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Too Big to Be Small, Too Small to Be Big

Many “small” businesses listed in Federal Procurement Data Systems find themselves in a paradox—they’re at once too small to compete with large contractors, but also too large to benefit from small business set-asides. These growing firms have achieved what every small business owner hopes for—start small, gain market traction, and grow. But when a firm graduates from the benefits of small business set-asides, they enter the “mid-tier” — a murky limbo that can leave them vulnerable and, potentially, unable to compete. The government should, as a matter of policy, continue to support and foster the growth of firms that enter the mid-tier. Research suggests maturing small businesses produce more jobs than established companies or startups. But today, these mid-tier firms have nowhere to “grow” in the federal marketplace. It’s a double-edged sword that’s not good for the economy or the federal agencies that rely on relationships with maturing small businesses. Size Does Matter… When it comes to professional services, mid-tier contractors simply cannot compete with the large contractors that dominate the space. Larger firms have several competitive advantages that make true competition between mid-tier firms and the largest firms illusory. Multi-billion dollar companies have the resources to commit the talents of well-paid business development and marketing staffers solely to proposal development across multiple industries. This increases the competitiveness of the largest companies in the bidding process — potentially freezing out emergent smaller companies. In contrast, mid-size companies have limited bid and proposal budgets and typically do not have teams of individuals solely dedicated to business development and marketing. This lack of infrastructure at mid-size companies constrains their ability to compete successfully against larger actors. What can a mid-size firm do? Often, they’re forced to sell. Competition is stifled when multi-billion dollar companies force these businesses into their supply chain through acquisition once these companies have become ineligible for small business awards. If not acquired, an advanced small or mid-size company may have to modify its business model to focus on subcontractor relationships with other large or small companies. Being limited to subcontractor roles impairs the mid-tier firm’s ability to gain project management experience essential for further growth. …Especially in a Shrinking Market Over the last decade, the competitive dynamics of the federal procurement market – and in particular the federal professional services industry – have changed drastically. The federal market continues to shrink in the short-term, along with the diversity of companies that supply government customers. Industry consolidation appears to have run its course in terms of efficiency, and now it simply means fewer choices for government managers. Uncertain procurement strategies by government agencies — owed partially to congressional gridlock — challenge agencies and industry to see and prepare for future requirements. This uncertainty has adverse effects on competition and deprives the federal government of the opportunity to realize a return on its initial investment in emergent small businesses. As in any market, there are winners and losers. But for today’s small contractors, winning might just be what sets them up to be losers. Finding opportunities to help mid-tier companies mature into strong businesses is essential — both for the competitiveness of the market and the ability of agencies to meet their mission with the most innovative solutions. Advanced small firms have done what we all want to do. They began small, became seasoned, and grew. The government should as a matter of policy, support and foster such growth since previous data from Christopher Yukins and other researchers suggest that maturing small businesses produce more jobs than either very large or new companies. Presently, these advanced small firms have nowhere to “grow” in the federal marketplace. That is not good for the economy or federal agencies that have derived benefits from their relationships with growing small contractors. Sizing Up the Competition Increased concentration of Federal Professional Services Industry contract awards being performed by large companies stifles competition because advanced small companies simply cannot successfully compete with the largest players. Larger firms have several advantages that make competition between advanced small and the largest firms illusory. Multi-billion dollar companies leverage the talent of well-paid business development and marketing staff as well as teams of professional technical writers and graphic artists that can dedicate their efforts solely to proposal development. Additionally, large size companies can use their expertise to operate in multiple industries. This increases the relative competitiveness of the largest companies in the bidding process. In contrast, mid-size companies have limited bid and proposal budgets and typically do not have teams of individuals solely dedicated to business development and marketing. This lack of infrastructure at mid-size companies constrains their ability to compete successfully against larger actors. Competition is stifled when multi-billion dollar companies force these businesses into their supply chain through acquisition after these companies have become ineligible for small business awards. If not acquired, an advanced small or mid-size company may have to modify its business model to focus on subcontractor relationships with other large or small companies. Being limited to subcontractor roles impairs the advanced small firm’s ability to gain project management experience essential for further growth. The Government Market is Shrinking The federal market continues to shrink in the short-term, along with the diversity of industry choices that supplies those customers. Industry consolidation appears to have run its course in terms of efficiency, and now simply means fewer choices for government managers. Uncertain strategies by government agencies — owed partially to congressional gridlock -challenges agencies and industry to see and prepare for future requirements. This uncertainty, however, has an adverse impact that shuts down competition and deprives the Federal Government from realizing any return on its initial investment in advanced small companies during their early growth. While significant policy change will occur next year regardless of who takes control of various levels of government is an easy prediction to make, those working within today’s contracting community can expect to be asked to get things done faster and more effectively. Within federal contracting, all its many constituencies define success differently (whether you are a small, advanced small, mid-sized, or large business) and almost never achieving a consensus. As in all business, there are winners and losers. “Where you stand depends on where you sit.” In the worst-case scenario, an Advanced Small firm will fail. To learn even more, plan to attend “Federal Procurement Opportunities for Small Businesses and Middle Market Contractors“, a breakfast seminar hosted in partnership with Mid-Tier Advocacy on June 23 in Tysons Corner, VA.

Mid-Tier Advocacy, Inc. (MTA) is a 501(c) 3 non-profit organization was established to work toward the elimination of the competitive disadvantage facing mid-tier government support service companies. A nonpartisan organization, MTA provides resources and public awareness through issue forums and structured branded events. As such, we leverage the collective voice for mid-tier firms in response to federal policies that impact their growth and sustainability. MTA hosts scheduled business events “MTA Business Focused Breakfast” in the DMV area where industry meets policy. About the Author: Tonya M. Saunders
Founder of Mid-Tier Advocacy, Inc.
Tonya Saunders is the founder and principal for Washington Premier Consulting and Washington Premier Group. Among her accomplishments is founding and directing Mid-Tier Advocacy, a national coalition of small, emerging, and medium-sized businesses.   The post Too Big to Be Small, Too Small to Be Big appeared first on Centre Law & Consulting.
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Timeliness of Bid Protests

By Tyler Freiberger  Untimeliness is one of the most common reasons protests of government solicitations and awards before the Government Accountability Office (“GAO”) and The Court of Federal Claims are dismissed. The accompanying chart describes the somewhat harsh and complex rules required for filing before each body. For protests on how a solicitation is written, a contractor must protest simply before the bids are made. But other protests have strict timing demands measured from when the basis for the protest “is known or should have been known.” 4 C.F.R. 21.2. The definition of this phrase has been stretched repeatedly to include situations that would likely surprise unwary contractors. Last year, the GAO decided VMD Systems. The merits of the protest are not particularly interesting, but the decision does illustrate how liberally the GAO is willing to interpret “should have known.”  In VMD Systems, the contractor was excluded from the competitive range of a NASA contract. Hoping to learn as much as possible for why the award would go to another, the contractor elected to receive a debriefing from the government agency after the award was made, rather than a debriefing only on why it was excluded. After the debriefing, VMD protested its exclusion from the process claiming it was held at a higher standard than others. No dice. The GAO ruled that because VMD could have learned the basis of their protest by electing to take the earlier debriefing option, waiting until after VMD actually knew of the basis was untimely, and therefore the protest was dismissed. More recently, the Court of Federal Claims used similar logic to that applied by the GAO in VMD Systems. In Sonoran Technology, the Court of Federal Claims considered an odd set of events where one contractor, Sonoran, won the award, faced two different protests, lost the protest and then ultimately the award to a competitor.  As the original awardee, Sonoran had the right to intervene in the original protests but chose not to. When the award was eventually given to the competitor, Sonoran filed a protest of its own through a complaint to the Court of Federal Claims.  The court dismissed the complaint as untimely under the same reasoning used in VMD Systems; had Sonoran exercised the right to intervene in the original protests, it would have learned the basis for the complaint to the Court of Federal Claims much earlier therefore that is the date where the timeliness clock starts. So, what can a contractor do to protect his or her rights? The accompanying chart provides a summary of important rules and procedures required to protest before the GAO and the Court of Federal Claims. But as shown here, the deciding bodies often interpret the rules to require contractors to aggressively seek out any information that could support a protest and act immediately.       Forum     Timeliness     Performance Stay     Task Order/IDIQ     Filing Fees     Time Frame for Decision Government Accountability Office (GAO) Protest based upon improprieties in a solicitation: Must be filed prior to the time set for submission of initial proposals.   All other protests: Must be filed not later than ten days after the basis of the protest is known or should have been known.   Debriefing exception: protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. In such cases, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than ten days after the date on which the debriefing is held.     Pre-award protest: When the agency has received notice from the GAO of a protest, the Agency must delay the award.   Post-award protest: An automatic stay applies if the protest is filed within five days of a requested and required debriefing, or, if no debriefing was requested and required, within ten days of contract award provided that the GAO notifies the agency within that time frame. The GAO only has jurisdiction over civilian agency task order awards valued over $10 million.   The GAO’s jurisdictional threshold for military agency task order protests is $25 million.   Department of Defense task orders issued under civilian agency Government Wide Acquisition Contracts (GWACs) are subject to the $10 million threshold applicable to civilian task order awards.   There is no minimum value dollar threshold for Federal Supply Schedule (FSS) contracts. Currently none. GAO will be implementing a $350 filing fee in the future. GAO shall issue a decision on a protest within 100 days after it is filed. Forum Timeliness Performance Stay Task Order/IDIQ Filing Fees Time Frame for Decision Court of Federal Claims (COFC) Pre-award protest: No specific time limits but errors apparent on the face of the solicitation must be protested prior to the time set for submission of initial proposals.   Post-award protest: No specific time limits but serious delay may impact the decision. No automatic stay applies at the COFC. Instead, the protester must seek a preliminary injunction. The COFC has jurisdiction over task order protests only where the protester alleges an increase in scope, period, or maximum value of the contract under which the order is issued or where a protest of an order valued in excess of $10 million (civilian task orders)/$25 million (military task orders). $350. No set time frame for decision but the court’s practice is to expedite protest cases to the extent practicable and to conduct hearings on motions for preliminary injunctions at the earliest practicable time.   About the Author: Tyler Freiberger
Associate Attorney
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.     The post Timeliness of Bid Protests appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

This Blog Is Subject to Change in a Twitter Moment

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
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 This Blog Is Subject to Change in a Twitter Moment appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

Third Time’s the Charm? Not so Much for this Protester

In its July 28, 2017 decision, the GAO denied a protest and found an agency’s decision to negotiate a sole-source contract with a Historically Underutilized Business Zone (HUBZone) to be reasonable based on the agency’s lack of progress in meeting its HUBZone goals. JRS Staffing Services, B-414630, B414630.2 (July 28, 2017). The original solicitation process from the Department of Justice, Bureau of Prisons (BOP), underwent several rounds. The BOP originally issued a solicitation without any restriction on competition. However, following a protest from JRS, they agency canceled the solicitation in order to conduct market research to determine whether it would be feasible to set the contract aside for small businesses. Several months later, the BOP awarded a HUBZone sole-source contract to ProHill. JRS subsequently protested that award, challenging the BOP’s failure to post a notice of its intent to award a sole-source contract on the FedBizOpps website. The BOP subsequently terminated the sole-source contract in order to being the procurement process over. One month later, the BOP posted a statement of work and a sources sought notice for the requirement on the FedBizOpps website, which included a market research questionnaire. One more month later, BOP posted a notice of the agency’s intent to negotiate a sole-source contract with ProHill, a HUBZone. JRS subsequently filed its third protest regarding this BOP contract. In challenging the BOP’s decision to negotiate a HUBZone sole-source award with ProHill, JRS argued that the award was based on flawed market research as the solicitation could have been competed as a WOSB set aside as both JRS and ProHill are WOSBs. In denying JRS’s protest, the GAO noted that the FAR expressly provides that there is no order of precedence between the WOSB and HUBZone programs and agencies may consider both the results of their market research and their progress in fulfilling their small business goals. Here, it was reasonable that the agency’s decision to use the HUBZone program was based primarily on its lack of progress in meeting its HUBZone goals whereas the agency had already exceeded its WOSB goals. Therefore, the GAO dismissed JRS’s protest.   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 Third Time’s the Charm? Not so Much for this Protester appeared first on Centre Law & Consulting.
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The Strange Case of Daniel Horowitz and His Three Years of Paid Leave

By Barbara Kinosky, For exactly three years Daniel Horowitz was paid his full GS-15 salary of $161,000 to do – well – exactly nothing. That delicious gravy train finally ended. We can now say that Dr. Horowitz was employed (past tense) by the Chemical Safety Board (CSB), a small independent agency that I never heard of. He had been charged with misconduct over a kerfuffle on how he handled certain leadership roles but his case went into limbo. One day Dr. Horowitz was busy doing whatever PhD GS-15 Managing Directors do at the Chemical Safety Board, when armed police wearing protective armor escorted him out of his office. I do not know Dr. Horowitz but that does seem like a bit of an overkill when his only weapon may have been the periodic table. The Public Employees for Environmental Research (another group I did not know about) is representing him at the Merit Systems Protection Board. They argue that he was terminated because congressional Republicans put pressure on the new chair of the CSB to say adieu to the chemist. They say the charges against him are vague and the onus was on CSB to make a decision about his extended leave but instead, they left him in paid limbo for three years. Dr. Horowitz, in an interview with Government Executive, said he offered many times to take on tasks and work from home but was rebuffed by the agency. Sen. Chuck Grassley, R-Iowa, attached a bill to the 2016 Defense Authorization Bill that limits the maximum administrative leave in these types of cases to 10 days. I note with some irony that 18 months later the Office of Personnel Mangement (OPM) is still working out the details. OPM better hustle, because under the Trump government reorganization plan its role is being reduced. But that will probably take at least three years to do. A thank you to Charles S. Clark for letting me crib from his breaking news story at Government Executive.   About the Author: Barbara Kinosky
Managing Partner
Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has more than twenty-five years of experience in all aspects of federal government contracting. Barbara is a nationally known expert on GSA and VA Schedules and the Service Contract Act, and she has served as an expert witness for federal government contracting cases.   The post The Strange Case of Daniel Horowitz and His Three Years of Paid Leave appeared first on Centre Law & Consulting.
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The Promoting Value Based Procurement Act of 2017 Approved by House Oversight Committee

Last week the House Oversight and Government Reform Committee approved the Promoting Value Based Procurement Act of 2017 on a voice vote without any dissent, meaning the bill now proceeds to the House floor. The Act, which was initially introduced in June, substantially limits the number of federal contracts that may use the lowest-priced bid as the major deciding factor – this means a severe limit on lowest price technically acceptable, or LPTA, contracts. In fact, the current text of the bill requires revision of the FAR to require that LPTA source selection criteria are only used in six specified situations. Further, the bill mandates that, to the maximum extent practicable, the use of LPTA should be avoided in a procurement that is predominately for the acquisition of (1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, or other knowledge-based professional services; (2) personal protective equipment; or (3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq. Rep. Gerry Connolly, D-Va., one of the bill’s co-sponsors, said during the markup that the use of LPTA contracts has become too rigidly applied and has “started to calcify some large chunks of contracting in the federal sphere.” He continued, “When an agency seeks the assistance of a company to help it analyze and address cybersecurity needs, for example, it might not know the extent of services that will eventually be needed,” and “quality and innovation must be considered.” 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 The Promoting Value Based Procurement Act of 2017 Approved by House Oversight Committee appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

The Procurement Puzzle: Putting the Pieces Together to Boost Federal Sales

The Federal Marketplace can be challenging and risky for the uninitiated, and even for seasoned contractors. The Federal Acquisition Regulation (FAR) alone contains 53 parts over 1,903 pages, including nearly 590 provisions and clauses (some with alternates), and many of which will ultimately find their way into your contracts. And this doesn’t even include Agency-specific acquisition regulations which supplement and implement the FAR. As if securing and administering government contracts were not challenging enough, how about trying to figure out the puzzle of who buys your supplies and services, where and how they buy them, and who do they buy from? Unfortunately, some folks still rely exclusively on agencies’ Forecasts of Contracting Opportunities (FCO) thinking this is all they need for identifying upcoming procurement opportunities. While Federal Law (P.L. 100-656) requires all Federal agencies with procurement budgets of $50+ Million (almost all of them these days) to publish an FCO, the FCOs from most agencies are unfortunately not robust, are hardly all-inclusive with their information, and only tell part of the story. Fortunately putting together the Who—What—When—Where and How puzzle pieces is much easier than securing and administering a contract thanks to the Federal Procurement Data System — Next Generation, commonly known as FPDS-NG or FPDS. A Better Solution A great way to know where procurements are going is to see where they’ve been. That’s where Federal Procurement Data System comes in. It is the real-time relational database serving the government acquisition community as the authoritative source of contract information, which contains summary level data and is used at all levels of the Federal government for policy and trend analysis. The numbers and data in FPDS change every hour of every workday. The system contains millions of transactions, and there are millions of permeations for extracting various combinations of data elements to suit your unique needs. Unlike FPDS, the USAspending.gov website uses a static approach to capturing and reporting data, meaning the data is presented and simple charts and graphs which do not change until the next update, which is required every 30 days under the Federal Funding Accountability and Transparency Act. This makes access to current and real-time data through FPDS is invaluable, and knowing how to put the pieces of this puzzle together can help competitively position your company and help boost your federal sales. Hands-On Learning Don’t be overwhelmed by the idea of learning a system that might new to you though! On August 16, 2016, learn the intricacies of FPDS in one-day course, “Introduction to the Federal Procurement Data System”. This hands-on, dynamic course unlocks the mysteries and power of FPDS for your company’s competitive benefit and includes content such as: Providing an overview and requirements of FPDS reporting by Federal agencies Detailing what transactions are required to be reported along with what is available and what is not available through FPDS Learning who buys what, how they buy, and whether these procurements are conducted through the Federal Supply Schedules Program, Other Government Agency Contracts, or on the open market Identifying when your competitors’ contracts will expire or when other contracts in your commercial line of endeavor are due to expire and be re-competed Discovering if set-asides are used in acquiring the products and services you offer and how you may qualify Explaining the distinct advantages of using FPDS vs. USAspending.gov This course will use a combination of both lecture and hands-on laboratory, whereby participants will create individual FPDS accounts and actually create and run reports using standard reporting as well as the system’s invaluable and powerful ad hoc reporting capabilities. The critical knowledge, skills, and abilities gained from this intense one-day training class can be taken back to the workplace, along with reports ready to be run and re-run to meet your company’s needs. What’s In It for You? Enhance your company’s competitive position in the Federal market place by harnessing the power of procurement data. Stop wasting scarce marketing resources targeting agencies where opportunities do not exist. Instead, use data from FPDS to focus, target, and hone your marketing efforts in areas which will offer the best potential returns on your marketing investment. You’ll also save time by eliminating the need for time-consuming and often costly Freedom of Information Act (FOIA) requests for data. Your competitors have this information and use it to their competitive benefit and advantage, why shouldn’t you? If you want to be the “go-to-person” at your company for this type of data and you want your company to be more competitive, then this course is for you. We look forward to seeing you on August 16, so we can put the puzzle pieces together! About the Author Wayne Simpson, CSCM
Wayne Simpson is a seasoned former Federal executive and acquisition professional who is also a highly-motivated and demonstrative small business advocate, with nearly 38 years of Federal Civilian Service with the U.S. Department of Veterans Affairs (VA), and its predecessor organization, the Veterans Administration.   The post The Procurement Puzzle: Putting the Pieces Together to Boost Federal Sales appeared first on Centre Law & Consulting.
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The Overhaul of the U.S. Export Controls Will Benefit Small Businesses

Currently, the U.S. Government is revising the U.S. export control and enforcement framework.  The new system is designed to facilitate efficiencies and coordination within the U.S. Government, protect national security and critical technologies, and cut costs to U.S. exporters.  However, compliance will remain paramount because the U.S. Government is also consolidating its enforcement mechanisms. Background: In August 2009, President Obama directed a broad-based inter-agency review of the U.S. export control framework.  There has not been much change to the International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR) since the end of the Cold War.  The export control reform will facilitate secure and transparent trade for all U.S. exporters around the world.  According to the U.S. Government, 98 % of all identified exporters are businesses that have fewer than 20 employees.  Yet, on average they spend 36 % more per employee on compliance.  The new system seeks to change this. Generally, the ITAR control the manufacture and export of defense articles, defense services, and defense technology.  The EAR control the export of dual-use goods, software and technology.  In addition, U.S. exporters should also be concerned with the Office of Foreign Asset Control Regulations (OFAC).  The OFAC administer and enforce U.S. trade sanctions. Current Export Control Regime Challenges: Multiple agencies have overlapping jurisdictions, disharmonized enforcement tools, and numerous control lists which have posed many challenges to small businesses and U.S. exporters. Overlapping Enforcement:  There are seven primary departments involved in export controls: Commerce, Defense, Energy, Homeland Security, Justice, State, and the Treasury.  The U.S. Departments of Commerce, State, and the Treasury are primarily responsible for export licensing.  The U.S. Departments of Homeland Security, Justice, and Commerce are responsible for criminal enforcement investigations. In addition, the U.S. Department of Defense, the U.S. Department of Homeland Security’s Customs and Border Protection, and the U.S. Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives and the Federal Bureau of Investigations are also involved in various aspects of export controls.  This results in overlapping enforcement actions, multiple investigations based on the same violation, and fundamentally confuses U.S. exporters.  It also creates numerous compliance risks because it potentially exposes the same U.S. exporter to multiple agencies based on a single incident. Disharmonized Enforcement Tools: Before the export control review started, different laws had inconsistent penalties for similar violations which offered unpredictable results for the U.S. Government.  For example, in some cases, the maximum penalty for criminal violations of the U.S. Munitions List controls was only ½ of the comparable sentence for violations of the Commerce Control List. Multiple Export Lists: U.S. exporters were required to spend a lot of time and resources reviewing various screening lists maintained by the U.S. Departments of Commerce, State, and the Treasury before they could make an export.  This made it difficult for them to ensure compliance.  They had to review the U.S. Munitions List, the Commerce Control List, embargo lists, excluded parties list and entities, and others. The New and Improved Export Controls Regime The revisions of the export control and enforcement regime are far from over, but this is what the U.S. Government has accomplished thus far: Consolidated Screening List:  The U.S. Government made substantial improvements to consolidate all the screening lists.  In 2015, the U.S. Government introduced a new feature which helps to conduct searches without knowing the exact spelling of different entities listed.  This will help U.S. exporters to conduct due diligence but may also require them to review their current compliance policies. Export Coordination Enforcement Center: Pursuant to the Executive Order 13558, Export Coordination Enforcement Center, the U.S. Government has set up the mandatory de-confliction and coordination of government-wide export enforcement activities.  This is designed to address the jurisdictional and enforcement overlap that currently exists between different U.S. departments involved in export controls and enforcement.  The new center also allows the U.S. Government to better coordinate its enforcement actions. According to the 2015 Government Accountability Report CRITICAL TECHNOLOGIES Agency Initiatives Address Some Weaknesses, but Additional Interagency Collaboration Is Needed, multiple agencies have responsibility for export controls and for protecting U.S. critical technologies.  The export coordination enforcement center is designed to consolidate enforcement, investigations, and public outreach activities related to enforcement of U.S. export controls in one place.  The chart below lists various programs involving export controls and critical technologies and each agency involvement. Program Lead Agencies and Stakeholder Agencies International Traffic in Arms Regulations export controls State (lead), Defense, Homeland Security, and Justice Export Administration Regulations export controls Commerce (lead), State, Central Intelligence Agency, Defense, Energy, Homeland Security, and Justice Anti-Tamper Policy Defense Foreign Military Sales Program State (lead), Defense, and Homeland Security National Disclosure Policy Committee Defense (lead), State, and intelligence community Militarily Critical Technologies Program Defense Committee on Foreign Investment in the United States Treasury (lead), Commerce, Defense, Energy, Homeland Security, Justice, State, and others   Harmonization of Criminal Penalties for Illegal Exports:  The Comprehensive Iran Sanctions, Accountability, and Divestment Act has harmonized the various statutory criminal penalties for export control violations.  According to the U.S. Government, criminal convictions are now all standardized to up to $1 million and or 20 years in prison or both.  Some of the recent enforcement actions include an attempted illegal export of up to five tons of carbon fiber to China.  The individual was sentenced to 46 months in prison and lost export privileges for 10 years.  In another example, a California based company illegally exported pressure transducers to Israel, Malaysia, China and Singapore.  The company was fined $850,000 or which $600,000 was suspended. Key Takeaways: The new export control reforms will benefit U.S. exporters and small businesses because they consolidate the regulatory oversight and reduce compliance costs.  At the same time, the U.S. Government is enhancing its enforcement tools to better address violations and coordinate its control efforts.  In order to benefit from the new reforms, and avoid the penalties, it is important to revise compliance policies. Webinar: If you would like to learn more about the U.S. Export Control Reforms, please consider attending the “New Opportunities for Small Businesses and U.S. Exporters” webinar on June 23, 2016 between 12 and 1 PM EST.  This webinar will address the ITAR, EAR, and OFAC, major export control reforms and opportunities, new enforcement mechanisms, and cost-effective export compliance practices for small businesses.
 
Register Now Join the LinkedIn Group: Centre has also recently created a Trade Agreements Act Forum on LinkedIn to provide a world-wide forum to discuss best practices for Trade Agreement Act (TAA) and Buy American Act (BAA) compliance issues and new developments. The post The Overhaul of the U.S. Export Controls Will Benefit Small Businesses appeared first on Centre Law & Consulting.
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The Misplaced Rage Regarding Equifax’s Post Data Breach “Contract Award”

Much has been said on the security breach that exposed up to 145 million Americans’ most sensitive information. Not only had Equifax,  some say negligently, exposed half of America’s social security numbers, credit card information, and just about anything else needed to steal an identity, but the company thoroughly botched the cleanup by directing customers to a dubiously credentialed website and made a not-so-subtle attempt to induce its customers to waive any right to sue. The remarkable nature of the incident even received a 15-minute break down by HBO’s John Oliver, which is by far the most entertaining way to catch up on the breach if you have been in hiding for the last month. The IRS award of a seven million dollar contract to Equifax, made shortly after the security hack, seemed to put a cherry on top of a perfect media outrage story. And rage they did. After Politico “discovered” the “sole-source award” by the IRS to Equifax, every major media outlet from Fox News to CNN ran stories mocking the agency’s poor decision. Senators from both sides of the aisle openly scolded the IRS for handing Equifax government funds without even allowing other companies to compete for the contract. Through a grin, Mr. Oliver told his crowd of the award, made on the very same day the former CEO was being chewed up in an open Senate hearing. How could something like this happen? Simply put, because a law aimed at preventing fraud and abuse required the IRS to give Equifax the contract, without any competition. Federal contractors are well aware of what is called a “statutory stay.” When the government wants to buy goods or services, most of the time it must follow very strict and complicated rules. One such rule requires the government agency to give a debriefing to disappointed contractors when their bid was passed over in favor of another’s. For a variety of reasons, the contractor may believe the government made a mistake in its decision or perhaps something more sinister is to blame for the loss. If the contractor “protests” the decision within five days of the debriefing, the contract at issue is automatically frozen while the Government Accountability Office takes a look under 31 U.S.C. § 3553. The reason behind the law is fairly plain – i.e., to avoid a situation where a company begins performing for the government, and racking up costs, only to have that contract overturned at a much later date. So about this infamous IRS “award” to Equifax; it was made after the IRS chose a different company to perform on a contract where Equifax was the incumbent. Equifax protested, activated the automatic stay described above, and the IRS was forced to grant a short extension to Equifax’s previous contract while the protest was decided. Notably, the short extension was publicly made, because “a sole source order is required to cover the timeframe needed to resolve the protest on contract TIRNO-17-Z-00024. This is considered a critical service that cannot lapse.” The protest was quickly denied, and now a new company will take over performing services to the IRS. Notably, the IRS decision to take the contract away from Equifax was made long before the media “put pressure on the IRS,” or before both sides of the aisle joined together in decrying the purported incompetent waste of government funds. While the vagaries of government procurement procedure may not be as shocking as the story told by the major outlets, and it is certainly not nearly as funny as the John Oliver segment, it is however the real explanation to the latest chapter of the Equifax security breach. The post The Misplaced Rage Regarding Equifax’s Post Data Breach “Contract Award” appeared first on Centre Law & Consulting.
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The FAR Now Available in the Kindle Bookstore

Just in time for the consummate workaholic acquisition professional to read while lying on the beach this summer, and for those who never want to get too far away from the Federal Acquisition Regulation (FAR), the General Services Administration (GSA) Office of Government-wide Policy, in conjunction with the FAR Council announced June 20, 2017, the release of the FAR in the Kindle Bookstore. The FAR is now available in eBook format for free in the Amazon Kindle bookstore.  Users can highlight text, bookmark sections, even send quotes via e-mail.  According to Acquisition.Gov, the eBook format is proving very popular with procurement professionals with thousands of downloads in the Apple iBooks Store. Information on how to download the FAR on Amazon Kindle and Apple iBooks is available at:  https://www.acquisition.gov/mobileaccess. The post The FAR Now Available in the Kindle Bookstore appeared first on Centre Law & Consulting.
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The Exit of SIP and Entrance of the Formatted Product Tool

If you have been working on GSA Schedules for the past few years, you may remember that in May 2012, GSA’s initiative was the end of the Schedule Input Program (SIP) and the mandatory use of the new Formatted Price List (FPL) for the Financial and Business Solutions (FABS) Schedule. There was much excitement generated by this news as we were all ready for the end of SIP. In January 2014, GSA announced that FABS would no longer utilize the FPL and all vendors were to return to SIP. As we look into the years ahead, I am optimistic that eventually the Formatted Product Tool (FPT) will truly be the end of SIP. What is the FPT? FPT is a systems upgrade that will be activated within the existing eOffer and eMod platforms and NOT in a separate application. There will be an automatic upload of products and prices to GSA Advantage! The General Services Administration (GSA) Federal Acquisition Service (FAS) is planning to implement the FPT across the Multiple Award Schedules (MAS) program beginning with select pilot Schedules in late July 2016. The order of the FPT rollout, with approximately two week intervals, is as follows: Schedule 58 I – Professional Audio/Video Schedule 72 – Furnishings & Floor Coverings (to be released with Schedule 58 I) Schedule 75 – Office Products/Supplies Schedule 73 – Food Service, Hospitality & Cleaning Equipment Schedule 51 V – Hardware Superstore Schedule 70 – Information Technology Products, Software & Services What Do I Have to Do? If you accept the FPT, you will be required to complete the one-time “rebaselining” of price list data as well as other data fields for proper display of these items. GSA can then ensure all of your currently awarded products are uploaded to GSA Advantage! For baselining, the contractor will utilize a provided template in eMod to submit all awarded products and associated product data, to include Manufacturer Part Number (MPN) and Universal Product Code Type A data, when applicable. All descriptive information required by SIP will be captured in one submission via eMod and uploaded to GSA Advantage!. This will become your FSS Price List upon execution of the modification. If you accept the FPT bilateral modification, you will have 60 days to complete the rebaseline process. Please note that with the FPT, Contracting Officers will now have additional data analytics and transparency in helping them determine that pricing is fair and reasonable. Phase I of FPT is focused on collecting standard part numbers for items on Schedule. Is Participation Mandatory? No. At this time, acceptance of the upcoming Schedule Refresh/Mass Modification is optional if you are on one of the pilot Schedules. However, FPT will soon be mandatory for all new offers on product Schedules. Does FPT Include Products and Services? No. Phase 1 of this pilot program only includes products. If you have both products and services on the pilot schedule (such as IT 70), you are to enter the product information in the FPT pricing template and enter the services information in a text file. Both documents are to be uploaded via FPT, but in different file formats. Recommendations My recommendation is to completely understand the FPT process prior to accepting the upcoming Refresh Solicitation/Mass Modification for one of the pilot schedules. Continue to follow GSA Interact for updates on the Formatted Product Tool and for notice of the Refresh Solicitation/Mass Mod release. I highly recommend attending the next GSA FPT training by registering for the next webinar on July 27, 2016 from 1:00pm – 3:00pm ET.
 
 
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.   The post The Exit of SIP and Entrance of the Formatted Product Tool appeared first on Centre Law & Consulting.
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The Earth is Flat but Not My Driveway

By Barbara Kinosky My Driveway I wake up to yet another day of rain in the Washington D.C. metro area.  It wouldn’t be so bad if my driveway was not a mud pit.  Years ago a crafty driveway company talked us into a pebble driveway which looked like it was in Architectural Digest – for all of a couple of years.  Rocks eventually roll downhill and my driveway has a definite slope to it.  I also have discovered that it is cheaper to put down gravel than it is to remove it and that crews don’t like working in the rain.  And I don’t like slogging through the driveway mud to my car, which is parked on the street in what I think is another zip code. Budgets Which brings me to why federal budgets are flat. Since my last blog I have attended and spoken at numerous conferences.  Some prognosticators say professional services will pick up and others say that is a downward slope like my driveway.  What I think we all agree on is that there will be no budget until next year.  The government will soldier on with continuing resolutions until another administration takes office.  I am separating from the pack though and predicting that temporary staffing services will pick up even in a flat budget year.  Someone has to do the work. DHS   Which leads me to the Department of Homeland Security (DHS) which is flying the “Incumbent Bridge Contract Flag”. This is because of their own acquisition directive MD 102 (“mad dog” 102). That directive mandates an acquisition lifecycle framework (ALF) which sounds good in the land of good intentions.  However, ALF is a dog and a not a friendly one.  The ALF is a cumbersome four-phase process that anyone in DHS wanting to buy anything (with the exception of the IG) must go through prior to proceeding with an acquisition.  Most of the DHS acquisition pros have thrown up their hands (and maybe their lunches) over this onerous process.  It is far easier to extend incumbent contracts than to proceed under ALF. Recent Bid Protests   Protests are trending up 3% over the previous year.  Sustain rates are around 12 to 14% on average.  In CACI Enterprise Solutions, Inc., B-412648, Apr 25, 2016, the GAO upheld the award to SAIC under a NASA procurement for management of NASA’s enterprise applications. From the decision: Protest that agency’s evaluation and selection decision failed to consider performance risk associated with staffing reductions in the awardee’s proposal is denied where the agency reasonably concluded that the awardee proposed sufficient staffing to perform the contract requirements, and the source selection authority fully considered the performance risk associated with the awardee’s staffing approach but found the risk to have been mitigated.   http://www.gao.gov/products/B-412648,B-412648.2#mt=e-report It’s interesting to note that SAIC was the incumbent and trimmed its own staff down for the new win. Labor    The White House has proposed new regulations that will prohibit federal agencies from asking a job applicant about their criminal history until after a conditional job offer has been made.  Hiring managers will have to eliminate questions about criminal records until later in the hiring process.  This, I am confident, will eventually flow down to federal contractors.  File your comments before July 1. I can’t resist posting a link to my Linked In post last week about the VA retaining an employee convicted of armed robbery because the armed robbery was committed on her own time and not on VA time. GSA and VA Schedules I’ll be posting a white paper on our website next week on the latest news in GSA and VA contracting covering the latest on category management and the new SAC at the VA. Until next time, Barbara The post The Earth is Flat but Not My Driveway appeared first on Centre Law & Consulting.
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The Annual List of Labor Surplus Areas are Available

The Department of Labor has published its annual list of Labor Surplus Areas (LSA) for Fiscal Year 2018.  What is a LSA you ask?   A LSA is a civil jurisdiction that has a civilian average annual unemployment rate during the previous two calendar years 20 percent above the average annual civilian unemployment rates for all states & Puerto Rico during the same period.  Civil jurisdictions are defined as follows: A city of at least 25,000 population on the basis of the most recently available estimates from the Bureau of the Census; or A town or township in the States of Michigan, New Jersey, New York, or Pennsylvania of 25,000 or more population and which possess powers and functions similar to those of cities; or A county, except those counties which contain any type of civil jurisdictions defined in A or B above; or A “balance of county” consisting of a county less any component cities and townships identified in paragraphs A or B above; or A county equivalent which is a town in the States of Connecticut, Massachusetts, and Rhode Island, or a municipio in the Commonwealth of Puerto Rico. The national unemployment rate during the past two years was 5.12 percent, so the areas included on the Department of Labor’s list have an unemployment rate of 6.1453 percent or higher. Being a LSA matters for the following reasons: The Administrator for Federal Procurement Policy uses the LSA list to identify where procurement set asides should be emphasized in order to strengthen our Nation’s economy; General Service Administration (GSA) Online Representations and Certifications Application (ORCA) system uses the LSA list as a tool to determine if a business qualifies as a Labor Surplus Area concern; The Small Business Administration uses the LSA list for bid selections for small business awards in Historically Underutilized Business Zones (HUBZones); Some state and local area governments use the LSA list to allocate employment related assistance (food stamps and training); and Private industry has used the LSA list for strategic planning and potential areas of human capita   The list of LSA’s can be found here: https://www.doleta.gov/programs/lsa.cfm About the Author Colin Johnson
Contracts Manager
Colin Johnson is a Contracts Manager who focuses on business development and federal contracts management. His expertise is in preparing quotes and responses for both government and commercial entities for training and legal support services. The post The Annual List of Labor Surplus Areas are Available appeared first on Centre Law & Consulting.
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The “Veterans Affairs Purchase Card Misuse Mitigation Act”

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

The System for Award Management (SAM) is a system in which contractors must register in order to do business with the federal government. SAM was created to consolidate and eliminate some of the legacy systems. SAM’s goal is to consolidate a majority of the federal procurement systems into one user friendly system. The next phase for SAM modernization is due to be released in September 2017. The new beta.SAM.gov being released is the Office of the Integrated Award Environment’s (IAE) effort to consolidate the following ten IAE systems, listed here by functionality: Entity Information: System for Award Management (SAM.gov) – Registrations and Exclusions Contract Opportunities: Federal Business Opportunities (fbo.gov) Contract Data: Federal Procurement Data System (fpds.gov) Sub-Award Data: Electronic Subcontracting Reporting System (eSRS.gov), Federal Funding Accountability and Transparency Act Subaward Reporting System (fsrs.gov) Wage Determinations: Wage Determinations OnLine (wdol.gov) Past Performance: Contractor Performance Assessment Reporting System (cpars.gov), Past Performance Information Retrieval System (ppirs.gov),  Federal Awardee Performance and Integrity Information System (fapiis.gov) Assistance Listings: Catalog of Federal Domestic Assistance (cfda.gov) IAE’s ultimate goal is to bring together the personnel who award, receive, and manage federal awards and assistance under one web site. The enhanced beta.SAM.gov will reduce reporting burdens, increase accountability and transparency in the award process, and improve data quality for both government and industry personnel. The new beta.SAM.gov will feature a Google-like search tool able to query data simultaneously from all ten combined systems or by filtering by the seven functionalities listed above. The new site will also feature a help desk as well as a cross mapping of the ten legacy systems to their new beta.SAM.gov functional area to better direct transitioning users to the information they need. Migration of the ten systems to beta.SAM.gov will be incremental to allow incorporation of user feedback. The new beta.SAM.gov will run in parallel with the ten legacy systems, which will remain the authoritative sources, until testing is fully complete and the previous systems are decommissioned. Beta.SAM.gov will eventually inherit the SAM.gov domain. The following timeline presented by IAE reflects completion in late Fiscal Year 2020:   There can be multiple accounts affiliated with an entity in the new beta.SAM.gov. Users will need to create a new account and migrate their roles which will control privileges on the new site. Entities will be able to assign one or more administrators to manage site users’ associations with their entity and delegate roles on the new site. Over 200 users, many of which are federal employees, are currently testing the alpha version of the new SAM.gov which began in December 2016. Focus groups will be held in July and August to provide input on the new beta.SAM.gov. If you are interested in participating in the focus groups, sign up information can be found on the Integrated Award Environment (IAE) Industry Community on GSA Interact at https://interact.gsa.gov/group/integrated-award-environment-iae-industry-community.   About the Author: J. Moore
Consultant
J. 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 System for Award Management (SAM) Roll Out to Consolidate Ten Affiliated Sites appeared first on Centre Law & Consulting.
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Supreme Court Nominee Brett Kavanaugh and the Coming Political “Kabuki Theater”

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

The Payment of Subcontractors proposed rule, which appeared in the Federal Register in January 2016, is the latest in a series of efforts to hold the Prime accountable for timely payments to its Subs. Those who follow these blogs know that ‘payment’ is a hot button topic for me whether it is payment to the Prime by the Government or payment to the Subcontractor by the Prime. We’ve previously highlighted the “Accelerating Payments to Small Businesses” rule whose aim is to enable small businesses subcontractors to receive payments within 15 days of receipt of a proper invoice. And not quite a year ago, I reviewed the finer points of the “Paid to Cost” rule, which requires payment to Subs thirty days after the Prime submits its invoice to the Government. This Payment of Subcontractors proposed rule has made a long trip. It originated as Section 1334 of the Small Business Jobs Act of 2010! This statute requires the Prime to self-report to the Contracting Officer (CO) when the Prime makes late or reduced payments to small business subcontractors. In addition, the CO is required to record the identity of contractors with a history of three or more unjustified reduced payments to small business subcontractors within a 12-month period [FAR 42.1502(g)(2)] in the Federal Awardee Performance and Integrity Information System (FAPIIS). What Does It Mean? That’s a lot to take in, but essentially: In an era of mandatory disclosure, the contractor must turn itself in to the CO along with the reason(s) for the reduced payment. The CO will add the contractor’s identity to FAPIIS, the database that has been established to track contractor misconduct and performance. The FAPIIS database also contains Federal contractor criminal, civil, and administrative proceedings in connection with federal awards, suspensions and debarments, administrative agreements issued in lieu of suspension or debarment, non-responsibility determinations, contracts terminated for fault, and defective pricing determinations – truly a tough neighborhood! What Are the Points to Consider in This Rule? First, what does a reduced payment mean? FAR 19.701 defines it as a payment that is less than the amount agreed upon in a subcontract in accordance with its terms and conditions for supplies and services for which the Government has paid the prime contractor. Second, are any other processes affected? FAR 42.1502 is revised to include reports of reduced payments in the past performance evaluation in each of the ratings definitions found at Table 42-2. A new clause, FAR 52.242-XX, implements the rule. Finally, to which contracts does this apply? This statute defines a ‘covered contract’ as a contract under which a prime contractor is required to develop a subcontracting plan. I was almost through an initial reading of this rule before that point was made clear. That narrows the scope of affected Prime contracts but only a little. FAR 19.702 [The Small Business Subcontracting Program] instructs that in negotiated acquisitions, each solicitation of offers to perform a contract or contract modification, that individually is expected to exceed $700,000 and that has subcontracting opportunities, shall require the apparently successful offeror to submit an acceptable subcontracting plan. As of last week the Councils were comparing notes with the objective of issuing a final rule. Payment rules are typically welcomed by one party and dreaded by the other, but the dynamics are universally interesting. Contact me if you have questions about this, but I’ll also review – probably the final rule – in my Federal Contract Basics or Subcontracting Under the FAR courses this fall. About the Author: Rich Zimmerman
Project Manager
Richard E. Zimmerman has more than 25 years of experience as a contracts professional both in Government and the private sector. His excellent background in FAR, Agency supplements, and their application over the procurement life cycle make him a critical resource for PMs, prime contractors, and subcontractors. The post Subcontracting Payment Rules: Make the Payment or Incur the Penalty appeared first on Centre Law & Consulting.
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Spring Cleaning for Your GSA Schedule

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.
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About the Author: Julia Coon
Consultant
Julia Coon is GSA and VA Contract Consultant at Centre Law & Consulting. Julia works with the GSA/VA team in preparing new schedule proposals and post-award contract administration. She has experience in producing schedule renewal packages, various modification packages, small business subcontracting plans, and updates to GSA pricelists.   The post Spring Cleaning for Your GSA Schedule appeared first on Centre Law & Consulting.
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Small Business and Working With Similarly Situated Entities

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.   The post Small Business and Working With Similarly Situated Entities appeared first on Centre Law & Consulting.
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SIP – As Easy As 1-2-3

By Julia Coon GSA Advantage!® is the General Services Administration (GSA)’s online shopping and ordering system that provides access to products and services offered under the GSA Schedule program. Once a new schedule contract or modification is awarded, contractors have 30 days from the effective date to upload their pricelist to GSA Advantage!®  The pricelist can be uploaded to GSA Advantage!® through the Schedules Input Program (SIP). GSA’s SIP software is free to Schedule contractors and allows you to provide product descriptions, web-links, photos, pricing and discounts to Federal customers. Pricelists submitted via the SIP program are reviewed by GSA and compared against your awarded contract or modification. Approved files are then posted to GSA Advantage!® within 24-48 hours. If GSA finds errors in your SIP upload, the files will be rejected and sent back to you for corrections. If you do not already have the SIP software on your computer, you can download SIP and the SIP instruction from the Vendor Support Center here. Since the SIP upload is separate from the eOffer/eMod upload, it can be tricky. Below are some tips and tricks to help you navigate the SIP software.   GSA eLibrary, eBuy, and SIP: The contractor name and address showing in GSA eLibrary is pulled directly from SAM. Updating the name or address in SIP will not change GSA eLibrary. The email address and phone number showing in eLibrary pulls from the contract administrator information listed on the Contract tab in SIP. Don’t let your pricelist go beyond 2 years without updates. GSA will remove your pricelist and access to eBuy. If nothing has changed within the last 2 years, contractors can select “Verify Catalog Information” from the Tools dropdown menu in SIP to avoid contract suspension status. The SIP password is assigned by GSA and is the same as your eBuy password. Before new contractors will have access to eBuy, you must upload a pricelist to GSA Advantage!® and it must then be approved by GSA.   General SIP Tips & Tricks: SIP information is computer specific, so it is important to always backup your information and save a copy. The modification number and effective date listed on the Contract tab in SIP should match the awarded modification covering the changes in the pricelist upload. For new Schedule contracts, a modification number is not a required field, but the effective date should match the SF1449. When adding new Special Item Numbers (SINs) to your contract, do not forget to add the new SINs to the SIP program. Under the contract tab, click on the icon below and it will open the screen to add SINs. Before sending off your SIP files, ensure you have two files shown that will be sent to your GSA Contracting Officer for review. One file is the textfile and the other is the product file. This is the reason you receive two notices from GSA when the SIP upload is approved or rejected. Don’t forget to process your response files after the SIP upload has been approved or rejected by GSA. Click on the Check Response File Status under the message center. This will clear out your queue for the next upload. ­­­ SIP Tips & Tricks for Products: Product photos must be in either jpg or gif format that is no larger than 1MB. The file ­­­­name must be 30 characters or less with no special characters in the file name. Product vendors can upload a temporary price reduction at any time without a modification. You can enter a temporary price, the start date, and the stop date in the IPRICE excel file. Put your updated IPRICE excel file in the Update folder within your SIP folder on your C drive. Go to SIP and click the price update button at the bottom left and follow the prompts. Your temporary prices will post to GSA Advantage!® within 24-48 hours. If you are using the SIP import function, the products in the IPROD and IPRICE excel files must be in the same order. The Quantity per unit is required when the unit of issue is a box, case, pack, etc. It is used to provide quantity within the box, case, pack, etc. Do not use dollar signs or commas in the prices listed in IPRICE as you will get errors during the import process. Certain special item numbers require UPC codes and photos. The current language is one per SIN so if one product has the UPC or photo you are covered. To check your SIN requirements, go to the Vendor Support Center.   GSA is in the process of launching the Formatted Product Tool (FPT) which may be the end of SIP. It is still in the early pilot program phase so until FPT is fully released, SIP is the option to upload your GSA Advantage!® pricelist. If you have any questions regarding SIP, please reach out to any of our GSA consultants.   About the Author: Julia Coon
Consultant
Julia Coon is GSA and VA Contract Consultant at Centre Law & Consulting. Julia works with the GSA/VA team in preparing new schedule proposals and post-award contract administration. She has experience in producing schedule renewal packages, various modification packages, small business subcontracting plans, and updates to GSA pricelists.       The post SIP – As Easy As 1-2-3 appeared first on Centre Law & Consulting.
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Should I stay or should I go? Transactional Data Reporting (TDR)

Over a year ago, GSA published a final General Services Acquisition Regulation (GSAR) rule incorporating Transactional Data Reporting (TDR) into select product and service schedules in the Multiple Award Schedules (MAS) program. Initial participation in the TDR pilot was optional for existing contractors. However, new offerors and existing contractors with upcoming options were required to participate in the pilot. GSA is now making participation in the TDR pilot voluntary. Any vendor required to accept TDR with a new pilot offer, had a TDR option exercised, or added a TDR SIN to their contract will have an opportunity to opt out of TDR.  If a vendor does not take advantage of this one-time opt out, there will be no additional opportunities to get out. You can also opt into TDR on pilot schedules but remember there will be no additional chances to withdraw once you make this election. As a caveat, any vendor who voluntarily accepted the TDR Implementation Mass Mod (A509) will be required to stay in TDR. GSA anticipates refreshing TDR schedules in mid-October. Schedules 03FAC, 51V, 58 I, 72, 73 and 75 will be refreshed to add the legacy clauses back to the solicitation and TDR SINs on Schedules 70 and the Professional Services Schedule (PSS) will reflect the removal of language pertaining to mandatory participation. Once the solicitations are refreshed and not before, vendors will receive a notification from their Contracting Officer (CO). A vendor will have 60 days to respond to their CO with their intent. If no response is received within the 60 days, a vendor will remain in the TDR pilot. What will be required if you make the decision to opt out of TDR? Provide updated Commercial Sales Practices (CSP), current pricelist, and any other information requested by the CO Re-establish a Most Favored Customer (MFC) and Basis of Award (BOA) customer Identify a price/discount relationship as required by the Price Reduction Clause Ensure that your pricing is still fair and reasonable Update your contract via a formal modification to incorporate any revised terms and conditions What are the effective dates for vendors who opt out of TDR and when will Price Reduction tracking become effective? The actual modification opting out of TDR will become effective on day 1 of the next business quarter (January 1st, April 1st, July 1st and October 1st) Price Reduction tracking will begin on day 1 of the business quarter following the date of the modification to opt out The first 72A reporting period will begin on the 1st day of the business quarter following the date of the opt out modification. Continue to remit Industrial Funding Fee (IFF) in the FAS Sales Reporting System (TDR) until that time. If you have any questions on whether you should stay or opt out of the TDR pilot, please contact a member of the GSA consulting team. About the Author: Maureen Jamieson 
Executive Director of Consulting
Maureen Jamieson has more than twenty-five years of experience managing federal contracts. Maureen is highly experienced in solving client pricing problems and implementing effective pricing strategies for placing products and services on GSA Schedule contracts. Maureen also frequently works with clients on effective selling and marketing strategies in the federal market space and is highly skilled as a federal contracts capture or proposal manager. The post Should I stay or should I go? Transactional Data Reporting (TDR) appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

Seven Steps for an Effective Compliance Program for the Buy American Statute and Trade Agreements Act

Are you selling your products or services to the U.S. Government? If so, what does your compliance program look like? There are seven different elements that you should have in place in order to be confident that your compliance program can be effective. The Buy American Statute (BAS) requires the U.S. Government to give a preference to U.S.-made goods over foreign-made goods in federal procurements. The Trade Agreements Act (TAA) prohibits the U.S. Government from buying products and services from non TAA-eligible countries such as China. The TAA is applicable to all federal supply schedules. Both acts are discussed in detail in the Federal Acquisition Regulation (FAR) Part 25, Foreign Acquisition. Accountability:
Accountability must permeate your entire organization. It must reside within upper management and each employee alike. Accountability consists of committing sufficient resources for compliance and designating appropriate senior business representatives to ensure overall responsibility. Accountability also means that your business will correct errors, conduct internal investigations, report certain violations, and recognize your employees who ensure that your business stays TAA and BAS compliant every day of the year. Due Diligence:
Due diligence is always required to ensure all sales are TAA and BAS compliant. Each federal contractor who sells to the U.S. Government must comply with the federal law and FAR. When determining whether a particular product is compliant, each contractor should be able to answer the following questions: • What is the country of origin for this product?
• How do I know this and what are my records?
• How current is the information?
• Who do I contact when I am not sure? While vendor-provided letters of supply show due diligence, it is always important to ensure that such letters are current. Another way to ensure due diligence is to conduct an annual review of all the letters of supply and to sample individual transactions for compliance. In close-call situations, federal contractors may submit a request to the U.S. Government for a country of origin determination. Internal Policies:
Your business operations will be more efficient and predictable if your employees can understand and follow updated written policies and internal checks. Your policies will allow your employees to quickly make right decisions and seek assistance when necessary. It is generally a good idea to have internal policies on compliance monitoring, due diligence, recordkeeping, training, reporting of TAA and BAS violations, and code of business ethics. Other policies may be applicable based on your specific risks. Training and Awareness:
There are always new developments in the areas of BAS and TAA. Recently, Montenegro and New Zealand became the newest “designated countries” under the World Trade Organization Government Procurement Agreement. In May 2016, U.S. Congressman Pete Visclosky included certain Buy American Statute requirements in the Fiscal Year 2017 National Defense Appropriations Act. This may require the U.S. Department of Defense to purchase U.S.-made armor plate, mooring chains, ball bearings, and certain engine components among others. Another bill seeks to redefine “U.S.-made” altogether. Staying current with the new developments is a critical part of your compliance program. Track and Automate:
It is difficult to accurately track hundreds of individual transactions in a program like MS Excel all the time. This is why it is important to automate as much as possible. Automation also means preventing employee over-rides and having a reliable backup. You will know that your tracking system is working, for example, when it reflects the latest update from one of your vendors reporting that its products are made in Morocco this month and now your sales department will be able to sell more to the U.S. Government. Communicate and Cooperate:
Communication with vendors and across your business is a must. Your vendors must understand the importance of letting you know that their products that were made in Japan last month are made in China this month. Your compliance department must notify your sales department whether the products you sell to the U.S. Government must be TAA and BAS compliant or not. At the same time, the U.S. Government requires federal contractors to make mandatory disclosures regarding selling TAA non-compliant products. When such disclosures are made, the U.S. Government expects full cooperation. This requirement has been recently highlighted by the U.S. Department of Justice September 2015 Memorandum commonly known as the “Yates Memorandum”. Revise and Update:
Since there are always new changes and requirements, it is important to revise and update your policies and internal checks. This should be done immediately or at least on a monthly basis. Currently, the General Services Administration requires all vendors to verify that their products are TAA compliant. If they are not, they must be removed from their GSA/Federal Supply Schedule. Federal contractors with effective compliance policies will ensure having only compliant products on their schedules. Effective Trade Agreements Act and Buy American Statute compliance allows large and small businesses to sell more to the U.S. Government and to seize on new opportunities. If you have questions or would like to learn more about compliance and the latest Trade Agreements Act and Buy American Statute developments, contact Mr. Kornacki at 703-288-2800 or info@centrelawgroup.com. Note that is post is for educational use only and does not constitute legal advice.

About the Author: Wojciech Kornacki
Government Contract and Compliance Counsel
Wojciech Kornacki focuses on federal Government contract compliance, bid protests, and federal litigation. He represents clients in matters involving Government Accountability Office bid protests, federal agency debarments, Boards of Contract Appeals litigation, and Export Controls (ITAR and EAR) and Trade Agreements Act compliance.   The post Seven Steps for an Effective Compliance Program for the Buy American Statute and Trade Agreements Act appeared first on Centre Law & Consulting.
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Seller Beware!

There is an aphorism that goes “Buyer Beware”; time-honored sage advice to be sure.  But perhaps a new aphorism is in order for the Federal marketplace: “Seller Beware.” Many vendors and contractors selling to the Federal Government under contracts awarded under some type of small business set-aside are frequently unaware of an important requirement tucked neatly away in set-aside clauses.  This requirement is set forth as portion of the clause which normally begins with the word “Agreement.” As an example, Federal Acquisition Regulation (FAR) Clause 52.219-5, Notice of Total Small Business Set-Aside (Nov 2011), contains the following as part of the clause: “(d) Agreement. A small business concern submitting an offer in its own name shall furnish, in performing the contract, only end items manufactured or produced by small business concerns in the United States or its outlying areas. If this procurement is processed under simplified acquisition procedures and the total amount of this contract does not exceed $25,000, a small business concern may furnish the product of any domestic firm. This paragraph does not apply to construction or service contracts.” So why do set-aside clauses contain such an agreement?  The answer is simple:  The Small Business Administration’s (SBA) Nonmanufacturer Rule, often referred to as “NMR.” (Ref:  13 C.F.R. Section 121.406(b)). In brief, the NMR requires small businesses receiving awards under the various set-asides used in government procurements, to provide their own product, or that of another domestic small business manufacturer or processor, unless SBA has granted an individual waiver to NMR for the procurement, or the procurement is covered by a class waiver to the NMR, also issued by SBA, and the contracting officer uses the class waiver. The NMR also addresses how nonmanufacturers may qualify as a small business concern for a requirement to provide manufactured products or other supply items as a nonmanufacturer as well as for Kit Assemblers. Unfortunately, all too often companies rely on the fact the government issued and awarded the procurement using small business set-aside procedures believe they are somehow protected or immunized from the consequences of non-compliance.  The agreement provision in the various set-aside clauses can only be waived by an SBA issued waiver for an individual procurement, or when the contracting officer uses an existing class waiver.  Unless the procurement is covered by an SBA waiver. SBA amended its regulations in 2016 indicating the NMR does not apply to procurements between $3,500 and $150,000.   However, the FAR still sets the applicability threshold for NMR at $25,000. Non-compliance with NMR can have significant consequences for a company, ranging from contract enforcement actions to potential liability under the False Claims Act (FCA).  FCA looms large these days as increasingly more qui tam lawsuits are being filed under FCA by disgruntled and former employees, and even a company’s competitors, as the person bringing the qui tam lawsuit can receive a lucrative payout. Other set-aside clauses contain agreements relating to the NMR as well.  Please be sure to thoroughly review the requirements of the set-aside clause(s) under which you are submitting an offer. Sellers Beware!  Protect your company by ensuring absolute compliance with NMR.  Centre Law and Consulting offers a comprehensive 90-minute webinar on the NMR to help small businesses mitigate vulnerabilities in this area and to fully understand the requirements of NMR and ensure their compliance. Best wishes for every continued success in the Federal Marketplace!   About the Author: Wayne Simpson
Consultant
Wayne Simpson is a seasoned former Federal executive and acquisition professional who is also a highly-motivated and demonstrative small business advocate, with nearly 38 years of Federal Civilian Service with the U.S. Department of Veterans Affairs (VA), and its predecessor organization, the Veterans Administration. The post Seller Beware! appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

Section 809 Panel: Taking Action on Acquisition Reform

By Barbara Kinosky: Congress’s Section 809 Panel has made their first move on DoD acquisition system reform. The committee is made up of 18 experts in government contracts and is “charged with making recommendations that will shape DoD’s acquisition system into one that is bold, simple, and effective.” Yours truly testified before them. Section 809 Panel has the difficult job of thoroughly reviewing every DoD acquisition regulation ever written, and then conclude which regulations should remain active and which should be eliminated. After a year of study, the panel has released its first report, containing 73 recommendations for procurement reform. This first volume focuses on commercial buying, contracts audits from DCAA, small business policy, and more. One of the top recommendations is to create a “mission driven” acquisition system to replace the current “process-oriented” system. The idea proposed by the panel is to grant DoD officials the ability to choose from various contracting procedures, so they may choose one that produces the best results for their mission.   A major takeaway from the report is the segmentation of the current acquisition process. The report defines these four “lanes” of procurement: Lane 1 – “Readily Available: This lane encompasses existing products and services that require no vendor customization to meet DoD’s needs.” Lane 2 – “Minor Customization: The second lane includes products and services that are primarily sold in the private sector, and for which DoD may be one of many potential buyers.” Lane 3 – “Major Customization: This lane includes products and services for which DoD may be one of few potential buyers, and for which there may be little or no private‐sector applicability.” Lane 4 – “Defense‐Specific Development: In this lane there is no private‐sector applicability, as the products and services are developed exclusively for defense‐related use.” Major missions outlined by the report:   Commercial Buying – “Streamline and simplify DoD’s access to the commercial market.” Contract Compliance and Audit – “Improve the contract compliance and audit processes by focusing on the needs of contracting officers and acquisition team members.” Small Business – “Refocus DoD’s small business policies and programs to prioritize mission and advance warfighting capabilities and capacities.”   The report outlines various other missions as well, and is only the first volume out of three – which will all cover the panels comprehensive examination of acquisition reform.   Source: https://section809panel.org/wp-content/uploads/2018/01/Sec809Panel_Vol1-Report_Jan18_FINAL.pdf   About the Author: Barbara Kinosky
Managing Partner
Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has more than twenty-five years of experience in all aspects of federal government contracting. Barbara is a nationally known expert on GSA and VA Schedules and the Service Contract Act, and she has served as an expert witness for federal government contracting cases.       The post Section 809 Panel: Taking Action on Acquisition Reform appeared first on Centre Law & Consulting.
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SBA Adopting the 2017 NAICS Size Standards

The U.S. Small Business Administration (SBA) is amending its small business size regulations to incorporate the NAICS revision for 2017.  The proposed rule was issued by the SBA on April 18th and is currently open for comments until June 19th.  The NAICS changes for 2017 include the creation of 21 new industries.  These new NAICS codes were created from combining, reclassifying, or splitting 29 existing industries.  The new NAICS codes have resulted in an increase to the size standards for six NAICS industries and a part of one industry, a decrease to size standards for two, and a change in the size standards from average annual receipts to number of employees for one. When determining these size standards changes for NAICS codes, the SBA uses the following process: If the new NAICS code is comprised of a single NAICS 2012 industry, the same size standard is used. If a new NAICS code is a combination of two or more NAICS 2012 industries or parts of those industries and: The industries all have the same size standard, the new NAICS will have the same size standard. The industries all have the same size measure, but not the same size standard, the new NAICS will use the same size standard for the NAICS 2012 that most closely matches the economic activity or the highest size standard. The industries have different size measures, SBA will use the NAICS 2012 industry that most closely matches the economic activity or the highest size standard amount NAICS 2012 industries. In this situation, the SBA coverts all size standards to single measure such as receipts or employees. A few of the industries effected by this change include crude petroleum extraction, natural gas extraction, mining, major household appliance manufacturing, department stores, electronic shopping, and others. You can find the full list located at the Federal Register. These changes are proposed to be adopted effective 10/1/17 or at the beginning of the fiscal year. Get your comments in while you can! About the Author Colin Johnson
Contracts Manager
Colin Johnson is a Contracts Manager who focuses on business development and federal contracts management. His expertise is in preparing quotes and responses for both government and commercial entities for training and legal support services.   The post SBA Adopting the 2017 NAICS Size Standards appeared first on Centre Law & Consulting.
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