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Centre Law & Consulting

Bid Protest: “Professional Compensation” Sinks Contract Award | Centre Law & Consulting in Tysons, VA
 
Last week, the Government Accountability Office (GAO) released the public version of its decision sustaining the protest of contractor A-P-T Research, Inc. with respect to a procurement with the National Aeronautics and Space Administration (NASA) for various support services. In addition to a potential impaired objectivity organizational conflict of interest, the protest was sustained because the awardee’s proposed professional compensation was at the low end of the experience and compensation scales used for evaluation. With that, the contemporaneous record lacked a reasoned basis for finding the professional compensation and related costs to be acceptable or realistic.

Because a cost-reimbursement contract’s cost is driven in significant measure by labor costs, the procuring agency is required to evaluate each offeror’s direct labor rates to ensure that they are realistic. The purpose of a review of compensation for professional employees under the provision at FAR § 52.222-46 is to determine whether offerors will obtain and keep the quality of professional services needed for adequate contract performance and to evaluate whether offerors understand the nature of the work to be performed. As the FAR provision states, the “professional compensation proposed will be considered in terms of its impact upon recruiting and retention, its realism, and its consistency with a total plan for compensation.” Further supporting information including “data, such as recognized national and regional compensation surveys and studies of professional, public, and private organizations, used in establishing the total compensation structure” are to be provided.

In brief, the Agency sustained the protest because “the record contains no meaningful explanation of how [NASA] concluded that [the awardee] would be able to retain” the proposed incumbent employees at the compensation offered, which would result in significant pay decreases. Rather, the record contained only general statements that concerns regarding compensation had been addressed via discussions.

Notably, the Agency did not express a view on the argument that FAR § 52.222-46 requires a direct comparison of proposed compensation and actual incumbent compensation rates. However, it is clear that under-cutting on professional salaries can be a dangerous gambit.

About the Author:

David Warner | Centre Law & Consulting David Warner
Partner

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

 

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Centre Law & Consulting

Government Shutdown Deadline Looms While GSA Takes It on the Chin Over TDR Program | Centre Law & Consulting in Tysons, VA
 

Trump Administration Begins Government Shutdown Preparations

Negotiators are hard at work behind the scenes this week trying to reach a budget agreement that will keep government agencies open, but the Trump administration has begun preparing for a shutdown that could begin on April 29, barring any congressional action.

Representatives on both sides of the aisle are hopeful about reaching an agreement that would fund all agencies through the end of the fiscal year in September, but the Trump Administration could stand firm on its funding priorities, which would make an agreement more difficult.

Perhaps one of the biggest issues is “The Wall.” Trump has asked for an extra $33 billion to go toward the U.S.-Mexico border wall with increased immigration enforcement. Democrats seem to have no issue with shutting down the government if the spending bill includes this funding, and Republicans appear to not want to risk calling their bluff, indicating “they would deal with the administration’s supplemental request separately from the regular appropriations bill,” according to Government Executive.

There will of course be give and take, deal-making and trading going on behind the scenes. I guess we’ll have to wait and see how things shake out on April 29.

Read the full story on Government Executive.

DOJ and GSA Work to Build New Government-Wide FOIA Portal

Coming soon to a computer near you: a single streamlined website where you can submit Freedom of Information Act requests to any agency.

Well, that’s at least what the Department of Justice (DOJ) and General Services Administration (GSA) are working to achieve as they collaborate together on a new national portal. The DOJ has actually been working towards a single portal since 2010 when it introduced FOIA.gov and began working with GSA on small improvements to the site back in 2014. This new partnership hopes to introduce a new singular portal.

You are encouraged to provide input about your FOIA experiences as the agencies work through the development process. Send an email with your comments to National.FOIAPortal@usdoj.gov by April 28.

Read the full story on the Nextgov website.

Trump Signs EO to Bolster “Buy American” Laws

President Trump signed a new Executive Order (EO) that focuses on buying American products. Under the EO, agencies must complete a full review of their procurement procedures to assess their compliance with “Buy American” laws. A report of their findings is due to the Secretary of Commerce and Office of Management and Budget (OMB) within 150 days. A final report will go to the President within 220 days along with recommendations for how to better implement Buy American laws.

Read the full story on the White House website.

Hard Knocks for GSA’s Transactional Data Reporting Program

The General Services Administration (GSA) has been taking a lot of hits recently on their new Transactional Data Reporting (TDR) program. Harsh criticism has been coming from all directions, and government contracting consultants have strongly advised their clients not to take part in it.

If you’re unfamiliar with TDR, it’s a program that allows contractors to provide data about transactions made through their Schedule contracts in exchange for not having to follow the Price Reduction Clause (PRC) and the Commercial Services Practices (CSP) provision. Contractors have been rallying for years to change the PRC. While they were happy to see GSA making changes, the concern over TDR has continued to grow since it was unveiled.

You’ve got to give credit to the GSA Deputy Commissioner of the Federal Acquisition Service, Kevin Youel Page, though. Instead of staying silent and steadfast, he’s ready to hear contractors’ concerns and take action to address the issues. The TDR program management office even set up an email address where anyone can send in questions or concerns.

Meanwhile, some within the industry are already debating the long-term viability of the TDR program. So far, GSA has only announced a three-year pilot and no public support has come from the Trump administration.

Read the full story on Federal News Radio’s website.
 
About the Author

Barbara Kinosky Barbara Kinosky
Managing Partner

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

 

The post Government Shutdown Deadline Looms While GSA Takes It on the Chin Over TDR Program appeared first on Centre Law & Consulting.


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Centre Law & Consulting

Bid Protests: Protester’s Costs for Filing Bid Protest Denied Even Where Agency Does Not Dispute a Meritorious Protest | Centre Law & Consulting in Tysons, VA
 
In a recent GAO decision, Boise Cascade Wood Products, LLC, B-413987.2 (Apr. 3, 2017), the GAO denied a small business’ request for reimbursement of the costs of filing and pursing a bid protest where the protester argued that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest.

In this matter, the protester pursued a protest against the Forest Service, which involved both a timber sale and a procurement of services. Specifically, the Forest Service issued a solicitation for a forest stewardship contract, which typically also involves the sale of timber or forest products and the performance of certain services. What gives this decision its interesting twist is that the Forest Service’s implementing regulations provide that when the value of timber removed through the contract exceeds the total value of the services, it shall be considered a contract for the sale of property.

As a general matter, sales by a federal agency are not procurements of property or services and are not within the GAO’s bid protest jurisdiction. However, the GAO will consider protests concerning sales by a federal agency if that agency has agreed in writing to have protests decided by the GAO; the Forest Service has expressly agreed to this, creating a non-statutory agreement with the GAO.

In this case, as the value of the timber significantly exceeded the value of the services, the agency determined to solicit the contract as a timber sale. As such, the GAO found that the cost reimbursement request was precluded by its regulations, which establish that it will not recommend the payment of protest costs in connection with non-statutory protests.

About the Author:

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

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

 

The post Costs for Filing Bid Protest Denied Even When Agency Does Not Dispute a Meritorious Protest appeared first on Centre Law & Consulting.


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Centre Law & Consulting

Spring Cleaning for Your GSA Schedule | Centre Law & Consulting in Tysons, VA
 
As spring approaches, it’s the time of year when we are all busy dusting off and cleaning up around the house, but do not forget to spruce up your General Services Administration (GSA) Schedule contract as well.

Below are key items to consider when spring cleaning your GSA Schedule:

Authorized Negotiators/Digital Certificates: Have you reviewed the authorized negotiators on your GSA Schedule recently? If any authorized negotiators need to be removed or added, this can be completed via an administrative modification. Has it been two years since your received your digital certificate or did you get a new computer recently? It is important to check that your digital certificate is still valid and is on your current computer. Without a digital certificate, an authorized negotiator will not be able to access the eMod system. If the information on your digital certificate does not match what is listed in the authorized negotiator table in eMod, you will need to complete an administrative modification to make the updates. NOTE: Digital Certificates are only valid for two years.

Administrative Contract Data: Ensure that the Contract Administrator, phone and fax number, e-mail address, website, and physical address are up-to-date on your contract. GSA will use this information to communicate with you, so you do not want to miss out on important updates.

Pricing – Commercial Price List: Have you issued a new commercial price list and need to increase your prices? It is time to complete an Economic Price Adjustment (EPA) modification in accordance with 552.216-70.

Pricing – Market Rates: Have your completed your annual EPA modification in accordance with I-FSS-969(b)(2)? If not, it is time to review the Bureau of Labor Statistics (BLS) website to find the market indicator applicable to your contract and request an EPA modification.

Additions: Do you have new products or services that you want to add to your GSA Schedule? If you have sold these new products or services, it is time to submit an addition modification to include these new products and/or services on your Schedule.

Deletions: Are there any products or services that you no longer offer? It is time to complete a deletion modification to remove these products or services from your schedule. If you have products, have you verified the Country of Origin (COO) for them lately? If the COO has changed to a non-Trade Agreement Act compliant country, you must submit a deletion modification to remove those products immediately.

Terms & Conditions: Have your reviewed your terms and conditions within the last year? It is important to evaluate your Basis of Award (BOA) and Commercial Sales Practices (CSP) annually to determine if there have been any changes. Reviewing this information annually will help prepare you for your Option Renewal. If anything has changed in regards to your BOA or CSP, it’s time to complete a term and condition modification.

GSA Advantage! Price List: Is your GSA Advantage! price list up-to-date? Ensure that your price list has been updated per the last modification awarded under your GSA Schedule. If you have not updated your price list in two years, you will receive a notice from GSA that will require action within 90 days or your price list will be removed from GSA Advantage.

Mass Modifications: Have you checked to ensure that all mass modifications have been accepted? Click here to verify their status. If you have long outstanding mass modifications, it is possible that your PIN has expired. You will need to reach out to your Administrative Contracting Officer (ACO) to obtain a new PIN.

Small Business Reports: If you are a large business, ensure that all of your subcontracting reports are submitted. Below are the reporting deadlines for both Individual Small Business Subcontracting Plans and Commercial Small Business Subcontracting Plans.

Calendar Period Report Due Date Due
10/01 – 03/31 ISR (Individual Plan) 04/30
04/01 – 09/30 ISR (Individual Plan) 10/30
10/01 – 09/30 SSR (Commercial Plan) 10/30

 
IFF Reports: Are all of your Industrial Funding Fee (IFF) reports complete? Reports and IFF remittance must be completed within 30 calendar days following the completion of each reporting quarter. Even if you had zero sales during the reporting period, you are still required to complete your reports.

Before completing any modifications to clean up your GSA Schedule, review the modifications instructions applicable to your schedule to ensure that you submit all required documentation. If you need assistance updating your contract, reach out to our GSA consulting team.

GSA Schedule Spring Cleaning Checklist free download | Centre Law & Consulting in Tysons, VA
Download Now

 
About the Author:

Julia Coon | Centre Law & Consulting in Tysons VA Julia Coon
Consultant

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

 

The post Spring Cleaning for Your GSA Schedule appeared first on Centre Law & Consulting.


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Centre Law & Consulting
Tune in tonight, Wednesday April 19, at 8:00pm and 11:00pm to the Government Matters show on NewsChannel 8 in the Washington DC area to see a segment featuring Centre Law & Consulting. Wayne Simpson, Consultant with Centre, appears on the show for an interview about the Department of Veterans Affairs’ efforts to reduce the administrative burdens on SDVOSBs and VOSBs.
Government Matters is the only television newscast focused on the business of government. Host Francis Rose recaps the top federal headlines and conducts thought-provoking interviews on tech, security, defense, workforce, and industry issues. Since its launch in August of 2013, Government Matters has hosted some of the top minds in the federal community, including guests from the White House, Congress, Fortune 500 companies, journalism, and the non-profit sector.

 
The post Centre Law & Consulting Featured Tonight on NewsChannel 8 appeared first on Centre Law & Consulting.

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Centre Law & Consulting

 
Just when you think you have heard it all, along comes the preaward protest of Fluor Federal Solutions, LLC, B-414223, March 29, 2017.
Fluor alleged that the Department of the Navy, Naval Facilities Engineering Command, solicitation was ambiguous. Fluor claimed that that offerors could not meaningfully price their proposals because of the ambiguous requirement it contained and that proposals received could not be meaningfully compared and evaluated. The interesting quirk was that Fluor was the incumbent, and they wanted to “level the playing field” so that all offerors were bidding to the same requirement and leaving no ambiguity. Fluor’s method of doing so was to have the Navy release Fluor’s proprietary data, after it waived its rights in the data.
The Government Accountability Office (GAO) dismissed this ground of protest. They held that the protester failed to establish that it is an interested party to challenge the lack of data. This is legal speak for saying that Fluor cannot protest on behalf of other potential bidders. Fluor was not prejudiced by the failure of other offerors to see the Fluor proprietary data.
It’s an interesting twist on a protest.
 
About the Author
Barbara Kinosky
Managing Partner
Barbara Kinosky has more than twenty-five years of experience in all aspects of federal government contracting and is a nationally known expert on GSA and VA Schedules and the Service Contract Act. She has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012, and 2015.  
The post Incumbent Files Preaward Protest for Navy’s Failure to Release Incumbent’s Proprietary Data appeared first on Centre Law & Consulting.

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Centre Law & Consulting

 
On March 31, 2017, the Government Accountability Office (GAO) released a press release concerning a bid protest decision that resolved seventeen protests, which challenged the award of contracts by the Department of Education (DOE) for student loan debt collection services.
On March 27, 2017, the GAO sustained several of the protests in part, finding that DOE made several prejudicial errors in evaluating the proposals, which led it to making unreasonable source selection decisions. The GAO recommended that the DOE reevaluate proposals and make new source selection decisions. The decision itself was issued under a protective order – hence the press release – because the decision may contain proprietary or source selection sensitive information.
While the decision regarding the seventeen protests discussed above is still not publicly available, on April 6, 2017, the GAO issued a decision in which it declined to reconsider the protests decision. Two intervenors who had received awards in the original procurement filed “motions to vacate” asking that the GAO reconsider and rescind its decision issued on March 27, 2017.
This denial of reconsideration gives us a little bit more background into the procurement. The GAO notes in its decision that between December 19, 2016 and January 9, 2017, it received twenty-four protests relating to the DOE procurement. The GAO dismissed five for various procedural or pleading deficiencies. Of the remaining nineteen, seventeen of those were consolidated as they raised several common challenges to the agency’s evaluation of proposals and ultimate award decisions. Those seventeen were decided in the above referenced protected decision. The remaining protests were withdrawn and are currently being pursued at the Court of Federal Claims. Notice of intent to file at the Court was filed by the protestor at the Court of Federal Claims on March 24, and the GAO was notified on March 28 that the protestor was withdrawing its protest.
In their request for reconsideration, the two intervenors sought to nullify the GAO’s decision sustaining the protests based on the March 24 pre-filing notice arguing that the notice had the immediate and automatic effect of divesting the GAO of jurisdiction under 4 C.F.R. § 21.11(b). In denying the request, the GAO noted that it was not actually provided notice until March 28 when the protester withdrew its protest, which was one day after it issued its decision on March 27. Furthermore, this particular protest was not among the seventeen consolidated protests that the GAO decided in the March 27 decision. Finally, the GAO noted that the mere fact that a notice of intent to file a complaint was filed does not automatically divest the GAO of jurisdiction but rather triggers the requirement for it to consider whether dismissal is required under 4 C.F.R. § 21.11(b). Specifically, (b) only requires dismissal where the GAO determines that the subject matter of the protest is before a court of competent jurisdiction. Therefore, all things considered, the GAO dismissed the requests for reconsideration.
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 One Procurement Produced 24 Protests and a Request for Reconsideration appeared first on Centre Law & Consulting.

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Centre Law & Consulting

 
Alas, I am not expecting my phone to start ringing off the hook. But the week of “Equal Pay Day” is as good a time as any for contractors to kick the tires on their pay practices to ensure observed pay disparities are supported by legitimate differentiators.
Perhaps no employment statistic is bandied about so frequently in politics and the press than the “gender pay gap” whereby women are purported to earn only 78 cents for every dollar earned by men. With April 4 having been “Equal Pay Day,” much digital ink was getting spilled concerning female workers allegedly earning less than their male “counterparts.” Alas (again), most but not all of the click-bait tends to be hopelessly innumerate, failing to capture or account for legitimate non-discriminatory reasons for observed differences in the aggregate data from which the 78% figure is derived.
Despite the political hand-wringing, the law surrounding individual pay discrimination is robust and well delineated. Indeed, in addition to pay discrimination being actionable under Title VII, since 1963 the federal Equal Pay Act (“EPA”) has required that men and women in the same workplace be given equal pay for equal work. All forms of pay are covered including salary, overtime pay, bonuses, stock options, profit sharing, life insurance, vacation and holiday pay, allowances and reimbursement for travel expenses, and benefits. The jobs need not be identical in every respect, but they must be “substantially equal.” Rather than relying upon particular job titles, a claimant must show that she and her male counterpart performed substantially equal work in terms of skill, effort, and responsibility. A job will be considered unequal, despite having the same general core responsibilities, if the more highly paid job involves additional tasks which (1) require extra effort, (2) consume a significant amount of the time, and (3) are of an economic value commensurate with the pay differential.
Federal contractors subject to EO 11246 are expected to routinely evaluate their compensation systems to ensure that they are not resulting in discriminatory outcomes. The applicable regulations require that such “self-audits” assess whether race or gender-based compensation disparities exist, that the audits occur periodically, and that results be reported internally to management. While the OFCCP does not require a particular methodology, its own compliance officers are generally directed to review individual data, group data into pay grades or job groups, and conduct summary analyses. The CO is also to assess quantitative factors such as the size of any overall average pay differences based on race (minority vs. non-minority) and gender (female vs. male), the number of job groups where average pay differences exceed a certain threshold, or the number of employees negatively affected within job groups.
In addition to the individualized EPA factors mentioned above, data such as particular skill or certifications; education; work experience; the position, level, or function; tenure in a position; performance ratings; and other compensation-related inputs should be considered. For smaller contractors, simple Excel “table and sort” analyses may be sufficient. For more complex employers, more sophisticated statistical analyses, such as multiple regression, may be appropriate and more valuable.
If contractors are not already routinely performing these sorts of analyses (preferably in conjunction with counsel for privilege purposes), they should. Again, it’s required by EO 11246; and innumeracy around the “wage gap” notwithstanding, pay discrimination can and does occur. It is far cheaper to identify and remedy unexplained disparities without the involvement of the DOL or the courts.
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 Earning Only 78% Of What A Similarly Situated Male Employee Is Paid? Call Me! appeared first on Centre Law & Consulting.

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Centre Law & Consulting

 
In a decision publicly released on Friday, March 31, in CJW-Desbuild JV, LLC, B-414219 (Mar. 17, 2017), the Government Accountability Office (GAO) denied a protest challenging the rejection of a proposal where the contractor had failed to provide a signed joint venture agreement with its proposal.
In issuing the RFP, the Department of the Navy, Naval Facilities Engineering Command (NAVFAC) stated that award of the construction and repair contract would be made on a best value basis, with price and non-price factors considered. The non-price evaluation factors were construction experience, safety, and past performance. With regards to the construction experience factor, the RFP instructed Joint Venture (JV) offerors to submit relevant project experience completed by the JV entity. If none existed, the RFP instructed JV members to submit individual project experience but to also submit a signed copy of the JV agreement indicating the proposed participation of each JV member. The RFP stated that failure to submit the agreement would be considered unacceptable.
CJW-Desbuild JV was subsequently rated “unacceptable” under the construction experience factor for failure to provide the signed copy of its JV agreement. CJW Desbuild argued that its failure to submit a signed copy was a “minor oversight” and that it was “unreasonable” for the agency to downgrade its proposal. CJW Desbuild further argued that NAVFAC should have used clarifications in order to permit the JV to submit its signed agreement.
The GAO disagreed and found that because the requirement for a signed JV agreement was specifically linked to technical acceptability, it could not be considered an informality. The GAO also concluded that the JV’s failure to provide its signed agreement could not have been remedied through clarifications, as clarifications cannot be used to cure deficiencies or material omissions in a proposal. Furthermore, the GAO noted that even if the protestor’s failure to submit the signed agreement had been a minor clerical error, the agency is permitted, but not required, to give it the opportunity to correct it via clarifications.
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 Failure to Submit Signed JV Agreement Rendered Proposal Technically Unacceptable appeared first on Centre Law & Consulting.

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Centre Law & Consulting

 
The General Services Administration (GSA) Federal Acquisition Service (FAS) is planning to refresh ALL Multiple Award Schedules (MAS). The purpose of the refresh is to incorporate provision and clause changes into MAS solicitations and contracts. Be on the lookout for updates tentatively planned for April 2017.
Major changes to the Small Business Subcontracting Plan will be included in these Refreshes/Mass Mods that will impact both large and small businesses. Look for changes in the Model Subcontracting Plan that reflect additional requirements. These changes were effective November 1, 2016 when DoD, GSA, and NASA issued a final rule amending the Federal Acquisition Regulation (FAR) to implement changes made by the Small Business Administration.
Key changes of the refresh and mass modifications are as follows:
Small Business Subcontracting Plans:
Large Business Prime Contractors Must:
Make good faith efforts to utilize their small business subcontractors during the contract term to the same degree the prime contractor relied on the small business in preparing and submitting its bid or proposal Resubmit a revised subcontracting report within 30 days of receipt of a notice of report rejection Assign North American Industry Classification System (NAICS) codes to subcontracts Not prohibit discussion of payment or utilization matters between a subcontractor and the contracting officer Report order level subcontracting information if prime has a subcontracting plan on task and delivery order contracts after November 2017* Contracting Officers May:
Require a subcontracting plan after a small business re-represents its size as other than small Necessitate subcontracting goal calculation in terms of total contract dollars** as well as in terms of total subcontracted dollars Updates to Non-Federal Entities Purchasing off Federal Supply Schedules (FSS):
The State/Local Disaster Purchasing Program*** extends to cover disaster preparation and response as well as recovery from major disasters Access extends to certain qualifying organizations including the American National Red Cross and National Voluntary Organizations Active in Disaster Revisions to I-FSS-600 Contract Price Lists:
Requirement for submission of contractor’s electronic files is updated to no later than 30 days after award Other Changes:
Removal of Pathway to Success training requirement for streamlined (Successful Legacy) offers Updated Service Contract Labor Standards Act (SCLS) Wage Determinations (WDs) to be added to all schedules Contractors to ensure pricing and WD references are updated and included in SCA matrix  
For the latest proposed draft updates, see more on GSA Interact.
 
* Requirement date may be extended as updates to the Electronic Subcontracting Reporting System (eSRS) are ongoing.
** Offeror may include a proportional amount of products and services that are ordinarily allocated as indirect costs.
*** Disaster Purchasing Program participation is voluntary and vendors may opt in or out at any time during their contract term.
About the Author:
Johanna Moore
Consultant
Johanna Moore is a GSA and VA Contract Consultant at Centre Law & Consulting. She collaborates with the consulting team to provide proposal and contract management assistance to clients, focusing on various modification packages, market analysis, and catalog/pricing updates.  
The post No April Fools Joke: GSA Refresh/Mass Mods Are Coming! appeared first on Centre Law & Consulting.

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Last month, in Genesis Design and Development, Inc., B-414254 (Feb. 28, 2017), the Government Accountability Office (GAO) denied a protest challenging the rejection of a proposal where the contractor had failed to provide three past performance questionnaires (PPQs) completed by previous customers.
In its proposal, Genesis provided PPQs that provided customer contact information but which did not contain substantive responses from the previous customers. The company argued that it submitted PPQs containing information identifying its past clients and that it reasonably anticipated that the agency would seek the required information directly from its clients. Genesis also suggested that it can be difficult to obtain such information from its clients because they often are too busy to respond in the absence of an inquiry directly from the acquiring activity, and the company noted that, in previous cases, agencies had sought out such information.
The GAO was unmoved, holding that the RFP specifically required offerors to submit completed PPQs and that Genesis’s submission did not comply with the express requirements. Given that the RFP also provided that failure to supply required documentation – including PPQs – could result in a proposal’s elimination from consideration, the agency’s rejection of Genesis’s proposal was reasonable.
While PPQs can often place offerors in the uncomfortable position of needing to rely on prior COs who are under no obligation to respond or respond in a timely manner, the Genesis decision makes clear that failure to submit completed PPQs can preclude consideration for contract award.
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 No Completed PPQs? No Contract. appeared first on Centre Law & Consulting.

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Back on November 28, 2016, both Analytic Strategies LLC and Gemini Industries, Inc.’s protests were dismissed by the GAO for lack of jurisdiction. The firms initially protested the General Services Administration’s (GSA) exclusion of their proposals under a task order to provide mission support services for the Joint Improvised-Threat Defeat Agency (JIDA). The protests were subsequently dismissed by the GAO as its statutory grant of jurisdiction to consider such protests had expired. Congress subsequently reinstated the GAO’s jurisdiction and, as such, the contractors requested that their initial protests be reinstated.
By way of background, in 1994, Congress enacted the Federal Acquisition Streamlining Act (FASA) which, in part, established a general bar against protests filed in connection with military and civilian agency task and delivery orders issued under multiple award IDIQ contracts, with limited exceptions. However, the National Defense Authorization Act (NDAA) for Fiscal Year 2008 amended FASA to grant GAO jurisdiction to hear protests in connection with orders placed under IDIQ contracts where the order exceeded $10 million. The Fiscal Year 2012 NDAA amended the GAO’s jurisdiction and established a sunset date whereby the grant of jurisdiction to hear protests in connection with orders placed under IDIQs valued in excess of $10 million expired after September 30, 2016. On December 14, 2016, the Protest Authority Act was signed into law, which removed the sunset provision and reinstated GAO’s jurisdiction over protests of task orders placed under civilian agency IDIQ contracts valued in excess of $10 million.
With specific relevance to this protest, on April 20, 2016, GSA issued a task order request (TOR) to contractors under a specific IDIQ, including Analytic Strategies and Gemini Industries. The solicitation estimated the total value of the cost-plus-award-fee portion of the task order to be between $126,081,247 and $132,717,104. On September 21 and October 18, 2016, GSA informed Analytic Strategies and Gemini Industries, respectively, that it would no longer consider their responses to the TOR for award. Analytic Strategies filed its protest on October 3, and Gemini Industries filed its protest on October 28. Approximately one month later, GSA dismissed the protests as its jurisdiction to consider these protests had expired on September 30. The contractors subsequently filed requests for reconsideration once the GAO’s jurisdiction was reinstated.
In denying the reconsideration request, the GAO noted that it has repeatedly determined that its authority to hear a protest, including its jurisdiction to hear task and delivery order protests, is based on the filing date of the protest. The GAO, in finding that it did not possess jurisdiction at the time the protests were filed, noted that merely because the Protest Authority Act removed the sunset provision did not change the fact that the sunset provision did previously exist. The Act contained no statement as to its effective date, thus it is deemed to take effect on the date of its enactment. Furthermore, the GAO noted that retroactive application of a law is disfavored and should not be done in this case.
For more information, read the GAO decision in Analytic Strategies LLC; Gemini Industries, Inc. – Reconsideration; B-413758.4; B-413758.5 (Mar. 8, 2017).
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 Won’t Reconsider Protests Dismissed During Jurisdiction Lapse appeared first on Centre Law & Consulting.

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It’s A Slant Downward
When you negotiate a GSA Schedule or renewal, the GSA contracting officer reviews your pricing against, well, your past pricing. But when GSA buyers buy, they will now have tools to compare your pricing with the competition. It started with transactional data reporting, and now GSA is openly moving to a horizontal pricing model at least for products. Your carefully prepared sales data to get a product or service on schedule is becoming meaningless as GSA implements more tools for buyers to compare prices for what may or may not be similar items.
Tom Sharpe, FAS Commissioner, has unveiled the latest buying tool, the Horizontal Pricing Analysis Tool. Its purpose is to “analyze price variability for identical Schedule items”. It shows the competitive range of pricing for a specific item and whether or not a vendor is proposing an offer within that range.
Now that the Horizontal Pricing Analysis Tool is in use, COs are reaching out to vendors whose prices exceed a competitive range, notifying them of comparative pricing with identical items on Schedule, and engaging them in a dialogue about both pricing and non-price factors.
Buyers and sellers, please make sure apples are applies and not avocados. Is delivery FOB origin or destination? What are the warranties? What is the delivery time? We all have stories about the deep discount competitor whose delivery time is in dog years, yet their price is low. That may be okay if you don’t need it soon, as defined in your lifetime.
Now on to other news…
Protests
Jacobs Technology is hanging on to its $132 million Army award. ManTech TSG-1 JV protested that it was unreasonably assigned a weakness in its proposal. GAO held that ManTech couldn’t establish that the Army was unreasonable in assigning a weakness to its proposal based upon unstated evaluation criteria. Champagne flows at Jacobs.
That Wall
The Department of Homeland Security does not have enough loose change in its sofa cushions to fund THE wall, so President Trump is preparing a supplemental budget request for at least $6.6 billion. And for those of you wall builders, here is the link to the presolicitation notice.
Growth Areas 2017
A new study by Onvia lists the top 10 fastest-growing areas in government contracting for 2017 that include technology, telecommunications, healthcare, and construction.
 
About the Author
Barbara Kinosky
Managing Partner
Barbara Kinosky has more than twenty-five years of experience in all aspects of federal government contracting and is a nationally known expert on GSA and VA Schedules and the Service Contract Act. She has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012, and 2015.  
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Warning! This post contains explicit (and depressing) news about low bidders using below market salaries and benefits to win contracts. The Air Force issued a solicitation for information technology services at Joint Base San Antonio. The RFP provided for award to the offeror that submitted a technically-acceptable proposal with the lowest price and a realistic employee compensation plan (ECP). For the ECP evaluation, the solicitation stated that the plans “will be evaluated for realism” and directed offerors to submit their ECPs in accordance with FAR provision 52.222-46.
The purpose of that FAR provision is to evaluate whether offerors will obtain and keep the quality of professional services needed for adequate contract performance. The Air Force compared the awardee, BTAS, Inc.’s proposed compensation for its professional labor categories to that of three other offerors and salary data on salary.com. The Air Force found that on average BTAS’s labor rates and fringe were below that on salary.com but, despite that, the total package was realistic. The short story is that BTAS won with a below market wage and benefit package and Microtechnology protested – and lost.
The GAO held that nothing in FAR 52.222-46 required the Air Force to find that both an offeror’s proposed fringe benefits and salary are, independently, realistic. Instead, the provision requires agencies to assess whether an offeror’s proposed “total compensation” is realistic. They found no basis to conclude that the Air Force’s evaluation of the offeror’s total compensation was unreasonable.
The quick take away is that if an agency follows the evaluation criteria and that the evaluation was not unreasonable, it will be sustained.
Read more on the GAO website.
 
About the Author
Barbara Kinosky
Managing Partner
Barbara Kinosky has more than twenty-five years of experience in all aspects of federal government contracting and is a nationally known expert on GSA and VA Schedules and the Service Contract Act. She has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012, and 2015.  
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Are you prepared for a letter from the U.S. General Services Administration Office of Inspector General (GSA OIG) stating that your company has been selected for a pre-award audit of the Commercial Sales Practice (CSP) pricing information that will become the basis for the pricing on your contract option extension?
The Primary purpose of a Pre-Award Audit
The purpose of the pre-award audit pursuant to Clause 52.215-21 Alternate IV (GSAM 515.408(a) (4) of the contract is to ensure that the CSP information is an accurate, current, and complete description of your practices and pricing. Keep in mind that the advisory nature of the pre-award audit is different from most other audits. The results of the pre-award audit will be passed on to your Contracting Officer to provide additional information for negotiation purposes. In addition, you should expect to be granted authority to review the results of the audit.
What Happens During a Pre-Award Audit?
The auditor will seek to verify the accuracy of the latest CSP information submitted. The auditor will want to know the methodology used to develop the CSP information in addition to the source sales data reviewed in preparing the CSP information. You will be asked to explain why any sales information, such as specific classes of customers or discounting, were excluded and the reasons for the exclusion. The auditor will review your company’s billing and information systems to verify the completeness and accuracy of the information submitted. The auditor will review the terms and conditions with major commercial customer’s master agreements (as applicable).  
What Are the Time Constraints and Consequences of Not Complying?
Information will be required approximately one (1) month from the receipt of a letter of notification. Contact your assigned auditor within seven (7) days of receipt of the letter and be prepared to discuss specific data requirements. Your Contracting Officer can elect not to extend your contract if there is failure to respond to your auditor. Failure to cooperate with the GSA OIG could result in contract cancellation in accordance with GSAR Clause 552.238-73, Cancellation.  
What are the results of GSA OIG pre-award audits?
During the reporting period of April 1, 2016 – September 30, 2016, the IG auditors performed pre-award audits of 37 contracts with an estimated value of almost $9.5 billion and recommended that more than $324 million of funds be put to better use. Significant findings included that contractors had supplied commercial sales practices information that was not current, accurate, and complete; had proposed overstated labor rates and used unqualified labor; and that Price Reductions Clause compliance monitoring was ineffective.
In summary, the answer to my original question is NO; it is not time to panic. It’s time to ensure your CSP is accurate, current, and complete and provides all required disclosures and that all requested documentation/data is provided to your auditor within the required time frames.
If you need assistance in responding to your Contracting Officer/GSA OIG auditor, contact our GSA team.
 
About the Author:
Maureen Jamieson
Executive Director of Contracts and Consulting
Maureen Jamieson 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.  
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Centre Law & Consulting (Centre), a leading provider of training and acquisition services for government agencies, is pleased to announce the award of a contract with the Nuclear Regulatory Commission (NRC) for NRC Acquisition Workforce Training.
Under the contract, Centre will develop and deliver a structured training program which standardizes the education, training, and experience requirements for NRC acquisition professionals, while improving workforce competencies and performance. The instruction provided will include all levels of COR and acquisition courses related to FAC-C & FAC-COR certifications. Courses will be conducted at the NRC’s Professional Development Center and virtually across the United States.
The contract covers a base period of one year with two option years.
“It is an honor to be selected by the NRC as their new training provider, and we are excited to provide our expertise in developing integrated learning solutions for acquisition and procurement personnel,” said Barbara Kinosky, Esq., Managing Partner of Centre. “We look forward to delivering innovative curriculum and content that will strengthen the NRC workforce to align with the NRC’s performance goals.”
Jeffrey Keen, Director of Federal Contracts and Training at Centre Law & Consulting, will serve as Program Manager. He will be the primary point of contact with the NRC and with Hemsley Fraser, a subcontractor that will assist Centre with extensive course customization.
“Our training team is committed to helping the NRC improve the operational knowledge of its staff and we are dedicated to ensuring they receive the best possible support for their training initiatives. We look forward to customizing an education program that will elevate the performance of their employees,” Keen said.
Centre has a long history of working with a variety of government agencies, but this contract marks the first time it will partner with the NRC. Centre was selected based on its experience in creating custom courseware, for its history of providing DAU-approved courses, and for its day-to-day experience in advising government personnel on acquisition and procurement matters.
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If you are like me and work for a small business, you have been patiently waiting for the FAR Council to implement the Small Business Administration’s final rule from June 2016 that made major changes to the way performance requirements apply to small business in set-aide contracts.
For those who don’t know, this change allows for a prime small business, WOSB, SDVOSB, EDWOSB, 8A, or a HUBZone company to subcontract in service contracts to similarly situated firms and not count towards the 50% subcontracted work amount that typically cannot be exceeded. For example, if you win a WOSB set-aside contract and want to subcontract to another WOSB, the work the second firm does would not count towards the 50% subcontract amount limit. As you can imagine, this a huge boon to small businesses and provides great flexibility to compete on larger contracts.
As of March 22, 2017, the Defense Acquisition Regulatory Council (DARC) agreed to draft an interim FAR rule. Remember, this change isn’t automatically included in your current contracts. Under FAR 1.108(d)(3), the Contracting Officer (CO) “may, at their discretion, include changes in any existing contract with appropriate consideration.” Therefore, if you want to get credit for your subcontractor’s work to meet your set-aside requirements, make sure you petition your CO to update your contract with the new FAR rule when it is eventually implemented.
Find more information concerning this rule change in the Federal Register.
 
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.  
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This July, several of the Centre staff were chosen from a competitive field to lead multiple breakout sessions at the 2017 World Congress in Chicago, IL. World Congress is the National Contract Management Association’s largest education event for contract management, procurement, and acquisition professionals. Individuals from government, industry, and commercial business come together for networking and training for all career levels.
From pressing legal matters to the latest in GSA Schedule updates, come learn the information you’ll need to stay up-to-date in the federal contracting industry. Make sure these three breakout sessions are added to your “must-see” events on your conference schedule:
MONDAY, JULY 24 (11:15am – 12:30pm)
Corporate Ethics: Lead from the Top or Pay Through the Nose
David Warner, Partner
This session will review recent enforcement actions—including whistleblower, qui tam, and debarment processes— with respect to federal contractors. Hear about the current state of the law concerning “hidden” ethical traps for import/export, ITAR/EAR, and TAA, in addition to the more common traps of the False Claims Act and Foreign Corrupt Practices. Corporate ethics are expected to remain a significant concern for contractors even under the new administration. Leave with guidance to understand the current legal landscape and to identify and mitigate such risk.
TUESDAY, JULY 25 (11:15am – 12:30pm)
Protests Happen, so Now What?
Barbara S. Kinosky, Esq., Managing Partner
James Phillips Jr, PMP, CFCM, Fellow, Acquisition Consultant
When the word protest is used often, both buyer and seller bristle. This presenter speculates on the thinking that the government buyer goes through that ultimately results in a decision that is sustained. Hear key decision points of actual sustained protests.
TUESDAY, JULY 25 (4:00pm – 5:15pm)
Lessons Gleaned from Successful Protests at GAO
Barbara S. Kinosky, Esq., Managing Partner
What makes a protest successful and what can you do to avoid stalling your acquisition due to a protest? With the number of protests increasing, this session gives attendees clear guidance on practices to avoid that will lead to protest.
WEDNESDAY, JULY 26 (9:45am – 11:00am)
SIP vs FPT, TDR/FAS Sales Reporting vs 72A, eOffer/eMod
Maureen Jamieson, Executive Director of Consulting
Julia Coon, Consultant
eOffer/eMod is GSA’s online tool to submit GSA offers and modifications that is only accessible to authorized negotiators with digital certificates. This session will show participants how to submit a GSA offer and modifications and other electronic forms. Hear about the SIP program and step-by-step instructions for the import/upload process for both products and services. Discussion will focus on GSA’s new TDR/FAS Sales Reporting and Formatted Product Tool.
 

 
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If you are in the Northern Virginia area, grab some lunch with Centre’s Managing Partner, Barbara Kinosky, on May 23 at the Tower Club in Tysons, VA.
Barbara will be the featured speaker presenting on “Hot Topics for Federal Contractors: A Look at What’s In and What’s Out in 2017” at the Tower Club’s Lunch and Learn series. Attendees will get up to date on all the latest hot topics in the federal contracting industry. What will a Trump presidency continue to look like? Will there be more emphasis on defense spending? How will federal regulations be impacted? Executive orders, compliance, audits – what’s in, what’s out?
Come learn about all this and more!
What:   Hot Topics for Federal Contractors: A Look at What’s In and What’s Out in 2017
Date:    May 23, 2017
Time:    12:30pm – 1:30pm
Where: Tower Club in Tysons, VA
Find out more and register via the Calendar page on the Tower Club’s website.
 
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If you are in the Baltimore area, join David Warner at the next NCMA Greater Baltimore Chapter meeting.
On May 11, David will be the featured speaker presenting the “Annual Update on Federal Contracting and Legislation” where he’ll look back at the first 100+ days of the Trump Administration and review the latest legislation on the Hill, Executive Order and FAR updates, changes in the small business rules, employment regulations, bid protests, and news on the GSA Schedules.
What:   NCMA Greater Baltimore Chapter meeting
Date:    May 11, 2017
Time:    11:30am – 1:00pm (lunch included)
Where: National Electronics Museum in Linthicum, MD
Find out more and register at Events page of the chapter’s website. Register before April 24 to receive early bird discounted rates.
Attendees at this event earns 1 CPE/CPU to include certificate.

 
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Mark your calendars to join Barbara Kinosky at the upcoming Section 809 Panel meeting on April 27 at 11:30am where she will be an invited featured speaker.
Section 809 Panel stakeholder meetings provide a forum for external experts in the defense acquisition community to provide input to representatives of the panel for consideration in the panel’s work. The Section 809 Panel is looking at reforming and streamlining acquisition regulations with a view toward improving the efficiency and effectiveness of the defense acquisition process and maintaining a defense technology advantage. The panel is charged with making recommendations for the amendment or repeal of such regulations that the panel considers necessary, as a result of such review, to:
Establish and administer appropriate buyer and seller relationships in the procurement system Improve the functioning of the acquisition system Ensure the continuing financial and ethical integrity of defense procurement programs Protect the best interests of the Department of Defense Eliminate any regulations that are unnecessary for the purposes described All Section 809 Panel meetings are open to the general public and details are posted to the panel’s website.
 

 
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Large business prime contractors holding Federal Supply Schedule (FSS) contracts issued by the Department of Veterans Affairs (VA) National Acquisition Center (NAC) may want to take note.
Updated Small Business Subcontracting Plan Template
The VA NAC posted an updated Small Business Subcontracting Plan Template to its website in February 2017. This latest version of the template is dated January 26, 2017.
VA NAC also updated its VA FSS Subcontracting Plan Training presentation in January 2017, providing detailed information on how to complete the new VA FSS Subcontracting Plan Template. Current VA NAC contract holders should ensure their new and ensuing subcontracting plans are submitted to the VA NAC for approval no later than 30 calendar days prior to expiration of their current plans.
It should be noted VA does not accept or recognize digital or electronic signatures at this time. It requires the email submission of subcontracting plans contain a scanned wet signature.
VA NAC continues to step-up enforcement of timely submissions. Delinquent submissions of subcontracting plans and Electronic Subcontracting Reporting System (eSRS) data can result in negative Contractor Performance Assessment Reporting System (CPARS) assessments, issuance of Cure Notices, or other contract enforcement actions which could jeopardize continued performance under the contract.
Small Business Size Standards Changed
Federal small business size standards changed significantly effective February 26, 2016, for North American Industry Classification System (NAICS) Codes covering manufacturing (NAICS Sectors 31-33). For example, perhaps one of the most common NAICS Codes used in VA procurements, NAICS 339112, Medical and Surgical Supplies Manufacturing, increased from 500 to 1,000 employees.
Therefore, contract holders should check to see if their size status has changed. Some “large” businesses are now classified as “small” under the new size standards, and small businesses are not required to submit subcontracting plans. If your size status has changed from large to small, contact your contracting officer to determine if a small business subcontracting plan is still required. A subcontracting plan is required until the contracting officer advises it is no longer required.
What Can You Do Next?
Centre provides turn-key Small Business Subcontracting Plan support to large business VA FSS Contractors using best practices to develop commercial subcontracting plans and administer their small business subcontracting program. This includes conducting formal surveys to ascertain size and socioeconomic procurement preference program status of suppliers and subcontractors, eSRS submissions, and preparation of justifications for achievement shortfalls against negotiated small business and socioeconomic procurement preference program category goals.
Contact Wayne Simpson to find out more, get started with your supplier survey, or determine the best next steps for your company.
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.  
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The General Services Administration (GSA) Federal Acquisition Service (FAS) is planning to refresh all GSA Multiple Award Schedules (MAS) to incorporate provision and clause updates in April 2017. This update will align MAS solicitations and contracts with recent policy changes, including small business subcontracting improvements and updates to Non-Federal Entity access to Schedules, including under the Disaster Purchasing Program. These regulatory changes further codify the Non-Federal entity access authorized under law and previously implemented via policy in GSA Order 4800.2H (now 4800.2I) in June 2013.
GSA FAS will host a public webinar to provide interested parties an opportunity to learn about the planned changes and ask related questions. The webinar will be in a listen-only format with the ability for participants to type questions via an online chat function. Webinar information is provided below.
Date: Wednesday, March 22, 2017
Time: 2:00pm – 3:00pm Eastern Time
Web Meeting Registration Link
GSA FAS will issue a bilateral modification to incorporate the planned changes into existing contracts. MAS contractors will have 90 days to accept the mass modification.
Learn more at GSA Interact.
Information reposted from the General Services Administration.
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The Department of Veterans Affairs (VA) published an Interim Final Rule in the February 21, 2017, edition of the Federal Register, increasing the period for re-verification examination by VA’s Center for Verification and Evaluation (CVE) of Service-Disabled Veteran-Owned Small Business (SDVOSB) and Veteran-Owned Small Business (VOSB) program participants from two years to three years.
Purpose
The purpose of this change, effective February 21, 2017, is to reduce the administrative burden on SDVOSBs and VOSBs participating in VA acquisition set-aside for these types of firms pursuant to the authorities of Public Law 109-461, the Veterans Benefits, Health Care and Information Technology Act of 2006 (the Act), implemented by the VA as the “Veterans First Contracting Program.”
The Act requires VA to verify ownership and control of SDVOSBs and VOSBs in order for those firms to participate in acquisitions VA sets aside for SDVOSBs and VOSBs. VA has continuously administered the verification program since February 2010, at which time re-verification was required annually. In June 2012, the re-examination period was extended to two years.
In changing from a biennial re-examination eligibility period to three years, VA believes it adequately balances maintaining program integrity while reducing the administrative burden on SDVOSBs and VOSBs. In reaching this determination, VA cited statistical data from Fiscal Year 2016, which showed out of 1,109 reverification applications, only ten were denied, ergo, only 0.9 percent of reverification applications were found to be ineligible after two years.
VA relies very heavily on its initial eligibility examination of firms, which it describes as robust, and as such believes the integrity of the program will not be compromised by extending the period for reverification.
Process
As part of its initial examination, VA CVE reviews personal and company documentation to verify ownership and control by Veterans of the business applying for verification. Documents include personal and company financial statements; Federal personal and business income tax returns; personal history statements; articles of incorporation/organization; corporate by-laws or operating agreements; organizational, annual, and board/member meeting records; stock ledgers and certificates; State-issued certificates of good standing; contract, lease, and loan agreements; payroll records; bank account signature cards; and various licenses.
Additionally, VA conducts random, unannounced site examinations of participants in order to examine or further examine a participant’s eligibility, including upon VA’s receipt of specific or credible information that the participant is no longer eligible. Additionally, VA contracting officers and competing SDVOSBs and VOSBs have the right to raise a SDVOSB/VOSB status protest to VA’s Office of Small and Disadvantaged Business Utilization should either have a reasonable basis upon which to challenge the SDVOSB/VOSB status of a VA CVE-verified firm.
VA regulations mandate program participants maintain eligibility during its tenure, and if ownership or control changes occur, participants are required to notify VA’s CVE of any changes which would adversely affect the participant’s eligibility as a VA CVE-verified SDVOSB/VOSB.
VA maintains the Vendor Information Pages (VIP) Database, a database of firms verified by CVE and eligible to receive awards under the Veterans First Contracting Program. As of February 24, 2017, the VIP Database list 9,287 firms (6,917 SDVOSBs and 2,370 VOSBs).
VA’s current Veteran Small Business Regulations are codified at 38 C.F.R. Part 74.
Comments
Written comments on the Interim Final Rule must be submitted on or before April 24, 2017. Comments may be submitted directly to VA at the address shown in the Federal Register Notice or at www.regulations.gov. Comments should indicate they are submitted in response to “RIN 2900-AP93—VA Veteran-Owned Small Business Verification Guidelines.” Note that all comments received will be available for public inspection at VA’s Central Office in Washington, DC.
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.  
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Let’s face it. We’d all rather be out selling and growing our businesses than having to deal with paperwork and audits, right? So when you hear that you have a Contractor Purchasing System Review (CPSR) coming up, it may cause a little anxiety and leave you wondering if it is really time well spent.
Now the government will tell you that the purpose of a CPSR is to evaluate the efficiency and effectiveness of the way a contractor spends federal funds and complies with federal policy. It provides the Administrative Contracting Officer (ACO) a basis for granting, withholding, or withdrawing approval of the contractor’s purchasing system.
So what does that really mean to you? Here are the Top 5 reasons that having an approved contractor purchasing system is important:
Advance Notification and Consent: The first reason that usually comes to mind is the FAR Part 44 requirement for advance notification and consent to subcontract. If the purchasing system hasn’t been approved or the approval has been withdrawn, then the ACO will be required to perform consent reviews under flexibly price contracts and unpriced contractual actions to insure the Government’s interests are protected. The down side of that is these reviews take time, and while the ACO is performing the review, the subcontract award is delayed. In other words, nobody is happy about it! The client’s program manager and the company program manager want the award made to meet schedule, but the ACO has other things to do and may not put your subcontract award at the top of the list. The result is that you (the buyer/subcontract administrator) are under pressure to somehow make it happen and tensions can rise on all sides.
Consent Doesn’t Mean Approval: Okay, you’ve gone through the gauntlet and the ACO has issued the consent to subcontract notice. But, the notice will have a disclaimer that reserves the Government’s rights to second guess all aspects (i.e. adequate competition, price reasonableness, audit disallowance) of your subcontract award. You feel like you have gained nothing, and the program manager is still upset with you because of the delay in award. You want an approved system, not just a consent to subcontract. So without that approval, you’re just sitting in limbo.
Business System Clause: The Department of Defense added clauses to their contracts – 252.242-7005, Contractor Business Systems and 252.244-7001, Contractor Purchasing System Administration – that have become key components of the CPSR process. In addition, should a “significant deficiency” be identified in your purchasing system, the ACO is obliged to reduce your interim payments (i.e. progress payments, cost-reimbursement vouchers, monthly Time and Materials invoices) by as much as 5% to protect the government’s interests until the deficiency has been corrected and re-audited. The impact for you is that not only is the program manager upset with you, but so is the CFO!
Impact on Other Major Proposals: With subcontracting being a large part of major contracts, the impact of your purchasing system on proposals for new work can be critical. First, having a government approved purchasing system gets you a better rating on the management portion of your major proposals. Second, with subcontracts often accounting for as much as 60% or more of major proposal costs, the ability of an approved purchasing system to provide good quality pricing support can make the difference between winning or losing.
Documentation: Securing approval of your purchasing system relies largely on your documentation. In my earlier article, CPSR Easy As 1-2-3?, all three steps rely on clear and complete documentation. Think of it this way: an approved system by its nature should produce good documentation. So when the government reviews your work product for proposal support, business system adequacy, incurred cost, small business plan efforts, sustainability initiatives, or anything else, you can be confident that your procurement files will clearly demonstrate how efficiently and effectively your purchasing system is spending government funds and implementing government policy.  
Take the Next Step
If you’d like to dive more in depth to the details of CPSR, learn best practices, and set yourself up for successful CPSR audits, then join us for our upcoming course on March 28-29 at our national training center in Tysons, VA.
 
About the Author
Jack Hott
Instructor
Jack Hott is an Instructor for Centre Law & Consulting. He has more than two decades of experience as a contracts professional in Government and the private sector. A retired Air Force officer, he served multiple acquisition related assignments where he managed administration, pricing, CAS and overhead approvals, supplier quality, and subcontract management.  
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