Stephen Bacon Quoted in Law360 Article on D.C. Circuit Siding with DOD on Removing Anthropic from its Supply Chain

Rogers Joseph O’Donnell PC shareholder Stephen L. Bacon was quoted in a Law360 article examining the potential fallout from a D.C. Circuit decision siding with the U.S. Department of Defense (DOD) on removing Anthropic from its supply chain.

The article, “DC Circ. Anthropic Ruling Could Chill Contractor Speech,” notes that, in a majority decision, the appeals court held that DOD reasonably feared Anthropic might manipulate the design of its artificial intelligence models in ways that could keep the department from performing national security functions. The decision rests on a broad reading of the Federal Acquisition Supply Chain Security Act (FASCSA).

Law360 turned to Bacon for his view of what could come next. He said Anthropic would have a good argument for asking the full D.C. Circuit to rehear the case, citing the dissenting opinion of U.S. Circuit Judge Karen L. Henderson, which he said could raise issues compelling to the other judges. Bacon also pointed to tension between the majority’s opinion and an August decision by U.S. District Judge Rita F. Lin of the Northern District of California, who ruled that DOD’s designation of Anthropic as a supply chain risk under a different statutory authority was retaliation for the company’s public criticism of the department’s position in contract negotiations.

“Those two things might be enough for a majority of the judges to want to weigh in on this, at least,” Bacon said.

Bacon also offered a near-term outlook for contractors.

“We don’t know what the final resolution is going to be, but this certainly makes it clear that, at least for the near term, contractors need to expect that they’ll be asked to certify that they’re compliant with this order, and to make sure that they continue to put in place steps to implement the ban at least until there’s a different ruling at the en banc review level or at the Supreme Court,” he said.

The full article can be found here (subscription required).

Bacon represents government contractors in bid protests, claims, terminations, investigations and suspension and debarment proceedings. He frequently litigates before the U.S. Court of Federal Claims, the Government Accountability Office, the Boards of Contract Appeals and the Small Business Administration’s Office of Hearings and Appeals.