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As One Protest Door Closes, Another One Opens

By Heather Mims The protest saga of the Department of Education’s contracts for collection services for defaulted student loans has now been going on for over a year – and the contracts are worth fighting for as it is for a roughly $2.8 billion debt collection procurement. As a refresher, forty-seven companies originally submitted bids in response to the Department of Education’s RFP but only seven companies originally received contract awards back in December 2016. The unsuccessful offerors successfully protested that award at GAO on March 27, 2017. At that time, the GAO recommended that the agency conduct a new evaluation of proposals, potentially amend the solicitation and receive revised proposals, and subsequently document a new source selection decision. The GAO also took the fairly unusual step in awarding costs to several of the protesters. A subsequent bid protest was filed at the Court of Federal Claims on March 28, 2017, the day after the GAO decision was entered (docket number 1:17-cv-00449-TCW). On December 12, 2017, the Court of Federal Claims ordered the Department of Education to complete its corrective action, which the Department of Education completed on January 16, 2018. This corrective action resulted in an $800 million contract award to only two contractors –  Windham Professionals Inc. and Performant Recovery Inc. The Court subsequently dismissed the bid protest on February 14, 2018. However, the action did not stop there. A new bid protest was filed February 9, 2018, alleging that the Department of Education’s corrective action and new awards didn’t fix material procurement errors (docket number 1:18-cv-00204-TCW). That matter currently has seventeen plaintiffs arguing against the allegedly improper award. To keep the matter even more interesting, one of the awardees is alleged to have financial ties to Education Secretary Betsy DeVos. As the fight over this large value procurement does not appear to be winding down, Judge Thomas Wheeler of the Court of Federal Claims has remarked that the Court may see a large uptick in the number of bid protest cases filed in 2018, due in part to this Department of Education procurement. Judge Wheeler stated that the Court is on track to receive 200 bid protests this calendar year, which is a large increase over the 129 protests that were filed in 2017, which is an average number of bid protests for the Court.   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 As One Protest Door Closes, Another One Opens appeared first on Centre Law & Consulting.
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Count Your Blessings- A Thousand DOL Audit Letters Never Looked So Good

By Tyler Freiberger To much international acclaim, earlier this year Iceland introduced a new equal pay act to fight discrimination against protected classes, particularly historically underpaid women. The introduction of the Act made the cover of Time magazine and garnered wide-spread attention on the 24-hour news networks’ cycles. While the historic Act may warrant such coverage, for domestic industry insiders the celebration of Iceland’s legislative prioritization of gender equality may ring a bit hollow, as the United States’ passed the Equal Pay Act over half a century ago. And, as Centre has discussed in the past, pay discrimination has been illegal ever since. Earlier this month, the U.S. Department of Labor (“DOL”) made a related show of force on the issue through its Office of Federal Contract Compliance Programs (“OFCCP”), issuing a thousand letters to government contractors advising that it may audit contractors for compliance with non-discrimination/affirmative action obligations, including matters of pay equity. Clearly, the global march towards gender equality moves forward, but before we rush toward an “Icelandic model,” there are complicated issues to address. First, there are clear conceptual differences between Iceland’s new model and the United States’ system. The “big move” of the Icelandic law is to demand that employers prove they are not paying women less than men; in contrast, the American system places that burden on the employee attempting to prove their case. Despite that variance in burden of proof, U.S. contractors reading these audit letters from DOL are likely not celebrating an easy road to compliance. In fact, with a recent groundbreaking study out of Stanford, it is clear employers can have a very thin rope to walk when attempting to eliminate a purported “pay gap.” American anti-discrimination laws are based upon the principle that, assuming an absence of discrimination all people will be equally represented and compensated in the workforce. Therefore, if a class of people are underrepresented/under-compensated in a workforce, something is wrong in the employer’s process. Yet, the law is clear that employers cannot make employment decisions based on gender, even if that decision is directly made to further affirmative action goals – i.e., “reverse” discrimination remains illegal even in an affirmative action context. Instead, the employer is meant to study its workforce, identify inequalities, and identify what gaps exist in its process that lead to inequality. Perhaps it is where the employer is recruiting, how it qualifies candidates, who it chooses to make hiring decisions, or what criteria the employer uses to advance current employees.  The hundreds of government contractors recently receiving the OFCCP letters will be performing exactly these analyses. Imagine then, if a hard look at your workforce reflected men earning 7% more an hour than women for doing the exact same job; how do you react? It is expressly unlawful to purposely increase women’s pay 7% more an hour, so necessarily employers must identify what in their processes has caused the inequality.  For context, this is the scenario Uber finds itself in after the aforementioned Stanford study. Upon examining over a million Uber rides in the Chicago area, researchers noted a substantial pay gap between male and female drivers, while “the average of rider ratings of drivers is statistically indistinguishable between genders.” In sum, women are making less money, while performing the same job, with equal customer satisfaction, and being paid through a computer algorithm where driving X distance at Y time results in a computer-generated rate. Discrimination, right? Well, maybe not. What makes the results so interesting is that under the Uber model, riders and drivers are assigned without gender preference; and, simultaneously riders are fined if they reject the driver pre-pickup. This essentially creates a double-blind system of assigning work. Preference for a male driver over a female driver – i.e. canceling a female driver’s pickup – awards the driver and punishes the rider. And, the study shows no (or at most very little) such driver selecting preference. Rather, the data revealed that the largest cause of the pay gap to be arising from the specific (and varying) times men and women decide to drive. Other than amending its scale to pay women more per ride than men, how might we (or Iceland) assert that Uber solve this problem? And is there even a “problem” to solve? If you are an American company sweating over a similar gap in your workforce, we can offer some relief. While American employers should always be exploring these questions, and considering solutions, the “unknown” currently goes in the employer’s favor. In the United States, employees still must present evidence isolating and identifying the discrete element in the hiring or compensation processes that allegedly produces the discriminatory outcome. See EEOC v. Freeman, 961 F. Supp. 2d 783 (D. Md. 2013), aff’d in part sub nom. E.E.O.C. v. Freeman, 778 F.3d 463 (4th Cir. 2015). Still, under either the U.S. or Iceland model, you do not want to be the last to know.   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 Count Your Blessings- A Thousand DOL Audit Letters Never Looked So Good appeared first on Centre Law & Consulting.
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Changes to Trade Agreements Act Thresholds

By Wayne Simpson, CFCM, CSCM New Thresholds for 2018 and 2019 The United States Trade Representative (USTR) has determined and announced new U.S. Dollar Procurement Thresholds implementing U.S. Trade Agreement obligations, effective January 1, 2018, for calendar years 2018 and 2019. The Trade Agreements Act of 1979 (TAA) implements international trade agreements and guarantees non-discriminatory treatment in government procurement. TAA provides the President of the United States authority to waive the Buy American Act and other discriminatory provisions for countries having signed international trade agreements with the United States, and those meeting other criteria such as “Least Developed Countries.”  The President delegates waiver authority to the USTR. The USTR waived the Buy American Act and other discriminatory provisions for acquisitions of eligible products covered by the World Trade Organization Government Procurement Agreement, Free Trade Agreement Acts, and the Israeli Trade Act. Offerors of eligible products receive equal consideration with domestic offers. Perhaps the most significant of the Trade Agreements is the World Trade Organization Government Procurement Agreement.  Free Trade Agreement Acts (FTA) include: The North American Free Trade Agreement (NAFTA), Chile FTA, Singapore FTA, Australia FTA, Morocco FTA, Dominican Republic-Central American FTA, Bahrain FTA, Oman FTA, Peru FTA, Korea FTA, Columbia FTA, and the Panama FTA. Other Trade Agreements include least developed countries designated by the USTR, The Caribbean Basin Trade Initiative, the Israeli Trade Agreement Act, and the Agreement on Trade in Civil Aircraft. Specific thresholds for the respective Trade Agreements is found at Federal Acquisition Regulation (FAR) 25.402. Centre Law and Consulting offers webinars and classroom instruction for the Trade Agreements Act and other contract compliance and administration issues to assist your company.  Centre also offers a wide array of classes taught by attorneys and acquisition professionals to assist you in the Federal Marketplace. CLICK HERE TO SEE/DOWNLOAD A CHART CONTAINING THE NEW TAA THRESHOLDS   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 Changes to Trade Agreements Act Thresholds appeared first on Centre Law & Consulting.
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Mandatory Sick Leave Giving Service Contractors A Headache

By David Warner On September 15, 2015, President Obama signed the Executive Order requiring federal contractors and subcontractors to provide one hour of paid sick leave for every 30 hours worked, up to at least seven days per year. Both the EO and its implementing regulations, finalized on September 30, 2016, made clear that the EO only applied to “new contracts,” defined as contracts with the Federal Government that result from solicitations issued on or after January 1, 2017, or that are awarded outside the solicitation process on or after January 1, 2017. With that date a year in the rearview mirror, the “bill” is beginning to come due. As previously reported, one unexpected wrinkle with the EO’s implementation was the DOL’s establishment of an “alternate health and welfare rate” that purports to exclude the sick leave portion of the calculated health and welfare rate. Specifically, as of August 1, 2017, the H&W rate for contracts subject to the sick leave EO is $4.13 per hour – $.28 lower than the $4.41 H&W rate applicable to contracts that do not require paid sick leave. While the higher H&W rate will effectively be phased out as contracts expire and are replaced with “new contracts,” for the next several years contractors will be required to closely monitor their contracts to ensure the correct H&W rate is applied. In addition, a common question contractors pose as more and more contracts require paid sick leave is whether they can combine sick and vacation entitlements into a single paid time off or “PTO” bucket. Per the DOL’s sick leave FAQ, “Sure, why not?” But while the “single bucket of leave” structure may seem simpler to administer, there are several hidden compliance challenges, particularly for contracts subject to the Service Contract Labor Standards (“SCLS”). First, under the SCLS vacation does not accrue over time but instead “cliff vests” in a single lump on a given employee’s anniversary date. Thus, an immediate challenge is coordinating the vesting of the two types of leave within the bucket – i.e., sick leave accruing annually over a calendar year while vacation cliff vesting on a single date. In addition, SCLS has actual cash value for the employee – i.e., once vested the employee must either take or be paid for the leave at the earliest of his or her next anniversary date, the end of their employment or the end of the contract. In contrast, sick leave has no cash value – i.e., it is only paid if taken. Finally, per the above, SCLS vacation cannot be carried forward from year to year. In contrast, EO sick leave must be permitted to be carried forward from year to year (though the carry-over can be capped at fifty-six (56) hours. So, while the combined PTO structure remains a theoretical possibility, it is not at all clear that it can be administered compliantly, or at least done so as efficiently as administering sick and vacation leave separately.   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 Mandatory Sick Leave Giving Service Contractors A Headache appeared first on Centre Law & Consulting.
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Ownership & Control of Service-Disabled Veteran-Owned Small Businesses

By Wayne Simpson, CFCM, CSCM SBA Issues Proposed Rule –Comments due by March 30, 2018   The U.S. Small Business Administration (SBA) published its proposed rule for Ownership and Control of Service-Disabled Veteran-Owned Small Business Concerns in the Monday, January 29, 2018, edition of the Federal Register. The proposed rule, part of a joint effort by VA and SBA to reduce the regulatory burden on the Veteran Business Community, will amend SBA’s regulations to implement the provisions in Section 1832 of the National Defense Authorization Act of 2017 (NDAA 2017), Public Law 114-328. Section 1832 amends Section 3(q) of the Small Business Act and Section 8127 of 38 United States Code, to standardize definitions of Veteran-Owned Small Businesses (VOSBs) and Service-Disabled Veteran-Owned Small Businesses (SDVOSBs). The proposed rule will consolidate ownership and control requirements in one regulation eliminating duplicative functions. This single rule will streamline the verification and certification processes saving business owners time and money according to SBA. NDAA 2017 mandates there be a single definition of ownership and control for VOSBs and VOSBs, which will apply to VA’s verification and Veterans First Contracting Program procurements, and all other government acquisitions which require self-certification. Under certain circumstances, NDAA provides a firm may qualify as a VOSB or SDVOSB where there is a surviving spouse or an employee stock ownership plan. Also, NDAA 2017 places responsibility for issuing regulations relating to ownership and control for the U.S. Department of Veterans Affairs (VA) verification of VOSBs and SDVOSBs with SBA. It also requires the Secretary of Veterans Affairs to use the regulations established by SBA for establishing ownership and control of VOSBs and SDVOSBs. The Secretary of Veterans Affairs will continue to determine whether individuals are Veterans or Service-Disabled Veterans and be responsible for verification of applicant firms. However, under the proposed new rule, challenges to the status of VOSBs and SDVOSBs based upon issues of ownership and control will be decided by the administrative judges at SBA’s Office Hearings and Appeals (OHA). According to the proposed rule, SBA consulted with VA so as to “properly understand VA’s positions and implement the statutory requirements in a way consistent with both SBA’s and VA’s interpretations.” VA issued its proposed rule in the January 29, 2018, edition of the Federal Register, to update VA’s regulations to codify the changes required under Section 1832 of NDAA 2017. The public comment period for VA’s proposed rule closes on March 12, 2018. Click Here to Comment on VA’s Proposed Rule SDVOSBs and VOSBs are strongly encouraged to review the Section-by-Section Analysis for me detailed information on the proposed rule. Below is a synopsis of the more significant parts SBA’s proposed rule. Some of the language in the proposed rule was adopted from SBA’s Section 8(a) Business Development Regulations, as SBA has always used, and will continue to use its 8(a) Program regulations for guidance on eligibility issues for SDVOSBs. SBA proposes to: Define surviving spouse and requirements for a surviving spouse-owned SDVOSB to maintain program eligibility. Add definitions for “Daily Business Operations,” “Negative Control,” “Participant,” “Unconditional Ownership,” and “Employee Stock Ownership Plan.” Add a new definition for Service-Disabled Veteran with a permanent and severe disability. Add a definition for small business concerns which requires a firm be organized for profit with a place of business in the United States or which operates primarily in the United States, or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor. Add a definition for “Extraordinary Circumstances” under which a Service-Disabled Veteran owner would not have full control over a firm’s decision-making process, but would not render the firm ineligible as a SDVOSB. The new definition will allow minority equity holders to have negative control under five circumstances proposed by SBA and be used by SBA to identify discrete circumstances SBA views as rare. SBA will propose five circumstances for the definition’s use and would be exclusive; SBA would not recognize any other facts or circumstances allowing negative control by individuals who are not service-disabled. Change the requirement for SDVOSB ownership of a partnership from the current requirement of 51% of each type of partnership interest whereby if a partnership had general partners and limited partners, SBA required the SDVOSB be both a general and limited partner. SBA proposes to change this requirement so SDVOSBs will need to own at least 51% of the aggregate voting interest in the partnership. Decide ownership issues without regard to community property laws, similar to SBA’s Women-Owned Small Business Regulations. Adopt language which allows SDVOSB firms owned by surviving spouses of Service-Disabled Veterans to remain eligible for the program, and provides guidelines for continued eligibility. Proposes new language which describes how to determine if a Service-Disabled Veteran controls the Board of Directors of the SDVOSB entity. Adds rebuttable presumptions that a person not working for a firm regularly during normal working hours does not control the firm. SBA notes this is not a full-time devotion requirement. Click Here to Comment on SBA’s Proposed Rule   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 Ownership & Control of Service-Disabled Veteran-Owned Small Businesses appeared first on Centre Law & Consulting.
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Looking Back at GAO Bid Protest Trends from 2017

By Heather Mims GAO recently released its bid protest statistics for fiscal year 2017. The number of bid protests filed saw a slight decrease from 2016 but, overall, the effectiveness rate remained fairly even. Specifically, 2,596 cases were filed at the GAO in fiscal year 2017, which is down 7% compared to the 2,789 cases that were filed in fiscal year 2016. However, the GAO’s “effectiveness rate,” which includes voluntary agency corrective active and sustained protests, remained virtually unchanged at 47% in fiscal year 2017, compared to 46% in fiscal year 2016. In its statistics, the GAO also noted its most prevalent grounds for sustaining protests in the past year. For 2017, these grounds were: (1) unreasonable technical evaluation; (2) unreasonable past performance evaluation; (3) unreasonable cost or price evaluation; (4) inadequate documentation of the record; and (5) flawed selection decision. An example of a protest where the GAO ruled that the agency had inadequate documentation is Threat Management Group, LLC. Threat Management Group protested the issuance of a task order as outside of the scope of the underlying ID/IQ contract and thus the agency should have competed the requirement. In examining the record, the GAO noted that there was no documentation of the specific services the awardee was requested to perform under the task order. The GAO twice requested additional documentation from the agency, which it was unable to provide. In sustaining the protest, the GAO found that the record was so limited that it could not conclude that a task order was within the scope of the underlying contract and the agency had not produced any relevant documents to demonstrate otherwise. In its report each year, the GAO includes a chart showing the statistical changes for the past five fiscal years. Among other things, this chart indicates that the success rate for ADR was the highest this past year (at an astounding 90%) out of the prior five years. Additional information can be found in the below chart:     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 Looking Back at GAO Bid Protest Trends from 2017 appeared first on Centre Law & Consulting.
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Annual Review Speaker Lineup

ANNUAL REVIEW 2018: Hot Issues in Federal Contracting | Speaker Lineup   Threase Baker – Panel Discussion: Types of Contract Vehicles
Ms. Threase Baker is the President at ABBTECH Professional Resources, Inc. She joined ABBTECH in 2001 and has more than twenty-five years’ of experience in all areas of the staffing industry with particular emphasis on corporate recruiting, executive placement and staff augmentation. Her customer focus includes both the government and private sector. Prior to her current role at ABBTECH, Threase worked as a Customer Relationship Management (CRM) System project manager which provided vital perspectives on the Information Technology (IT) industry and process.   Keith Nakasone – Panel Discussion: Types of Contract Vehicles
Mr. Keith Nakasone is the new Deputy Assistant Commissioner, Acquisition Management, within the Office of Information Technology Category (ITC) in GSA’s Federal Acquisition Service (FAS). The Federal Acquisition Service provides buying platforms and acquisition services to Federal, State and Local governments for a broad range of items from office supplies to motor vehicles to information technology and telecommunications products and services.   William McCabe – Panel Discussion: Types of Contract Vehicles
Mr. William McCabe is the Chief Financial Officer and Director, Financial Management and Procurement Portfolio for the Program Support Center (PSC), a component of the U.S. Department of Health and Human Services. He brings a wealth of experience and expertise that helps to strengthen PSC’s efforts to provide services more efficiently and effectively. Prior to joining PSC, Mr. McCabe served as the Chief Financial Officer of the Nuclear Regulatory Commission.   Joanne Woytek – Panel Discussion: Types of Contract Vehicles
Ms. Joanne Woytek is the Program Manager for the NASA SEWP Program, a premier Government-Wide Acquisition Contract (GWAC) providing Federal Agencies access to the latest in Information & Communication Technology product solutions. From SEWP’s inception, twenty-five years ago, through to the present, Ms. Woytek continues to be the key figure in the continuing evolution of the program, and in the management of strategic direction, day-to-day operations, and planning of the SEWP program. Ms. Woytek is a 40-year veteran to Goddard Space Flight Center (GSFC) in Greenbelt Maryland and is in her eighteenth year as Program Manager.       The post Annual Review Speaker Lineup appeared first on Centre Law & Consulting.
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Government Shutdown Showdown – Season 3

By Barbara Kinosky Action, cameras, déjà vu of 1995 and 2013, with the same story line except this time the President and both Houses of Congress are all Republican.  However, it is a divided Republican party which is not putting Paul Ryan in much of a party mood.  (And yes, I did steal “Shutdown Showdown” from CNN’s Chris Cillizza.  It will now be a race to the Patent & Trademark Office to get all rights for the new t-shirt line.)  This Friday night is the deadline for either the passage of a real budget, a continuing resolution or a shutdown.   Here is the quick read summary on the issues:   Dems want a DACA solution and Affordable Care Act funding and some Reps are concerned about the debt ceiling. Government Contract Likely Impact: Federal employees received back pay for the last shutdown in 2013.  Most government contractors were not that lucky.  I suspect more of same. Talk to your contracting officer about your options. Wikipedia, the source of all my knowledge has a list of the agencies that closed in 2013. It can probably be used as a guide for what is considered essential and nonessential. If your contracting officer advises you in writing (even if written on a beer-stained napkin which is better than nothing) that the service you perform is essential then keep working. Call me if you don’t get paid (as cribbed from the show Better Call Saul). As of the time this article was posted, House Republicans have proposed a stop gap one-month funding resolution but it is not clear whether this will pass. Bid Protests In other news, here is a quick read on the difference between the Court of Federal Claims and the GAO on bid protest decisions.  Since I was quoted in it I must include it! And for those of you who think you still want to continue with federal government contracting despite the shutdown showdown (thank you again Chris) come to Centre’s Annual Review of Federal Contracting.  We have a full line up of the movers and shakers in DC and all the news you need to know to stay current in the never dull world of federal contracting.  I hope to see you on March 6 at the MGM.     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 Government Shutdown Showdown – Season 3 appeared first on Centre Law & Consulting.
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SIP – As Easy As 1-2-3

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. 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. ­­­ 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
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 SIP – As Easy As 1-2-3 appeared first on Centre Law & Consulting.
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VA Issues Proposed Rule Governing its Veteran-Owned Small Business Verification Program

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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$650 Million in Small Business Awards Given to Fraudulent Companies

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
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 $650 Million in Small Business Awards Given to Fraudulent Companies appeared first on Centre Law & Consulting.
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“Let’s Talk About Sex[ual Harassment], Baby!”

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
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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Changes to Subcontracting Reporting Requirements—Effective November 30, 2017

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 The post Changes to Subcontracting Reporting Requirements—Effective November 30, 2017 appeared first on Centre Law & Consulting.
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Removal of Fair Pay and Safe Workplaces Rule from the Federal Acquisition Regulation

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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Removal of Fair Pay and Safe Workplaces Rule from the Federal Acquisition Regulation

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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Reminder: Changes to Subcontracting Reporting Requirements—Effective November 30, 2017

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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NDAA Curbs Bid Protests (Somewhat) But Adds Enhanced Debriefings

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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Timeliness of Bid Protests

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
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 Timeliness of Bid Protests appeared first on Centre Law & Consulting.
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Do You See a Link Between Maintaining Your GSA Schedule and the Movie Psycho?

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: 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. GSA contractors must accept the Governmentwide purchase card for orders under the micro-purchase threshold ($3,500). The 0.75% Industrial Funding Fee (IFF) is already included in the price of items on GSA Advantage!. An advantage for sellers under Federal Supply Schedule (FSS) orders is that the Government has no audit rights. Participating Dealers on a Schedule contract may bill the government directly on behalf of the Schedule holder. 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. GSA/VA Schedule Price Lists submitted via the Schedules Input Program (SIP) are automatically posted to GSA Advantage. Multiple modification actions such as economic price adjustments and deletion mods can be combined in one modification and submitted via the eMod system. Only authorized negotiators with signature authority and digital certificates are permitted to submit certain modifications and sign modifications in the eMod system. 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 The post Do You See a Link Between Maintaining Your GSA Schedule and the Movie Psycho? appeared first on Centre Law & Consulting.
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Don’t be late! eSRS Submissions Due October 30, 2017

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
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. The post Don’t be late! eSRS Submissions Due October 30, 2017 appeared first on Centre Law & Consulting.
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The Misplaced Rage Regarding Equifax’s Post Data Breach “Contract Award”

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. The post The Misplaced Rage Regarding Equifax’s Post Data Breach “Contract Award” appeared first on Centre Law & Consulting.
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Protester Not Found to Be An Interested Party Where It Was The Awardee

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. The post Protester Not Found to Be An Interested Party Where It Was The Awardee appeared first on Centre Law & Consulting.
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GAO Sustains Protest on Four Billion Dollar Solicitation Evaluation

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
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 GAO Sustains Protest on Four Billion Dollar Solicitation Evaluation appeared first on Centre Law & Consulting.
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Trump DOJ Withdraws Obama Administration Memo Regarding Title VII And Gender Identity

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
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 Trump DOJ Withdraws Obama Administration Memo Regarding Title VII And Gender Identity appeared first on Centre Law & Consulting.
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Centre Law & Consulting

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The Annual List of Labor Surplus Areas are Available

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: A city of at least 25,000 population on the basis of the most recently available estimates from the Bureau of the Census; or 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 A county, except those counties which contain any type of civil jurisdictions defined in A or B above; or A “balance of county” consisting of a county less any component cities and townships identified in paragraphs A or B above; or 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: 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; 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; The Small Business Administration uses the LSA list for bid selections for small business awards in Historically Underutilized Business Zones (HUBZones); Some state and local area governments use the LSA list to allocate employment related assistance (food stamps and training); and 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
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. The post The Annual List of Labor Surplus Areas are Available appeared first on Centre Law & Consulting.
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