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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We have previously written about the challenges contractors face when pursuing costs incurred because of combat zone risks.  These risks, and the resulting cost

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Who Bears the Risks of War? Federal Circuit Affirms ASBCA’s Decision That the Contractor Bore the Risk of Changes to Worksite’s Security

Who Bears the Risks of War? Federal Circuit Affirms ASBCA’s Decision That the Contractor Bore the Risk of Changes to Worksite’s Security | Government Contracts Insights

Victoria Dalcourt Angle

We have <a href="https://govcon.mofo.com/defense/who-bears-the-risks-of-war/">previously written</a> about the challenges contractors face when pursuing costs incurred because of combat zone risks.  These risks, and the resulting costs, can be unpredictable and are not always compensable.  In ECC Int’l Constructors, LLC, ASBCA No. 59138, 19-1 BCA ¶ 37252 (Jan. 24, 2019), for example, the Armed Services Board of Contract Appeals (“Board”) held that the Army was not liable for the inclusion of a construction site within the secure perimeter of an International Security and Assistance Force (“ISAF”) base because the contract’s discussion of security requirements did not amount to a warranty that ISAF would not change the security procedures for the site.  On appeal, the Federal Circuit affirmed.ECC International Constructors, LLC (“ECC” or “appellant”) contracted with the U.S. Government to construct a compound outside the ISAF military base in Afghanistan.  The ISAF was a third party, not an agency of the U.S. Government.  The contract provided that “[t]he Compound will be sited … on a dedicated area located outside the perimeter fencing of the existing base.”  ECC Int’l Constructors, LLC, ASBCA No. 59138, 19-1 BCA ¶ 37252 (Jan. 24, 2019).  Because the compound would be outside the base security perimeter, the construction site for that compound was not subject to base security procedures.  Instead, the contract required ECC to erect a temporary security fence around the project and to provide physical security for the compound and all materials, supplies, and equipment.That arrangement eventually changed.  “Initially, appellant performed its work on the compound outside the base security fence, not subject to base security procedures, and provided the security measures that the contract required, including temporary fencing, necessary to secure the compound; however, in 2012, ISAF (1) completed an expansion of the base security fence that encompassed the contract work site; and (2) exercised its authority to establish, monitor, and enforce all of the strict base security procedures at the contract work site.”  Id.ECC argued that the imposition of base security procedures amounted to a constructive change to the contract.  ECC filed a motion for summary judgment arguing that ISAF’s actions breached an express warranty that (1) the contract work would take place outside the base perimeter; (2) ECC would control security and access to the contract work site; and (3) ECC would control when the work site would be “tied-in” to the base and thus become subject to base security procedures.  ECC contended that ISAF’s extension of base security procedures to the work site, in violation of these warranties, constituted a constructive change to the contract.  The government cross-moved for summary judgment, arguing that ECC was not entitled to compensation for ISAF’s security procedures.The key question in the case became “whether, when a third party controlling a military base interfered with access to a compound that the government contracted appellant to build outside the base, an express contract warranty was breached, entitling appellant to recover for a constructive change to the contract.”  Id.In answer to that question, the Board stated, “absent fault or negligence or an unqualified warranty on the part of its representatives, the government is not liable for damages resulting from the action of third parties.” Id. (citing Oman-Fischbach International (JV) v. Pirie, 276 F.3d 1380, 1385 (Fed. Cir. 2002)).  “Unless the parties in unmistakable terms agreed to shift the risk of increased costs due to acts by the ISAF, no liability on the part of the government attaches from such acts.”  Id.  Because the parties did not agree in unmistakable terms that the Government would assume the risk of increased costs resulting from acts of ISAF that affected access to the work site, the Board concluded that there was no breach of a contract warranty and no constructive change to the contract.  Therefore, appellant was not entitled to compensation for costs and delays incurred because of ISAF’s base security procedures at the contract work site.  The Board granted the Government’s request for partial summary judgment that “[t]he change to the security posture of the … Compound was not a constructive change to the Contract for which [appellant] is entitled to Compensation.”  Id.On appeal, the Federal Circuit affirmed the Board’s conclusion that the change in security posture was not a constructive change.  ECC Int’l Constructors, LLC v. Sec’y of the Army, 817 F. App’x 952 (Fed. Cir. 2020).  The Federal Circuit reasoned that ISAF is a third party, and the expansion of the ISAF military base in Afghanistan was the act of that third party, not the U.S. Government.  “[T]he government is not liable under contract for increased costs caused by acts of a third party absent the breach of an unqualified warranty that would amount to a constructive change in the agreed terms.”  Id. at 953.The Federal Circuit agreed with the ASBCA that there was no meaningful distinction between this case and Oman-Fischbach.  As the Federal Circuit explained, “[i]n Oman‑ Fischbach, the mere fact that the contract depicted several routes to a disposal site on a map did not explicitly assure the contractor of access to any particular route.”  Id. at 954.  Similarly, in ECC’s case, there were no contract provisions warranting that ISAF would not change the security procedures that would apply to the worksite.  “ECC’s contractual responsibility to enforce security procedures on the work site did not unmistakably give it the right to determine the particular security procedures applicable thereto or the timing of when the work site might be brought within the Base perimeter fence and subject to heightened security procedures.”  Id.  The Federal Circuit thus affirmed the ASBCA’s decision that ECC bore the risk of changes to base access, because the changes in security procedures were not a constructive change entitling ECC to compensation.The Federal Circuit also agreed with the Board that various contemporaneous communications cited by ECC were insufficient to establish that the contract contained an unmistakable warranty.  Id. at 954-55.  As the Court explained, the contract itself was clear on its face, making it unnecessary and inappropriate to resort to parole evidence.  Id.  In addition, the Court pointed out that parole evidence is generally limited to communications occurring before a dispute arises, while the communications cited by ECC in this case came after the security situation had changed.  Id.<a href="#_ftn1" name="_ftnref1">[1]</a> Perhaps most importantly, the Court also observed that the communications were not as clear as ECC contended.  Id.  ECC’s unsuccessful attempt to rely on parole evidence drives home the importance of focusing on what the contract itself says.While the results in cases stemming from war zone risks can run the gamut, the Federal Circuit’s affirmation in this case confirms the one point that is clear from all of those cases: contractors should look closely at how contract provisions allocate the risk of additional costs or delays that may arise in a combat environment and should think carefully about how to respond when security, access, or other types of changes occur.<a href="#_ftnref1" name="_ftn1">[1]</a> The general preference for pre-dispute evidence seems designed to prevent a party from citing its own posturing as support for its position.  In this case, however, the Board and the Court disregarded post-dispute communications by the Government that arguably were contrary to the Government’s litigation position.  It is not clear whether the preference for pre-dispute communications should bar this type of evidence, which is in essence an admission against interest.

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