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Federal Circuit Reinforces Government Preference for Commercial Items

By Heather Mims, On September 13, 2018, the United States Court of Appeals for the Federal Circuit ruled that the Army acted arbitrarily and capriciously when it failed to buy commercially available products whenever possible or, in terms of the statute at issue, to the maximum extent practicable. This litigation began when Palantir USG, Inc. filed a pre-award bid protest in the Court of Federal Claims (although Palantir previously filed a pre-award bid protest with the GAO, which was denied). Palantir’s protest challenged the Army’s solicitation to develop and integrate the Army’s Distributed Common Ground System (DCGS-A2), which is the Army’s primary system for processing and disseminating multi-sensor intelligence and weather information. Palantir argued that the Army violated a federal statute (the Federal Acquisition Streamlining Act or “FASA”) by failing to determine whether its needs could be met by commercial items before issuing the solicitation. Generally, FASA ” requires that federal agencies, to the maximum extent practicable, procure commercially available technology to meet their needs. Specifically, Palantir argued that its flagship software product could satisfy the Army’s requirements. In finding that the Army failed to determine whether its needs could be met by a commercially available product, the Court found that the Army was, or should have been, aware of Palantir’s data management platform. Thus, the Court found, the Army acted arbitrarily and capriciously in failing to fully evaluate commercial options. As such, prior to issuing the solicitation at issue, the Army’s conclusion to exclude commercial items from consideration was not rational and was not in accordance with the applicable law, which required an agency to use its market research to determine whether there are available commercial items that: (A) meet the agency’s requirements; (B) could be modified to meet the agency’s requirements; or (C) could meet the agency’s requirements if those requirements were modified to a reasonable extent. While this was a pre-award protest, the Court did not go so far as to recommend that the Army choose Palantir as the awardee. Rather, the Court simply required the Army to satisfy the requirements of FASA and determine whether its needs could rationally be met by a commercially available product, which it has thus far failed to do.   About the Author: 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.   The post Federal Circuit Reinforces Government Preference for Commercial Items appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

New Minimum Hourly Wage Rates Announced For Federal Contractors & Subcontractors

By Wayne Simpson, CFCM, CSCM New Hourly Rates Effective January 1, 2019 The U.S. Department of Labor’s Wage and Hour Division announced the new applicable minimum wage rates for workers performing work on or in connection with Federal contracts covered by Executive Order (E.O.) 13658. The new rates, effective January 1, 2019, are $10.60 per hour for covered contracts, and $7.40 per hour for tipped employees. The announcement was published in the September 4, 2018, edition of the Federal Register.  E.O. 13568, signed February 12, 2014, raised the hourly minimum wage rate for workers performing work in connection with Federal contracts covered by the Service Contract Labor Standards to $10.10 per hour, beginning January 1, 2015.  The E.O. requires annual adjustments thereafter, as determined by the U.S. Secretary of Labor.  The Secretary’s determination also affects the minimum hourly cash wage for tipped employees performing work on or in connection with covered contracts. The Secretary is required to provide notice to the public of the new minimum wage rates at least 90 days before the rates take effect. E.O. 13568 is codified in Federal Acquisition Regulation (FAR) Subpart 22.19, Establishing a Minimum Wage for Contractors, and implemented in FAR Clause 52.222-55—Minimum Wages Under Executive Order 13658 (Dec 2015). Federal contractors should note FAR Clause 52.222-55 has a flow-down requirement for subcontracts (including purchase orders issued by the contractor) regardless of the dollar value of the subcontract or purchase order. FedBizAssist, a Centre Subcontractor, has flow-down clause subscriptions available for Federal prime and subcontractors seeking to increase their compliance and reduce risks associated with flow-down requirements.  Centre Clients and blog readers receive a 20% discount. Please enter promo code “CENTRE” at checkout to receive the discount. These one-year subscriptions are available at https://fedbizassist.com/shop Best wishes for every continued success in the Federal Marketplace!   About the Author: Wayne Simpson
Consultant
Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official.           The post New Minimum Hourly Wage Rates Announced For Federal Contractors & Subcontractors appeared first on Centre Law & Consulting.
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DOL Releases New Opinion Letters Expanding FLSA Exemptions

By Tyler Freiberger, Following a nine-year gap, in January 2018 the Department of Labor (DOL) again began releasing voluntary opinion letters in response to common or unique questions. The initial batch of released letters only reinstated opinions from 2009 that had been withdrawn for “further consideration.” So the two letters released in April of this year, and the four released last week, are the first original works of the Trump administration’s DOL’s policies. I’ll warn you now, none of the opinion letters are exactly shocking, but they do give some indication of which way the wind is blowing. In general, the recent letters clarify some lesser used exemptions to the Fair Labor Standards Act (FLSA) and favor employers. Of the six opinions issued since April five clarify that an employee would be exempt from the FLSA or not compensated for an activity. The fact patterns these letters respond to are very limited. Still, each letter leaves breadcrumbs employers may follow in the future. The only letter arguably in favor of employees really just tries to put travel for non-traditional work schedules into context. No surprise in DOL assertion that travel time during the normal workday, for work, is compensable. Interestingly, the agency drew from an opinion letter half a century old to state “the employer and employee (or the employee’s representatives) may negotiate and agree to a reasonable amount of time or timeframe in which travel outside of employees’ home communities is compensable.” Citing WHD Opinion Letter (March 17, 1964). While this is only in the context of employees permanently working on the road, it is still an important win for employers, whom ideally could simply contract out exactly what hours are compensable and those that are not. The other letters are less far reaching, but in the aggregate show a trend toward chipping away at employer obligations.  First, hourly employees choosing to participate in voluntary health screenings, fairs, or other wellness activities, during or outside working hours, are not entitled to pay if the employer receives no direct financial benefit. Next, employees taking frequent breaks for medical reasons under the Family and Medical Leave Act (FMLA) are only entitled to the same amount of paid breaks as their co-workers. The DOL also clarified two uncommon overtime exceptions apply to some modern businesses, mobile credit card reader salespersons, and food servers at high-end movie theaters. Lastly, the agency clarified the line between a volunteer and an employee. While the letters do not have legal authority in a civil claim, they do indicate what activity the DOL will be hunting for in audits or investigations.   About the Author: 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.       The post DOL Releases New Opinion Letters Expanding FLSA Exemptions appeared first on Centre Law & Consulting.
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OFCCP Issues New Policy Directives

By Wayne Simpson, CFCM, CSCM On August 10, 2018, the Office of Federal Contract Compliance Programs (OFCCP) issued two directives. OFCCP directives provide guidance to OFCCP staff, Federal contractors (and subcontractors) on enforcement and compliance policy or procedures. These directives do not change the laws and regulations governing OFCCP programs and do not establish any legally enforceable rights or obligations. These directives will remain in force in anticipation of an addition to the Department’s regulatory agenda followed by rulemaking informed by public comment. The first directive, No. 2018-03, involves Executive Order No. 11246, Section 204(c), religious exemption, and incorporates recent court decisions addressing the broad freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals under the United States Constitution and Federal Law. The directive contains a policy statement, stating “In line with the longstanding constitutional requirement that government must permit individuals and organizations, in all but the most narrow circumstances, to participate in a government program ‘without having to disavow [their] religious character,’ OFCCP staff are instructed to take these legal developments into account in all their relevant activities, including when providing compliance assistance, processing complaints, and enforcing requirements of E.O. 11246, OFCCP staff should bear in mind that: They cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices and must proceed in a manner neutral toward and tolerant of religious beliefs. They cannot condition the availability of opportunities upon a recipient’s willingness to surrender his [or her] religiously impelled status.” A Federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with the Religious Freedom Restoration Act. They must permit faith-based and community organizations, to the fullest opportunity permitted by law, to compete on a level playing field for Federal contracts.” They must respect the right of religious people and institutions to practice their faith without fear of discrimination or retaliation by the Federal Government. The second directive, No. 2018-04, directs a portion of future scheduling lists included focused reviews as to each of the three authorities OFCCP enforces: E.O. 11246; Section 503 of the Rehabilitation Act; and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended. The directive contains the following OFCCP policy: OFCCP staff is directed to work towards ensuring that a portion of future scheduling lists, starting in Fiscal Year 2019, include focused reviews as to each of the three authorities that OFCCP enforces: the E.O., Section 503, and VEVRAA. As such, these focused reviews will be selected from the same neutral selection system used to identify and create OFCCP’s supply and service scheduling list. OFCCP staff is further directed to develop a standard protocol for conducting the focused reviews anticipated by this Directive and to make this information available publicly in its FAQs prior to the next scheduling list being issued. Finally, the OFCCP staff is directed to develop staff training and contractor education and compliance assistance to provide guidance as to the focused reviews anticipated by this Directive. [CLICK HERE TO SEE THE NEW OFCCP POLICY DIRECTIVES] About the Author: Wayne Simpson
Consultant
Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official.   The post OFCCP Issues New Policy Directives appeared first on Centre Law & Consulting.
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Dear Pentagon: $10 Billion is Plenty to Share

By Barbara Kinosky, The Pentagon is in quite the debacle with tech giant, Oracle – who filed a pre-award protest challenging the DoD’s single-award approach on the much anticipated $10 billion cloud computing contract. This massive contract called the Joint Enterprise Defense Infrastructure, cleverly abbreviated as JEDI, is causing a lot of hoopla in the technology industry. Oracle’s protest is so far in advance of pre-award it is in a new category of “protest before contractors have even submitted proposals”. Clearly, Oracle is looking at the single source cloud award the CIA made to Amazon and is worried about the winner take all JEDI award that would give the awardee a huge platform within DoD for even more work. You can read the entire story written by Aaron Gregg for the Washington Post. I can understand Oracle’s frustration and commend them for fighting for multiple award. It even inspired me to put it in song: (Adele – “Hello” parody) Hello, it’s me
Oracle with cloud cap-a-bility
I was wondering if after all these years you’d like to meet
To go over everything
They say that time’s supposed to heal ya
But I ain’t done much healing When I’m excluded from the dealing Hello, can you hear me
I’m in Washington DC, dreaming about the contract we would see
For cloud cap-a-bility
When we were all one family We are willing to share, in the 10-billion-dollar deal We just want multiple award!
At least you can say that we tried
To foster, innovation
But you say just one award Hello from the other side
I must have called a thousand times
To ask you, if you wouldn’t mind
Changing the solicitation
to promote competition
But you say just one award, is what you want to see
For simplicity Hello from the outside
At least we can say that we’ve tried
To reach a resolution, we’re sorry for what we had to do
But we really tired our mostest
To avoid this bid protest Don’t worry, I won’t be quitting my day job to become a songwriter. But you get the point. About the Author: Barbara Kinosky
Managing Partner
Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has more than twenty-five years of experience in all aspects of federal government contracting. Barbara is a nationally known expert on GSA and VA Schedules and the Service Contract Act, and she has served as an expert witness for federal government contracting cases.   The post Dear Pentagon: $10 Billion is Plenty to Share appeared first on Centre Law & Consulting.
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What Government Contractors Need to Know About the 2019 NDAA

By Heather Mims, On August 13, 2018, President Trump signed the Fiscal Year 2019 National Defense Authorization Act (2019 NDAA), which sets funding levels and outlines policy priorities for the Department of Defense (DoD). The 2019 NDAA allocated $616.9 billion for the DoD’s base budget, $69 billion for overseas contingency operations funding, $8.9 billion for mandatory defense spending, and $21.9 billion for nuclear weapons programs under the Department of Energy. The funding levels are interesting, but the Act’s impact on government procurement is also of importance. Notably, Section 816 of the NDAA amends a justification requirement for certain single-award task and delivery contracts. The Act amended the Section by permitting award to a single source if a single source can efficiently perform the work. The old language merely required a single source to be able to reasonably perform the work. Membership grounds have already expressed concern about this change, noting that it would inject ambiguity into the standard as the Act does not provide any definition of the term “efficiently.” Another significant change is the removal of the requirement for agencies to compete determinations and findings prior to using an Office of Management and Budget approved Government-Wide Acquisition Contract (GWAC). Section 875 thus encourages agencies to utilize existing contracts and will hopefully reduce contract duplication. Finally, Section 876 is drafted so as to increase competition at the task order level. Specifically, this Section would allow prices to be established through competition at the task order level for certain ID/IQ contracts rather than at the contract level. As such, the contracting officer has discretion to consider price as an evaluation factor for contract award.   About the Author: 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.   The post What Government Contractors Need to Know About the 2019 NDAA appeared first on Centre Law & Consulting.
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Contractors: Think Your Government Doesn’t Care? — Think Again!

By Wayne Simpson, CFCM, CSCM The government has on occasion been accused of treating offerors and contractors unfairly, if not downright poorly.  Perhaps from time to time you even perceive being treated unfairly in the conduct of a procurement.  Sadly, we hear this all the time.  But now the government is considering the potential benefits of obtaining voluntary feedback surveys from the vendor community on a regular basis. The Department of Defense (DoD), the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) are considering an amendment to the Federal Acquisition Regulation (FAR) to establish a standard survey for obtaining voluntary feedback from actual and potential offerors on government contracts and solicitations.  They are seeking the public’s input, especially from government contractors, on a Proposed Rule published in the July 23, 2018, edition of the Federal Register.  Interested parties may submit written comments on or before September 21, 2018, in order to be considered in formulation of the proposed rule (see below for how to submit comments).  The Proposed Rule effects FAR Part 42, Contract Administration and Audit Services; and FAR Part 52, Solicitation Clauses and Provisions. In 2015, the Office of Federal Procurement Policy (OFPP) issued guidance to test the use of a standard survey allowing offerors, whether or not they received an award, to rate the agency’s pre-award and debriefing process for specific solicitations. Under the guidance issued at the time, interested offerors were invited, at their discretion, to rate and provide comments regarding the issuance of solicitations covering a wide range of requirements, including solicitations for information technology, medical equipment, and management support services.  Survey questions asked offerors for input regarding satisfaction with the pre-solicitation activities, solicitation documents, evaluation criteria, and the debriefing process.  The survey tool may be accessed at:  https://www.acquisition.gov/360. Data from initial surveys was limited in scope, but some trends did emerge.  For example, contractors rated the robustness of agency debriefings with the lowest satisfaction scores in both iterations of the survey.  This informed OFPP’s education and outreach efforts in its memorandum, “Myth-busting 3, Further Improving Industry Communications with Effective Debriefings,” issued January 5, 2017. OFPP, DoD, GSA, and NASA believe establishing a standard process in the FAR for obtaining voluntary feedback following a contract award will provide more meaningful insight on ways to strengthen the contracting process than can be derived by relying on ad hoc or periodic agency satisfaction surveys. Language is being considered to encourage contracting officers, in accordance with agency policy, to invite interested sources—actual and potential offerors—to provide feedback on various aspects of the pre-award acquisition process and debriefings, with a particular emphasis on how information is communicated.  Submissions are intended to be anonymous and for internal Government improvements only.  Voluntary participation would not bestow respondents any direct benefits or protections in the acquisition process or any subsequent protests. In addition, OFPP, DoD, GSA, and NASA are considering language encouraging Government acquisition officials to elicit feedback from their contractors on the agency’s performance of its contract administration responsibilities. The Federal Register notice contains a request for respondents to offer their feedback on the Proposed Rule, including the underlying survey questions, and nine questions specifically included in the notice.  The survey is available online at:  https://www.acquisition.gov/360. If you would like to comment on the Proposed Rule, you may use any of the following methods: Via the Federal eRulemaking Portal Submit comments via the Federal eRulemaking portal (http://www.regulations.gov) by entering “FAR Case 2017-014” under the heading “Enter Keyword or ID” and selecting “Search”. Select the link “Comment Now” that corresponds with “FAR Case 2017-014”. Follow the instructions provided on the screen. Please include your name, company name (if any), and “FAR Case 2017-014” on your attached document. Via U.S. Mail U.S. General Services Administration
Regulatory Secretariat Division (MVCB)
1800 F Street NW, Second floor
Attn: Ms. Lois Mandell
Washington, DC 20405. Instructions Instructions: Please submit comments only and cite “FAR case 2017-014” in all correspondence related to this case. All comments received will be posted, without change, to http://www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check http://www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).     Enjoy your freedom?  Thank a Veteran!!
Donate to a Veterans Services Organization   About the Author: Wayne Simpson
Consultant
Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official.       The post Contractors: Think Your Government Doesn’t Care? — Think Again! appeared first on Centre Law & Consulting.
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More Changes to SAM: GSA Updates SAM Log-in Process

By Maureen Jamieson, Many companies were caught by surprise when they attempted to log into the System for Award Management (SAM) on or after June 11, 2018, and read the alert: Entities registering in SAM must submit a notarized letter appointing their authorized Entity Administrator. Some companies discovered that they were no longer active in SAM due to the backlog of notarized letters awaiting approval. Effective June 29, 2018, SAM has a new log-in process. You must have a login.gov account to sign into SAM.gov. If you don’t have a login.gov account, you need to create one. Your old SAM.gov username and password will no longer work. For existing SAM users, you should use your existing SAM.gov email address. For new users, you will be able to create a new SAM profile once you complete the login.gov authentication. One positive change is that all non-Federal entities who create or update their registration in SAM.gov will no longer need to have an approved Entity Administrator notarized letter on file before their registration is activated. However, all non-Federal entities still must mail the ORIGINAL, SIGNED copy of the notarized letter to the Federal Service Desk. All accounts must submit a notarized letter within 30 days or your account may no longer be active. Here’s one issue you may encounter – If you use any other email address to create your account at login.gov other than the one associated with your SAM.gov account, your SAM.gov roles will need to be reassigned. This could cause delays in updating your existing registrations. Why all the account changes? GSA’s SAM is continuing to support an active investigation by the GSA Office of Inspector General (OIG) into alleged, third-party fraudulent activity in SAM. GSA has taken these account changes to address this alleged fraudulent activity. In order to increase security and deter fraud, login.gov uses multi-factor authentication and stronger passwords for SAM.gov users. For further information, please see the Frequently Asked Questions under the Help tab on SAM’s website. Please contact the GSA team at Centre if you have any questions or require assistance. About the Author: Maureen Jamieson 
Executive Director of Consulting
Maureen Jamieson is the Executive Director of Consulting at Centre Law & Consulting, where she manages the GSA and VA Schedule contracting group. Maureen has more than twenty-five years of experience managing federal contracts. She is highly experienced in solving client pricing problems and implementing effective pricing strategies for placing products and services on GSA Schedule contracts.     The post More Changes to SAM: GSA Updates SAM Log-in Process appeared first on Centre Law & Consulting.
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You Shall Not Lie: Manufacturer Pays $11.5 Million For Causing its Clients to Make False Statements

By Tyler Freiberger At Centre, we are often asked to advise on a number of compliance issues contractors face. While GSA schedule compliance, Trade Agreement Act certification, or Service Contract Act employment issues all raise eyebrows, one law rules them all – The False Claims Act (FCA).  Compliance with the FCA can be rather simple according to a recent statement by the Justice Department. “The basic legal rule in this area could be mastered by a third-grader:  Don’t lie.” – U.S. Attorney John F. Bash for the Western District of Texas. Respectfully, it’s not that simple. Because government contracts require businesses to state they are in compliance with the laws listed here, and many others, submitting an invoice while not in compliance can be considered a false claim. This means if your product is not TAA compliant, despite your honest belief it is, then after certifying your product is TAA complaint every invoice you send the government violates the False Claim Act. Given the penalties can range from $11,000 per “false claim,” plus three times any damage the government sustained, AND possible criminal prosecution, you start to see why my previous Lord of the Ring reference is only slightly hyperbolic. One does not simply “be honest” and avoid the False Claim Act. While reading this may panic any government contractor not previously aware of dangers, take some comfort in knowing that businesses with NO contracts with the government can also fall under the act’s fiery eye.  Recently the civil suit of United States ex rel. Ryan Bliss v. Biocompatibles, Inc., et al., Case No. SA-13-CA-0667-XR, was resolved when AngioDynamics, Inc., a medical device manufacturer, agreed to pay 11.5 million for making false statements about its products to healthcare providers. Why does this involve the False Claim Act? Because even if not in direct contract with the government, a business is not permitted to sit from the comfort of its hobbit-home and blow smoke about its products to its customers that are selling to the government. AngioDynamics, Inc. knowingly made false statements to healthcare providers about its products whom then billed Medicare and Medicaid when they used the products, thus AngioDynamics caused those providers to submit false claims to the government. While the reach and potential liability of the False Claim Act is demonstrated in the AngioDynamic settlement, contractors should also note how the case arose. AngioDynamic’s former employee receives $2.3 million for his part in blowing the whistle on the false marketing.   About the Author: 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.     The post You Shall Not Lie: Manufacturer Pays $11.5 Million For Causing its Clients to Make False Statements appeared first on Centre Law & Consulting.
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VETS-4212 Reporting Requirement Approaching

By Wayne Simpson, CFCM, CSCM Federal Contractor and Subcontractor Labor Reporting Requirements Under the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) VEVRAA requires Federal contractors and subcontractors covered by the Act’s affirmative action provisions to report annually to the Secretary of Labor the number of employees in their workforces, by job category and hiring location, who are qualified covered veterans.  VEVRAA also requires Federal contractors and subcontractors to report the number of new hires during the reporting period who are qualified covered veterans. This important annual Federal labor reporting requirement is coming due for Federal contractors and subcontractors.  If Federal Acquisition Regulation (FAR) Clause 52.222-37, Employment Reports on Veterans, is contained in your Federal prime contract, or has been “flowed-down” in your subcontract by the prime contractor, you may have a reporting obligation.  VEVRAA prohibits prime contractors and subcontractors from discriminating against qualified protected veterans and requires affirmative action by contractors to employ and advance in employment qualified protected veterans. The report, known as “VETS-4212—Federal Contractor Veterans’ Employment Report”” (formerly known as VETS-100 or VETS-100A, and often referred to as such in contracts awarded using earlier versions of FAR Clause 52.222-37) is due for submission to the Veterans Employment Training Service (VETS) at the U.S. Department of Labor, no later than September 30, 2018.  The filing cycle for Fiscal Year 2018 reporting opens up August 1, 2018.  Additionally, contractors and subcontractors receiving an award meeting the reporting requirements under FAR Clause 52.222-37, must report within 120 days of contract award. FAR Clause 52.222-37, Employment Reports on Veterans, as well as FAR Clause 52.222-35, Equal Opportunity for Veterans, have flow-down requirements to subcontractors. Accurate and timely reporting, as well as record keeping, is critical to stellar contract administration.  A contractor’s affirmative action obligations in the hiring and retention of Veterans is subject to audit by the U.S. Department of Labor’s Office of Federal Contractor Compliance Programs (OFCCP).  Prime contractors which are State or Local Government Agencies are exempt from this requirement. Failure to report has consequences.  Federal Contracting Officers are prohibited from expending or obligating funds or entering into a contract with a contractor that was subject to reporting requirements under VEVRAA but did not submit a Report for the previous fiscal year.  Reporting under covered contracts continues until the contract expires. The VETS-4212 reflects the contractor’s/subcontractor’s employment activity report and shall reflect total new hires, and maximum and minimum number of employees, during the most recent 12–month period preceding the ending date selected for the report. Contractors may select an ending date—(1) As of the end of any pay period between July 1 and August 31 of the year the report is due; or (2) As of December 31, if the Contractor has prior written approval from the Equal Employment Opportunity Commission to do so for purposes of submitting the Employer Information Report EEO-1 (Standard Form 100). A special note to U.S. Department of Veterans Affairs (VA) Federal Supply Schedule Contract holders.  VA requires submission of this report to the U.S. Department of Labor regardless of the dollar amount of sales under the contract, and failure to submit can impact the processing of modifications, extension packages, and new and ensuing offers. Just in time for the annual VEVRAA reporting, on Thursday, August 2, 2018, from 1:00 PM – 2:30 PM EDST, Centre is conducting a 90-minute VETS-4212 Reporting webinar to introduce VEVRAA, FAR Clauses 52.222-37, 52.222-35, to participants and teach them how to successfully prepare and submit a VETS-4212 Report to the Veterans Employment Training Service at the U.S. Department of Labor. Your Federal contract(s) administrator(s) and human resources management officer(s) (HR plays an important role in providing information for the VETS-4212 Report) will benefit by joining us at the webinar.  The webinar is both a great introduction and refresher for this important annual labor reporting. For more information on and to register for the VETS-4212 Reporting Webinar, please click here.   About the Author: Wayne Simpson
Consultant
Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official.       The post VETS-4212 Reporting Requirement Approaching appeared first on Centre Law & Consulting.
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Supreme Court Nominee Brett Kavanaugh and the Coming Political “Kabuki Theater”

By David Warner, I have been fascinated with the political theater around U.S. Supreme Court nominees ever since the contentious Clarence Thomas confirmation hearings gave rise to one of the greatest Saturday Night Live cold openings of all time. (Viewer beware, 2018 “sensitivities” might conflict with 1991 standards of humor. It’s still a classic.) Given our current President and the fact that the incoming justice will replace the “swing vote” of retiring Justice Anthony Kennedy, it is widely expected that the political rhetoric will be ratcheted up to eleventy and stay there until the final vote is cast. Indeed, we’ve already seen breathless reports that Justice Kennedy and The White House purportedly coordinated his resignation with Kavanaugh’s selection; a report that was walked back as entirely unsourced within a few hours. Even the relatively staid USA Today seems to be picking up on the fact that some (all?) of the overheated rhetoric may be based more on grinding existing political axes as opposed to a principled objection to the individual nominee. And to think, we’re only in day three of the process! And what of the nominee himself? Well, a little over a year ago I wrote a blog about Trump’s first “100 Days,” the central thesis of which was that – ill-conceived tweets notwithstanding – Trump was governing relatively conservatively and consistent with his campaign promises. Nominating Judge Kavanaugh, a true “DC Insider” is effectively more of the same. His resume before joining the federal bench in 2006 is straight out of central casting – i.e., Yale undergrad, Yale law school, clerkships with the Third and Ninth Circuit Courts of Appeal, a clerkship with the Supreme Court (Justice Kennedy’s chambers, notably), time with the Office of the Solicitor, time with the White House legal staff, etc. While Kavanaugh’s jurisprudence is likely to be to the right of Kennedy, he is generally not viewed as a Scalia-esque firebrand. One possible exception may be in the area of administrative law and “Chevron deference,” which is the deference courts have given to administrative agency’s interpretations of their own regulations. Kavanaugh has spoken critically and at length regarding the doctrine, and his fealty to statutory authority in the face of potential agency overreach underlaid his decision against the U.S. Department of Labor in the high profile “CityCenter” case cabining the scope of the Davis-Bacon Act. Despite the sturm und drang we’re about to experience, Kavanaugh – like Justice Neil Gorsuch before him – is a textualist that has consistently demonstrated conservative legal reasoning during his time on the bench. In other words, he’s pretty much exactly what Trump said he would nominate during his successful presidential campaign. Obviously, that’s not going to be viewed as a good thing in all corners; and I am certain my partner and good friend Barbara Kinosky will be doubling her deliveries of kale and vitamin supplements to Justice Ginsburg’s chambers. But fear not, Barb, I understand measures are being taken to ensure that RBG will be around next session!   About the Author: 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 Supreme Court Nominee Brett Kavanaugh and the Coming Political “Kabuki Theater” appeared first on Centre Law & Consulting.
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Centre Staff Speaking at NCMA World Congress

Centre Law & Consulting will be at NCMA World Congress in Cleveland from July 22-24, 2018. Barbara Kinosky, Centre’s Managing Partner, has been invited to speak about federal contracting topics (see below for the topics and times). Centre will also be exhibiting at booth 208.   E08 – Lessons Learned from Successful GAO Protests Room 10, 2:00 PM – 3:15 PM
Management/Business Competencies Track  What makes a protest successful? What can you do to avoid one? This session gives clear guidance on practices to avoid that lead to protests, as well as winning grounds for a protest. Speaker: Barbara Kinosky   F15 – News from Capitol Hill Room 10, 3:30 PM – 4:45 PM
Our Changing Environment Track  Get the latest news from Capitol Hill. Learn what’s new, what’s old, and what’s new again. Hear the latest on new legislation and regulations and emerging trends, and stay current with this legislative and regulatory update. Speaker: Barbara Kinosky     The post Centre Staff Speaking at NCMA World Congress appeared first on Centre Law & Consulting.
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The Strange Case of Daniel Horowitz and His Three Years of Paid Leave

By Barbara Kinosky, For exactly three years Daniel Horowitz was paid his full GS-15 salary of $161,000 to do – well – exactly nothing. That delicious gravy train finally ended. We can now say that Dr. Horowitz was employed (past tense) by the Chemical Safety Board (CSB), a small independent agency that I never heard of. He had been charged with misconduct over a kerfuffle on how he handled certain leadership roles but his case went into limbo. One day Dr. Horowitz was busy doing whatever PhD GS-15 Managing Directors do at the Chemical Safety Board, when armed police wearing protective armor escorted him out of his office. I do not know Dr. Horowitz but that does seem like a bit of an overkill when his only weapon may have been the periodic table. The Public Employees for Environmental Research (another group I did not know about) is representing him at the Merit Systems Protection Board. They argue that he was terminated because congressional Republicans put pressure on the new chair of the CSB to say adieu to the chemist. They say the charges against him are vague and the onus was on CSB to make a decision about his extended leave but instead, they left him in paid limbo for three years. Dr. Horowitz, in an interview with Government Executive, said he offered many times to take on tasks and work from home but was rebuffed by the agency. Sen. Chuck Grassley, R-Iowa, attached a bill to the 2016 Defense Authorization Bill that limits the maximum administrative leave in these types of cases to 10 days. I note with some irony that 18 months later the Office of Personnel Mangement (OPM) is still working out the details. OPM better hustle, because under the Trump government reorganization plan its role is being reduced. But that will probably take at least three years to do. A thank you to Charles S. Clark for letting me crib from his breaking news story at Government Executive.   About the Author: Barbara Kinosky
Managing Partner
Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has more than twenty-five years of experience in all aspects of federal government contracting. Barbara is a nationally known expert on GSA and VA Schedules and the Service Contract Act, and she has served as an expert witness for federal government contracting cases.   The post The Strange Case of Daniel Horowitz and His Three Years of Paid Leave appeared first on Centre Law & Consulting.
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DOD Attempted to Drastically Shorten Bid Protest Deadline at Court of Federal Claims

By Heather Mims Currently, an unsuccessful offeror may file a protest with the Government Accountability Office (“GAO”) and, if the protest is denied, file suit at the United States Court of Federal Claims (“COFC”). However, the Department of Defense (“DOD”) sought to change that. On April 3, 2018, the DOD submitted its Fourth Package of Legislative Proposals Sent to Congress for Inclusion in the National Defense Authorization Act for Fiscal Year 2019. Of particular interest to contractors, DOD sought to amend the Tucker Act to impose timeliness rules at the COFC (“COFC”) where no specifical timeliness rules have existed. Specifically, DOD sought to impose timeliness rules that mirror those of the GAO, which would mean that a contractor would have to file a protest at the COFC within ten days of when it knew or should have known of its protest ground. Therefore, a contractor would be forced to choose its venue and file its bid protest within these initial ten days. In fact, DOD’s proposal specifically modifies the Tucker Act to state that under no circumstances will the COFC consider a protest that is untimely because it was first filed at the GAO. However, the DOD’s proposal does not limit agency-level protests. As such, a contractor could still submit a protest to the agency and, if denied, either file a protest at the GAO or submit a claim at the COFC within ten days of the agency’s denial. While the Senate’s proposed National Defense Authorization Act for Fiscal Year 2019 did not include this suggested change, it does require the Secretary of Defense to carry out a study of the frequency and effects of bid protests involving the same DOD contract award or proposed award that have been filed at both the GAO and the COFC. It also requires the Secretary to establish a data collection system to better track and analyze bid protest trends in the future. This decision comes after Fiscal Year 2017’s NDAA required “a comprehensive study on the prevalence and impact of bid protests on Department of Defense acquisitions, including protests filed with contracting agencies, the Government Accountability Office, and the Court of Federal Claims.” The RAND Corporation was commissioned to provide this study; its report, provided to Congress in December 2017, found that the number of COFC cases that previously appeared at the GAO may be increasing but “this potential trend needs further research.” Thus, it appears that Congress is seriously considering DOD’s proposal as it has requested further research on this topic. Don’t be surprised if you see DOD propose this legislative change again next year!   About the Author: 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.   The post DOD Attempted to Drastically Shorten Bid Protest Deadline at Court of Federal Claims appeared first on Centre Law & Consulting.
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Commercial Supplier Agreement (CSA) and Order-Level Materials (OLMs) Roll-Out

By Julia Coon, The General Services Administration (GSA) started the mass modification roll-out of the Commercial Supplier Agreement (CSA) final rule into all Federal Supply Schedules this week. Mass modification roll-out for Order-Level Materials (OLMs) eligible Schedules will begin following acceptance of the CSA mass modification. Following is a summary of the steps for accepting these mass modifications. Please note that this will be a multi-step process for the OLM authorized Schedules and the CSA mass modification must be accepted before the OLM mass modification will be issued. Step #1: All Schedule contractors must accept the mass modification adding GSAR clause 5552.212-4 Contract Terms and Conditions Commercial Items (JAN 2017)(DEVIATION – FEB 2018)(ALTERNATE I – JAN 2017)(DEVIATION – FEB 2007) incorporating the CSA rule into the contract. This mass modification will also include updated Service Contract Labor Standards (SCLS) Wage Determinations for all solicitations. Step #2: Following acceptance of the CSA mass modification, another mass modification will be issued to contractors with the seven OLM authorized Schedules currently identified as 03FAC, 56, IT70, 71, 84, PSS, and 738X. Please note that GSA may authorize additional Schedules in the future. If you wish to participate, Schedule contractors must accept the mass modification that automatically adds the OLM Special Item Number (SIN) and GSAR clause 552.538-82 Special Ordering Procedures for the Acquisition of Order-Level Materials to the existing contract. Once the mass modification has been accepted, the new OLM SIN will populate across the GSA eTools including GSA eLibrary. Contractors can then start to propose OLMs in response to customer requirements. What are the CSA and OLM Rules? The CSA final rule defines unenforceable obligations and clauses in addition to outlining the order of precedence Contracting Officers and industry must follow. The intent of the rule is to streamline CSA negotiations. The OLM final rule provides Contracting Officers the authority to acquire OLMs when placing task or delivery orders against a Federal Supply Schedule (FSS) or FSS Blanket Purchase Agreement (BPA). OLMs are supplies and/or services acquired in direct support of an individual task or delivery order placed against an FSS Schedule or BPA when the supplies and/or services are not known at the time of Schedule or BPA award. Your GSA Schedule contract administrator should be on the lookout for the email from GSA with the PIN number to accept the mass modification. After the CSA mass modification is accepted, be on the lookout for the next PIN number to accept the OLM mass modification.   About the Author: 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.     The post Commercial Supplier Agreement (CSA) and Order-Level Materials (OLMs) Roll-Out appeared first on Centre Law & Consulting.
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The “Veterans Affairs Purchase Card Misuse Mitigation Act”

By Wayne Simpson, CFCM, CSCM House Moves to Prevent Abuse and Misuse of SmartPay Program’s Largest User On May 21, 2018, after 40 minutes of floor debate, the U.S. House of Representatives considered under the suspension of the rules, and passed H.R. 5215, the “Veterans Affairs Purchase Card Misuse Mitigation Act” by voice vote.  The bill was sent to the Senate May 22, 2018, for consideration. H.R. 5215 amends Title 38 of the United States Code to direct the Secretary of Veterans Affairs to prohibit U.S. Department of Veterans Affairs (VA) personnel found to have knowingly misused VA purchase cards from serving as purchase card holders or purchase card approving officials.  This prohibition is in addition to any other applicable penalties. For purposes of the Act, “misuse” means (1) splitting purchases; (2) exceeding applicable purchase card limits or purchase thresholds; (3) purchasing an unauthorized item; (4) using a purchase card without being an authorized purchase card holder; or (5) violating ethics standards. Purchase card spending will undoubtedly increase in the current and subsequent fiscal years due to recent changes in Federal law.  On March 22, 2018, VA issued a Class Deviation to the Federal Acquisition Regulation (FAR) implementing and increasing the new micro-purchase threshold (MPT) and the new simplified acquisition threshold (SAT) effective immediately.  The MPT increased from $3,5001 to $10,000 for products, while the SAT increased from $150,000 to $250,000.  MPT and SAT increases were authorized by Sections 805 and 806 of the National Defense Authorization Act (Public Law 115-91) signed by President Trump December 12, 2017. In Fiscal Year 2017, the most recent data available for the 24 Federal departments and agencies covered by the Chief Financial Officers Act2, VA was the largest user of the General Services Administration (GSA) SmartPay3 (Governmentwide purchase card) Program, in terms of total transactions and total dollars spent, even outspending the Department of Defense and its independent agencies. VA spent over $14.2 Billion using SmartPay in 7,385,210 transactions (665,395 with VA’s Prime Vendor Programs, and 6,719,815 with ordinary vendors).  VA accounts for a significant portion of the total SmartPay purchasing spend of the 24 CFO Act departments and agencies for Fiscal Year 2017.  The total spend/transactions of the 24 CFO Act departments and agencies totaled $18.114 Billion, with 18,549,144 transactions.  VA’s SmartPay spend accounts for approximately 39.7% of all SmartPay Transactions and approximately 56.5% of total SmartPay dollars for the 24 CFO Act departments and agencies.      VA Use of SmartPay Fiscal Year 20174   NUMBERED NOTES 1The micro-purchase threshold remains at $2,500 for services; $2,000 for construction; and there are higher thresholds for certain other acquisitions in support of peacekeeping missions and disaster recovery when authorized by agency heads.
2Chief Financial Officers Act of 1990, Public Law 101-576
3The GSA SmartPay Program is the world’s largest government charge card and commercial payment solutions program, providing services to more than 560 Federal agencies, organizations, and Native American tribal governments. GSA SmartPay payment solutions enable authorized government employees to make purchases on behalf of the Federal Government in support of their agency/organization’s mission. Administrative savings using SmartPay are estimated at $1.7 Billion annually, with Federal agencies earning over $3 Billion in rebates using the Program.
4Source: Federal Procurement Data System-Next Generation (FPDS-NG)   About the Author: Wayne Simpson
Consultant
Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official.     The post The “Veterans Affairs Purchase Card Misuse Mitigation Act” appeared first on Centre Law & Consulting.
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One Employment Agreement Update You May Be Thankful For

By Tyler Freiberger You’ve likely noticed a flurry of notifications and emails from companies warning you of updated terms and services. The updates were made to comply with Europe’s new General Data Protection Regulations (GDPR), which has been approved since 2016 and went into effect on May 25, 2018. The relevant portion here generally makes it much harder for a website to throw a 200-page legal document at you with vague terms that allow tracking your personal information and selling to the highest bidder. Those companies that previously used such tactics (seems almost all of them) now are required to be far more transparent with their policies for their EU customers and Americans are getting some residual benefits. It is a little ironic that at roughly the same time this protection goes into effect the United States Supreme Court issued a decision making similar, often hidden, legal waivers in employment handbooks/agreements much stronger. In Epic Systems Corp. v. Lewis, the Court ruled 5-4 that employers can include a clause in their employment contracts that require employees to arbitrate their disputes individually and to waive the right to resolve those disputes through class actions. This shows the dramatic shift from the judicial system’s view of arbitration 60 years ago. See, e.g., Bernhardt v Polygraphic Co. of Am., 350 U.S. 198, 203 (1956) As made clear in the decision, Congress purposely wanted to dispel American courts’ distaste for arbitrations by passing the Federal Arbitration Act (FAA). While some see Europe’s GDPR as a move forward for the little guy and this ruling as a knockback, the worries are likely overstated. The National Labor Relations Board (NLRB) has long held that agreements that require employees to resolve their disputes by arbitration on an individual basis are invalid. In fact, the NLRB advocated these agreements as unfair labor practices under Section 8 of the NLRA. The Court in Epic Systems expressly rejected that argument with a harsh dissent from Justice Ginsburg warning that such a ruling greatly undermines employees’ ability to fight back against large companies. Even the majority opinion seemed skeptical of arbitration systems but reluctantly respecting Congressional intent; “this court is not free to substitute its preferred economic policies for those chosen by the people’s representatives.” It’s certainly understandable to question an employment clause that is estimated to cover about 25 million workers in America. Especially when the Consumer Financial Protection Bureau (CFPB) studied the arbitration agreement clauses, then banned companies from using them with consumers last year, on the belief they stifled legitimate complaints of wrongdoing. That belief is difficult to justify given empirical studies show arbitrations are cheaper for all parties and more available for lower income employees than the courts, more likely to result in a win than if the employee went to court, and presented ease of access to a dispute forum on par with the employee covered by powerful unions. So while the world collectively laughs at the scramble to update terms of service agreements, now may be a good time to update those employment agreements with the blessing of mighty SCOTUS.   About the Author: 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.     The post One Employment Agreement Update You May Be Thankful For appeared first on Centre Law & Consulting.
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IT’S OFFICIAL: “Cascading” Set-Asides Are Now Authorized at the Department of Veterans Affairs (VA)

By Wayne Simpson, CFCM, CSCM   Discretionary Use by VA Contracting Officers Authorized; Must Be Approved First   In what many will see as VA’s continued assault on its Veterans First Contracting Program post-Kingdomware, VA recently implemented “Cascading” set-asides.  VA refers to these set-asides as “Tiered Evaluations,” noting they are also known as “Cascading” set-asides.   VA issued Acquisition Policy Flash (No. 18-15), transmitting Procurement Policy Memorandum (PPM) No. 2018-04, dated and effective February 8, 2018.  VA issued the PPM in response to requests from VA contracting officers requesting guidance and procedures for the use of tiered evaluations within a single synopsized solicitation when applying the “VA Rule of Two.”   The “goal” of the PPM is to minimize delays in the re-solicitation process incurred subsequent to the application of the “VA Rule of Two” at either the Service-Disabled Veteran-Owned Small Business (SDVOSB) and the Veteran-Owned Small Business (VOSB) priority tiers within a single-synopsized solicitation   According to VA, this change will also streamline the process of satisfying VA’s obligation under Section 8127 of Title 38 United States Code when “viable” offers are not received at the SDVOSB or VOSB priority tiers within a single synopsized procurement.   There are three types of tiered evaluations which VA will use.  The first is “Tiered Evaluations Limited to SDVOSB or VOSB.”  The second, “Tiered Evaluations Including Small Business Concerns.  The third is “Tiered Evaluations Including Large Business Concerns.”  The type tiered evaluation used will be based on the results of market research which must be conducted and documented in advance of the solicitation’s issuance.   VA must include a notice in all solicitations issued using tiered evaluation.   VA issued a Class Deviation to the Federal Acquisition Regulation (FAR) on March 22, 2018, which was also effective immediately.  The FAR Class Deviation was required to allow VA contracting officers to follow tiered evaluation procedures in PPM No. 2018-004.  The language at FAR 19.502, prior to issuance of the Class Deviation limited the effectiveness of VA’s PPM No. 2018-04, as the FAR required contracting officers to withdraw the set-aside and resolicit the requirement if no acceptable offers are received from responsible small business concerns.   PPM No. 2018-04 applies to all competitive procurements using tiered evaluations.  The use of tiered evaluations for procurements of supplies, products, and services (including commercial items) is at the discretion of the contracting officer.  When using tiered evaluations, the solicitation must be approved by a contracting official at least one level above the contracting officer who issues and prepares the solicitation.  The approving official will validate the supporting market research has been thoroughly documented in advance of issuing the solicitation.   About the Author: Wayne Simpson
Consultant
Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official.   The post IT’S OFFICIAL: “Cascading” Set-Asides Are Now Authorized at the Department of Veterans Affairs (VA) appeared first on Centre Law & Consulting.
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GAO Will Occasionally Review Terminations for Convenience

By Heather Mims Ordinarily, the GAO will decline to review the termination of contracts for convenience because such actions are matters of contract interpretation and are more properly brought within the context of a CDA claim. However, in the recent decision of AutoFlex, Inc., B-415926 (Apr. 19, 2018), the GAO noted that it will review the propriety of a termination for convenience where the termination flows from a defect the contracting agency perceived in the award process. AutoFlex, Inc. was one such case. There, the RFQ was issued as a small business set-aside for a fixed-price contract for the lease of four 2018 Chevrolet Suburbans. The RFQ stated award would be made on a lowest-price, technically acceptable basis. The agency received five quotes in response to the solicitation, including, as relevant here, quotes from AutoFlex and District Fleet. District Fleet filed the lowest-price quotation, which the agency originally found technically unacceptable. The agency then subsequently made the award to AutoFlex, the incumbent, and the second lowest-price offeror. District Fleet then filed an agency-level protest. The agency ultimately found that its evaluation of District Fleet’s quotation was erroneous and found that District Fleet’s quote was technically acceptable. Thus, the agency terminated AutoFlex’s contract and awarded the contract to District Fleet. AutoFlex’s protest to the GAO followed. Specifically, AutoFlex argued that the agency unreasonably terminated its contract. The GAO first noted that generally, it will not review the termination of contracts for convenience. However, the GAO will review the propriety of a termination where it flows from a defect the agency perceived in the award process. In such cases, the GAO will review the award procedures that underlie the termination decision for the limited purpose of determining whether the initial award was improper and, if so, whether the corrective action taken was proper. However, the GAO will not object to the corrective action taken so long as the action taken is appropriate to remedy the impropriety in the award process. While the GAO ultimately denied AutoFlex’s protest, this protest serves as a good reminder that, under the right circumstances, the GAO will occasionally review a termination for convenience decision.   About the Author: 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.   The post GAO Will Occasionally Review Terminations for Convenience appeared first on Centre Law & Consulting.
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Communication, Consistency and … the OFCCP?

By David Warner, As most federal contractors are aware, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) is the agency responsible for ensuring that contractors and subcontractors doing business with the U.S. government comply with affirmative action and non-discrimination obligations under federal laws, executive orders, and regulations. In September 2016, the Government Accounting Office (“GAO”) issued a report recommending that OFCCP review its compliance assistance efforts to identify opportunities for enhancing contractors’ understanding of their obligations. To provide the opportunity for contractors to offer their perspectives while implementing the GAO’s recommendation, in 2017 the OFCCP conducted three “Compliance Assistance Town Halls,” followed by three “stakeholder meetings” in Washington DC, in January of this year. Last month, the agency issued its resulting “Town Hall Action Plan,” which identified three over-arching areas of focus – training, communication, and trust – as well as three responsive initiatives: Review and enhance contractor compliance assistance materials Assess and improve the quality of contractor and compliance officer training and education Increase transparency and communication with agency stakeholders. Of most interest (at least to this author), is the “transparency and communication” initiative, which the OFCCP expects to include a “Bill of Rights” styled, What Can Contractors Can Expect, document that will “outline certain OFCCP principles that contractors can expect to exist during an engagement with OFCCP.” They identified these principles as including, but not limited to, “such things as timeliness, accuracy, communication, confidentiality, and professionalism.” Perhaps more important than the aspirational bromides, however, is the effort to “achieve consistency across regional and district offices” through the use of a Predetermination Notice (PDN) in those instances where the agency believes it finds evidence of potential discrimination. The use of PDNs prior to the issuance of a Notice of Violations (NOV) is intended to encourage communication between contractor and OFCCP and to allow the opportunity to respond with supplemental information. Also, per the Action Plan, “regional discretion is no longer permitted and the national office will review all PDNs to ensure appropriate consistency and uniformity.” Time will – of course – tell; but, for those of us interacting regularly with the agency, an effort to achieve “consistency and uniformity” as to the investigative approach across the nation’s various regions and districts would be a welcome development. Similarly, promised updates to long outdated Technical Assistance Guides should help contractors who might be relatively unfamiliar with the OFCCP and its processes to stay clear of compliance challenges.   About the Author: 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 Communication, Consistency and … the OFCCP? appeared first on Centre Law & Consulting.
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Federal Acquisition Regulation (FAR) Update—New Rules

By Wayne Simpson, CFCM, CSCM On May 1, 2018, the General Services Administration (GSA) published FAC 2005-98 in the Federal Register, covering a number of FAR Cases with Final Rules effective May 31, 2018. The online version of the FAR (www.acquisition.gov) will not be updated until May 31, 2018. FAR Case 2017-007, Task-and-Delivery Order Protest; Final Rule, effective May 31, 2018.  This Final Rule amends FAR Part 16 and implements § 835 of the National Defense Authorization Act (NDAA) for Fiscal Year 2017 (P.L. 114-328), which raises the protest threshold for task and delivery orders from $10 million to $25 million.  According to GAO, there are fewer than 10 protests per year of procurements between $10 million and $25 million, the higher threshold for protests of task or delivery orders for DoD, NASA, and the Coast Guard will result in savings for GAO and the affected Executive branch agencies, because there will no longer be protests of orders valued between $10 million and $25 million based on dollar value. FAR Case 2017-004, Liquidated Damages Rate Adjustment, Final Rule, effective May 31, 2018.  This Final Rule amends FAR Parts 22 and 52 and implements the U.S. Department of Labor (DOL) interim final rule published in the Federal Register July 1, 2016, and the final rule published in the Federal Register on January 18, 2017, and subsequent adjustments for inflation pursuant to the Federal Civil Penalties Inflation Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act of 2015.  The final rule specifically addresses violations and liability for unpaid wages (overtime) under the Contract Work Hours and Safety Standards Statute. FAR Case 2015-039, Audit of Settlement Proposals, Final Rule, effective May 31, 2018.  This final rule to amends FAR Part 49 to raise the dollar threshold requirement for the audit of prime contract settlement proposals and subcontract settlements from $100,000 to align with the threshold for obtaining certified cost or pricing data, which is $750,000.  This final rule impacts contractors subject to audits of their termination settlement proposals and eliminates termination settlements audits between $100,000 and the threshold for obtaining certified cost or pricing data, currently $750,000. Contractors will save costs associated with the preparation and support for the termination settlement audits. This will also enable faster final settlement payments to contractors, thereby improving contractor cash flow. FAR Case 2017-008 (Item II), Duties of the Office of Small and Disadvantaged Business Utilization (OSDBU), Final Rule, effective May 31, 2018. This final rule amends FAR Part 19 to reflect sections of NDAA 2017, P.L. 114-238, amends § 15(k) of the Small Business Act to provide additional duties for OSDBUs. These additional duties also apply to DOD Offices of Small Business Programs.  NDAA § 1812, § 1813, § 1821 of the NDAA for FY 2017 amend section 15(k) of the Small Business Act to add duties for OSDBUs and OSBPs. Section 1812 of the NDAA for FY 2017 amends the Small Business Act to specifically reference the existing duties of OSDBUs and OSBPs with respect to the various small business programs and consolidation of contract requirements. Section 1812 also requires OSDBUs and OSBPs review summary purchase card data for acquisitions above the micro-purchase threshold (e.g., $3,500)*, but below the simplified acquisition threshold (e.g., $150,000)*, to ensure these acquisitions are compliant with the Small Business Act and have been properly recorded in the Federal Procurement Data System (FPDS). The revision to the FAR reflecting section 1812 of the NDAA includes flexibility for each OSDBU or OSBP to identify the best purchase card data available to their agency when implementing the statutory requirement. *Note: The micro-purchase and simplified acquisition thresholds were raised by NDAA 2018 to $10,000 and $250,000, respectively. A final rule has not been implemented (FAR Case 2018-004), but agencies have been authorized to implement Class Deviations to begin using the new thresholds before the Final Rule is promulgated (see Civilian Agency Acquisition Council Letter No 2018-03, dated February 16, 2018) Paragraph (a) of section 1813 requires OSDBUs and OSBPs to provide assistance to a small business prime contractor or subcontractor in finding resources for education and training on compliance with the FAR after award of their contract or subcontract. Paragraph (b) of section 1821 requires OSDBUs and OSBPs to review all required small business subcontracting plans to ensure that they provide maximum practicable opportunity for small business concerns to participate as subcontractors. Currently, acquisition-related duties of OSDBUs and OSBPs are found in FAR 19.201, General policy. The duties found in FAR 19.201 are based on the duties found in section 15(k) of the Small Business Act (15 U.S.C. 644(k)). Additional OSDBU and OSBP acquisition-related duties enacted before the NDAA for FY 2017 listed at 15 U.S.C. 644(k), which were not previously updated in the FAR, are also included in this rule. Additionally, this rule revises the OSDBU and OSBP duty at FAR 19.201(c)(5), which relates to increasing small business participation in solicitations that involve bundling. This revision reflects that OSDBUs and OSBPs perform much broader functions under those scenarios than what is currently listed in the FAR. FAC 2005-98 contains GSA’s introduction to the FAC, as well as the Small Entity Compliance Guide required by § 212 of the Small Business Regulatory Enforcement Fairness Act of 1996.   About the Author: Wayne Simpson
Consultant
Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official. The post Federal Acquisition Regulation (FAR) Update—New Rules appeared first on Centre Law & Consulting.
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Federal Contractor Breaches Service Contract Act: Thousands of Underpaid Workers

By Barbara Kinosky General Dynamics Information Technology (GDIT) has been accused of underpaying about 10,000 workers allegedly covered by the Service Contract Act (SCA). These workers run help hotlines for public insurance programs. Four complaints were filed Monday at the Department of Labor by the Communication Workers of America. It’s interesting that this union does not represent any of the workers.  There is no private right of action under the SCA so I am a bit perplexed over how this union can bring a complaint. The complaint alleges that most of the call center workers are paid $10.52 an hour which is below the service contract act rate for such jobs in Kentucky. It doesn’t matter what side you are on in this case, one thing I think we can all agree upon is that the service contract act is a very complicated act indeed. Ways to avoid this issue is to ask the contracting officer in writing, during the solicitation process, if the SCA applies to the contract, if you think it might, and to definitely ask when the SCA FAR clause is in the solicitation but no wage determinations are attached to the RFP. Click to read Washington Post article The big question in Washington is whether Navy Rear Adm. Ronny Jackson, appointed by Pres. Trump to lead Veterans Affairs, will continue to have White House support. New allegations have come out from former military staff who allege that Jackson was drunk while on duty. The concern over Jackson’s nomination is bipartisan. Currently his confirmation hearing, which was supposed to occur this week, has been postponed indefinitely in light of the new information presented to the committee. I think his confirmation is doubtful. Thanks to Fran and Chris Craig of Unanet for hosting a dinner with Bloomberg’s Kevin Brancato. Kevin is predicting a big spend in the last quarter of this fiscal year. Money has been dribbling out in small contracts in the first two quarters so he says the burn will be higher than usual at the end of this fiscal year. Bloomberg thinks the winners will be small businesses particularly WOSB and SDVOSB. Bloomberg also spoke highly of NASA SEWP, for how well managed it is (congrats to Joanne Wojtek, Darleen Cohen and the rest of the awesome SEWP team). That’s all the news. I hope to see you at our Mid-Year Update: Hot Issues in Federal Contracting, on June 13th. Mid-Year provides everything you need to stay current on the developments that have come out over the first half of the year in the ever-changing field of government contracts.   About the Author: Barbara Kinosky
Managing Partner
Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has more than twenty-five years of experience in all aspects of federal government contracting. Barbara is a nationally known expert on GSA and VA Schedules and the Service Contract Act, and she has served as an expert witness for federal government contracting cases. The post Federal Contractor Breaches Service Contract Act: Thousands of Underpaid Workers appeared first on Centre Law & Consulting.
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GSA Order-Level Materials (OLMs) – Updates and Next Steps

By Maureen Jamieson, Executive Director of Consulting Hopefully, you have been following the breaking news regarding the final rule on Order-Level Materials (OLMs). After many years of discussion on this subject, the General Services Administration (GSA) is amending the General Services Administration Acquisition Regulation (GSAR) providing the authority to acquire OLMs when placing task or delivery orders against a Federal Supply Schedule (FSS) or FSS Blanket Purchase Agreement (BPA). And exactly what is the definition of OLMs?  OLMs are supplies and/or services acquired in direct support of an individual task or delivery order placed against an FSS Schedule or BPA when the supplies and/or services are not known at the time of schedule or BPA award. Please note that Other Direct Costs, which are known at the time of schedule award, will remain as an option. Examples of these types of Other Direct Costs can be found on the Professional Services Schedule (PSS) under the Ancillary and Other Direct Cost SIN descriptions. Key points of the OLM final rule: The total value of all OLMs cannot be greater than one-third the volume of the total order. (Note that travel is excluded from this calculation). Fair and reasonable pricing, defined as a minimum of three (3) quotes for each OLM exceeding the Simplified Acquisition Threshold, will be required. However, contractors with approved purchasing systems are exempt. Indirect Costs on OLMs are allowed. GSA training is being updated to address indirect cost application. Industrial Funding Fee (IFF) will be incorporated into pricing at the Task Order level. What are the next steps? Advanced notice of the OLM final rule will be provided this month on interact.gsa.gov. Be sure to review and provide comments back to GSA. Next month, look for OLM webinars hosted by GSA. The month of May will also kick off GSA wide internal training including training for Industrial Operations Analysts. GSA expects to issue Mass Modifications for the addition of OLMs by June or July 2018. You will have ninety (90) days to accept or decline this OLM mod. When and if you accept the forthcoming OLM Mass Modification, a new OLM SIN will be created.  This new SIN will automatically be uploaded into e-library on GSA Advantage. Centre Law & Consulting will keep you updated on OLM developments via our LinkedIn group GSA Schedule News, Updates, & Discussions. We hope to see you at Boot Camp for GSA Schedules on May 8-9. You can bring your colleague for free*! You’ll gain the necessary skills to understand and negotiate your own GSA Schedule and/or make modifications to an existing schedule, as well as keep up with the changes that affect your contract administration and compliance efforts. *Promotion expires May 1. The post GSA Order-Level Materials (OLMs) – Updates and Next Steps appeared first on Centre Law & Consulting.
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Welcome to FOIA: Where the rules are made up and the deadline doesn’t matter

By Tyler Freiberger If you represent government contractors, or if you are one, it seems eventually you will develop a love-hate relationship with The Freedom of Information Act (FOIA). The purpose and goal of FOIA is somewhat remarkable; quick access to any government information not specifically confidential or otherwise classified. But in practice, this rarely seems to be the case. Some days you need a simple piece of information; you know the Agency wrote a report, you know nothing in it is confidential, and you know it’s going to take six months for them to hand it over anyway. Other times you get an email from a FOIA officer along the lines of this: “Hi, three years ago your competitor requested your contract proposal including your technical and pricing breakdown. If you don’t want us to hand it over, please submit a redacted version of the three-hundred-page document in seven days (December 26th) with your argument for redacting each line.” I thought at first it was just me. Every FOIA Officer or liaison I spoke with when trying to get compliance seemed hardworking and helpful. That hasn’t changed. But a quick look at the numbers told me I was far from alone. How is such a well-intentioned law so frustrating to contractors and agency’s alike? Well, because so far frustrating is cheaper than compliance, but that may be changing. Under 5 U.S. Code § 552, the requirements placed on a federal agency are fairly simple. Once your FOIA request gets in the right agency hands, they have twenty days to grant or deny it. The agency can stall the clock for a few days here and there but in general the deadline would not go over a month. Of course, some requests involve very sensitive material and the agencies can employ legitimate exceptions. For a few thousand examples enjoy the CIA’s answer to frequent FOIA requests about UFOs. See page after page of heavily redacted notes and reports on UFOs since the 1940’s, all published online for a convenient “go fish” response to any request. But that’s not what this post is about. It’s about the simple, non-controversial and short requests that happen every day and are not answered within the statutory deadline. Looking at Homeland Security alone, of the approximate 340,000 FOIA requests that were processed in 2017, about 180,000 of them took longer than twenty days to process. This handy tool can give you a FOIA compliance report on any agency you work with so you can see how they stack up. While Homeland Security is particularly backlogged, no agency really stands out as compliant. The American Battle Monuments Commission, for example, had only 31 FOIA requests in 2017, and half were processed within 20 days. Keep in mind these compliance responses include, “here is the website with that information already publicly available” like the CIA example above. This may all seem obvious; government agencies have an old reputation for being slow and bureaucratic. But what is surprising here is the federal courts seem very unsympathetic. When an agency misses its response deadline without applying a rare exception, courts consider the FOIA request denied. Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 65 (D.C. Cir. 1990). In practice, most “deemed denials” are just ignored. The requesting party ignores the delay and waits patiently.  But why? Here is the fascinating aspect about federal agencies’ overwhelming failure to comply with the mandate clearly described by Congress; if an Agency improperly denies your FOIA request, you have a right to sue, and the Agency pays for your lawyer (well, a “reasonable” fee at least). Clearly, this is rarely done. Look at the Homeland Security numbers again. Of the 180,000 FOIA requests that took more than 20 days to comply within 2017, if even half of them filed complaints to enforce the clear deadlines, then federal courts across the country would immediately clog. Even the massive Homeland Security would suffocate under the legal bills of 90,000 successful complainants. Sure, no one really wants that, but Congress has been very clear on the goals of FOIA and courts are very willing to bring down the gavels for agencies not meeting them. So, what gives? It appears agencies are just underfunding these programs and relying on the laziness of most requesters. Sure, that’s speculation. But how else do you explain a 50% fail rate on compliance when doing so could result in $20,000 in legal fees a pop? But that game seems to be getting more dangerous by the day. After looking at the numbers and seeing how waiting patiently is just the norm, rather than the exception, I know I’m done waiting patiently.   About the Author: 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.   The post Welcome to FOIA: Where the rules are made up and the deadline doesn’t matter appeared first on Centre Law & Consulting.
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Are VA FSS Contracts Still a Viable Option for Contractors in the VA Marketplace?

By Wayne Simpson, CFCM, CSCM, Centre Consultant Some U.S. Department of Veterans Affairs (VA) Federal Supply Schedule Contractors, and prospective contractors are questioning the value of the VA FSS Program.  Changes to VA’s Acquisition Regulations (VAAR) since the unanimous U.S. Supreme Court (SCOTUS) decision in the matter of Kingdomware Technologies, Inc. vs. the United States (Kingdomware) and the VA Strategic Acquisition Center’s (SAC) use of open market procurement strategies in its failed attempts at establishing VA’s Med/Surg Prime Vendor Program is causing some to re-think the value of continuing or participating in VA’s FSS Program. Below is a synopsis of the reported VA FSS Sales for each of the nine VA schedules, shown in descending order by dollar value.  Charts for each schedule which also show the totals amounts for “Other Government Agency Sales” (OGA) and Sales of “State and Local Governments”, in addition to VA’s Sales, are available for review and download by clicking here. VA’s Total Reported FSS Sales in Fiscal Year (FY) 2017 are in excess of $14 Billion, up from over $13.9 Billion in FY 2016.   VA FSS 65 I B—Drugs, Pharmaceuticals, and Hematology Related Products By far the VA’s largest schedule by dollar value, accounting for nearly 79% of all reported sales. Reported sales increased from $10.865 Billion in FY 2016 to nearly $11.070 Billion in FY 2017. Sales for VA, OGA, and State and Local Governments all experienced increases.   VA FSS 65 II A—Medical Equipment and Supplies Has experienced decreased sales every year since FY 2015, and the trend continued in FY 2017. Total sales decreased from $1.672 Billion in FY 2016 to $1.633 Billion in FY 2017. Notwithstanding the VA SAC’s open market procurements, VA spending under FSS 65 II A increased from $1.337 Billion in FY 2016 to $1.356 Billion in FY 2017. This is VA’s second largest schedule by sales volume and the one most impacted by VA’s Med/Surg Prime Vendor Program.   VA FSS 621 I—Professional and Allied Healthcare Staffing Services Sales decreased in FY 2017 to $433.3 Million, down from $445.1 Million in FY 2016.   VA FSS 66 III—Cost-Per-Test Medical Analyzer Sales increased in FY 2017 to $304.1 Million; an increase from $298.1 Million in FY 2016.   VA FSS 65 II F—Patient Mobility Services Sales increased in FY 2017 to $204 Million, an increase from $184.2 Million in FY 2016.   VA FSS 65 V II—Invitro Diagnostics, Reagents, Test Kits and Test Sets Sales increased to $141.9 Million, up from $137.8 Million in FY 2016.   VA FSS 621 II—Medical Laboratory Testing and Analysis Services Sales Increased to $132.2 Million, up from $125.7 Million in FY 2016.   VA FSS 65 II C—Dental Equipment and Supplies Sales decreased to $101.4 Million, down from $128.1 Million in FY 2016.   VA FSS 65 V A—X-Ray Equipment and Supplies Sales increased in FY 2017 to $5.01 Million, up from $4.4 in FY 2016   So are VA FSS contracts still a viable option for contractors in the VA marketplace?  The answer will likely depend on which VA FSS is applicable to your company’s products or services, and the vagaries of VA’s SAC and its quest for a new and ensuring solution to the Next Generation Med/Surg Prime Vendor Program—“Med/Surg Prime Vendor 2.0.” Centre Law & Consulting has seasoned acquisition professionals ready to assist you in applying for or administering a VA FSS Contract, including Subcontracting Plans/Programs.  Best wishes to you for every continued success in the Federal Marketplace!   CLICK HERE TO DOWNLOAD FSS TREND CHARTS The post Are VA FSS Contracts Still a Viable Option for Contractors in the VA Marketplace? appeared first on Centre Law & Consulting.
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