Contact: Richard Vacura
Morrison & Foerster has extensive experience representing clients in all aspects of their business transactions with domestic
and international governments, from large companies with sophisticated and complex government business issues to small- and
medium-sized companies just entering government markets. The firm advises both U.S. and non-U.S. companies in contracts with
the U.S. government as well as international governments.
The firm’s Government Contracts practice involves both counseling and litigation in contract formation and performance; technology
licensing agreements; regulatory compliance counseling and training; due diligence for mergers and acquisition or financing
transactions; small business programs; bid protests and contract disputes; claims; government investigations; and criminal,
civil, and administrative actions relating to government business transactions.
The firm has represented clients in the information technology, defense electronics, aerospace, shipbuilding, biotechnology,
telecommunications, engineering services, Internet, logistics support, transportation, and facility services industries. The
firm’s clients have supplied a broad spectrum of products and services purchased by federal, state, local and international
governmental entities.
Contract Formation and Performance Counseling
Morrison & Foerster advises clients concerning the full range of transactions that governments use to obtain goods or services,
ranging from basic commodities to complex weapons and information systems, as well as cutting-edge technology research and
development. The firm places a strong emphasis on early attention to the more troublesome areas of government business transactions
in an effort to prevent and avoid disputes.
During the contract formation process, Morrison & Foerster works with clients to analyze and provide guidance concerning solicitation,
evaluation, certification, regulatory, and statutory requirements that apply to bids, proposals, teaming agreements, joint
ventures, and subcontracts.
Morrison & Foerster routinely works with clients to develop and implement effective measures to address issues involving intellectual
property, licensing, Freedom of Information Act (“FOIA”), cost accounting, cost allowability, pricing, product liability,
indemnification, warranty, certification, representation, export control, international anticorruption, and national security
requirements.
Licensing
The firm is at the cutting edge of technology licensing where government funds or technology is involved, assisting technology
companies to understand the various types of research and development agreements, federal technology transfer programs, and
in drafting and negotiating consortia agreements, CRADAs, Material Transfer Agreements, patent licenses and related agreements.
The firm also counsels clients with respect to protecting intellectual property rights to software developed or customized
for a federal customer, and to technical data delivered under government contracts.
Subcontracting
The firm actively counsels commercial companies seeking to offer products under subcontracts with prime contractors, including
assisting such companies in understanding which federal clauses must be incorporated into such subcontracts and the impact
of those clauses on their businesses.
Due Diligence Reviews
The firm’s government contract attorneys are frequently called upon to assist clients in addressing the significant government
contracting issues that can arise in the acquisition or sale of a company that does business as a government contractor. These
efforts involve due diligence reviews, strategic alliances, novations, Committee on Foreign Investment in the United States
(“CFIUS”) review, and resolving security clearance issues.
Bid Protests
Morrison & Foerster’s attorneys regularly represent companies that are either challenging or defending federal procurement
procedures or contract awards in bid protest actions before the contracting agency, Government Accountability Office, or U.S.
Court of Federal Claims, as well as in various international, state, and local venues. The firm has handled protest actions
involving procurements by many different government entities ranging in size and complexity, including major systems procurements
worth billions of dollars.
Claims and Disputes
Once a contract or other business transaction has been awarded, the firm represents clients in the preparation, negotiation,
and resolution of modifications, requests for equitable adjustment, and claims. The firm routinely assists clients in resolving
complex disputes related to changed specifications and requirements, audits, and investigations concerning pricing and cost
issues, cost overruns, intellectual property, FOIA, indemnification, warranty, and labor and employment issues.
When negotiated resolution is not possible, the firm represents clients in alternative dispute resolution proceedings, or
litigation before agency Boards of Contract Appeals and the Court of Federal Claims.
The firm also represents government prime contractors and subcontractors in Federal or state court actions and ADR throughout
the country when their commercial contract disputes involve interrelated government contract issues.
Investigations and Prosecution
In some cases, disputes or a failure to adhere to government requirements can result in criminal investigations and prosecutions,
including grand jury investigations, qui tam or government-initiated civil false claims actions, and administrative actions such as suspension and debarment. The firm’s
attorneys routinely work with companies to develop, enhance, and implement effective business conduct and compliance programs
to minimize this risk and provide a mechanism for addressing problems when they do arise. When needed, the firm represents
clients in contractual, administrative, civil, and criminal proceedings.
International Procurements
Morrison & Foerster has substantial experience representing non-U.S. clients in U.S. Government business transactions and
has broad knowledge of and experience representing U.S. and non-U.S. clients with issues involving business transactions with
international governmental entities. The firm is experienced at addressing both transactional issues and disputes as well
as the unique requirements relating to foreign military sales, foreign military financing, offset agreements, export controls,
the Buy American Act, international anticorruption laws, and U.S. Foreign Corrupt Practices Act compliance.
Representative Matters
- Represent Northrop Grumman at the Court of Appeals for the Federal Circuit in the Navy's appeal of a favorable decision by the Armed Services Board
of Contract Appeals involving $30 million in breach of warranty claims related to the Navy's SQQ-89 antisubmarine warfare
system.
- Represent Honeywell International in "reverse" Freedom of Information Act case in federal district court seeking to enjoin the Air Force's release of confidential
commercial information related to the satellite and space systems control network submitted in a proposal and incorporated
into an Air Force contract.
- Represented Space Exploration Technologies, Inc. in its challenge to billions of dollars in sole source contracts being awarded by the Air Force. The Company, founded by
PayPal co-founder, Elon Musk, is developing and manufacturing space launch vehicles and through the litigation, the Air Force
agreed to open the space launch contracts to competition on a yearly basis.
- Represented SI International, Inc. in its protest of the award of a contract by the U.S. Department of Homeland Security for digitization of all Alien-File
data that resides in the various U.S. Citizenship and Immigration Services centers.
- Represented a major Defense contractor involving directed and constructive changes to its shipbuilding contract with the Navy.
The case involves schedule analysis experts and extensive delay and disruption valued at over $45 million caused by the Navy's
changes to the technical baseline of the ship's systems.
- Represented leading supplier of oxidizing agent for solid propellant rocket motors in its request for equitable adjustment
for directed and constructive changes to its supply contracts. The case resulted in a favorable settlement, which included
restructuring the contract terms and conditions.
- Represented an international transportation company in performing the government contract due diligence of over 90 government
contracts for the $260 million acquisition of an international freight forwarding company.
- Represented major telecommunications company and global transportation company in development of their small business subcontracting
plans and reports that were mandatory under their contracts. These plans identified the companies' purchases with subcontracting
opportunities available for small businesses and set goals in subcontracting with various types of small businesses.
- Represented DDL OMNI Engineering LLC in its successful protest of the Navy's sole source award of a contract for training systems engineering services in support
of the Navy's Aegis Cruisers and Aegis Destroyer baseline development. The protest challenged the award as an out-of-scope
task order, and the Navy took corrective action in response to the protest.
- Represented HomeSource Real Estate Asset Services, Inc in defending the award of a Department of Housing and Urban Development contract for management and marketing services in
connection with disposition of single-family homes and other property owned by HUD. The protester challenged at the GAO and
the Court of Federal Claims virtually all aspects of HUD's evaluation and elimination of the protester from the competitive
range. The GAO protest decision upheld the agency's evaluation and denied the protest on all counts. The subsequent protest
at the Court was withdrawn after the Court denied the protester's request for a temporary restraining order.
- Represented Trinity Information Management Services, Inc. in its protest of the State Department's award of a contract for information technology support services to be performed
for the Chief Technology Officer within the Bureau of Diplomatic Security.
- Represented Honeywell International involving over fifteen directed and constructive changes to the contract requirements, as well as termination claims valued
at over $27 million.
- Represented Space Exploration Technologies Inc. in successful protest of NASA’s decision to procure data to demonstrate the ability of commercial space launch systems to
support the International Space Station under a $227 million sole source contract.
- Represented Honeywell International protesting NASA's contract for test operations services at the Stennis Space Center and the Marshall Space Flight Center.
The matter involved multiple protesters challenging NASA's evaluations of technical issues, and its cost realism analysis.
After a hearing and taking written testimony from the protester's expert witness, the GAO sustained the protest and recommended
that NASA take corrective action.
- Represented Platts, a Division of the McGraw-Hill Companies, Inc. in its protest of the award of a contract by the National Geospatial-Intelligence
Agency for mapping database software and geographic data as part of NGA’s Homeland Security Infrastructure Database for all
Federal, State, and Local users. The protest successfully challenged NGA’s technical evaluations and the awardee’s ability
to meet the contract requirements.
- Represented Shea Homes in a $155 million Federal Tort Claims Act case against the Army for environmental damages related to property purchased pursuant
to the closure of a former Air Force base.
- Represented Honeywell International in the protest of the award of an Air Force contract for ground carts to cool aircraft avionics during maintenance. The protest
successfully challenged the Air Force’s technical evaluations and the awardee’s ability to meet the minimum mandatory requirements.
- Represented First Federal Corporation, a leading provider of secure off-site data storage protesting Social Security Administration contract for the provision
of all labor, facilities, and equipment for a secure off-site magnetic media vault facility for SSA’s disaster recovery program.
The protest successfully challenged the awardee’s ability to meet all of the minimum mandatory technical requirements stated
in the solicitation.
- Represented Mackay Communications, the awardee of a Navy contract for INMARSAT Saturn-Bm terminals high-speed modem capability, Saturn-Bm antennas, integrated
antenna hand-over upgrade kits as well as engineering services and maintenance support for satellite communications on Navy
ships. The protester challenged the Navy’s evaluation of its technical solution and compatibility with INMARSAT requirements.
The protest decision upheld the agency’s evaluation and denied the protest on all counts.
- Regularly provide training and in-house seminars to clients and to commercially-oriented companies regarding their obligations
and responsibilities to comply with accounting, ethics, socio-economic, and other important statutory and regulatory requirements
in performing government contracts
