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.

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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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In the extensive chatter since the Federal Acquisition Regulatory Council (“FAR Council”) published an interim rule on the new Federal Acquisition Regulation (FAR) 52.204-27, “Prohibition on a ByteDance Covered Application,” commentators have almost universally advised that if a federal contractor’s employee uses a device in connection with a government contract in any way, TikTok is banned on that device.  These conclusions seem to rely on the common understanding of the term “information technology.” 

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When Does the So-Called TikTok Ban Really Apply to Contractors and Their Employees? | Government Contracts Insights

James A. Tucker

Locke Bell

In the extensive chatter since the Federal Acquisition Regulatory Council (“FAR Council”) published an interim rule on the new Federal Acquisition Regulation (FAR) 52.204-27, “Prohibition on a ByteDance Covered Application,” commentators have almost universally advised that if a federal contractor’s employee uses a device in connection with a government contract in any way, TikTok is banned on that device.  These conclusions seem to rely on the common understanding of the term “information technology.”  But both the underlying congressional statute and the new implementing FAR clause adopt a specific statutory definition of “information technology” that is far more nuanced and far from clear in its scope.  Contractors may be ignoring this nuance and reading too much into the clause to their disadvantage.  Rather than assume the ban is more extensive than the text of the interim rule requires, contractors should use the notice-and-comment period to ask the FAR Council to clarify the rule’s intended scope.Statutory and Regulatory FrameworkThe No TikTok on Government Devices Act became law on December 29, 2022, as part of the <a href="https://www.congress.gov/bill/117th-congress/house-bill/2617/text">Consolidated Appropriations Act of 2023</a>, Public Law 117-328 (the “Act”).  The Act requires all federal agencies to follow Office of Management and Budget (OMB) guidance to ensure that TikTok, and any other successor applications or services developed or owned by ByteDance Limited, are removed from all federal information technology.  The Act covers “information technology” as defined in 40 U.S.C.§ 11101(6), which states: <div></div>The term “information technology”—(A) with respect to an executive agency means any equipment or interconnected system or subsystem of equipment, used in the automatic acquisition, storage, analysis, evaluation, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by the executive agency, if the equipment is used by the executive agency directly or is used by a contractor under a contract with the executive agency that requires the use—(i) of that equipment; or(ii) of that equipment to a significant extent in the performance of a service or the furnishing of a product;(B) includes computers, ancillary equipment (including imaging peripherals, input, output, and storage devices necessary for security and surveillance), peripheral equipment designed to be controlled by the central processing unit of a computer, software, firmware and similar procedures, services (including support services), and related resources; but(C) does not include any equipment acquired by a federal contractor incidental to a federal contract.On February 27, 2023, the OMB released<a href="https://www.whitehouse.gov/wp-content/uploads/2023/02/M-23-13-No-TikTok-on-Government-Devices-Implementation-Guidance_final.pdf"> </a><a href="https://www.whitehouse.gov/wp-content/uploads/2023/02/M-23-13-No-TikTok-on-Government-Devices-Implementation-Guidance_final.pdf">Memorandum M-23-13</a> (“OMB Memorandum”), which provides guidance on implementing the Act’s mandates.  The OMB guidance also referenced the statutory definition of information technology in 40 U.S.C. § 11101(6), and noted (emphasis added): That definition reaches not only IT owned or operated by agencies, but also IT “used by a contractor under a contract with the executive agency that requires the use” of that IT, whether expressly or “to a significant extent in the performance of a service or the furnishing of a product.”  That definition does not, however, “include any equipment acquired by a federal contractor incidental to a federal contract.”OMB did not elaborate on what it means for a contract to “require[] the use” of particular IT, what a “significant extent” is, or what “incidental” means in this context.On June 2, 2023, the FAR Council published an<a href="https://www.federalregister.gov/documents/2023/06/02/2023-11756/federal-acquisition-regulation-prohibition-on-a-bytedance-covered-application"> </a><a href="https://www.federalregister.gov/documents/2023/06/02/2023-11756/federal-acquisition-regulation-prohibition-on-a-bytedance-covered-application">interim rule</a>, effective immediately, implementing the Act and OMB Memorandum and requiring inclusion of the new FAR 52.204-27 clause in solicitations issued on or after June 2.  The interim rule also calls for modification of indefinite-delivery contracts to apply the FAR clause to future orders, inclusion of the clause in existing contracts when options are exercised or the period of performance extended, and amendment of pending solicitations to add the clause by no later than July 3, 2023. In the “discussion and analysis” preface to the interim rule, the FAR Council stated, in an oft-quoted conclusion:  “The FAR clause at 52.204–27 prohibits contractors from having or using a covered application on any information technology owned or managed by the Government, or on any information technology used or provided by the contractor under a contract, including equipment provided by the contractor’s employees.”  88 FR 36431.  It also notes, however, that the interim rule “uses the statutory definition of ‘information technology’ because Public Law 117-328 does so.  This is different from the FAR definition of ‘information technology’ at 2.101, which excludes imbedded information technology.”  Id.Contributing to the perceived breadth of the interim rule, the FAR Council and Administrator for Federal Procurement Policy have decided to apply the new FAR clause to essentially all federal contracts, including contracts at or below the simplified acquisition threshold; contracts for commercial products and services, including commercially available off-the-shelf (COTS) items; and contracts at or below the micropurchase threshold.  The clause is also a mandatory flowdown in all subcontracts, including those for commercial products or commercial services.Open Questions Create Ambiguity in Application of the RuleAlthough Congress, the OMB, and the FAR Council all use the 40 U.S.C. § 11101(6) definition of information technology, none has explained what the definition means in this context.  This creates ambiguity in the application of the new FAR clause.  This is so because the definition does not encompass all contractor information technology, or even contractor information technology that may somehow relate to a covered contract.  Instead, the definition extends only to equipment that “is used by a contractor under a contract with the executive agency that requires the use— (i) of that equipment; or (ii) of that equipment to a significant extent in the performance of a service or the furnishing of a product.”  (Emphasis added.)  The rule also continues to carve out an exception for “equipment acquired by a federal contractor incidental to a federal contract.”  (Emphasis added.) Ambiguities abound, which prevent anyone from stating with certainty what the scope of this new rule is.  For example, what is the difference between an agency (i) requiring use of equipment, or (ii) requiring use of that same equipment to a significant extent?  The FAR Council, like Congress, joined these two requirements with a disjunctive “or,” so presumably they are intended to be two different categories of requirements.  But, if any contractually required use of the equipment triggers the ban, then required use “to a significant extent” are empty words that simply prohibit what is already prohibited under the first prong of the disjunction.  That is not the way statutes or regulations usually work, so the drafters almost certainly meant something other than what the text seems to say.[1]This mystery notwithstanding, it seems apparent that to meet the definition of “information technology” covered by the new FAR clause, a government agency must have required use of the equipment in connection with a government contract.  This happens with some regularity in terms of government-furnished equipment, or implicit requirements for contractors to use their own equipment to access government systems.  However, explicit agency directives do not generally extend to day-to-day use of company-issued laptops, or employees’ personal devices, to conduct all other work related to government contracts, such as email communications with customers.  Strictly applying the new clause’s text, a specific contractual requirement to use particular equipment would be necessary for the TikTok ban to apply.  There almost certainly would be no such requirement specified in a micropurchase order, or simplified purchase order for a COTS product.  It thus seems there is a significant disconnect between what most observers assume is an intended broad reach of the interim rule, and the textual definition of “information technology” in the rule itself. And what does the carve-out for “any equipment acquired by a federal contractor incidental to a federal contract” mean?  In the absence of an agency requirement for a contractor (or subcontractor) to use its own (or its employees’) information technology equipment in connection with a government contract, wouldn’t most contractor or bring your own device (BYOD) equipment fall within the “incidental” equipment exception? The authors of the congressional statute, the OMB Memorandum, and the interim rule adopted a narrow definition of “information technology” that is at odds with the much more extensive scope that most observers assume the “TikTok ban” has.  Lack of clarity in the statute, the memorandum, and the regulation is stymying contractors’ ability to know precisely what equipment is covered, and how they are supposed to implement the ban.  Ironically, the FAR Council, in concluding that the new clause imposes minimal burdens on contractors, states without providing any guidance:  “It will be particularly important for contractors to clearly explain to their employees when a covered application is prohibited on a personal device used in performance of a Federal contract.”  88 FR 36432.  If procurement attorneys and industry experts can’t explain with certainty what exactly is banned, it is unclear how businesses can be expected to explain it to their employees.   Issues for CommentThe FAR Council has invited industry to submit comments on the interim by August 1, 2023.  We urge impacted contractors, subcontractors, and the trade associations that represent them to accept that invitation.  Among the questions that require clarification are:<ul><li>If an agency does not specifically require use of specific information technology equipment, does that mean such equipment is not covered by the clause? </li><li>What would such a “requirement” look like?  For example, is it a requirement only if the contract itself (or a written order of the contracting officer) states the contractor must use the specific technology?</li><li>How can the clause apply to micropurchases when the mechanisms used for such purchases—primarily use of government purchase cards—often do not involve the flow down or transfer of any formal terms to the “contractor”?</li><li>Does the ban cover any device that sends, receives, or stores data generated in the performance of a government contract?  If so, why does the clause not say that?</li><li>What distinction is meant by use “(i) of that equipment; or (ii) of that equipment to a significant extent in the performance of a service or the furnishing of a product”?  Does the FAR Council mean to say that the equipment is covered only if the contractor is required to use it “to a significant extent” (whatever that means)?  Or is all equipment covered if a contract expressly requires its use, plus any implicitly required equipment only if the contractor actually uses it “to a significant extent”?    </li><li>What does “incidental to a federal contract” mean?  If a contract does not expressly require a contractor to acquire or use particular equipment, does that make the equipment incidental? </li><li>Is use of a personal or company device to answer email from government customers “incidental”?  What about a device occasionally used to take telephone calls from government employees who want to discuss contract performance?  What about devices employees use to log time they spend working on company projects, including covered contracts?</li><li>What about use of a personal or company device to market or sell a product to a government customer?</li><li>Are COTS product manufacturers expected to ban TikTok from every one of their employees’ devices if those employees are in any way involved in the development of a product that the U.S. government purchases?</li><li>In the BYOD context, how does the FAR Council expect contractors to enforce employees’ compliance with the rule?  Is it enough to institute the policy and provide training, or are contractors expected to conduct random checks of the applications employees have on their BYOD telephones?</li></ul>These are just a few of the many questions that spring to mind when reading the imprecise interim rule.  Without clarification and precision in language, some contractors will over-comply, others will under-comply, and no one will be able to figure out who is right. In addition to demanding clarification, industry should advocate for a common-sense balance between the federal government’s legitimate national security concerns and the actual threat posed by the potential presence of TikTok on some contractor employees’ personal devices.  Mitigation measures, such as use of container management features to isolate work-related programs from the remainder of an employee’s device, are a potential option.  Given the prevalence of BYOD policies, such measures are arguably more secure than a mere written policy requesting that employees not use certain apps on the own devices. At the end of the day, a well thought out final rule is needed for the government to address its real concerns about intrusive technology.  No one’s interests are served by broad-brush prohibitions that lack enforcement mechanisms and are difficult to comprehend or implement as written.[1] The OMB, in Memorandum M-23-13, appears to interpret the first prong to refer only to express contract requirements, whereas the second is intended to capture use that is not expressly required but nevertheless comprises a “significant extent” of contract performance.  But that is not what the statute or regulation says.

When Does the So-Called TikTok Ban Really Apply to Contractors and Their Employees?

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