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Centre Law & Consulting

By Julia Coon

GSA Advantage!® is the General Services Administration (GSA)’s online shopping and ordering system that provides access to products and services offered under the GSA Schedule program. Once a new schedule contract or modification is awarded, contractors have 30 days from the effective date to upload their pricelist to GSA Advantage!®  The pricelist can be uploaded to GSA Advantage!® through the Schedules Input Program (SIP).

GSA’s SIP software is free to Schedule contractors and allows you to provide product descriptions, web-links, photos, pricing and discounts to Federal customers. Pricelists submitted via the SIP program are reviewed by GSA and compared against your awarded contract or modification. Approved files are then posted to GSA Advantage!® within 24-48 hours. If GSA finds errors in your SIP upload, the files will be rejected and sent back to you for corrections.

If you do not already have the SIP software on your computer, you can download SIP and the SIP instruction from the Vendor Support Center here. Since the SIP upload is separate from the eOffer/eMod upload, it can be tricky. Below are some tips and tricks to help you navigate the SIP software.

 

GSA eLibrary, eBuy, and SIP:

  • The contractor name and address showing in GSA eLibrary is pulled directly from SAM. Updating the name or address in SIP will not change GSA eLibrary.
  • The email address and phone number showing in eLibrary pulls from the contract administrator information listed on the Contract tab in SIP.
  • Don’t let your pricelist go beyond 2 years without updates. GSA will remove your pricelist and access to eBuy. If nothing has changed within the last 2 years, contractors can select “Verify Catalog Information” from the Tools dropdown menu in SIP to avoid contract suspension status.
  • The SIP password is assigned by GSA and is the same as your eBuy password.
  • Before new contractors will have access to eBuy, you must upload a pricelist to GSA Advantage!® and it must then be approved by GSA.

 

General SIP Tips & Tricks:

  • SIP information is computer specific, so it is important to always backup your information and save a copy.
  • The modification number and effective date listed on the Contract tab in SIP should match the awarded modification covering the changes in the pricelist upload. For new Schedule contracts, a modification number is not a required field, but the effective date should match the SF1449.
  • When adding new Special Item Numbers (SINs) to your contract, do not forget to add the new SINs to the SIP program. Under the contract tab, click on the icon below and it will open the screen to add SINs.
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  • Before sending off your SIP files, ensure you have two files shown that will be sent to your GSA Contracting Officer for review. One file is the textfile and the other is the product file. This is the reason you receive two notices from GSA when the SIP upload is approved or rejected.
  • Don’t forget to process your response files after the SIP upload has been approved or rejected by GSA. Click on the Check Response File Status under the message center. This will clear out your queue for the next upload.

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SIP Tips & Tricks for Products:

  • Product photos must be in either jpg or gif format that is no larger than 1MB. The file ­­­­name must be 30 characters or less with no special characters in the file name.
  • Product vendors can upload a temporary price reduction at any time without a modification. You can enter a temporary price, the start date, and the stop date in the IPRICE excel file. Put your updated IPRICE excel file in the Update folder within your SIP folder on your C drive. Go to SIP and click the price update button at the bottom left and follow the prompts. Your temporary prices will post to GSA Advantage!® within 24-48 hours.
  • If you are using the SIP import function, the products in the IPROD and IPRICE excel files must be in the same order.
  • The Quantity per unit is required when the unit of issue is a box, case, pack, etc. It is used to provide quantity within the box, case, pack, etc.
  • Do not use dollar signs or commas in the prices listed in IPRICE as you will get errors during the import process.
  • Certain special item numbers require UPC codes and photos. The current language is one per SIN so if one product has the UPC or photo you are covered. To check your SIN requirements, go to the Vendor Support Center.

 

GSA is in the process of launching the Formatted Product Tool (FPT) which may be the end of SIP. It is still in the early pilot program phase so until FPT is fully released, SIP is the option to upload your GSA Advantage!® pricelist. If you have any questions regarding SIP, please reach out to any of our GSA consultants.

 

About the Author:

Julia Coon | Centre Law & Consulting in Tysons VA Julia Coon
Consultant
Julia Coon is GSA and VA Contract Consultant at Centre Law & Consulting. Julia works with the GSA/VA team in preparing new schedule proposals and post-award contract administration. She has experience in producing schedule renewal packages, various modification packages, small business subcontracting plans, and updates to GSA pricelists.

 

 

 

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Centre Law & Consulting

By Wayne Simpson

Comments must be submitted by March 12, 2018

In the Wednesday, January 10, 2018, edition of the Federal Register, the U.S. Department of Veterans Affairs (VA) issued a proposed rule with request for public comment to amend VA’s regulations governing its Veteran-Owned Small Business Verification Program.  Public comments on the proposed rule must be submitted on or before March 12, 2018 (see below on how to submit comments).

The proposed rule implements §1832 of Public Law 114-840, the National Defense Authorization Act (NDAA) for Fiscal Year 2017, which placed responsibility for issuing regulations relating to ownership and control for the verification of Veteran-Owned Small Businesses (VOSBs) with the U.S. Small Business Administration (SBA).

VA’s proposed regulation will remove all references to ownership and control and seeks to add and clarify certain terms and references that are currently part of the VA’s verification process.  NDAA also provides, in certain circumstances, a firm may qualify as a VOSB or Service-Disabled Veteran-Owned Small Business (SDVOSB) when there is a surviving spouse or an employee stock ownership plan (ESOP).

Click here to read the specific proposed changes to VA’s Regulations at 38 C.F.R. Part 74

Comments on the proposed rule may be submitted by clicking here.

The post VA Issues Proposed Rule Governing its Veteran-Owned Small Business Verification Program appeared first on Centre Law & Consulting.


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Centre Law & Consulting

By Tyler Freiberger 

In 2016 alone, the federal government spent $58.8 billion with minority or woman owned small businesses and another $16.3 billion with businesses run by disabled veterans. The vast majority of these prime contract awards were specifically not the result of open market, merit based competition. Rather, it was the result of the government openly steering more government dollars toward groups otherwise disadvantaged in society.  While there is some debate over the effectiveness of some of these programs, it clearly gives billions of reasons for the disadvantaged to start a small business and get a leg up on work with the government.

A great gig if you can get it, right? So great, non-qualifying persons and companies are willing to defraud the government to take advantage of these programs. The methods for this crime can be very simple; some programs allow contractors to self-certify as disadvantaged small business with no third-party review. Contractors can simply falsely certify disadvantaged status and move ahead.  In contrast, some schemes require greater complexity; winning the award with a company owned by a qualifying person but then funneling the money and the work through a series of other non-qualifying entities. A recent string of high-profile arrests and seizures shows this may be a surprisingly large portion of the awards set aside for disadvantaged or veteran owned business.

In October of 2017, four men plead guilty to participating in such a scheme to obtain construction contracts in South Carolina. According to the DOJ, for over a dozen years “the defendants hid the fact that construction companies were not controlled by minorities, veterans, women or the disabled in order to receive the lucrative contracts.” While the contracted work was performed properly, the scam took in over $350 million intended for minority or woman groups.

A similar action is developing in Milwaukee, where the government has begun seizing the assets of a contractor they suspect has won almost $300 million in construction contracts meant for minorities and military veterans. The fact these frauds were ever discovered is almost as shocking as the amounts. Both examples involved minorities, women, or disabled veterans falsely claiming they owned a business in order to receive the government’s favor. However, the businesses were instead run by a spouse or friend that took the lion’s share of the profits. Without an insider blowing the whistle on this type of intimate activity, it is difficult to imagine how the government could ever detect it.

In the above examples, one contractor is facing two years in jail, while the other has had his home and cars seized pending criminal charges. All this despite government agreement that the contracts were performed well, even some with honors. Regardless, this post-harm punishment seems to be the government’s only option for deterrence and is therefore justifiably harsh. The Small Business Administration works with the Justice Department to detect such abuse, but still primarily relies on reporting by whistle blowers or competitors. Until a more robust system of detection is organized, we will likely never truly know how big of a problem this fraud is.

 

About the Author:

Tyler Freiberger Headshot | Centre Law & Consulting in Tysons, VA Tyler Freiberger
Associate Attorney

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.

 

 

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Centre Law & Consulting

By David Warner

I had intended to write about the Supreme Court’s recent decision denying certiorari in the 11th Circuit’s decision in Evans v. Georgia Regional Hospital, thereby declining to resolve the existing circuit split concerning whether sexual orientation is a protected characteristic under Title VII. But then yet another story dropped with high profile allegations of sexual harassment, and the siren call of timely “click-bait” won out over the finer points of Supreme Court jurisprudence. And, wait, here’s yet another story that dropped literally as I was typing this paragraph.

As it appears the nation could use a refresher course, let’s review, shall we?

Sexual harassment – it’s illegal and has been since 1964. Interestingly, there have been relatively few developments in the substantive law around sexual harassment since the Faragher and Ellerth decisions in 1998. Despite subsequent years of HR professionals and management-side employment lawyers beating the drum regarding the necessity of robust anti-harassment policies, training, and proactive response to internal complaints, sexual harassment claims continue to be alarmingly prevalent. In FY 2016 alone the EEOC received almost 7,000 administrative complaints of sexual harassment.

In July 2016, the EEOC issued a report from its Select Task Force on the Study of Harassment in the Workplace. The report merits review in its entirety, but certain of its conclusions concerning “risk factors” are eerily prescient of the current Zeitgeist.

For example, the Task Force noted that workplaces with “High Value” employees and those with “Significant Power Disparities” are particularly prone for harassment issues – i.e., where rules of behavior are viewed as not applying equally to all levels of an organization or to certain “untouchable” employees. While it is easy to pile-on to movie producers, directors, on-air talent, more on-air talent, celebrity chefs, and the like, employers should recognize that significant power disparities exist in literally every working environment. And, per Faragher and Ellerth, it is incumbent upon employers to take steps to ensure that their workplaces are free from conduct that might give rise to claims and potential liability.

The steps remain clear. First, promulgate a clear and strong anti-harassment policy with multiple avenues of complaint, absolute prohibitions against retaliation for good faith complaints, and clear commitment that the policy applies to all levels of the organization. Second, senior management must own and drive a “speak up” culture – you do it for False Claims Act and other compliance issues, right? Third, train your employees on the policy and expectations. For organizations of any size, often separate training for executives/managers and line employees permits for freer discussion and proactive identification of problem areas. Finally, promptly investigate and respond to complaints as they are brought forward, including implementation of harsh discipline where appropriate.

While the law of harassment may not have changed, the cultural environment definitely has. If the headlines have revealed anything, it is that no employee – no matter how senior or “important” – is untouchable now. The human condition being what it is, sexual harassment will likely always be an unfortunate reality in the workplace. The culture’s tolerance for those that abet it, however, appears to be at an end.

 

About the Author:

David Warner | Centre Law & Consulting David Warner
Partner

David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices.

The post “Let’s Talk About Sex[ual Harassment], Baby!” appeared first on Centre Law & Consulting.


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Centre Law & Consulting

By Colin Johnson

A Final Rule published in the Federal Register July 14, 2016, effective November 1, 2016, amended the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the U.S. Small Business Administration (SBA) , which provide for a Governmentwide policy on small business subcontracting.  One of the changed requirements effects subcontracting reports submitted after November 30, 2017.

Specifically, the language at FAR 19.704(a)(10)(iii), 52.219-9(d)(10)(iii), and 52.219-9 Alternate IV (d)(10)(iii)—was revised to require order-level reporting on single-award, indefinite-delivery, indefinite-quantity contracts intended for use by multiple agencies in addition to multiple-award contracts in use by multiple agencies and to clarify that the order-level reporting would be required after November 30, 2017, which is when the Electronic Subcontracting Reporting System (eSRS) will be ready to accommodate this requirement.

This rule is implementing the regulatory changes made by the SBA and will allow for the facilitation of allocating subcontracting credits to funding agencies. This allocation will help ensure that funding agencies are recognized and incentivized to promote small business subcontracting on orders.  It is important to keep in mind that these reporting requirements apply to all orders on a single-award IDIQ contract intended for use by multiple agencies regardless of dollar value. These changes will apply to solicitations issued on or after the effective date or at the contracting officer’s discretion in accordance with FAR 1.108(d).

FAR Clause 52.219-9, Subcontracting Plan Requirements (JAN 2017), the most recent update of the clause, contains the revised language

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Centre Law & Consulting

By Wayne Simpson

A Final Rule was published in the November 6, 2017 (corrected and republished in the November 8, 2017) edition of the Federal Register removing all regulations relating to the Fair Pay and Safe Workplaces Executive Order issued by President Barrack Obama (Executive Order No. 13673, July 31, 2014).

In March 2017, using the authority of the Congressional Review Act, Congress passed House Joint Resolution 37, which disapproved the final rule submitted by the U.S. Department of Defense, the U.S. General Services Administration, and the National Aeronautics and Space Administration and published in the August 25, 2016, edition of the Federal Register. In the Joint Resolution, Congress resolved that the final rule “shall have no force or effect.”

On March 27, 2017, President Trump signed House Joint Resolution 37 into law which became Public Law 115-11.  Under the Congressional Review Act, a rule shall not take effect or continue if Congress enacts a joint resolution of disapproval.  Any rule taking effect which is later made of no force or effect by enactment of a joint resolution shall be treated as though such rule had never taken effect.

The Final Rule implementing Fair Pay and Safe Workplaces in the Federal Acquisition Regulation was effective for solicitations issued and contracts awarded before, on, or after October 25, 2016.  Contracting officers have been directed to modify, “to the maximum extent practicable,” existing contracts to remove any solicitation provisions and contract clauses related to the Fair Pay and Safe Workplaces Rule because they are unenforceable by law.

The Final Rule implementing Public Law 115-11 is effective November 6, 2017.  The entire rule, including amendments published on December 16, 2016, in the Federal Register, is removed as a result of the Final Rule.

The 115th Congress has been busy using the authority of the Congressional Review Act.  As of November 2, 2017, of the eighty-two (82) pieces of legislation signed into law by President Trump, sixteen (16) are enacting joint resolutions to disapprove of rules issued by the Obama Administration.

It is often said, “Live by the executive order, die by the executive order.”  Fair Pay and Safe Workplaces is no more.

The post Removal of Fair Pay and Safe Workplaces Rule from the Federal Acquisition Regulation appeared first on Centre Law & Consulting.


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Centre Law & Consulting

By Wayne Simpson

A Final Rule was published in the November 6, 2017 (corrected and republished in the November 8, 2017) edition of the Federal Register removing all regulations relating to the Fair Pay and Safe Workplaces Executive Order issued by President Barrack Obama (Executive Order No. 13673, July 31, 2014).

In March 2017, using the authority of the Congressional Review Act, Congress passed House Joint Resolution 37 (Public Law 115-11), which disapproved the final rule submitted by the U.S. Department of Defense, the U.S. General Services Administration, and the National Aeronautics and Space Administration, and published in the August 25, 2016, edition of the Federal Register. Congress resolved the final rule “shall have no force or effect.”

On March 27, 2017, President Trump signed House Joint Resolution 37 into law which became Public Law 115-11.  Under the Congressional Review Act, a rule shall not take effect or continue if the Congress enacts a joint resolution of disapproval.  Any rule taking effect and later is made of no force or effect by enactment of a joint resolution sall be treated as though such rule had never taken effect.

The Final Rule implementing Fair Pay and Safe Workplaces in the Federal Acquisition Regulation was effective for solicitations issued and contracts awarded before, on, or after October 25, 2016.  Contracting officers have been directed to modify, “to the maximum extent practicable,” existing contracts to remove any solicitation provisions and contract clauses related to the Fair Pay and Safe Workplaces Rule because they are unenforceable by law.

The Final Rule implementing Public Law 115-11 is effective November 6, 2017.  The entire rule, including amendments published on December 16, 2016, in the Federal Register, is removed as a result of the Final Rule.

The 115th Congress has been busy using the authority of the Congressional Review Act.  As of November 2, 2017, of the 82 pieces of legislation signed into law by President Trump, 16 of them are enacting joint resolutions to disapprove of rules issued by the Obama Administration.

It is often said, “Live by the executive order, die by the executive order.”  Fair Pay and Safe Workplaces is no more.

The post Removal of Fair Pay and Safe Workplaces Rule from the Federal Acquisition Regulation appeared first on Centre Law & Consulting.


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Centre Law & Consulting

By Wayne Simpson

A Final Rule published in the Federal Register July 14, 2016, effective November 1, 2016, amended the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the U.S. Small Business Administration (SBA) , which provide for a Governmentwide policy on small business subcontracting.  One of the changed requirements effects subcontracting reports submitted after November 30, 2017.

Specifically, the language at FAR 19.704(a)(10)(iii), 52.219-9(d)(10)(iii), and 52.219-9 Alternate IV (d)(10)(iii)—was revised to require order-level reporting on single-award, indefinite-delivery, indefinite-quantity contracts intended for use by multiple agencies in addition to multiple-award contracts in use by multiple agencies and to clarify that the order-level reporting would be required after November 30, 2017, which is when the Electronic Subcontracting Reporting System (eSRS) will be ready to accommodate this requirement.

FAR Clause 52.219-9, Subcontracting Plan Requirements (JAN 2017), the most recent update of the clause, contains the revised language.

The post Reminder: Changes to Subcontracting Reporting Requirements—Effective November 30, 2017 appeared first on Centre Law & Consulting.


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Centre Law & Consulting

By Barbara Kinosky 

Yes, you read that right.  Deep in the murky depths of the $700 billion fiscal 2018 National Defense Authorization (NDAA) bill is language that puts a chill down the spine of protesters. Companies with revenue more than $250 million will have to pay the costs for filing losing protests on DoD procurements at the GAO.  Now protestors pay their own costs and attorneys’ fees with some exceptions. Section 827 of the NDAA would require DoD to launch a pilot program beginning in late 2019 and ending in late 2022 that would require those unsuccessful DoD protestors to pay DoD’s “costs incurred in processing protests.”  As in pilot programs there will be the usual report (which is where the writers of reports will make out big time) on the success of the pilot program.

Why you may ask if this happening?  House-Senate conferees in a rare display of unity, agreed that contractor bid protests needed to be reduced to reduce the time of the procurement cycle, particularly with weapons systems.  This from a Congress who hasn’t done much (my editorial note).

Second editorial note from me.  Most weapons systems contacts are very large.  They are larger than the national debt of Venezuela, which is very large indeed.  So, one would think that given the creep on cost on many weapons systems contracts one would want an even greater degree of scrutiny on those procurements.  Need I mention the mid-air refueling tanker cost woes?

Other questions that will hopefully be addressed in the regulations.  How are costs computed?  How is revenue computed?

Debriefings – NDAA Section 818

New requirements:

  • In the case of a contract award in excess of $100,000,000, a requirement for disclosure of the agency’s written source selection award determination, redacted to protect the confidential and proprietary information of other offerors for the contract award, and, in the case of a contract award in excess of $10,000,000 and not in excess of $100,000,000with a small business or nontraditional contractor,
  • an option for the small business or nontraditional contractor to request such disclosure
  • (2) A requirement for a written or oral debriefing for all contract awards and task or delivery orders valued at $10,000,000 or higher.
  • (3) Provisions ensuring that both unsuccessful and winning offerors are entitled to the disclosure above and the debriefing
  • Plus, a chance to ask follow up questions

Both the winning and losing offerors would be entitled to a debriefing – which at this time, I sparkly say, are still free

Other Stuff I Read So You Don’t Have to

  • Section 802 – DoD will establish a pool of intellectual property experts to get a handle on exactly who owns what
  • Section 803 – new regulations on using private auditors to do incurred cost audits
  • Section 806 – The micro purchase threshold will be increased from $3,000 to $10,000.
  • Section 808 – another committee will be formed! This one on technology threats
  • Section 811 – increase on submission of cost and pricing data numbers and a bit of an increase on the contracting officer’s authority to get such data
  • Section 822 – a bit of an affirmation of using LPTA for procuring expendable goods

Service Contract Act.

On another note, I gave four different speeches last week all on the Service Contract Act, now referred to as the Service Contract Labor Standards.  That must be a record.  Guinness Book of Records – is there a category for the most speeches in one week on the Service Contract Act?  In any event, no one at any of the four presentations fell asleep and many even asked questions.  More I cannot ask for!

 

Happy Thanksgiving all!

The post NDAA Curbs Bid Protests (Somewhat) But Adds Enhanced Debriefings appeared first on Centre Law & Consulting.


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Centre Law & Consulting

By Tyler Freiberger 

Untimeliness is one of the most common reasons protests of government solicitations and awards before the Government Accountability Office (“GAO”) and The Court of Federal Claims are dismissed. The accompanying chart describes the somewhat harsh and complex rules required for filing before each body. For protests on how a solicitation is written, a contractor must protest simply before the bids are made. But other protests have strict timing demands measured from when the basis for the protest “is known or should have been known.” 4 C.F.R. 21.2. The definition of this phrase has been stretched repeatedly to include situations that would likely surprise unwary contractors.

Last year, the GAO decided VMD Systems. The merits of the protest are not particularly interesting, but the decision does illustrate how liberally the GAO is willing to interpret “should have known.”  In VMD Systems, the contractor was excluded from the competitive range of a NASA contract. Hoping to learn as much as possible for why the award would go to another, the contractor elected to receive a debriefing from the government agency after the award was made, rather than a debriefing only on why it was excluded. After the debriefing, VMD protested its exclusion from the process claiming it was held at a higher standard than others. No dice. The GAO ruled that because VMD could have learned the basis of their protest by electing to take the earlier debriefing option, waiting until after VMD actually knew of the basis was untimely, and therefore the protest was dismissed.

More recently, the Court of Federal Claims used similar logic to that applied by the GAO in VMD Systems. In Sonoran Technology, the Court of Federal Claims considered an odd set of events where one contractor, Sonoran, won the award, faced two different protests, lost the protest and then ultimately the award to a competitor.  As the original awardee, Sonoran had the right to intervene in the original protests but chose not to. When the award was eventually given to the competitor, Sonoran filed a protest of its own through a complaint to the Court of Federal Claims.  The court dismissed the complaint as untimely under the same reasoning used in VMD Systems; had Sonoran exercised the right to intervene in the original protests, it would have learned the basis for the complaint to the Court of Federal Claims much earlier therefore that is the date where the timeliness clock starts.

So, what can a contractor do to protect his or her rights? The accompanying chart provides a summary of important rules and procedures required to protest before the GAO and the Court of Federal Claims. But as shown here, the deciding bodies often interpret the rules to require contractors to aggressively seek out any information that could support a protest and act immediately.

 

 

 

Forum

 

 

Timeliness

 

 

Performance Stay

 

 

Task Order/IDIQ

 

 

Filing Fees

 

 

Time Frame for Decision

Government Accountability Office (GAO) Protest based upon improprieties in a solicitation: Must be filed prior to the time set for submission of initial proposals.

 

All other protests: Must be filed not later than ten days after the basis of the protest is known or should have been known.

 

Debriefing exception: protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. In such cases, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than ten days after the date on which the debriefing is held.

 

 

Pre-award protest: When the agency has received notice from the GAO of a protest, the Agency must delay the award.

 

Post-award protest: An automatic stay applies if the protest is filed within five days of a requested and required debriefing, or, if no debriefing was requested and required, within ten days of contract award provided that the GAO notifies the agency within that time frame.

The GAO only has jurisdiction over civilian agency task order awards valued over $10 million.

 

The GAO’s jurisdictional threshold for military agency task order protests is $25 million.

 

Department of Defense task orders issued under civilian agency Government Wide Acquisition Contracts (GWACs) are subject to the $10 million threshold applicable to civilian task order awards.

 

There is no minimum value dollar threshold for Federal Supply Schedule (FSS) contracts.

Currently none. GAO will be implementing a $350 filing fee in the future. GAO shall issue a decision on a protest within 100 days after it is filed.
Forum Timeliness Performance Stay Task Order/IDIQ Filing Fees Time Frame for Decision
Court of Federal Claims (COFC) Pre-award protest: No specific time limits but errors apparent on the face of the solicitation must be protested prior to the time set for submission of initial proposals.

 

Post-award protest: No specific time limits but serious delay may impact the decision.

No automatic stay applies at the COFC. Instead, the protester must seek a preliminary injunction. The COFC has jurisdiction over task order protests only where the protester alleges an increase in scope, period, or maximum value of the contract under which the order is issued or where a protest of an order valued in excess of $10 million (civilian task orders)/$25 million (military task orders). $350. No set time frame for decision but the court’s practice is to expedite protest cases to the extent practicable and to conduct hearings on motions for preliminary injunctions at the earliest practicable time.

 

About the Author:

Tyler Freiberger Headshot | Centre Law & Consulting in Tysons, VA Tyler Freiberger
Associate Attorney

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.

 

 

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Centre Law & Consulting

By Maureen Jamieson

As quoted by Norman Bates in Psycho – “She just goes a little mad sometimes. We all go a little mad sometimes. Haven’t you?” I’m not naming names, but I have worked with many clients who have gone quite mad when working to ensure compliance with their GSA Schedules.

Having just celebrated Halloween, I am reminded of some frightening misconceptions surrounding GSA Schedules. Maintaining compliance with your schedule can be a grueling experience. Let’s not forget that blood-curdling stress as you prepare to meet or talk to your Industrial Operations Analyst (IOA) or that bone-chilling realization that you forgot to pay your Industrial Funding Fee (IFF) on time.

Do you understand GSA’s current terms and conditions? Do you have the knowledge to ensure compliance with your GSA Schedule? Take Centre’s True or False quiz (with answer key below) beginning with our teams most frequently asked questions:

  1. The Maximum Order Threshold (MOT) established for a GSA Schedule contract serves as a limit on the dollar value of individual task orders placed under that Schedule.
  2. GSA contractors must accept the Governmentwide purchase card for orders under the micro-purchase threshold ($3,500).
  3. The 0.75% Industrial Funding Fee (IFF) is already included in the price of items on GSA Advantage!.
  4. An advantage for sellers under Federal Supply Schedule (FSS) orders is that the Government has no audit rights.
  5. Participating Dealers on a Schedule contract may bill the government directly on behalf of the Schedule holder.
  6. A digital certificate is required to report sales and pay the Industrial Funding Fee (IFF) in the new Transactional Data Reporting (TDR) FAS Sales Reporting System.
  7. GSA/VA Schedule Price Lists submitted via the Schedules Input Program (SIP) are automatically posted to GSA Advantage.
  8. Multiple modification actions such as economic price adjustments and deletion mods can be combined in one modification and submitted via the eMod system.
  9. Only authorized negotiators with signature authority and digital certificates are permitted to submit certain modifications and sign modifications in the eMod system.
  10. Digital certificates automatically renew every two years.

Not maintaining compliance with the terms and conditions of your GSA Schedule can cost your company money, time and unwanted stress. If you’re feeling GSA stress or just want to learn more about GSA Schedules, consider attending our GSA Boot Camp on November 14 and 15 at Centre’s office located in Tysons, VA. See our website for details.

ANSWER KEY: 1) False 2) True 3) True 4) False 5) True 6) True 7) False 8) False 9) True 10) False

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Centre Law & Consulting

By Wayne Simpson

Prime contractors with contracts containing commercial subcontracting plans are required to file a Summary Subcontract Report (SSR) (formerly Standard Form 295), reporting the accomplishments under their respective subcontracting plans in the Electronic Subcontracting Reporting System (eSRS) for the 12-month period ending September 30, 2017, no later than October 30, 2017.

eSRS is the official Governmentwide System designated for small business subcontracting program reporting.  The system is web-based and is located at http://www.eSRS.gov. The eSRS website contains quick reference materials useful for reporting subcontracting accomplishments.

Prime contractors with individual subcontracting plans, and higher-tier large business subcontractors, are required to file an Individual Subcontracting Report (ISR) (formerly Standard Form 294).  These same contractors are required to ensure compliance by lower-tiered subcontractors, and to accept or reject reports filed by these subcontractors.  ISRs are due within 30 calendar days of the following reporting periods:

  • For non-Department of Defense (DOD), National Aeronautics and Space Administration (NASA), and General Services Administration (GSA) Contracts:
    • 1st reporting period: October 1st through March 31st
    • 2nd reporting period: October 1st through September 30th
  • For contracts with DOD, NASA, and GSA Multiple Award Schedule Contracts
    • 1st reporting period: October 1st through March 31st
    • 2nd reporting period: October 1st through September 30th
  • For GSA non-Multiple Award Schedule Contracts:
    • 1st reporting period: October 1st through December 31st
    • 2nd reporting period: October 1st through March 31st
    • 3rd reporting period: October 1st through June 30th
    • 4th reporting period: October 1st through September 30th

It is important to note if an eSRS submission is rejected by the contracting agency, the contractor must submit a corrected report within 30 calendar days of the report’s rejection.  It is important to keep a signed copy of your submission on file.

If your subcontracting program is becoming more labor intense and resource consuming than you desire, Centre Law & Consulting offers turn-key subcontracting program services.  These services include subcontracting plan preparation and negotiation, surveying existing subcontractors and suppliers to ascertain appropriate size status and socioeconomic procurement preference program category status for eSRS reporting purposes, preparation of justification for goaling shortfalls, and assistance with eSRS submissions.  Increasingly companies are finding outsourcing these efforts is more efficient than using internal resources, using personnel who often performing these functions as a collateral responsibility.  Internal resources are not always sufficiently trained and lack the expertise to ensure these efforts fully comply with Federal requirements and ensure these efforts can withstand the scrutiny of a small business program review by the U.S. Small Business Administration, the contracting agency, or the Defense Contract Audit Agency.

About the Author:

Wayne Simpson | Centre Law & Consulting Wayne Simpson
Consultant

Wayne Simpson is a seasoned former Federal executive and acquisition professional who is also a highly-motivated and demonstrative small business advocate, with nearly 38 years of Federal Civilian Service with the U.S. Department of Veterans Affairs (VA), and its predecessor organization, the Veterans Administration.

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Much has been said on the security breach that exposed up to 145 million Americans’ most sensitive information. Not only had Equifax,  some say negligently, exposed half of America’s social security numbers, credit card information, and just about anything else needed to steal an identity, but the company thoroughly botched the cleanup by directing customers to a dubiously credentialed website and made a not-so-subtle attempt to induce its customers to waive any right to sue. The remarkable nature of the incident even received a 15-minute break down by HBO’s John Oliver, which is by far the most entertaining way to catch up on the breach if you have been in hiding for the last month.

The IRS award of a seven million dollar contract to Equifax, made shortly after the security hack, seemed to put a cherry on top of a perfect media outrage story. And rage they did. After Politico “discovered” the “sole-source award” by the IRS to Equifax, every major media outlet from Fox News to CNN ran stories mocking the agency’s poor decision. Senators from both sides of the aisle openly scolded the IRS for handing Equifax government funds without even allowing other companies to compete for the contract. Through a grin, Mr. Oliver told his crowd of the award, made on the very same day the former CEO was being chewed up in an open Senate hearing. How could something like this happen? Simply put, because a law aimed at preventing fraud and abuse required the IRS to give Equifax the contract, without any competition.

Federal contractors are well aware of what is called a “statutory stay.” When the government wants to buy goods or services, most of the time it must follow very strict and complicated rules. One such rule requires the government agency to give a debriefing to disappointed contractors when their bid was passed over in favor of another’s. For a variety of reasons, the contractor may believe the government made a mistake in its decision or perhaps something more sinister is to blame for the loss. If the contractor “protests” the decision within five days of the debriefing, the contract at issue is automatically frozen while the Government Accountability Office takes a look under 31 U.S.C. § 3553. The reason behind the law is fairly plain – i.e., to avoid a situation where a company begins performing for the government, and racking up costs, only to have that contract overturned at a much later date.

So about this infamous IRS “award” to Equifax; it was made after the IRS chose a different company to perform on a contract where Equifax was the incumbent. Equifax protested, activated the automatic stay described above, and the IRS was forced to grant a short extension to Equifax’s previous contract while the protest was decided. Notably, the short extension was publicly made, because “a sole source order is required to cover the timeframe needed to resolve the protest on contract TIRNO-17-Z-00024. This is considered a critical service that cannot lapse.” The protest was quickly denied, and now a new company will take over performing services to the IRS.

Notably, the IRS decision to take the contract away from Equifax was made long before the media “put pressure on the IRS,” or before both sides of the aisle joined together in decrying the purported incompetent waste of government funds. While the vagaries of government procurement procedure may not be as shocking as the story told by the major outlets, and it is certainly not nearly as funny as the John Oliver segment, it is however the real explanation to the latest chapter of the Equifax security breach.

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Yes, you read the title correctly – a protester actually protested its own future award. In an interesting twist of fate, a company recently filed a pre-award bid protest only to find out that the agency had already evaluated the protester’s bid and intended to award the contract to the protester.

Daekee Global Company, Ltd., a South Korean company, protested the terms of a solicitation issued by the Department of Navy for ship husbanding services arguing that the evaluation scheme failed to evaluate offerors’ technical capabilities or past performance. The agency subsequently requested the dismissal of the protest because Daekee had not been prejudiced by the terms of the solicitation. Specifically, the agency argued that Daekee submitted an offer that was evaluated by the agency and that the agency intended to award a contract to Daekee. In response, Daekee argued that the merits of its protest should still be addressed as, even though it would be an awardee, the issues Daekee raised would not be addressed or corrected if its protest were to be dismissed.

Unsurprisingly, the GAO did not bite on Daekee’s argument. In its decision, the GAO found that Daekee was not an interested party as it did not suffer any competitive prejudice because Daekee did not suffer any competitive disadvantage or otherwise affect its ability to compete. Because the agency represents that once the protest is resolved and the stay of the award is lifted it will award a contract to Daekee, the GAO found that it does not have jurisdiction to entertain the protest.

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Last week, Attorney General Jeff Sessions issued an agency-wide memorandum entitled “Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964.” The memorandum expressly withdraws a December 15, 2014 memorandum in which then-current Attorney General Eric Holder opined that Title VII “encompasses discrimination based on gender identity, including transgender status.”

While the new memo is undoubtedly a reversal of the Obama DOJ’s policy (ed., “Elections  have consequences.”), the Sessions’ memo is consistent with the weight of federal case authority that has held that gender identity (as well as sexual orientation) is not covered by the plain language of Title VII. Thus, in many ways, the current policy prescription is less a “reversal” than a return to the status quo ante, circa 2014.

That said, since 2012 the EEOC has consistently taken the position that Title VII does encompass discrimination on the basis of gender identity. The Sessions memo creates clear tension, if not outright conflict, between the respective agencies’ policy positions. And, given that the U.S. Supreme Court has never ruled specifically on the question, the issue will likely not be resolved until the Justices speak on the same. Of course, were it inclined to do so, Congress could resolve the matter by amending Title VII, though such an outcome is unlikely at best.

With respect to federal contractors, it should be understood that the revisions to E.O. 11246, which amended federal EEO requirements to include sexual orientation and gender identity, are not affected by the Sessions memo. That is, even if Congress did not intend to include those criteria within the statutory concept of “sex” – the executive branch has (to date) concluded that companies choosing to do business with the federal government will continue to treat sexual orientation and gender identity as protected characteristics.

 

About the Author:

David Warner | Centre Law & Consulting David Warner
Partner

David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices.

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In its September 18, 2017 decision, the GAO sustained McCann-Erickson USA, Inc.’s (“McCann”) protest challenging the Army’s preliminary elimination of McCann’s proposal for advertising services on an acquisition valued up to $4 billion.  After receiving numerous proposals the Army performed a “compliance review” aimed at thinning the number of proposals before applying the evaluation criteria detailed in the requests for proposals. McCann’s proposal was eliminated for alleged failures in following the proposal preparation instructions.

The GAO agreed McCann’s proposal did not comply with the exact format requested in the solicitation, but stated such problems were not sufficient, on their own, to exclude a proposal before taking a more substantive look at the proposal’s contents. This decision is supported by the fact that the solicitation gave no warning the Army would be taking such a harsh pass/fail look at compliance with proposal preparation instructions.

It certainly did not help that at least some of the alleged deficiencies of the proposal were found, by the GAO, to really be mistakes by the Army. The GAO walks through such examples including, the Army’s inability to search for McCann’s certifications in the system for award management database, despite being provided the correct name and code. The GAO also found the Army’s refusal to evaluate McCann’s price proposal submission because it was in PDF format rather than the requested Excel format was unreasonable. While previous GAO decisions have supporting an Agency’s harsh response to such unfollowed format requests, here the Army did not put forth any reason why submission in PDF format, rather than Excel, poised any problems.

This decision is not quite landmark, but does give push back to the government’s seemingly increasing use of “pre-evaluation…evaluations” in the face of an overwhelming number of proposals.

About the Author:

Tyler Freiberger Headshot | Centre Law & Consulting in Tysons, VA Tyler Freiberger
Associate Attorney

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.

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The Department of Labor has published its annual list of Labor Surplus Areas (LSA) for Fiscal Year 2018.  What is a LSA you ask?   A LSA is a civil jurisdiction that has a civilian average annual unemployment rate during the previous two calendar years 20 percent above the average annual civilian unemployment rates for all states & Puerto Rico during the same period.  Civil jurisdictions are defined as follows:

  1. A city of at least 25,000 population on the basis of the most recently available estimates from the Bureau of the Census; or
  2. A town or township in the States of Michigan, New Jersey, New York, or Pennsylvania of 25,000 or more population and which possess powers and functions similar to those of cities; or
  3. A county, except those counties which contain any type of civil jurisdictions defined in A or B above; or
  4. A “balance of county” consisting of a county less any component cities and townships identified in paragraphs A or B above; or
  5. A county equivalent which is a town in the States of Connecticut, Massachusetts, and Rhode Island, or a municipio in the Commonwealth of Puerto Rico.

The national unemployment rate during the past two years was 5.12 percent, so the areas included on the Department of Labor’s list have an unemployment rate of 6.1453 percent or higher. Being a LSA matters for the following reasons:

  1. The Administrator for Federal Procurement Policy uses the LSA list to identify where procurement set asides should be emphasized in order to strengthen our Nation’s economy;
  2. General Service Administration (GSA) Online Representations and Certifications Application (ORCA) system uses the LSA list as a tool to determine if a business qualifies as a Labor Surplus Area concern;
  3. The Small Business Administration uses the LSA list for bid selections for small business awards in Historically Underutilized Business Zones (HUBZones);
  4. Some state and local area governments use the LSA list to allocate employment related assistance (food stamps and training); and
  5. Private industry has used the LSA list for strategic planning and potential areas of human capita

 

The list of LSA’s can be found here: https://www.doleta.gov/programs/lsa.cfm

About the Author

Colin Johnson | Centre Law & Consulting in Tysons VA Colin Johnson
Contracts Manager

Colin Johnson is a Contracts Manager who focuses on business development and federal contracts management. His expertise is in preparing quotes and responses for both government and commercial entities for training and legal support services.

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In its September 18, 2017 decision, the GAO sustained a protest over a task order awarded to a contractor whom only had one of the two required services listed on their General Services Administration (“GSA”) Federal Supply Schedule (“FSS”).

The United States Navy attempted to acquire 120-250 hotel rooms for civil service mariners in the Norfolk, Virginia area. The Agency invited vendors to submit offers through the GSA’s e-buy system, with instructions to only submit services on a current GSA Schedule contract. Unfortunately for the awardee, the request for quotation (“RFQ”) also required shuttles from the hotels to the work sites.

While the decision takes pains to describe in detail the intricacies of GSA Schedules, the result is simple. The original awardee simply did not have transportation services included as “additional services” as required. The RFQ listed two separate tasks orders, one of which was transportation by shuttle. Despite the awardee’s ability to provide these services, the RFQ clearly emphasized the award would be made exclusively through the GSA thereby excluding companies without all required services listed on the Schedule.

About the Author:

Tyler Freiberger Headshot | Centre Law & Consulting in Tysons, VA Tyler Freiberger
Associate Attorney

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.

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There is an aphorism that goes “Buyer Beware”; time-honored sage advice to be sure.  But perhaps a new aphorism is in order for the Federal marketplace: “Seller Beware.”

Many vendors and contractors selling to the Federal Government under contracts awarded under some type of small business set-aside are frequently unaware of an important requirement tucked neatly away in set-aside clauses.  This requirement is set forth as portion of the clause which normally begins with the word “Agreement.”

As an example, Federal Acquisition Regulation (FAR) Clause 52.219-5, Notice of Total Small Business Set-Aside (Nov 2011), contains the following as part of the clause:

“(d) Agreement. A small business concern submitting an offer in its own name shall furnish, in performing the contract, only end items manufactured or produced by small business concerns in the United States or its outlying areas. If this procurement is processed under simplified acquisition procedures and the total amount of this contract does not exceed $25,000, a small business concern may furnish the product of any domestic firm. This paragraph does not apply to construction or service contracts.”

So why do set-aside clauses contain such an agreement?  The answer is simple:  The Small Business Administration’s (SBA) Nonmanufacturer Rule, often referred to as “NMR.” (Ref:  13 C.F.R. Section 121.406(b)).

In brief, the NMR requires small businesses receiving awards under the various set-asides used in government procurements, to provide their own product, or that of another domestic small business manufacturer or processor, unless SBA has granted an individual waiver to NMR for the procurement, or the procurement is covered by a class waiver to the NMR, also issued by SBA, and the contracting officer uses the class waiver.

The NMR also addresses how nonmanufacturers may qualify as a small business concern for a requirement to provide manufactured products or other supply items as a nonmanufacturer as well as for Kit Assemblers.

Unfortunately, all too often companies rely on the fact the government issued and awarded the procurement using small business set-aside procedures believe they are somehow protected or immunized from the consequences of non-compliance.  The agreement provision in the various set-aside clauses can only be waived by an SBA issued waiver for an individual procurement, or when the contracting officer uses an existing class waiver.  Unless the procurement is covered by an SBA waiver.

SBA amended its regulations in 2016 indicating the NMR does not apply to procurements between $3,500 and $150,000.   However, the FAR still sets the applicability threshold for NMR at $25,000.

Non-compliance with NMR can have significant consequences for a company, ranging from contract enforcement actions to potential liability under the False Claims Act (FCA).  FCA looms large these days as increasingly more qui tam lawsuits are being filed under FCA by disgruntled and former employees, and even a company’s competitors, as the person bringing the qui tam lawsuit can receive a lucrative payout.

Other set-aside clauses contain agreements relating to the NMR as well.  Please be sure to thoroughly review the requirements of the set-aside clause(s) under which you are submitting an offer.

Sellers Beware!  Protect your company by ensuring absolute compliance with NMR.  Centre Law and Consulting offers a comprehensive 90-minute webinar on the NMR to help small businesses mitigate vulnerabilities in this area and to fully understand the requirements of NMR and ensure their compliance.

Best wishes for every continued success in the Federal Marketplace!

 

About the Author:

Wayne Simpson | Centre Law & Consulting Wayne Simpson
Consultant

Wayne Simpson is a seasoned former Federal executive and acquisition professional who is also a highly-motivated and demonstrative small business advocate, with nearly 38 years of Federal Civilian Service with the U.S. Department of Veterans Affairs (VA), and its predecessor organization, the Veterans Administration.

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Last week the House Oversight and Government Reform Committee approved the Promoting Value Based Procurement Act of 2017 on a voice vote without any dissent, meaning the bill now proceeds to the House floor.

The Act, which was initially introduced in June, substantially limits the number of federal contracts that may use the lowest-priced bid as the major deciding factor – this means a severe limit on lowest price technically acceptable, or LPTA, contracts.

In fact, the current text of the bill requires revision of the FAR to require that LPTA source selection criteria are only used in six specified situations. Further, the bill mandates that, to the maximum extent practicable, the use of LPTA should be avoided in a procurement that is predominately for the acquisition of (1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, or other knowledge-based professional services; (2) personal protective equipment; or (3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.

Rep. Gerry Connolly, D-Va., one of the bill’s co-sponsors, said during the markup that the use of LPTA contracts has become too rigidly applied and has “started to calcify some large chunks of contracting in the federal sphere.” He continued, “When an agency seeks the assistance of a company to help it analyze and address cybersecurity needs, for example, it might not know the extent of services that will eventually be needed,” and “quality and innovation must be considered.”

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Heather Mims | Centre Law & Consulting in Tysons VA Heather Mims
Associate Attorney

Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.

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In a GAO decision released September 13, 2017, the GAO denied Walker Development & Trading Group, Inc.’s (“Walker”) request for reconsideration of the denial of its costs.

On January 2, 2017, Walker filed a protest arguing that the Department of Veterans Affairs (“VA”) did not properly set a requirement aside for small businesses. In the VA’s report, the contracting officer stated that, after performing market research, she did not have a reasonable expectation that two or more capable small businesses would submit offers.  The GAO subsequently requested additional information on two potentially capable small businesses. Before filing its supplemental report at the request of the GAO, the VA advised the GAO that it intended to take corrective action. As such, the GAO dismissed the protest as academic.

Walker subsequently filed a request that it be reimbursed its costs of pursuing the protest by asserting that it was clearly meritorious and that the agency unduly delayed taking corrective action. The GAO denied Walker’s request, finding that the protest allegation was not clearly meritorious as the resolution of the protest required further record development.

Walker has then requested reconsideration of the GAO’s denial of its costs. However, in order to prevail on a request for reconsideration, a party must set out the factual and legal grounds requiring reversal and the party must specify any errors of law made or information not previously considered.

In its request for reconsideration, Walker argued that the decision contained a legal error as the GAO did not consider whether the VA unduly delayed in taking corrective action. However, as the GAO noted, in order to prevail in a request for reimbursement of costs, the protestor must show both that its protest was clearly meritorious and that the agency unduly delayed in taking corrective action. As Walker already failed to demonstrate that it was clearly meritorious, the GAO did not need to reach the decision as to whether the VA unduly delayed taking corrective action.

About the Author:

Heather Mims | Centre Law & Consulting in Tysons VA Heather Mims
Associate Attorney

Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.

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Over a year ago, GSA published a final General Services Acquisition Regulation (GSAR) rule incorporating Transactional Data Reporting (TDR) into select product and service schedules in the Multiple Award Schedules (MAS) program. Initial participation in the TDR pilot was optional for existing contractors. However, new offerors and existing contractors with upcoming options were required to participate in the pilot.

GSA is now making participation in the TDR pilot voluntary. Any vendor required to accept TDR with a new pilot offer, had a TDR option exercised, or added a TDR SIN to their contract will have an opportunity to opt out of TDR.  If a vendor does not take advantage of this one-time opt out, there will be no additional opportunities to get out. You can also opt into TDR on pilot schedules but remember there will be no additional chances to withdraw once you make this election.

As a caveat, any vendor who voluntarily accepted the TDR Implementation Mass Mod (A509) will be required to stay in TDR.

GSA anticipates refreshing TDR schedules in mid-October. Schedules 03FAC, 51V, 58 I, 72, 73 and 75 will be refreshed to add the legacy clauses back to the solicitation and TDR SINs on Schedules 70 and the Professional Services Schedule (PSS) will reflect the removal of language pertaining to mandatory participation.

Once the solicitations are refreshed and not before, vendors will receive a notification from their Contracting Officer (CO). A vendor will have 60 days to respond to their CO with their intent. If no response is received within the 60 days, a vendor will remain in the TDR pilot.

What will be required if you make the decision to opt out of TDR?

  • Provide updated Commercial Sales Practices (CSP), current pricelist, and any other information requested by the CO
  • Re-establish a Most Favored Customer (MFC) and Basis of Award (BOA) customer
  • Identify a price/discount relationship as required by the Price Reduction Clause
  • Ensure that your pricing is still fair and reasonable
  • Update your contract via a formal modification to incorporate any revised terms and conditions

What are the effective dates for vendors who opt out of TDR and when will Price Reduction tracking become effective?

  • The actual modification opting out of TDR will become effective on day 1 of the next business quarter (January 1st, April 1st, July 1st and October 1st)
  • Price Reduction tracking will begin on day 1 of the business quarter following the date of the modification to opt out
  • The first 72A reporting period will begin on the 1st day of the business quarter following the date of the opt out modification. Continue to remit Industrial Funding Fee (IFF) in the FAS Sales Reporting System (TDR) until that time.

If you have any questions on whether you should stay or opt out of the TDR pilot, please contact a member of the GSA consulting team.

About the Author:

Maureen Jamieson | Centre Law & Consulting Maureen Jamieson 
Executive Director of Consulting

Maureen Jamieson has more than twenty-five years of experience managing federal contracts. Maureen is highly experienced in solving client pricing problems and implementing effective pricing strategies for placing products and services on GSA Schedule contracts. Maureen also frequently works with clients on effective selling and marketing strategies in the federal market space and is highly skilled as a federal contracts capture or proposal manager.

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In its August 25, 2017 decision the GAO sustained a bid protest from David Jones CPA PC (“Jones”) on the Department of Veterans Affairs’ (“VA”) refusal to establish a blanket purchase agreement following a request for quotations on Equal Employment Opportunity claims investigations. The principle issue of the decision revolved around the VA’s elimination of Jones’ proposal because of a single line item.

The solicitation advised offerors that technical approach was significantly more important than past performance and that, combined, technical approach and past performance were significantly more important than price. The solicitation also warned the VA would not establish a blanket purchase agreement with any vendor if the price submission was “questionable for reasonableness.” Jones was assigned a “good” technical rating but the VA also determined Jones had submitted an unreasonable price for a single line item. Ironically, every other line item in Jones’ proposal was lower than the mean of the other offerors. Following this initial evaluation, Jones was eliminated from consideration, with no further analysis from the VA.

The VA unsuccessfully argued that the solicitation supported exclusion based on a single high priced line item because the solicitation required not-to-exceed quantity for each line item. The GAO noted the premise of this argument was flawed because the solicitation did not provide any estimated quantities for the lines items.  Most importantly, the GAO took issue with the VA lack of evaluation on the effect of this single item’s price on the agreement as a whole. In order to justify exclusion, the VA needed to evaluate if that single line item would have created an overall unreasonably high price, or at least created an unacceptable risk that the price would be too high on a typical government order.

About the Author:

Tyler Freiberger Headshot | Centre Law & Consulting in Tysons, VA Tyler Freiberger
Associate Attorney

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.

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In the past I have written about subcontracting compliance from the Contractor Purchasing System Review (CPSR) audit prospective. The three step process of system existence, system procedure adequacy and compliance is a very effective way to meet the FAR 44.3 CPSR goal of “efficiency and effectiveness with which the contractor spends Government funds and complies with Government policy when subcontracting”. How efficient and effective the contractor procurement system performs goes beyond these three steps. Some of the factors that commonly impact on the acquisition process include planning, proper description of needs and funding. This article touches on a few aspects of these factors that if ignored can degrade the efficiency and effectiveness of your outsourcing processes.

Planning is the major factor and can encompass the other two, but each is worth discussing. Planning encompasses many things that don’t always get the attention they deserve. One thing is certain, if you don’t take the time to do a good comprehensive job up front you will pay for it later! One of the major aspects of planning is in the proposal phase make or buy decisions. The make or buy analysis is part of the process for creating a winning team.

You want to offer the client a winning team that meets their needs on time and at the right price. Do you provide the goods, components and services in-house or can you improve the “product” and pricing through partnering and subcontracting? The answer is to look for the best combination to win the contract. Is the outsourcing function within your company adequately represented on the proposal team? The subcontracting team can add value through market research identifying potential source and supporting small business plan development. Additionally, the subcontracting team can work with proposal team members on issue including flow down requirements, terms and conditions and pricing support.

Have you ever hear the complaint that the government wants you to competitively award scope that was promised to a team member? If the original proposal clearly identifies the team member as the teaming source for a specific scope, then the source selection issue is complete. In fact, you may be able to get the Contracting Officer to include the team member in clause 52.244-2(j) excluding them from the consent process. Unfortunately I have seen cases where the winning proposal used information from a subcontractor but did not clearly describe the teaming arrangement in line with FAR 9.6. If the original proposal had included a clear description of the teaming arrangement, you have a solid basis for the subcontract source selection and a solid response when the CPSR team questions the adequacy of your subcontract competition activities. The outsourcing function needs to be an active member of the proposal team to make sure the ground work is laid right up front!

A proper description of needs is not a new subject. Too often the internal customer (aka end user or requisitioner) is left to his or her own to come up with what is needed. The outsourcing function should be involved with the internal customer working with them to identify the best ways to meet their needs. If it is a recurring need, do you set up a competitively awarded catalog or blanket purchase arrangement? Or, do you set up a larger order with multiple deliveries coordinated with the internal customer’s schedule? If the internal customers’ needs are so specific that it limits competition, then you have the opportunity to work with them to do the market research to find alternatives or to substantiate the single or sole-source justification. In either case, you have a solid response when the CPSR team questions the adequacy of competition activities or basis for a commercial item determination. The outsourcing function needs to be actively involved with the internal customer right up front!

Funding is a subject that doesn’t always get the attention it deserves. Sure, you need money to support a purchase order/subcontract, and Under DFARS 252.244-7001 (c) (4), properly authorized requisitions are required.  But there are other issues around funding that can hamper efficient and effective outsourcing. One issue that can negatively impact you is adequate funding.

Inadequate funding on a requisition can lead to delays and increased costs in prime contract performance. Proper project planning and budgeting helps, but the funding source(s) and acquisition planning need to be worked together. For example, rental of heavy construction equipment should be based on the construction schedule the equipment is supporting. You would think that means a six month rental should be funded for six months. But, sometimes you see it “incrementally” funded through a series of requisitions. Here is where efficiency and effectiveness go out the window. The buyer/subcontract administrator must issue a series of monthly modification to add funds (buyer time away from other work). If the funding requisition is delayed, then invoices sit in Accounts Payable waiting for sufficient committed funds to pay the invoice (both buyer and A/P clerk have time away from other work). Late payments leads to stop work threats, complaints to the Contracting Officer, and questions/findings on accounting and purchasing audits (now management, buyers, A/P clerks and others have more time away from other work). When payment is slow, disgruntled subcontractors are less inclined to bid new work or offer better pricing (more work again and potential system audit issues related to a variety of issues such as; timely award, adequate competition, fair and reasonable pricing, subcontract closeout and file documentation).  Again, early involvement of the outsourcing function can help eliminate problems before they occur saving time and resources that would otherwise be consumed trying to patch and fix things later in the process.

I hope my point is clear. Early involvement by your subcontracting and purchasing staff pays big rewards to the overall success of your company. Beyond timely and successful prime contract performance, another benefit is improved compliance. When I see problems during compliance audits and CPSR reviews, the “root cause” is frequently the result of a “reactive procurement system” trying to fix things that could have been avoided by early, effective involvement with internal customer. With time being taken away from the primary task of procuring the goods and services needed, quality and compliance suffer. When people have the time and tools to do their jobs, they are going to give you the kind of results you need, successfully perform the prime contract and meet client audit expectations. That’s how you maintain an approved purchasing system!

About the Author

Jack Hott headshot | Centre Law & Consulting in Tysons, VA Jack Holt has more than four decades of experience as a contracts professional in Government and the private sector. A retired Air Force officer, he served multiple acquisition related assignments with The Air Force and Defense Contract Management Agency. These assignments included Assistant Professor of Acquisition Management, Air Force Institute of Technology, multiple in-plant assignments where he functioned as Principle Administrative Contracting Officer/DACO managing contract administration, pricing, government property, CAS and overhead approvals, supplier quality, and subcontract management.

After leaving the Air Force, Mr. Hott became principle consultant to a small veteran owned business developing and presenting training on a variety of government contracting subjects including cost/price analysis, contract administration and Cost Accounting Standards.

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Trick question, how much does the government charge contractors to register for SAM or any other government database?  The answer is zero, zip, zilch.   There is no charge to register for any government database.  And neither the Wizard of Oz nor any of these vendors can get you no bid contracts from any federal agency. Let’s start with Mr. Pirolo and his FEMA contract registration scheme.

FEMA Contract Registration.   Michael Pirolo, the owner of Government Contract Registry (GCR) was sentenced to four years and two months in federal prison for wire fraud. Pirolo served as the president of GCR doing business as FEMA Contract Registration. He employed telemarketers who, during communications with victim-companies, falsely claimed that, for a fee, GCR would “register” the companies with FEMA to enable them to receive preference in obtaining contracts from FEMA.  The telemarketers stated that for a one-time fee of $500, the customer would be registered with FEMA, and that this registration would place the customer on a list of preferred vendors. When the need for a vendor arose, the GCR telemarketer falsely stated that FEMA would bypass the contract acquisition process, contact the registered victim-company, and then offer a no-bid contract.  Mr. Pirolo netted hundreds of thousands of dollars before he was caught.

https://www.justice.gov/usao-mdfl/pr/palm-harbor-man-sentenced-prison-defrauding-more-1000-companies-over-fema-contracts

SAM Registration.   There are companies who market their services to federal contractors to handle their SAM registration renewals.  These companies require you to give them your password and user name for SAM.  Then they charge you for updating your SAM registration.  Your SAM update is always free on www.sam.gov.   I don’t even have time to tell you about all the GSA Schedule emails I get about the wonderful world of no bid contracts that I will get from GSA once I sign up with this GSA Schedule vendor.  Centre Law has its own PSS Schedule so I see what is going on in the industry.  My inbox is full of these types of emails.

Here is a screenshot from one of the many emails from vendors that I receive.  I had to input information on several different screens before I got to the one below.  In my opinion, it looks like an official government website but it is not.

It does not appear obvious at first, but the company does note on its website that it is a private company: “U.S. Contractor Administration is not a government agency. We are a third-party federal registration processing firm.

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About the Author

Barbara Kinosky Barbara Kinosky
Managing Partner

Barbara Kinosky has more than twenty-five years of experience in all aspects of federal government contracting and is a nationally known expert on GSA and VA Schedules and the Service Contract Act. She has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012, and 2015.

 

 

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