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Brown Rudnick BLOGS

Welcome to Brown Rudnick’s blog page.  Below you will find our Emerging Technologies and Government Contracts blogs.  To read our Real Estate blog, Get Real! Keeping Real Estate Professionals Ahead, please visit www.getrealestatelawblog.com.

The views expressed herein are solely the views of the author(s) and do not represent the views of parties represented by the blogger(s) or the views of Brown Rudnick LLP or parties it represents.

Mobile App Privacy: Five Things Businesses Can Do To Stay Out Of Trouble

Posted on Friday, Dec 21, 2012

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The business case for offering a mobile app can be compelling: an app can give a business a constant presence on its customers’ mobile desktop, building brand awareness and allowing easy and direct interaction.  But businesses that roll out apps need to pay attention to privacy rules, too, as the recent enforcement action by California’s Attorney General reminds us.

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A New Wave Of GPL Enforcement? Samba and Linux kernel copyrightholders join the fight

Posted on Friday, Jun 29, 2012

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Talk about unintended consequences: Rob Landley, a lead developer of BusyBox, announced that he was rewriting that program solely to disarm GPL enforcers. In response, several other copyright holders came forward to hand the enforcers some bigger and more effective weapons.

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Some Mission Statements ARE Enforceable By Contract, Says ASBCA

Posted on Wednesday, May 4, 2016

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There are many prurient details one might choose to focus on in the recent Armed Services Board of Contract Appeals (“ASBCA”) decision App. of—Joseph Sottolano, ASBCA No. 59777, which upheld the termination of an Army baseball coach’s contract for, among other things: bad acts of a sexual nature during “the official duty day in government facility offices.” But we’re going to take the high road and discuss, yes, the U.S. Military Academy mission statement which proved to be a key factor in the decision. You’ll have to turn to the ASBCA reporter for the full (pardon the pun) play-by-play. Full disclosure: this may be the first ASBCA decision in recorded history to require the internet label “NSFW” (“Not Safe For Work”).

The core of the dispute between Coach Sottolano and the U.S. Military Academy (“USMA”) was whether the Army’s termination for cause of Mr. Sottolano’s baseball coaching contract was “justifiable” based on the hanky-panky addressed at some length in the decision. Importantly, the allegations against Mr. Sottolano included sexual activity with a government employee, sexual harassment and hostile workplace. Moreover, ASBCA assumed, without deciding, that the sexual relationship between Mr. Sottolano and the government employee was consensual, though the record included some suggestions that it had not been. The reason for that assumption, essentially, was that the Board found that Mr. Sottolano’s termination was justifiable even under the most favorable interpretation of his conduct and so did not have to reach the thornier questions of consent and harassment. And, an important factor in the Board decision was a strict reading of USMA’s “mission statement” incorporated into Mr. Sottolano’s contract.

The relevant portion of the USMA mission statement was: “[t]o educate, train, and inspire the Corps of Cadets so that each graduate is a commissioned leader of character committed to the values of Duty, Honor, Country; professional growth throughout a career as an officer in the United States Army; and a lifetime of selfless service to the nation.” Mr. Sottolano’s contract not only incorporated those words but also a termination for cause provision authorizing termination for any conduct that violated the USMA’s “mission.” The above USMA mission statement—which a casual reader might see as only standard preamble or “boilerplate” language—turned out to be pivotal. The Board found that Mr. Sottolano’s sexual activity with a government employee at a government facility—even if consensual and even if “off-duty” (as Mr. Sottolano alleged)—was inconsistent with “inspiring USMA cadets” to be “leader[s] of character” devoted to “selfless service.” The Board reasoned that it was “inconceivable” that Mr. Sottolano’s conduct would be “held up” to a USMA baseball player as a model of how to conduct oneself as a future officer in the U.S. Army (as cadets are destined to be) and, accordingly, Mr. Sottolano violated his obligation to comply with the USMA mission statement. The Board went so far as to call Mr. Sottolano’s actions an exemplar of “self-indulgent lack of professionalism.”

While upholding Coach Sottolano’s termination might seem straightforward based on the (relatively) sordid facts of the case, it is noteworthy that the Board’s decision relied heavily on the little-read “morals & values” statement (a form of which appears in virtually every government contract) and the Board was not shy about interpreting that “values” language to decide whether conduct comports with “leader[ship] of character” and “selfless service.” Ergo (we love that word), those “values statements” we all tend to skim over when reading a contract, may not be so boilerplate after all.

To view the ASBCA decision, click here.

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Delay, Delay, Corporate Acquisition, No Standing

Posted on Tuesday, May 3, 2016

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In Universal Protection Service, LP v. United States, et al., No. 16-126C, the United States Court of Federal Claims (“COFC”) found that Universal was not a “complete successor in interest” to ABM Security Services. The consequence for Universal was that it did not have standing to pursue a protest regarding a proposal that had been submitted by ABM.

Notably, ABM gave notice to the Government two days after it was acquired by Universal. That was during the time that corrective action was pending in response to an earlier protest. The notice said: “With regard to ABM’s September 30, 2014 offer, we hereby confirm that the offer, along with all of ABM’s assets, has been legally transferred to Universal. The offer, now owned by Universal, continues to rely on the same assets – including facilities, resources and personnel – as originally proposed by ABM.” There is no question that under the law, a complete successor in interest to an actual offeror has standing to bring a protest. So, what went wrong here?

Well, the Court found that Universal was not the “complete” successor in interest because everything that was in the offer really did not transfer to Universal. In so deciding, the Court found various statements in ABM’s proposal, highlighting the resources available from ABM’s original parent company (ABM Industries) were more than just “color.” The defendant-intervenor and the Government also were able to identify key employees – apparently named in ABM’s proposal – that had not made the jump to the new successor in interest, as well as intellectual property that was carved out from the acquisition. While Universal argued that some of the employees would be transitioning over and that licenses for the IP were commercially available, the Court did not believe that Universal could “with any certainty fulfill the promises made in the proposal[.]” And, for the Court, that meant that Universal was something less than the “complete” successor in interest.

It seems like a harsh outcome because, as the Court noted, had the court evaluated the merits of the claim earlier, standing would not have been an issue. And, the Court did not consider the merits earlier because the agency agreed to take voluntary corrective action.

To view the decision, click here.

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