Chris Lockwood on LinkedIn: Personal Information - ABA Public Contract Law Section’s Small Business &… (2024)

Sole-source follow-on contracts for ESOPs. This is good news for Huntsville, AL, which hosts several successful employee-owned DoD contractors. Comments are open through July 29th.Read more in the client alert with Richard Raleigh Jr and Andrew Coburn of Womble Bond Dickinson (US) LLP.#GovCon #ESOP #Huntsville #Alabama #DoD #Redstone

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Always remembering and missing my good friend, Nick.Air Force Captain Nicholas Schade Whitlock, 29, died February 18, 2012 while serving in the U.S. Air Force in Africa. Nick and three comrades died in an accident near Camp Lemonnier, Djibouti. Nick was serving on his fifth deployment, and the accident occurred while the aircraft was returning from a mission in support of Operation Enduring Freedom.Nick was a humble man of honor and dignity. Nick was passionate about his service to his country and believed in the missions he was a part of. Nick was committed to success and carried out every action with excellence and in a way that honored the talents he was given. All that Nick accomplished on this earth, and all that will be accomplished through his memory, will continue to honor the life he lived. The legacy he has left will forever be alive and remembered by all who knew him.

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I am honored to serve as a panelist for this upcoming webinar on SBIR Data Rights, sponsored by the ABA Public Contract Law Section’s Small Business & Other Socioeconomic Programs.Register now and do not miss!

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Here is a concerning copyright case for federal software providers to watch. The government is arguing that it is immune from a claim of copyright infringement for software developed by a federal subcontractor, irrespective of the government's associated license rights. 28 U.S.C. 1498(b) retains the federal government's sovereign immunity against copyright claims for works "prepared by a person while in the employment or service of the United States." One of the issues discussed in the case is whether working under a subcontract constitutes being in the "service of the United States." The COFC suggests the answer is "yes," but does not provide much supporting analysis. My immediate reaction to "service of the United States" is military service, not contractors or subcontractors. The court did not discuss 17 U.S.C. 101, which defines government-authored works as those "prepared by an officer or employee of the United States as part of that person's official duties." The reference to "officer or employee" in 17 U.S.C. 101 seems like it should match up against "employment or in service of the United States" in 28 U.S.C. 1498.This ruling seems like it could be problematic for contractors in instances where the government might have contributed some funding to the development, but where the government has less than unlimited rights (e.g. government purpose rights, specially negotiated rights, commercial, etc.). This analysis seems like it could provide the government with a very broad immunity defense even if the government exceeds the scope of its license. #govcon #software #copyright

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Table tennis, anyone? Here is a case that illustrates the interesting dynamic that exists between the GAO and the U.S. Court of Federal Claims. The GAO typically reviews protested agency actions for bare rationality, but here is in instance where the COFC found that the GAO's decision was itself irrational.NGA awarded a contract for audit support services, which was protested at the GAO. GAO indicated during an outcome prediction conference that it was likely to sustain one of the grounds for protest. ("Outcome prediction" is a process where GAO indicates how it is likely to rule on a protest, without issuing a formal decision). Based on the GAO's outcome prediction, NGA took corrective action to cancel the award. The awardee then took the case to COFC, challenging the cancellation. COFC expressed frustration that GAO had not allowed a record to be made of the outcome prediction conference, as the parties disputed what views the GAO has expressed during the meeting. Ultimately, COFC found that the GAO's outcome prediction was wrong, as was the resulting cancellation, resulting in reinstatement of the award.

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DFARS 227.7202-1 gives some important policies for providers of commercial software to DoD, including: 1. Use of the provider’s customary commercial license (minus terms prohibited by federal law); 2. A prohibition against requiring contractors to furnish technical information not customarily made available to the public; and,3. A prohibition against requiring contractors to relinquish rights except pursuant to a mutual agreement.

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If you are developing software under the Small Business Innovation Research (SBIR) program, it is important to understand SBIR Data Rights. In general, for items developed under SBIR, the government has "SBIR Data Rights" for 20 years post-award, provided the data is properly marked. These rights enable the government to use SBIR data in limited ways within the government, such as for project evaluation purposes, but are intended to prohibit use or disclosure that might undermine the developer's future commercialization of the associated technology. The government also receives unlimited license rights in (1) "Form, Fit, and Function" (FFF) data, (2) "Operations, Maintenance, Installation, or Training" (OMIT) data, and (3) unmarked items. After the SBIR protection period expires, the government gets "government purpose" license rights, except for Department of Energy which gets unlimited rights.

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Congrats Andrew Tuggle!

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