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Centre Law & Consulting

This Blog is Subject to Change in a Twitter Moment | Centre Law & Consulting in Tysons VA
 
How many of you now go to bed wondering, “What presidential tweet am I going to wake up to next?” The federal contracting space has been shaken, not stirred.

In the old news department, President Trump instituted an immediate hiring freeze this Monday, signing a presidential memorandum that would affect a large swath of the executive branch. There are exemptions, of course, for those working in the military, national security, and public safety.

In my discussions with officials at several federal agencies, it appears that the language is vague enough that different agencies are interpreting this in different ways. If your entire team is on the airplane that has the “water landing” does this mean that no one can be hired to do the work? Maybe it will become more clear in the next couple of months. The executive order directs the Director of OMB, in consultation with the Director of OPM, to recommend a long-term plan to reduce the size of the Federal Government’s workforce through attrition. The order does say that contractors cannot be hired to circumvent the intent of the order.

However, a big problem is that the federal workforce has not been growing. Federal News Radio is reporting that the size of the federal workforce has been decreasing, not increasing. The size of the federal workforce has steadily declined over the past 50 years. Approximately 2 million people worked for civilian agencies in 2015—nearly a 10 percent decline since 1967.

Regarding the workforce, and in specific the federal contracting workforce, the Obama Executive Orders are in the twilight zone. Executive Order 13673, Fair Pay and Safe Workplaces, was stopped cold by a Texas federal district court in 2016. Since this was a unilateral act by the President, it will most likely be undone along with the Executive Order on Sick Leave.

On the minor but still need to know information, a final rule came out on Privacy Act training. At a minimum, contractors must educate employees about:

  • The provisions of the Privacy Act of 1974, including penalties for violations
  • The appropriate handling and safeguarding of personally identifiable information
  • The authorized and official use of a system of records or any other personally identifiable information
  • The restriction on the use of unauthorized equipment to create, collect, use, process, store, maintain, disseminate, disclose, dispose, or otherwise access personally identifiable information
  • The prohibition against the unauthorized use of a system of records or unauthorized disclosure, access, handling, or use of personally identifiable information
  • Procedures to be followed in the event of a suspected or confirmed breach of a system of records or unauthorized disclosure, access, handling, or use of personally identifiable information

Those are today’s latest updates, but we’ll see what Twitter has to say about it in the coming days.
 
About the Author

Barbara Kinosky Barbara Kinosky
Managing Partner

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

 

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You've Accepted Transactional Data Reporting (TDR), Now What? | Centre Law & Consulting in Tysons, VA
 
The Transactional Data Reporting (TDR) Rule requires vendors to electronically report the price that the federal government paid for an item or service purchased through GSA acquisition vehicles and other data elements. The rollout of TDR across all pilot schedules is now complete. If you accepted TDR willingly or unwillingly, it’s time to understand the reporting requirements.

When are the TDR Requirements Effective?

Upon acceptance of the TDR pilot bilateral mass modification, the requirement for providing a Commercial Sales Practice (CSP) disclosure to accompany modification requests will be eliminated. In addition, vendors will no longer be required to track price reductions granted to their Basis of Award (BOA) customer or category of customers. Price Reduction Clause liability for current contractors ends with acceptance of the TDR mass modification, which will be effective on the first day of the business quarter following acceptance of the modification.

In order to ease the transition from the current 72A reporting database to the TDR reporting module, the requirement for commencement of reporting will not begin on the date the modification is signed; rather, reporting will begin at the beginning of the next full business quarter as shown below:

Modification Accepted Requirements Effective
 July 1 – September 30  October 1
 October 1 – December 31   January 1
 January 1 – March 31  April 1
 April 1 – June 30  July 1

 
If a current contractor accepts the modification during the last 15 days of a standard business quarter, reporting begins on the first day of the second business quarter following modification acceptance.

What Data Am I Required to Report?

The clause requires contractors to submit the following data elements:

  1. Contract Number
  2. Order Number or Procurement Instrument Identifier (PIID)
  3. Non Federal Entity, if applicable
  4. Description of Deliverable
  5. Manufacturer Name
  6. Manufacturer Part Number
  7. Unit of Measure (each, hour, case, lot, etc.)
  8. Quantity of Item Sold
  9. Universal Product Code (UPC), if applicable
  10. Price Paid per Unit
  11. Total Price Sold

Contractors should report Firm Fixed Price (FFP) orders as single line item representing the lump sum total for the order. For services time-and-materials (T&M) or labor hour orders, reporting should be done by labor categories and rates.

Manufacturer Name is not a mandatory field for service contractors in TDR, but Description of Deliverable is a mandatory field for both products and services. Service providers would place a brief description of the project or service offered in the Description of Deliverable field.

How Can I Complete the Reporting?

FAS Sales Reporting  (Contracts must have a digital certificate to gain access to the reporting system)
Reporting Tutorial

Contractors have multiple options to submit their sales data such as:

  • Form entry – where you fill out a form in your web browser
  • File upload – where you upload an excel or .csv template populated with your sales data
  • Electronic Data Interchange / EDI
  • Web Services / API

In summary, TDR data is reported monthly and there is a 30-day window to report after the end of the month. Your Industrial Funding Fee (IFF) must be paid quarterly. Contractors may, however, choose to remit IFF on a monthly basis when they report their sales if they prefer and must do so through the TDR system. For TDR Pilot contractors under Schedules 70 and the Professional Services Schedule, if TDR SINs are included on a contract alongside non-TDR SINs, the entire contract is subject to TDR terms and conditions, and CSP and PRC requirements are removed for the entire contract. Remember that participation in the TDR Pilot does not exempt the contractor from existing reporting requirements found elsewhere in the contract.

About the Author:

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

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

 

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Cooperating with DOL Investigation Does Not Protect You From Debarment | Centre Law & Consulting in Tysons VA
 
On December 28, 2016, the Department of Labor (DOL) filed a complaint with the DOL Office of Administrative Law Judges seeking debarment of a contractor for violation of the Service Contract Labor Standards (formerly the Service Contract Act). The contractor, Restaurant Associates LLC, runs the cafeteria in the Dirksen Senate Office Building. Even though Restaurant Associates won a seven year contract extension in December 2015 to continue operating the cafeteria, the company would be prohibited from bidding on future government contracts but would be permitted to retain that contract through the extension.

The DOL’s investigation began in July when they first alleged that Restaurant Associates violated the SCA by misclassifying hundreds of workers. However, what makes this case particularly interesting is that the company had no history of previous SCA violations and fully cooperated with the DOL investigation. In complying with the DOL investigation, the company agreed to and did pay $1,008,302 in back wages for 674 cafeteria workers. Despite paying the back wages, the DOL is now seeking to debar the contractor.

Perhaps the DOL is seeking debarment based on the circumstances surrounding the DOL investigation. The investigation first began after a complaint was submitted to the DOL alleging that Restaurant Associates unlawfully changed worker job classifications to avoid giving raises that were contained in the December 2015 contract renewal. After the investigation, the DOL found that the company had improperly classified workers both by paying them for lower-paying jobs than they actually performed and by requiring employees to work prior to their scheduled starting times without compensation.

This will be an interesting case to follow as it develops.

In the meantime, you can read the DOL Complaint and the DOL news release from the July investigation.

About the Author:

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

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

 

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Ten Things I Hate About Incurred Cost Proposals | Centre Law & Consulting in Tysons VA
 
If you remember the late 1990’s romantic comedy “10 Things I Hate About You” you might know that it did a lot of great things. It provided the platform for the venerable Heath Ledger’s coming out party, introduced the world to Julia Stiles, reminded us the kid from Third Rock from the Sun was, in fact, still here on Earth, and made more than $50M at the box office. Not too bad.

But as the law of unintended consequences often works, it also inspired this blog article about Incurred Cost Proposals.

With all apologies to the awful heading, the Incurred Cost Proposal does evoke some very specific emotion from those tasked with preparing, auditing, re-auditing, reading, reviewing, negotiating, or most importantly – signing them. They are a necessary evil for most services-based U.S. Government contractors. While the purpose of the Incurred Cost Proposal is a simple enough merit – to settle indirect costs under cost-type contracts between contractors and the U.S. Government – the evolution of the Incurred Cost Proposal has caused pain easily on par with that of Ms. Stiles’ loss of her Australian beau. And while Ms. Stiles was capable of some beautiful poetry to express her torment, I am not as skilled in that trade and so you will simply get an unpoetic list of 10 Things I Hate About Incurred Cost Proposals.

  1. The ICE Model – Using a model that every time you open it tells you “An error has occurred” is not a confidence inspiring event for a document that is supposed to be current, accurate, and complete.
  2. Your Name – Why did the FAR give you one name, the “Indirect Cost Rate Proposal”, but the industry and DCAA give you so many others? The Incurred Cost Proposal, the Incurred Cost Submission, the Indirect Cost Submission, The Indirect Cost Proposal, the ICS, the ICE Model, etc. We are happy to call them anything the government desires – just don’t call them delinquent.
  3. Audits Focused on Direct Costs – While I also hate that audits are untimely, I think I more dislike that the current audit environment is focused on direct costs. We had a recent experience where not a single indirect cost was sampled. For an “Indirect Cost Rate Proposal” audit, it’s a little odd that the indirect cost rate received so little attention. And, of course, forget the fact that all the direct costs have been submitted for government review already on each and every monthly invoice. This trend has found its way into the T&M labor costs specifically through MRDs, which have cost enormous sums of questioned costs to contractors who don’t have labor qualification support in the way of resumes more than 5 years ago.
  4. Unallowable cost sampling – What would this list be without mention unallowable costs. It must be done, but it sure is tedious. Now if we could just get to an agreement on which costs are expressly unallowable.
  5. Schedule J Subcontract Information – How much more information on my supply chain can I provide? Every new iteration of the ICE Model asks for more. It is becoming easier to acquire a subcontractor than monitor and report on them.
  6. Inconsistent Application of the DCAA Adequacy Checklist – The concept is great; however, the execution lacks some consistency. We’re even okay with the annual updating of the checklist to provide even greater comfort that our submissions are in fine shape for an audit. What we do hate is the inconsistent application of what meets adequacy within the checklist. DCAA is provided great liberty to accept or not accept certain elements of adequacy for purposes of commencing with an audit. Some consistency would nice. And, worst of all, the off-checklist item that leads to inadequacy determination takes the prize for most frustrating element of the process.
  7. When Total Cost Absorption reconciliation doesn’t work – Okay, not everything about the Indirect Cost Rate Proposal is a procedural flaw of our friends at the Government. Few accounting frustrations rival completing your proposal and performing the total cost reconciliation only to see that something isn’t working. You can always diagnose them, but not without a strong cup of coffee.
  8. Corporate Home Office “Incurred Cost Proposals” – If you have a corporate home office you may have been asked for one of these. Or maybe you haven’t. It’s impossible to tell since the request for these is not consistent across DCAA offices. In the event you are unfamiliar with what they are, they are a summary of those corporate home office costs allocated to the G&A pools of cost accounting segments. They’re easy to hate since all of this information is already included in the segment-level indirect cost rate proposal. It’s duplicative and with all the work done to be compliant, duplication of effort is not something we like to deal with (or clients like to pay for). However, it has been our experience that if you don’t submit it, you risk being deemed inadequate – even though this isn’t on the adequacy checklist, see # 7 above. They are a particular quagmire for entities with overseas parents where certification of G&A costs for U.S. Government accounting is an unfamiliar task.
  9. Executive Compensation – Figuring out the award dates of contracts in the middle of the year, determining which agencies each contract belongs to, then evaluating which employees the executive compensation applies to. Determining executive compensation limits in the current environment is a game of labyrinth. Once you figure this rubix cube out, you have to get an Advance Agreement with your customer to use blended rates in order to comply. Then once you have the maximum allowable amount determined, you need to evaluate if the labor costs beneath that are “reasonable” through market data searches, surveying, and a host of similar corroborative evidence.
  10. IR&D and B&P costs – These are everyone’s favorite bouncing ball. They’re in the overhead base, but also the G&A pool. This topic dominates almost all new contractors’ first FAR lesson. And when they’re not specifically identified in the project ledger they can become quite tricky. Forget if you’re a major contractor with heavy IR&D expenses and have to now both report on them and get pre-approval from your Contracting Officer or risk them being deemed unallowable.

 
But wait, there’s more!
If you’d like to share your own stories of Incurred Cost Proposals, or – even better – learn more about best practices for handling them, then join us for the “Incurred Cost Proposals: A Year In Review” webinar on January 12. Just one hour of your time now might save you many more if you’re up to speed on these current insights!

AUTHOR’S NOTE: As consultants, we routinely assist clients with the preparation of their Indirect Cost Rate Proposals. Please do not take our poor attempt at humor in this article as a lack of enthusiasm in any way for these services. We just liked the article heading as a forum to illustrate some of the contracting community’s frustrations.

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Earlier this week, a U.S. Department of Labor webpage dedicated to the issue of employee misclassification went live. Just in time for the holidays!
While much ink has been spilled in recent weeks regarding potential changes of direction at the DOL in a Trump Administration, the new webpage suggests that the agency will continue to view the abuse of independent contractor status as an enforcement priority for the foreseeable future. The new page does not provide any novel substantive content, but it does bring together at a single location a wealth of information in what the DOL self-describes (accurately, one must admit) as a “user-friendly webpage where workers, employers, and government agencies can find information and resources.”
For example, some of the substantive topics appearing on the “Pay and Misclassification” page include:
Myths About Misclassification Get the Facts on Misclassification Under the FLSA Know Your Rights Video: Employee v. Independent Contractor Employment Relationship Under the FLSA Elaws: Independent Contractors Am I an Employee: Employment Relationships Under the Fair Labor Standards Act Coverage Under the Fair Labor Standards Act Wage-Hour Division Administrator’s Interpretation, The Application of the Fair Labor Standards Act’s “Suffer or Permit” Standard in the Identification of Employees who are Misclassified as Independent Contractors WHD Press Releases about Employee Misclassification as Independent Contractors It is clear that the webpage is intended to arm individuals with the information and tools needed to understand the boundaries of independent contractor/employee status as well as the rights appurtenant to such status.
Given the widespread use (and abuse) of independent contractor arrangements in the government contracts industry, contractors would be well counseled to review their current 1099s to ensure that the status can withstand scrutiny as this issue is unlikely to move to the backburner, even with new leadership coming onto the scene in early 2017.
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.  
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Over the last few years, the contractor community has braced itself to comply with a slew of new employment regulations issued as a result of Executive Orders by President Obama. These include Paid Sick Leave (up to 7 days), Minimum Wage ($10.20), Fair Pay and Safe Workplaces (reporting of labor law violations and paystub requirements, among others), and the Department of Labor’s regulations increasing the dollar threshold for overtime exemptions under the Fair Labor Standards Act (FLSA). However, several of these regulations are currently being enjoined by courts; and, with the upcoming transition to a new administration, it is likely that many of these requirements will be set aside.
It would be a mistake, though, for contractors to be lulled into complacency as a result of the recent federal election as state and local governments have been increasingly active in passing legislation governing employers. For example, many states, counties, and cities passed increased minimum wage requirements, paid sick and family leave laws, wage equality measures, limits on the use of background checks, laws related to medical and recreational use of marijuana, and gender-based restroom ordinances.
Federal contractors should continue to monitor legal requirements for the localities they operate in. For those in the D.C. Metro area, additional paid leave requirements are on the horizon. Just last week the D.C. Council passed the “Universal Paid Leave Amendment Act” providing for eight weeks of parental leave, six weeks to care for sick family member, and two weeks for your own personal illness. The leave will be funded through a payroll tax and administered through the government with limits on the benefit amounts workers would receive. The bill must still go through a second vote later this month, but is expected to pass with a veto-proof majority. For those in Maryland, Governor Hogan has announced plans to introduce legislation requiring employers with 50 or more employees provide up to five days of paid sick leave per year. Maryland’s legislature has made advancements towards enacting other paid leave laws as well.
So with the incoming new Administration and continuing legal advancements for localities, 2017 appears to be ripe for action and continued change.
About the Author
Marina Blickley
Senior Attorney
Marina Blickley is primarily focused in the Government Contracting and Non-Profit industries. She regularly assists clients in all aspects of employment and labor law including representation and defense of employers against claims of employment discrimination, harassment, retaliation/whistleblower, and wage and hour violations before administrative agencies and state and federal courts.  
The post President Trump Notwithstanding, Employment Law Compliance Should Remain A Top Concern in 2017 appeared first on Centre Law & Consulting.

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Hopefully you had already heard by now that the Department of Labor issued a new overtime rule that would require employers to pay time and a half to employees that worked more than forty hours a week and earned less than $47,476 a year. This raised the minimum earning level by about two times – from the current standard of $23,660 – and would have affected about 4.2 million American workers. The rule also established an automatic updating mechanism that would adjust the minimum salary level every three years. It was supposed to take effect on December 1, 2016; however, this rule has been blocked from going into effect by a federal judge in Texas.
U.S. District Judge Amos Mazzant issued a preliminary injunction on November 22 in a case filed by several states (twenty-one to be exact) challenging the rule against the Wage and Hour Division of the Department of Labor. The state plaintiffs argued that that new rule would cause an increase in government costs in their states and would cause businesses to have to pay substantially larger salaries.
In issuing the preliminary injunction, Judge Mazzant found that the plaintiffs have shown a likelihood of success on the merits because the rule exceeds the Department’s authority under Chevron. He further found that the plaintiffs will suffer irreparable harm if the preliminary injunction is not granted as agencies operating within budget constraints will have to comply with the rule to the detrimental effect on government services that benefit the public.
Furthermore, the judge found that the balance of hardships favors the plaintiff because: “(1) the States will be required to spend substantial sums of unrecoverable public funds if the Final Rule goes into effect; and (2) the Final Rule causes interference with government services, administrative disruption, employee terminations or reclassifications, and harm to the general public.”
In issuing the injunction, Judge Mazzant found a nationwide injunction to be proper as the new overtime rule is applicable to all states, not just the states participating in the suit. Furthermore, it is unclear the duration of this nationwide preliminary injunction. Specifically, Judge Mazzant enjoined the Department from implementing and enforcing the new overtime regulations “pending further order of this Court.”
In a prepared statement, the Department of Labor stated that it “strongly disagrees with the decision by the court, which has the effect of delaying a fair day’s pay for a long day’s work for millions of hardworking Americans.”
The statement goes on to read, “The Department’s Overtime Final Rule is the result of a comprehensive, inclusive rule-making process, and we remain confident in the legality of all aspects of the rule. We are currently considering all of our legal options.”
Read the statement in full or find more information, including Judge Mazzant’s order.
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 New Overtime Rule Blocked by Federal Judge appeared first on Centre Law & Consulting.

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NCMA NOVA Chapter Event on January 27
On January 27, Barbara Kinosky, Esq. will be a featured speaker at the NCMA NOVA chapter’s first monthly meeting of the new year for “Trends 2017 – the Ultimate Ins and Outs of Government Contracting”. Attendees will come up-to-date on all the latest hot topics in the federal contracting industry including:
What will a Trump presidency 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? Join us to hear all this and more as part of the January meeting discussion!
Lead Instructor of Service Contract Labor Standards Training Course on February 1-2
The Service Contract Labor Standards (formerly the Service Contract Act) is one of the most challenging acts in federal contracting. With more than 20 years of experience, Barbara has seen many federal contractors fall victim to several common areas of concern.
On February 1-2, Barbara will once again serve as lead instructor for Centre’s Service Contract Labor Standards training course. The content will cover the award and administration of covered contracts and provide detailed information on how to identify and mitigate risk under the SCLS, apply wage and benefit rules, avoid violations, fulfill SCLS obligations, and understand special compliance issues from the Department of Labor.
This course is designed for Contract Managers and Administrators, Contracting Officers and Specialists, Program Managers, Human Resource Managers, Executives, and any personnel responsible for preparing proposals.
See the Centre Training Calendar for more details and registration information.
NCMA SubCon Training Workshop on March 31
Barbara will be a featured workshop leader on March 31 at 8:30am for NCMA’s new SubCon Training Workshops (SubCon) event.
SubCon is designed to provide targeted subcontracting training by industry and government practitioners. A series of workshops will provide interactive discussions around discussions around buying, compliance, post-award management, and leadership.
Her advanced-level workshop – Things I Have Learned as an Arbitrator on How Not to Draft Agreements – will draw on her experience as an expert witness in prime subcontractor disputes and as an arbitrator on the Complex Disputes Panel of the American Arbitration Association. She has seen dozens of cases of “it was clear to me when I drafted it, so why are we in litigation?” Learn from the mistakes of others and avoid common ambiguities in teaming agreements, subcontracts, and other legal documents. If you draft any type of agreement, this session is for you.
More than 200 industry procurement professionals and government program managers are expected at the SubCon event.
 
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Centre Law & Consulting
It’s that time of year again! Early bird rates have arrived on all 2017 training courses!
Visit our Training Calendar to see the full slate of courses, and be sure to use code EARLYBIRD2017 to save $100 off your registration fee when signing up before December 30, 2016.
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As we now have FY2016 in the rear-view mirror, the government has begun to look back at the past year and look ahead to 2017.
GSA
In the case of GSA, the Federal Acquisition Service (FAS) commissioner, Tom Sharpe, reflected on the successes of the FAS program over the past year in a recent blog post. In it, he explains that GSA has achieved its three-year goal as the government acquisition marketplace. Sharpe then goes on to explain that the FAS initiative, Category Management, has helped with those goals. He defines Category Management as “the process of managing product or service categories as strategic business units and customizing them to meet customer needs.” What this means to contractors is that they should expect more initiatives like the Government-wide Laptop/Desktop initiative that includes GSA Schedule 70, SEWP, and CIO-CS.
FedRAMP
FedRAMP has also released its goals for 2017. These goals fall under three categories: More Cloud to Choose From, Transform Security Authorizations, and Stronger FedRAMP Community. To achieve these goals, FedRAMP wants to increase Cloud Services offerings from 72 to 150 and raise the number of FedRAMP ready service providers to 50 within the next year. Over the next six months, FedRAMP wants to increase the efficiency of providers who are able to receive a Provisional Authorization to Operate (P-ATO), redesign the Continuous Monitoring authorization process to be smoother and more agile, and focus on increasing the number of authorizations for low impact Software as a Service (SaaS) offerings. FedRAMP will work to achieve a stronger community over the course of 2017 by hosting two industry days to connect agencies with service providers and two industry roundtables to help agencies connect with one another. With these goals in place, GSA contractors can anticipate an increase in competition on the Cloud Computing Services SIN 132-40 on the IT 70 Schedule as well as an increase in opportunities.
For More Information
If you would like more information or additional training regarding IT 70’s FASt Lane initiative, the Formatted Pricing Tool (FPT), Transactional Data Reporting (TDR), the IT 70 Health SIN, the Cloud SIN, or the Cyber SINs, then be sure to attend the next Bootcamp for GSA Schedules training course on February 7-8, 2017.
 
About the Author
Michael Glazer
Contracts Manager
Michael Glazer focuses primarily on GSA/VA Schedule consulting. He regularly assists clients in all aspects of FSS contract management including contract negotiations, modifications, IFF reporting, subcontracting plans and reporting, IOA assessments, and other contract compliance issues. Michael also provides experience with GSA Alliant 1 & 2, ITES 3H and 3S, CIO-CS and SP3, and other large IDIQ contracts on an as needed basis to clients.  
The post GSA Reviews FY2016 and FedRAMP Looks Ahead to 2017 appeared first on Centre Law & Consulting.

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Raise Your Hand if You Want a Reenlistment Bonus to Redeploy – Oops Sorry, You Didn’t Read the Fine Print, Pay it Back Later
Really? Seriously, this cannot be true. You, by that I mean you the Pentagon, as in The Pentagon, why are you making soldiers pay back reenlistment bonuses they were promised? This is wrong. As in really, wrong. Their job was to show up, redeploy (“re” as in go back again to a place you wouldn’t take your family to on a vacation), and do their job. They did that. You, the Pentagon, your job was to pay the bonuses that you promised them. Oops, fine print error. Bring out the lawyers. The fine print was that after you paid the bonsues you could try and get the money back years later due to payment error that you, the Pentagon made. This is about fundamental unfairness. It seems a lot like Lucy pulling the football away from Charlie Brown, only a lot less comical. Do we need to start a Go Fund Me for the serviceman and women who were duped by this bait and switch? The Washington Post has more.
Then the Pentagon Asks Congress for $6 Billion More
I was hoping this $6 billion was for paying back the so-called bonuses they collected back from the service members, but no, life is not that fair. This money is to pay for troop increases in Iraq, a slower draw-down of troops from Afghanistan and more intense air operations, according to Pentagon Comptroller Mike McCord. The “budget amendment” also will respond to an urgent request from field commanders for additional systems to counter Islamic State drones, McCord said in an interview. Nothing will be happening until after the election though. Read more at Bloomberg online.
Former Pixar Exec to Head GSA’s TTS
Former Pixar executive Rob Cook is the new Commissioner of the Technology Transformation Service (TTS) at the General Services Administration (GSA). GSA created TTS earlier this year to help improve the technology of the federal government. Americans increasingly interact with vital services online and the job of TTS is to help agencies deliver digital products and services that are easy to use, efficient, effective and secure. Cook started October 31, 2016 and GSA’s website has more details.
Another Revolving Door
Patricia A. Shiu will step down as the director of the OFCCP on Nov. 6, and Thomas M. Dowd, the agency’s deputy director, will serve as the acting director until a new labor secretary appoints a permanent director. Under Shiu, OFCCP established new data collection and analysis requirements for the hiring of protected veterans and individuals with disabilities; instituted nondiscrimination protections based on sexual orientation and gender identity; sanctioned pay transparency; and rescinded 1970 sex discrimination guidelines, replacing them with regulations based on new cases and amendments to Title VII of the 1964 Civil Rights Act, as related to discrimination based on gender. Read more on Bloomberg BNA.
Government Sourcing Saves, but Not Enough
When the government spends $2 billion, you would think that saving $470 million in the process would be a good thing. And it is, but to the Government Accountability Office (GAO) it’s not enough. The GAO recently issued a report that looked at agency spending that occurred within blanket purchase agreements and other FSSI programs. The report concluded that the relatively low use of FSSIs diminished the potential savings. Having a lack of accountability to use the programs was partly to blame. As an example, even the Strategic Sourcing Leadership Council who is responsible for FSSI governance only directed 10% of their collective spending to FSSIs. The bottom line? As the report says, “Although federal strategic sourcing initiatives have saved agencies almost $500 million in the past four years, the Government Accountability Office said the millions could become billions if the initiatives were more widely used.” Read more on FCW’s website.
Could DC Metro Woes Lead to the Creation of Another Federal Agency
After being appointed to the Metro Board of Directors only about two years ago, Metro Board Chairman Jack Evans has consistently reported on the Metro’s failings over that time period. And now, Evans says, it is time for a change. Evans has now urged for a federal takeover of the transit system, stating that only a body that can fire employees and restructure without outside interference can fix the agency’s dire problems. Evans proposes a small board to run the Metro with five members appointed by the President. Evans believes that this board is necessary as a condition to get federal funds to help cover Metro’s operating deficits, which is estimated at $290 million in the next fiscal year. While the idea might be great in theory, Evans admits that the creation of the board would face major legal and political challenges. In facts Evans admits that he might not even have support behind the idea: “The region is resistant to change of any kind. Nobody wants to change anything, even as the house is burning down.” More information is in the Washington Post.
Another GAO Report on the VA
The GAO did a review on Veterans Health Administration (VHA) operations. They identified deficiencies in its organizational structure and recommended changes that would require significant restructuring to address, including eliminating and consolidating program offices and reducing VHA central office staff. However, VHA does not have a process that ensures recommended organizational structure changes are evaluated to determine appropriate actions and implemented. This is inconsistent with federal standards for internal control for monitoring, which state that management should remediate identified internal control deficiencies on a timely basis. 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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Uh-oh, Lenovo…
On September 26, the Pentagon’s Directorate for Intelligence, J-2, reportedly issued an internal report warning against the use of equipment made by computer manufacturer Lenovo because of concerns regarding potential cyber spying against defense networks. J-2 supports the Chairman of the Joint Chiefs of Staff, the Secretary of Defense, Joint Staff, and Unified Commands, and it is the national focal point for crisis intelligence support to military operations, indications, and warning intelligence in DoD as well as Unified Command intelligence requirements.
Per a report from Bill Gertz of The Washington Free Beacon, the Chinese Academy of Science, a Chinese government research institute, owns a 27 percent stake in Lenovo Group Ltd. The J-2 report purportedly states that “cyber security officials are concerned that Lenovo computers and handheld devices could introduce compromised hardware into the Defense Department supply chain, posing cyber espionage risks.” The report also purportedly contains a warning that Lenovo is seeking to purchase U.S.-based IT companies in order to gain access to classified defense networks.
The cyber security concern surrounding Lenovo is evidently not a new one as Gertz’s article reports that, following the company’s 2014 purchase of IBM’s BladeCenter line of computer servers (for a cool $2.1 billion), the U.S. Navy replaced the IBM servers within the “Aegis” battle management systems deployed on guided missile destroyers and cruisers over concerns that China could hack the warships through the server.
And, for those wondering, “why isn’t this a TAA issue?,” the server business Lenovo purchased is based out of North Carolina. Perhaps “country of ownership” will become as relevant as “country of origin.”
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.  
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As many contractors are approaching the end of their 20-year contract period in the FSS program, the General Services Administration (GSA) has made it possible for successful legacy contractors to follow a streamlined offer process for their new 20-year contract. Clause A-FSS-11 has been updated so that a contractor can now submit an offer for a new contract under the same Schedule at any time during the existing contract period.
Process Requirements
In order to follow the streamlined offer process, contractors must meet ALL of the following criteria:
The contractor has an existing Schedule and is submitting a new offer for the same SINs and Schedule Sales under the existing contract have averaged a minimum of $25,000 per year for the previous five years of reported sales There is a demonstrated pattern of satisfactory past performance under the existing contract To simplify the process for successful legacy contractors, GSA added clause SCP-FSS-001-S Instructions Applicable to Successful FSS Program Contractors to all solicitations. The following requirements were eliminated from SCP-FSS-001-S:
Readiness Assessment Financial Statements Corporate Experience Past Performance (Open Ratings) Relevant Project Experience The Pathway to Success training requirement is also expected to be eliminated from SCP-FSS-001-S in all solicitations via a refresh/mass mod that is due to be released shortly. The Pathway to Success training has already been removed from Schedule IT 70 via Refresh 40.
Notes on Proposal Submissions
The eMod system has not been updated to distinguish between successful legacy proposals and new contractor proposals, however. In order to override the eMod system, contractors will need to either add a note manually in the system on the applicable page or upload a blank document for all items that are not required by SCP-FSS-001-S.
When submitting your legacy proposal, you should include a listing of all active submitted quotes, established BPAs, and awarded orders under the existing contract. For each, the contractor must include the ordering activity name and point of contact, RFQ/BPA/order number, dollar value, and period of performance (including options). This information can be uploaded in eOffer as an “Other (optional – offeror defined)” document. The new legacy contract will overlap with the existing one until the agreed upon cancellation date of the existing contract. Contractors will utilize the new legacy contract for all new business opportunities.
Our Recommendation
In order to ensure a smooth transition from the existing contract to the new legacy contract, Centre recommends updating your existing contract prior to submitting a new legacy proposal. Review the labor categories, pricing, and other terms and conditions. If changes need to be made, modify your existing contract now so you can move the existing contract to the new legacy contract. However, please note an updated CSP-1 is required when submitting your legacy contract.
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.  
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If you’ve ever encountered the need to file a bid protest, you may remember feeling lost or overwhelmed the first time through the process. Maybe you were just confused and unsure of what would happen as you progressed from one step to the next. If you’re in the middle of a bid protest or foresee the need to enter into one in the future, the quick guide below walks you through a potential scenario of what can be expected.
SITUATION
Your company just received a non-award letter or have been excluded from the competitive range. You know your team worked hard on the proposal and you have proof that there have been some serious procurement law violations.
PROTEST GROUNDS
There are two types of protest grounds: pre-award and post-award. Pre-award grounds include protests that solicitations were unduly restrictive, ambiguous, unfair, or biased. Post-award protest grounds include protests that agencies did not follow evaluation criteria; engaged in misleading discussions; or had conflicts of interest, unstated criteria, or unequal treatment. In some situations, the Government Accountability Office (GAO) will also consider non-procurement protests when agencies did not follow their own rules and regulations.
STRATEGY
Step 1: Do you request a debriefing? Agency debriefings are mandatory in some but not all procurements. Centre
will assist you in determining whether the debriefing is mandatory, in drafting questions, and in preparing for it. The debriefing may reveal agency errors and procurement violations. Not all violations warrant filing a protest.
Step 2: Decision Point Deciding whether to protest, at what level, and based on what protest ground(s) is critical. In such a case, Centre Law & Consulting will quickly conduct legal research and fact analysis to advise you on whether you should file a protest, where, and what relief could be expected.
Step 3: Review the Agency Report Once you protest, a federal agency has 30 days to file its report along with additional documents relating to its source selection decision. Centre Law & Consulting will review all the documentation. In some cases, the report uncovers new protest grounds that were not apparent during the debriefing. Emails or other documents may also reveal agency bias, conflicts of interest, inaccurate calculations, misleading discussions, or improper evaluations.
Step 4: Corrective Action or Outcome Prediction Once an agency realizes that it made serious mistakes, it may take corrective action. In other situations, the GAO may conduct an outcome prediction analysis. This allows all parties to get to the result quicker and cut costs. If everything else fails, the GAO will issue a decision either sustaining, denying, dismissing, or sustaining in part the protest within 100 days.
Step 5: Cost Reimbursement Centre Law & Consulting will request cost reimbursement during the initial protest filing when appropriate. We will also document all costs associated with protest litigation to ensure that agencies reimburse the protester once the GAO recommends it.
IMPACT
The bid protest process is designed to ensure equal competition, fair evaluation, and prejudice to none. Successful protests ensure procurement integrity and result in favorable GAO recommendations including:
Re-evaluation of proposals Corrective actions Re-solicitation Cost reimbursement Other remedies include contract termination, contract re-compete, or a new solicitation.
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GSA has finally acted on the request from customer agencies and industry partners to allow Order Level Materials (OLMs), frequently called Other Direct Costs (ODCs), into the Multiple Award Schedule (MAS) program.
GSA is proposing to amend the General Services Administration Acquisition Regulation (GSAR) to establish special ordering procedures per FAR 8.403 (b). These new procedures will clarify the authority to acquire OLMs when placing an order or establishing a BPA against a Federal Supply Schedule contract.
As background, currently most commercial Indefinite-Delivery/Indefinite Quantity (IDIQ) contracts have the flexibility to acquire OLMs. This authority extends to contracts awarded pursuant to FAR Part 12 and orders awarded pursuant to FAR Subpart 16.5 and 8.4. However; Subpart 8.4 was never updated and as a result the ability to acquire OLMs was never fully implemented in the MAS program.
The proposed GSA rule includes some of the following amendments (a full list can be found in the proposed rule):
Add to GSAR 515.408 (c) that “offerors are not required to complete the commercial sales practices disclosure for order level materials” Prohibiting order-level materials from being the primary basis of the order Limiting the total value of order-level materials to 33 % of the overall order value Require the order-level materials to be purchased under a separate Special Item Number (SIN) to allow GSA to monitor sales and evaluate use Requiring the ordering activity contracting officers to determine that all prices for these materials are fair and reasonable Include controls to ensure any ceiling increases have been justified and approved in accordance with FAR 8.405.6. The final rule will only apply to the following GSA Schedules:
Federal Supply Schedule 03 FAC: Facilities Maintenance and Management Federal Supply Schedule 56: Buildings and Building Materials/Industrial Services and Supplies Federal Supply Schedule 70: General Purpose Information Technology Equipment, Software, and Services Federal Supply Schedule 71: Furniture Federal Supply Schedule 84: Total Solutions for Law Enforcement, Security, Facilities Management, Fire, Rescue, Clothing, Marine Craft, and Emergency/Disaster Response Federal Supply Schedule 00CORP: All Professional Services Federal Supply Schedule 738X: Human Resources and EEO Services The proposed GSAR rule was published September 9, 2016 and is open for a 60 day comment period.
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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Reproduced with permission from Federal Contracts Report, 105 FCR (Dec. 6, 2016). Copyright 2016 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
Talk More, Fret Less, Proposed Rule Urges Feds, Contractors
Federal acquisition officials are encouraging increased communication between industry and government, in the hope of ensuring a more efficient process for both parties.
An updated regulation would make it clear that it’s in the government’s best interests to talk to industry during all phases of the purchasing process, according to a proposed Federal Acquisition Regulation (FAR) rule published Nov. 29 in the Federal Register. It bolsters the notion, detailed in procurement policy memos issued in 2011 and 2012, that acquisition officials need to fret less about possible negative ramifications of talking to industry, and instead open lines of communication.
Some government contracts attorneys say they approve of the renewed emphasis.
“For a long time, there has been a fear of communication between agencies and contractors, but that needs to continue to change,” Jeff Chiow, a shareholder with the law firm Rogers Joseph O’Donnell PC in Washington, told Bloomberg BNA. “I think it’s absolutely appropriate.”
‘Must Not Hesitate.’
The proposed rule would mandate that the FAR adopt a section of the 2016 National Defense Authorization Act, which made it clear that agency acquisition personnel are “permitted and encouraged to engage in responsible and constructive exchanges with industry, so long as those exchanges are consistent with existing law and regulation and do not promote an unfair competitive advantage to particular firms.”
The proposed language to the FAR takes this one step further, specifically suggesting that government officials “must not hesitate” to communicate with industry as early as possible in the acquisition cycle to help determine what exactly is available in the commercial marketplace.
The rule also would add language to the FAR ensuring that agencies maximize their use of commercial products and services in meeting their requirements.
The key is that agencies should be broadcasting their plans to all competitors, and then have “frank conversations about what’s needed” with them to help determine if their proposals might be tweaked to fit the government’s needs. “The emphasis should be at the beginning of the process, but communication should be ongoing,” he said.
Not all government contracts attorneys agree on the impact of the proposed rule. Some say it wouldn’t do anything to stop the process from tilting toward larger contractors.
“In my opinion, the proposed rule does not materially change the current government and industry procurement cycle interaction or lack thereof,” Barbara Kinosky, managing partner of Centre Law & Consulting, told Bloomberg BNA in an e-mailed statement. “The large companies and those with savvy sales people will always be on the front end of procurements. They did not get to be large businesses by finding out about procurements on eBuy for the first time.”
The rule won’t change a government culture that, as it pertains to smaller procurements, “believes in low price and minimum engagement with contractors,” Kinosky said.
Common Misconceptions.
The proposed FAR rule was spurred by a pair of detailed procurement policy memos titled “Myth-Busting” and “Myth-Busting 2” that discussed “misconceptions” about communication between industry and government during the acquisition process.
The first of the memos, issued Feb. 2, 2011, and authored by Dan Gordon, then the administrator of the Office of Federal Procurement Policy, addressed what he said were 10 common misconceptions, including ungrounded fears that contractor-government communications are often the source of bid protests, and that because contractors are akin to registered lobbyists, conversations with them should be avoided to reduce disclosure burdens.
“While agencies do not have the resources and are not required to meet with every vendor at every step of the acquisition process, information gathered from industry sources plays an invaluable role in the acquisition process,” Gordon wrote. “For this reason, agencies must develop practices that will ensure early, frequent, and constructive communication during key phases of the process.”
 
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As a consultant assisting clients prepare for their Industrial Operations Analyst (IOA) visit, I am surprised by the anxiety that precedes these “I’m here to help you” visits. I receive comments from “I didn’t sleep all night” and “I forgot my Basis of Award (BOA) customer” to “Will the IOA cancel my contract as I forgot to pay my Industrial Funding Fee for the last quarter.” The anxiety has increased over the last two years as the IOAs are now reviewing your GSA Schedule annually if you have annual sales exceeding $150,000. While the majority of IOAs are trying to help you understand compliance with your schedule requirements, there are a few that want to add to your anxiety. I witnessed the IOA who started the visit with the comment that she was there to get money back for GSA and an IOA who threatened cancellation of the schedule (and no, IOAs cannot cancel your schedule contract).
In GSA’s Office of Inspector General (OIG) Semiannual Report to Congress for the period of April 1, 2016 through September 30, 2016, the tables were turned and the IOAs were reviewed.
IOA Assessment Report Purpose
The OIG conducted an audit of the contractor assessments program to determine if:
Contractor assessments were effective to determine contractors’ compliance with schedule contract terms and conditions IOAs were conducting their assessments in accordance with FAS guidance IOAs were communicating those results in a timely fashion and in the appropriate format IOAs were developing and completing training in accordance with program requirements  
IOA Assessment Report Findings
As a result, the OIG concluded the following:
Assessments add value as a method to monitor contractor compliance with terms and conditions of schedule contracts IOAs are generally conducting assessments in accordance with guidance OAs are effectively communicating those results in a timely fashion and in the required format  
IOA Assessment Areas of Improvement
The OIG also concluded that although the assessments were generally effective, they identified areas that could be improved “to enhance the consistency, completeness, and value of the assessments and reports.” For example:
FAS guidance does not provide specific requirements for sampling schedule sales transactions to ensure that contractors are properly reporting and remitting Industrial Funding Fees and resumes to verify that qualified labor for services are being provided for customer agencies. IOAs are not consistently reporting on labor qualifications. As a result, FAS does not have assurance that labor qualifications were assessed. FAS has not established a formalized, national training curriculum for experienced IOAs.  
Therefore, recommendations from the OIG to the FAS Commissioner include:
Revising the IOA Training Manual to include details on a risk-based sampling methodology Revising the assessment report template to include a specific section for reviewing labor qualifications to ensure consistent assessments Establishing and implementing a formal national training curriculum for experienced IOAs  
What Can I Do?
In summary, Contract Clause 552.215-71 (Examination of Records) allows the IOA to review contractors’ records to verify contractual compliance. Their role is to conduct contractor assessments as well as monitor sales reporting, sales adjustments, and Industrial Funding Fee remittance (previously conducted by your Administrative Contracting Officer).
Remember that the results of the IOA visit are advisory to your Contracting Officer (CO). Their assessment will be included in your GSA file for review prior to your Option Renewal. If you receive a negative assessment or don’t agree with a finding, you should submit a letter of clarification to your CO.
The best thing you can do to in advance of your IOA visit is to be prepared. Gather all documents requested by your IOA prior to the visit or virtual call. Review the terms and conditions of your schedule and know your Basis of Award and discounting. Ensure your GSA Schedule catalog is up to date and matches the last awarded modification. If you stay compliant with the requirements of your Schedule, then you will have a successful IOA review.
Your IOA contact information can be found at https://vsc.gsa.gov/tools/aco_ioa.cfm and Centre’s GSA Consultants are available to assist you through the process as well.
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 legal services for federal contractors, has successfully worked on behalf of its client – Phoenix Air – to win a favorable outcome in their bid protest against the Department of the Interior on a recent Request for Proposal (RFP).
At issue was the fact that the Department of the Interior allowed one contractor to be credited for meeting the proposal’s criteria even though it submitted information on one plane while recommending to use another in a $25 million U.S. Naval Sea Systems Command contract for electronic warfare aircraft services. Phoenix Air, the incumbent contractor, received a lower rating than the higher-priced awardee. As a result, Phoenix Air argued that the Department of the Interior misevaluated the submitted proposals by applying unstated evaluation criteria, unreasonably failed to hold discussions, and made an unreasonable source selection decision.
After reviewing the protest, the Government Accountability Office concluded that the evaluation of proposals was indeed unreasonable and inconsistent with the terms of the RFP. They sustained the protest in favor of Phoenix Air.
Given the decision, the Department of the Interior must now reevaluate proposals consistent with the solicitation’s evaluation criteria. The agency can amend the solicitation to advise offerors of the agency’s intended evaluation approach, but if it does, it will need to provide offerors with an opportunity to submit revised proposals before it conducts another review and makes a new decision.
“We are very pleased with the outcome of GAO’s decision in our client’s bid protest. It’s gratifying to know that Phoenix Air will have an opportunity to be more fairly evaluated under the set proposal standards and recompete for the work it has already has a history of doing with the Department of the Interior,” said Barbara Kinosky, Esq., Managing Partner of Centre.
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As we lead up to Thanksgiving later this week, many of us are in final preparations for the holiday. Some are making last minute trips to the grocery store while others are looking for pants with elastic waistbands.
However you’re celebrating this year, we at Centre Law & Consulting hope you enjoy a feast filled with friends and family. We hope you have many things to be thankful for this holiday season.

 
About the Author
Barbara Kinosky, Esq.
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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In April 2016, the Department of Defense (DoD) published a memorandum expanding DoD Source Selection Procedures beyond Tradeoff and Lowest Price Technically Acceptable (LPTA) to include Value Adjusted Total Evaluated Price (VATEP) Tradeoff. This newer procedure’s intent is to help define how the government evaluates contractor capabilities that go beyond minimum requirements and reach the government’s objective.
Although it’s been an option since April, we’re finding that many people still are unfamiliar with it. And we’ve certainly not seen it used in many solicitations yet either.
What does VATEP do?
VATEP Tradeoff monetizes a contractor’s performance and capabilities that exceed the minimum threshold and reach a maximum level. It provides a dollar amount or percentage that would then be “credited” to the contractor’s price proposal. This “credit” will not affect the amount awarded, only the government evaluated price. It is important to keep in mind that if the contractor’s price falls outside the affordability cap, this “credit” would still not bring a price below it.
For example, let’s say the government wants a chair made. The government states that the chair needs a minimum of three legs so it won’t fall over, but they would prefer a chair with four legs. Being the entrepreneur that you are, you have the capability to make chairs that have both three and four legs. Making a chair with three legs is considerably cheaper than four, but you are not sure how much the government values that extra leg if a traditional Best Value Tradeoff evaluation was used. VATEP puts a dollar figure on that leg, which would then be subtracted from your proposed price to reach the government evaluated price.
How does it help me?
By putting a specific value on a contractor’s performance and capabilities that reach the objective level, it provides the contractor clarity on whether to pursue additional performance beyond the government’s minimum requirements. If a company know it will cost them $500 to put that extra leg on all the chairs and the government only values the leg at $250, then the company knows it should only offer the government the three-legged chair instead.
This new procedure certainly won’t make sense for every requirement, but it does offer the government a way to make the process less cryptic. Could we see more agencies start to use this?
Only time will tell.
 
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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Centre Law & Consulting (Centre), a leading provider of acquisition services and training for both government agencies and federal contractors, is pleased to announce the award of a contract with the Court Services and Offender Supervision Agency (CSOSA).
Under the contract, Centre will develop and deliver an Executive Contracting Officer’s (COR) Training Program for a base period of one year with two one-year option periods. The training program will focus on increasing the knowledge of CSOSA’s acquisition and non-acquisition personnel in the areas of contract administration, planning, and management for procuring services and supplies in support of the CSOSA mission.
“Centre is excited to have been to be selected by CSOSA to be their training provider, and it’s a testament to our long history of providing high quality acquisition and procurement education. We look forward to providing our expertise to CSOSA and to helping them achieve their goals,” said Barbara Kinosky, Esq., Managing Partner of Centre. “Our unique background in procurement law and regulations and focus on customization will ensure that CSOSA receives the greatest possible support for its COR training program.”
Centre has a long history of working with a variety of government agencies, but this contract marks the first time it will partner with CSOSA. Centre was selected based on its experience in creating custom courseware that is tailored to an agency’s specific needs and for its day-to-day experience in advising acquisition professionals on compliance and implementation.
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Uh-oh, Lenovo…
On September 26, the Pentagon’s Directorate for Intelligence, J-2, reportedly issued an internal report warning against the use of equipment made by computer manufacturer Lenovo because of concerns regarding potential cyber spying against defense networks. J-2 supports the Chairman of the Joint Chiefs of Staff, the Secretary of Defense, Joint Staff, and Unified Commands, and it is the national focal point for crisis intelligence support to military operations, indications, and warning intelligence in DoD as well as Unified Command intelligence requirements.
Per a report from Bill Gertz of The Washington Free Beacon, the Chinese Academy of Science, a Chinese government research institute, owns a 27 percent stake in Lenovo Group Ltd. The J-2 report purportedly states that “cyber security officials are concerned that Lenovo computers and handheld devices could introduce compromised hardware into the Defense Department supply chain, posing cyber espionage risks.” The report also purportedly contains a warning that Lenovo is seeking to purchase U.S.-based IT companies in order to gain access to classified defense networks.
The cyber security concern surrounding Lenovo is evidently not a new one as Gertz’s article reports that, following the company’s 2014 purchase of IBM’s BladeCenter line of computer servers (for a cool $2.1 billion), the U.S. Navy replaced the IBM servers within the “Aegis” battle management systems deployed on guided missile destroyers and cruisers over concerns that China could hack the warships through the server.
And, for those wondering, “why isn’t this a TAA issue?,” the server business Lenovo purchased is based out of North Carolina. Perhaps “country of ownership” will become as relevant as “country of origin.”
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.  
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As many contractors are approaching the end of their 20-year contract period in the FSS program, the General Services Administration (GSA) has made it possible for successful legacy contractors to follow a streamlined offer process for their new 20-year contract. Clause A-FSS-11 has been updated so that a contractor can now submit an offer for a new contract under the same Schedule at any time during the existing contract period.
Process Requirements
In order to follow the streamlined offer process, contractors must meet ALL of the following criteria:
The contractor has an existing Schedule and is submitting a new offer for the same SINs and Schedule Sales under the existing contract have averaged a minimum of $25,000 per year for the previous five years of reported sales There is a demonstrated pattern of satisfactory past performance under the existing contract To simplify the process for successful legacy contractors, GSA added clause SCP-FSS-001-S Instructions Applicable to Successful FSS Program Contractors to all solicitations. The following requirements were eliminated from SCP-FSS-001-S:
Readiness Assessment Financial Statements Corporate Experience Past Performance (Open Ratings) Relevant Project Experience The Pathway to Success training requirement is also expected to be eliminated from SCP-FSS-001-S in all solicitations via a refresh/mass mod that is due to be released shortly. The Pathway to Success training has already been removed from Schedule IT 70 via Refresh 40.
Notes on Proposal Submissions
The eMod system has not been updated to distinguish between successful legacy proposals and new contractor proposals, however. In order to override the eMod system, contractors will need to either add a note manually in the system on the applicable page or upload a blank document for all items that are not required by SCP-FSS-001-S.
When submitting your legacy proposal, you should include a listing of all active submitted quotes, established BPAs, and awarded orders under the existing contract. For each, the contractor must include the ordering activity name and point of contact, RFQ/BPA/order number, dollar value, and period of performance (including options). This information can be uploaded in eOffer as an “Other (optional – offeror defined)” document. The new legacy contract will overlap with the existing one until the agreed upon cancellation date of the existing contract. Contractors will utilize the new legacy contract for all new business opportunities.
Our Recommendation
In order to ensure a smooth transition from the existing contract to the new legacy contract, Centre recommends updating your existing contract prior to submitting a new legacy proposal. Review the labor categories, pricing, and other terms and conditions. If changes need to be made, modify your existing contract now so you can move the existing contract to the new legacy contract. However, please note an updated CSP-1 is required when submitting your legacy contract.
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.  
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If you’ve ever encountered the need to file a bid protest, you may remember feeling lost or overwhelmed the first time through the process. Maybe you were just confused and unsure of what would happen as you progressed from one step to the next. If you’re in the middle of a bid protest or foresee the need to enter into one in the future, the quick guide below walks you through a potential scenario of what can be expected.
SITUATION
Your company just received a non-award letter or have been excluded from the competitive range. You know your team worked hard on the proposal and you have proof that there have been some serious procurement law violations.
PROTEST GROUNDS
There are two types of protest grounds: pre-award and post-award. Pre-award grounds include protests that solicitations were unduly restrictive, ambiguous, unfair, or biased. Post-award protest grounds include protests that agencies did not follow evaluation criteria; engaged in misleading discussions; or had conflicts of interest, unstated criteria, or unequal treatment. In some situations, the Government Accountability Office (GAO) will also consider non-procurement protests when agencies did not follow their own rules and regulations.
STRATEGY
Step 1: Do you request a debriefing? Agency debriefings are mandatory in some but not all procurements. Centre
will assist you in determining whether the debriefing is mandatory, in drafting questions, and in preparing for it. The debriefing may reveal agency errors and procurement violations. Not all violations warrant filing a protest.
Step 2: Decision Point Deciding whether to protest, at what level, and based on what protest ground(s) is critical. In such a case, Centre Law & Consulting will quickly conduct legal research and fact analysis to advise you on whether you should file a protest, where, and what relief could be expected.
Step 3: Review the Agency Report Once you protest, a federal agency has 30 days to file its report along with additional documents relating to its source selection decision. Centre Law & Consulting will review all the documentation. In some cases, the report uncovers new protest grounds that were not apparent during the debriefing. Emails or other documents may also reveal agency bias, conflicts of interest, inaccurate calculations, misleading discussions, or improper evaluations.
Step 4: Corrective Action or Outcome Prediction Once an agency realizes that it made serious mistakes, it may take corrective action. In other situations, the GAO may conduct an outcome prediction analysis. This allows all parties to get to the result quicker and cut costs. If everything else fails, the GAO will issue a decision either sustaining, denying, dismissing, or sustaining in part the protest within 100 days.
Step 5: Cost Reimbursement Centre Law & Consulting will request cost reimbursement during the initial protest filing when appropriate. We will also document all costs associated with protest litigation to ensure that agencies reimburse the protester once the GAO recommends it.
IMPACT
The bid protest process is designed to ensure equal competition, fair evaluation, and prejudice to none. Successful protests ensure procurement integrity and result in favorable GAO recommendations including:
Re-evaluation of proposals Corrective actions Re-solicitation Cost reimbursement Other remedies include contract termination, contract re-compete, or a new solicitation.
The post Quick Guide to the Bid Protest Process appeared first on Centre Law & Consulting.

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Potential Intervenors Denied Intervention in Multi-Billion Dollar Protest as Having No Legal “Interest” in Protest
The Court of Federal Claims issued a decision on September 27, 2016 denying two motions to intervene in a bid protest.
Nevada Site Science Support and Technologies Corporation (NVS3T) filed a bid protest alleging that the Department of Energy’s decision to rescind a multi-billion dollar contract awarded to it based on ownership issues involving the Plaintiff was arbitrary and capricious. Following the bid protest, Mission Support & Test Services, LLC and Nuclear Security & Technology, LLC filed Motions to Intervene.
The Court, in denying the motions to intervene, relied on Rule 24 of the Rules of the Court of Federal Claims and found that the potential intervenors have no real interest in the dispute. Rather, their interest is simply potentially being awarded the contract if the Plaintiff loses the protest.
Perhaps the Court said it best: “However, the simple fact that a party might benefit form another’s legal misfortune does not lead to an understanding that said party should have a role in occurrence of that legal misfortune. If a singer suffers a voice injury and is, as result, fired from her job, it is hardly conceivable to believe that a Court would allow a rival singer to intervene in that case on the side of the employer simply because he might subsequently get the newly vacant job!”
Nevada Site Science Support and Technologies Corporation v. United States, Fed. Cl., No. 16-1118C, 9/27/16, available at https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2016cv1118-31-0.
Protest Deemed Moot Due to Completion of Contracts
In a decision on September 26, 2016 from the Court of Federal Claims, the Court found that Plaintiff’s protest was rendered moot in light of the fact that the contracts have been completed.
This post-award bid protest involved a Plaintiff’s challenge to the Government’s use of research and development funds to develop software that the Plaintiff claims is already commercially available.
As way of background, in 2004, the U.S. Navy on behalf of the Department of Defense’s Combating Terrorism Technical Support Office (CTTSO) awarded a contract to Georgia Tech Applied Research Corporation (GTARC) for development of a program to aid first responders dealing with hazardous materials. In 2008, GTARC received a contract to enhance the program it developed. The resulting system was developed as “freeware” – a product free of charge to first responders at all levels of government.
The contracts at issue in Alluviam’s bid protest were not awarded until 2013 and 2014 – the Broad Agency Announcements (BAA) were issued in 2013 and 2014, seeking development of technologies related to chemical, biological, radiological, nuclear, or explosives. Alluviam submitted a proposal to the 2013 BAA but was eliminated from competition at an early stage, which it did not protest; Alluviam declined to submit a bid for the 2014 BAA. Both contracts were awarded to GTARC and are now near completion.
In February 2016, Alluviam filed an agency protest challenging the 2014 contract claiming that the agency improperly used the BAA procedure and that a member of the agency staff had a conflict of interest with GTARC. After the protest was denied at the agency level, Alluviam filed the protest at the Court of Federal Claims.
The Court, in determining that Plaintiff lacks standing to bring this bid protest, noted the fact that Alluviam did not protest the agency’s rejection of its proposal under the 2013 BAA, nor did it submit any proposal for the 2014 BAA. The Court further found that Alluviam is essentially challenging the Government’s procurement method in developing an already available commercial product, but Alluviam should have challenged that method when the agency begun this process in 2004 – now, nearly twelve years later, Plaintiff lacks the standing to object to the completed contracts.
The agency made its decision to approach the development of hazardous material response programs nearly twelve years ago when it awarded its first contract to GTARC in 2004, and the work performed is now nearly complete. Because Alluviam was aware of this development approach since 2004, it lacked standing to bring the protest. The Court also found that the completion of the contracts rendered the case moot.
Alluviam , LLC v. United States, et al., Fed. Cl., No. 16-614C, 9/26/16, available at https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2016cv0614-87-0.
Kim Kardashian Has Made It to the Supreme Court – Kind Of
In more fun news – thanks to Justice Stephen Breyer, Kim Kardashian will be forever included on the transcript for a Supreme Court case.
On October 4, 2016, Justice Breyer brought up the celebrity in oral arguments in the matter of Shaw v. United States, a case involving whether the bank-fraud statute’s language “scheme to defraud a financial institution” requires proof of a specific intent to cheat a bank. Specifically, the case involved the appeal of Lawrence Shaw, who was convicted of bank fraud after transferring $300,000 to his account from another’s.
In discussing the necessary intent for bank-fraud and questioning whether the defendant must have the intent to cause the bank to lose money, Justice Breyer analogized the situation to more recent events (for those of us that don’t keep up with the Kardashians, Kim was recently robbed of nearly $10 million in jewelry while in Paris): “Even Kardashian’s thief, if there is one, believes that all jewelry is insured. Indeed over insured. So it’s not theft?” Breyer continued, “I’m asking you, if the local person comes to the door and says, dear Miss Kardashian, I am your local jewelry cleaner. Please give me your jewelry. She does. And that’s not fraud. He wanted to get the jewelry. He tried to get the – he also believed that the friend has just loaned it for the evening, that she’s triple insured, and that she won’t even lose any money because the publicity will be worth it. Okay?”
A full copy of the Supreme Court transcript is available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/15-5991_7648.pdf.
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 New Decisions in Bid Protests and How Kim Kardashian Made It to the Supreme Court appeared first on Centre Law & Consulting.

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