  In Martin Marietta, the Fourth Circuit concluded that the appellant waived privilege over protected internal audit interviews because its disclosure to the government quoted from interviews conducted during an investigation, and it waived privilege over protected internal notes and memoranda on the interviews because the disclosure “summarize[ed] in substance and format the interview results.”  The Fourth Circuit explained, “[b]y directly quoting and summarizing what employees had said to counsel in the interviews, the appellant in In re Martin Marietta Corp. revealed privileged communications.”In contrast, the Fourth Circuit held that there was no evidence the four statements in Fluor’s disclosure quoted privileged communications or summarized them in substance and format.  Instead, “the statements do no more than describe Fluor’s general conclusions about the propriety of Anderson’s conduct.”The Fourth Circuit further stated, “in determining whether there has been disclosure of a communication covered by the attorney-client privilege, we distinguish between disclosures based on the advice of an attorney, on the one hand, and the underlying attorney-client communication itself, on the other.”  When a party makes a statement based on the advice of his or her attorney, it does not waive privilege.  Privilege is only waived when the underlying communications between the client and their attorney are shared with a third party.  The Fourth Circuit stated that it “will not infer a waiver merely because a party’s disclosure covers ‘the same topic’ as that on which it had sought legal advice.”  The Fourth Circuit concluded that “requiring Fluor to produce privileged materials is particularly injurious here, where Fluor acted pursuant to a regulatory scheme mandating disclosure of potential wrongdoing.  Government contractors should not fear waiving attorney-client privilege in these circumstances.”  In so ruling, the Fourth Circuit recognized the undesirable incentives the district court’s decision would have created for contractors considering whether and how to make a disclosure to the government.TakeawayThe district court’s decision in this case, left uncorrected, could have had far-reaching consequences for companies subject to FAR 52.201-13 and other similar disclosure requirements.  Even though Fluor found relief in the Fourth Circuit, the district court’s decision demonstrates the need to remain vigilant when conducting internal investigations and making disclosures.  Companies of course should carefully guard their privileged communications.  In particular, they should think twice before labeling a disclosure as “voluntary,” avoid any disclosure of underlying privileged communications, and take care when describing the results of their investigations, particularly along the sometimes murky border between factual findings and legal conclusions.

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