Key Considerations When Licensing Commercial Software to the US Government

• Pages: 1-46
• Date: 01 January 2025
• Author: Teddie Arnold,Zach Jacobson,Ken Wilton
• Subject Matter: Administrative & Public Law

News from the Chair 2

Shining Light on Loper Bright: The Recent Supreme 3

Court Decision and Government Contracts Disputes

The False Claims Act’s Whistleblower Provisions 14

Summary of the PCL Section 2024 Fall Forum 19

Public Comments on 2024 Proposed Rules 22

ISSUE HIGHLIGHTS

SECTION OF PUBLIC CONTR ACT LAW

AMERICAN BAR ASSOC IATION

VOLUME 60, NUMBER 2

WINTER 2025

LA

WYER

Procuremen

THE

Edward V. (Teddie) Arnold is a Washington, DC–based partner

with Seyfarth Shaw. He assists government contractors with all

aspects of government procurement. He is a Co-Chair of the ABA

Public Contract Law Section’s Contract Claims and Disputes

Resolution Committee and a Vice-Chair on the Intellectual Property

Committee and the Accounting, Cost & Pricing Committee. Zachary

F.Jacobson is a Washington, DC–based associate with Seyfarth

Shaw’s Government Contracts Practice. He offers his experience

as a US Army Judge Advocate and former government attorney to

assist contractors in government-facing disputes and a wide range

of compliance issues, including in the drafting and enforcement of

software license agreements. He holds Vice-Chair positions on the

ABA Public Contract Law Section’s Contract Claims and Disputes

Resolution Committee and the Young Lawyers Committee.Kenneth

L. Wilton is a Los Angeles, California–based partner with Seyfarth

Shaw. He practices in the areas of copyright, trademark, and patent

law and is chair of Seyfarth’s Trademark Practice. A former computer

programmer, Ken regularly negotiates software licenses and litigates

license disputes.

Key Considerations When Licensing

Commercial Software to the US Government

BY TEDDIE ARNOLD, ZACH JACOBSON, AND KEN WILTON

continued on page 26

Introduction

In the rapidly evolving

landscape of military tech-

nology, software licens-

ing is crucial for ensuring

the operational effective-

ness and security of defense

systems. The US Depart-

ment of Defense (DoD)

and other federal agencies

increasingly rely on com-

mercial software solutions

to meet mission-critical

needs, addressing key issues such as intellectual prop-

erty rights, cybersecurity, and compliance with feder-

al regulations. Effective software licensing provides a

legal framework for the use, modication, and distribu-

tion of software, helping to prevent unauthorized use

and ensuring maintenance and updates according to

the latest security standards. This is particularly impor-

tant in the defense sector, where outdated or insecure

Teddie Arnold Zach Jacobson Ken Wilton

Published in The Procurement Lawyer, Volume 60, Number 2, Winter 2025. © 2025 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

News fro th

CHAIR

In my last column, I shared

my excitement about the

year ahead for members of

the Section of Public Con-

tract Law. I am happy to re-

port that, since then, the

Section has been busy and

successful, with more good

news and activities to come.

I begin with a shout-out

to Kara Sacilotto (Wiley

Rein LLP), who served as

the Conference Director for the Section’s Fall Forum

in November in Reston, Virginia, along with the Con-

ference Co-Chairs Stephen Bacon (Rogers Joseph

O’Donnell PC), Ann McRitchie (Amentum Inc.), An-

drew Smith (US Army Legal Services Agency), and

Abigail Stokes (The Boeing Company, Boeing Defense

Space & Security), who did an absolutely stellar job plan-

ning and conducting the conference—supported by our

indefatigable Section Director Patty Brennan and Pro-

gram Specialist Sean Dickerson. Moving our Fall edu-

cational conference to the Beltway area was in direct

response to feedback the Section received over the last

several years about the time and travel commitments

preventing our government and in-house counsel mem-

bers from attending—and the move to Reston worked! It

was wonderful to see so many of our government and in-

house counsel colleagues at the Forum. I received posi-

tive feedback from attendees that they appreciated the

Section’s efforts to relocate the Forum, the proximity to

where they work and live, and the walkability of the Res-

ton Town Center shops, restaurants, and the no-host

dinners—bringing an old Section tradition to a new lo-

cation. The Section reception was a highlight as well.

I, for one, was deeply moved to be with my professional

“family,” just a few days after such a contentious election,

and see the George Mason Army ROTC Color Guard

post and present the colors and hear the National An-

them played in honor of our Armed Services govern-

ment contracting professionals. Last, but certainly not

least, the substantive content of the programming was

simply second-to-none—again, thanks to the planning

BY JASON N. WORKMASTER

Jason N. Workmaster is a member of Miller & Chevalier Chartered in

Washington, DC.

continued on page 46

team and our outstanding slate of speakers and modera-

tors, including luncheon speaker, Craig Whitlock of The

Washington Post, whose discussion of his books on the

Afghanistan war and the Fat Leonard scandal was simply

fascinating. The meeting was very well-received and the

Fall Forum will return to Reston in November 2025. You

can read an article from Kara Saciilotto summarizing the

Fall Forum in this issue of The Procurement Lawyer.

LA

WYER

Procuremen

THE

The Procurement Lawyer (ISSN: 1079-073X) is published quarterly by the

American Bar Association’s Section of Public Contract Law, 321 N. Clark St.,

Chicago, IL 60654-7598, as a benet of Section membership. Nonmember digital

subscription packages for ABA periodicals are available through HeinOnline.

If interested, former print subscribers and ABA non-members can visit www.

heinonline.org. The Procurement Lawyer seeks to provide Section members

information on current developments in federal, state, and local procurement law.

The materials contained herein represent the opinions of the authors and editors

and should not be construed to be those of either the American Bar Association

or the ABA Section of Public Contract Law unless adopted pursuant to the bylaws

of the Association. The materials contained herein are not intended as and cannot

serve as a substitute for legal advice. Readers are encouraged to obtain advice

from their own legal counsel. These materials and any forms and agreements

herein are intended for educational and informational purposes only.

Change of Address: Mail to The Procurement Lawyer, Member Records,

321 N. Clark St., Chicago, IL 60654-7598, contact the ABA Service Center at

service@americanbar.org, or call (800) 285-2221.

Reprints: For permission, send requests to copyright@americanbar.org or go to

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Manuscripts: Email manuscripts to david.gallacher@kutakrock.com. The

newsletter follows The Chicago Manual of Style (18th ed.) for the body text and

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Editor in Chief: David Gallacher david.gallacher@kutakrock.com

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Executive Editors: Alexander D. Canizares acanizares@perkinscoie.com

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Copyright 2025 © American Bar Association

2 The Procurement Lawyer Winter 2025

Published in The Procurement Lawyer, Volume 60, Number 2, Winter 2025. © 2025 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

In light of the US Su-

preme Court’s decision in

Loper Bright Enterprises et

al. v. Raimondo, Secretary

of Commerce, et al.,1 which

overruled the long-stand-

ing precedent of Chevron,

U.S.A., Inc. v. NRDC,

Inc.,2 some in the govern-

ment contracts bar are her-

alding a new era of contract

disputes in which courts

will entertain requests to

invalidate regulations governing the federal govern-

ment’s acquisition of goods and services—specically,

provisions of the Federal Acquisition Regulation (FAR),

agency supplements such as the Defense Federal Ac-

quisition Regulation Supplement (DFARS), and the

Cost Accounting Standards (CAS)—that are incorpo-

rated as contract clauses into the terms and conditions

of government contracts.3 Those celebrating the demise

of Chevron predict that courts will uphold contractors’

challenges to agency interpretations of government con-

tracting regulations.4

In this article, after reviewing Chevron deference and

its application to government contracting regulations,

we explain why the Supreme Court’s conclusion in Loper

Bright—that court s should not defer to agency interpre-

tations of ambiguous statutes—is unlikely to affect gov-

ernment contract disp utes.5 First, in Loper Bright, the

The authors serve as attorneys with the Defense Contract Management

Agency (DCMA). The opinions expressed in this article are their

personal opinions and do not reect the views of the US Government,

the Department of Defense, or DCMA.

Supreme Court focused on a specic provision of the Ad-

ministrative Procedure Act (APA), which is not appli-

cable to the resolution of government contract disputes.

Second, courts should not apply the Court’s reasoning in

Loper Bright to government contract disputes because the

policy considerations that arise when the government

promulgates regulations in its sovereign capacity, such

as the regulation at issue in Loper Bright, dif fer signi-

cantly from the policy considerations that ari se when the

government acts as a contracting partner. Third, even if

courts were to entertain challenges to government con-

tracting regulations in this new era, courts should con-

tinue to defer to regulations based on unambiguous stat-

utory delegations of rulemaking authority. Finally, Loper

Bright does not change the doctrine under which courts

defer to agency interpretations of ambiguous regulations.

Chevron Deference and Its Application to Government

Contracting Regulations

Review of Chevron Deference

On June 28, 2024, the US Supreme Court decided Loper

Bright,6 overruling Chevron.7 To understand the impact

of the Loper Bright decision, it is necessary to rst under-

stand the Chevron decision.

In Chevron, the question presented to the Supreme

Court was whether the interpretation of the Clean Air

Act Amendments of 1977 by the Environmental Protec-

tion Agency (EPA), as reected in certain regulations,

was reasonable.8 The Court explained that in reviewing

an agency’s interpretation of a statute, the rst step is to

ask “whether Congress has directly spoken to the pre-

cise question at issue.”9 If Congress’s intent is clear, the

inquiry ends because “the court, as well as the agency,

must give effect to the unambiguously expressed intent

Shining Light on Loper Bright: Why the Recent

Supreme Court Decision Leaves Government

Contracts Disputes Unchanged

BY MARIT D. BANK, KELLY A. DULGARIAN, ADRIANNE L. GOINS, JOSEPH P. MCCOOL, AND EDWARD R. MURRAY

Adrianne L. GoinsKelly A. DulgarianMarit D. Bank Joseph P. McCool

Edward R. Murray

Volume 60, Number 2 The Procurement Lawyer 3

Published in The Procurement Lawyer, Volume 60, Number 2, Winter 2025. © 2025 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.