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Centre Law & Consulting

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 | Centre Law & Consulting 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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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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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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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.

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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 | Centre Law & Consulting 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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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

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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:

  1. A city of at least 25,000 population on the basis of the most recently available estimates from the Bureau of the Census; or
  2. 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
  3. A county, except those counties which contain any type of civil jurisdictions defined in A or B above; or
  4. A “balance of county” consisting of a county less any component cities and townships identified in paragraphs A or B above; or
  5. 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:

  1. 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;
  2. 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;
  3. The Small Business Administration uses the LSA list for bid selections for small business awards in Historically Underutilized Business Zones (HUBZones);
  4. Some state and local area governments use the LSA list to allocate employment related assistance (food stamps and training); and
  5. 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 | Centre Law & Consulting in Tysons VA Colin Johnson
Contracts Manager

Colin Johnson is a Contracts Manager who focuses on business development and federal contracts management. His expertise is in preparing quotes and responses for both government and commercial entities for training and legal support services.

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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:

SAM-timeline.png

 

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.

 

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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 | Centre Law & Consulting 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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

GSA Schedule Spring Cleaning Checklist free download | Centre Law & Consulting in Tysons, VA
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About the Author:

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

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

 

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Small Business and Working With Similarly Situated Entities | Centre Law & Consulting in Tysons, VA
 
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 | Centre Law & Consulting in Tysons VA Colin Johnson
Contracts Manager

Colin Johnson is a Contracts Manager who focuses on business development and federal contracts management. His expertise is in preparing quotes and responses for both government and commercial entities for training and legal support services.

 

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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 | Centre Law & Consulting 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.

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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.

  1. 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 | Centre Law & Consulting 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.

 

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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 | Centre Law & Consulting Wayne Simpson
Consultant

Wayne Simpson is a seasoned former Federal executive and acquisition professional who is also a highly-motivated and demonstrative small business advocate, with nearly 38 years of Federal Civilian Service with the U.S. Department of Veterans Affairs (VA), and its predecessor organization, the Veterans Administration.

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SBA Adopting the 2017 NAICS Size Standards-Centre Law and Consulting in Tysons Corner, VA

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:

  1. If the new NAICS code is comprised of a single NAICS 2012 industry, the same size standard is used.
  2. 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 | Centre Law & Consulting in Tysons VA Colin Johnson
Contracts Manager

Colin Johnson is a Contracts Manager who focuses on business development and federal contracts management. His expertise is in preparing quotes and responses for both government and commercial entities for training and legal support services.

 

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By Wayne Simpson

A Final Rule was published in the November 6, 2017 (corrected and republished in the November 8, 2017) edition of the Federal Register removing all regulations relating to the Fair Pay and Safe Workplaces Executive Order issued by President Barrack Obama (Executive Order No. 13673, July 31, 2014).

In March 2017, using the authority of the Congressional Review Act, Congress passed House Joint Resolution 37 (Public Law 115-11), which disapproved the final rule submitted by the U.S. Department of Defense, the U.S. General Services Administration, and the National Aeronautics and Space Administration, and published in the August 25, 2016, edition of the Federal Register. Congress resolved the final rule “shall have no force or effect.”

On March 27, 2017, President Trump signed House Joint Resolution 37 into law which became Public Law 115-11.  Under the Congressional Review Act, a rule shall not take effect or continue if the Congress enacts a joint resolution of disapproval.  Any rule taking effect and later is made of no force or effect by enactment of a joint resolution sall be treated as though such rule had never taken effect.

The Final Rule implementing Fair Pay and Safe Workplaces in the Federal Acquisition Regulation was effective for solicitations issued and contracts awarded before, on, or after October 25, 2016.  Contracting officers have been directed to modify, “to the maximum extent practicable,” existing contracts to remove any solicitation provisions and contract clauses related to the Fair Pay and Safe Workplaces Rule because they are unenforceable by law.

The Final Rule implementing Public Law 115-11 is effective November 6, 2017.  The entire rule, including amendments published on December 16, 2016, in the Federal Register, is removed as a result of the Final Rule.

The 115th Congress has been busy using the authority of the Congressional Review Act.  As of November 2, 2017, of the 82 pieces of legislation signed into law by President Trump, 16 of them are enacting joint resolutions to disapprove of rules issued by the Obama Administration.

It is often said, “Live by the executive order, die by the executive order.”  Fair Pay and Safe Workplaces is no more.

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By Wayne Simpson

A Final Rule was published in the November 6, 2017 (corrected and republished in the November 8, 2017) edition of the Federal Register removing all regulations relating to the Fair Pay and Safe Workplaces Executive Order issued by President Barrack Obama (Executive Order No. 13673, July 31, 2014).

In March 2017, using the authority of the Congressional Review Act, Congress passed House Joint Resolution 37, which disapproved the final rule submitted by the U.S. Department of Defense, the U.S. General Services Administration, and the National Aeronautics and Space Administration and published in the August 25, 2016, edition of the Federal Register. In the Joint Resolution, Congress resolved that the final rule “shall have no force or effect.”

On March 27, 2017, President Trump signed House Joint Resolution 37 into law which became Public Law 115-11.  Under the Congressional Review Act, a rule shall not take effect or continue if Congress enacts a joint resolution of disapproval.  Any rule taking effect which is later made of no force or effect by enactment of a joint resolution shall be treated as though such rule had never taken effect.

The Final Rule implementing Fair Pay and Safe Workplaces in the Federal Acquisition Regulation was effective for solicitations issued and contracts awarded before, on, or after October 25, 2016.  Contracting officers have been directed to modify, “to the maximum extent practicable,” existing contracts to remove any solicitation provisions and contract clauses related to the Fair Pay and Safe Workplaces Rule because they are unenforceable by law.

The Final Rule implementing Public Law 115-11 is effective November 6, 2017.  The entire rule, including amendments published on December 16, 2016, in the Federal Register, is removed as a result of the Final Rule.

The 115th Congress has been busy using the authority of the Congressional Review Act.  As of November 2, 2017, of the eighty-two (82) pieces of legislation signed into law by President Trump, sixteen (16) are enacting joint resolutions to disapprove of rules issued by the Obama Administration.

It is often said, “Live by the executive order, die by the executive order.”  Fair Pay and Safe Workplaces is no more.

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By Wayne Simpson

A Final Rule published in the Federal Register July 14, 2016, effective November 1, 2016, amended the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the U.S. Small Business Administration (SBA) , which provide for a Governmentwide policy on small business subcontracting.  One of the changed requirements effects subcontracting reports submitted after November 30, 2017.

Specifically, the language at FAR 19.704(a)(10)(iii), 52.219-9(d)(10)(iii), and 52.219-9 Alternate IV (d)(10)(iii)—was revised to require order-level reporting on single-award, indefinite-delivery, indefinite-quantity contracts intended for use by multiple agencies in addition to multiple-award contracts in use by multiple agencies and to clarify that the order-level reporting would be required after November 30, 2017, which is when the Electronic Subcontracting Reporting System (eSRS) will be ready to accommodate this requirement.

FAR Clause 52.219-9, Subcontracting Plan Requirements (JAN 2017), the most recent update of the clause, contains the revised language.

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In a recent decision on August 25, 2017, the GAO dismissed the protest of PennaGroup, LLC for failure to timely file comments on the agency reports.

On March 17, 2017, the Department of Homeland Security (DHS) issued an RFP for the design and construction of solid concrete border wall prototypes. The RFP instructed offerors to acknowledge any issued amendments by signing the accompanying form and advised offerors that failure to acknowledge all Amendments may result in an offeror’s proposal being found non-responsive. PennaGroup timely submitted proposals but only included acknowledge of the seventh and final amendment but did not include the acknowledgement form for amendments one through six. As a result, DHS found PennaGroup non-responsive and eliminated them from further competition. Upon exclusion from competition, PennaGroup filed a protest with the GAO.

Upon receipt of PennaGroup’s protest, the GAO prepared and distributed development letters to the parties, which stated that the due date for the agency to file its report was July 26th. The letter further advised that PennaGroup was required to submit written comments in response to the report and expressly stated: “[w]ritten comments must be received in our Office within 10 calendar days of your receipt of the report – otherwise, we will dismiss your protest.”

DHS timely filed its agency report on July 26th, which made PennaGroup’s comments due on August 7th. However, PennaGroup neither filed comments nor a request for an extension by the close of business on August 7th. The following day, the GAO asked PennaGroup to confirm whether it had filed comments and, in an email response, PennaGroup merely stated they had no arguments to add to their original bid protest. Unsurprisingly, the DHS filed a request for dismissal of the protest.

In dismissing the case, the GAO noted that that its Regulations provide that a protestor’s failure to file comments within ten calendar days shall result in dismissal of the protest unless an extension was granted. The GAO further noted that its Bid Protest Regulations do not allow for post-deadline extensions.

About the Author:

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

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

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Reenlistment Bait and Switch, Revolving Doors, and Another GAO Report on the VA | Centre Law & Consulting in Tysons VA
 

Raise Your Hand if You Want a Reenlistment Bonus to Redeploy – Oops Sorry, You Didn’t Read the Fine Print, Pay it Back Later

Really? Seriously, this cannot be true. You, by that I mean you the Pentagon, as in The Pentagon, why are you making soldiers pay back reenlistment bonuses they were promised? This is wrong. As in really, wrong. Their job was to show up, redeploy (“re” as in go back again to a place you wouldn’t take your family to on a vacation), and do their job. They did that. You, the Pentagon, your job was to pay the bonuses that you promised them. Oops, fine print error. Bring out the lawyers. The fine print was that after you paid the bonsues you could try and get the money back years later due to payment error that you, the Pentagon made. This is about fundamental unfairness. It seems a lot like Lucy pulling the football away from Charlie Brown, only a lot less comical. Do we need to start a Go Fund Me for the serviceman and women who were duped by this bait and switch? The Washington Post has more.

Then the Pentagon Asks Congress for $6 Billion More

I was hoping this $6 billion was for paying back the so-called bonuses they collected back from the service members, but no, life is not that fair. This money is to pay for troop increases in Iraq, a slower draw-down of troops from Afghanistan and more intense air operations, according to Pentagon Comptroller Mike McCord. The “budget amendment” also will respond to an urgent request from field commanders for additional systems to counter Islamic State drones, McCord said in an interview. Nothing will be happening until after the election though. Read more at Bloomberg online.

Former Pixar Exec to Head GSA’s TTS

Former Pixar executive Rob Cook is the new Commissioner of the Technology Transformation Service (TTS) at the General Services Administration (GSA). GSA created TTS earlier this year to help improve the technology of the federal government. Americans increasingly interact with vital services online and the job of TTS is to help agencies deliver digital products and services that are easy to use, efficient, effective and secure. Cook started October 31, 2016 and GSA’s website has more details.

Another Revolving Door

Patricia A. Shiu will step down as the director of the OFCCP on Nov. 6, and Thomas M. Dowd, the agency’s deputy director, will serve as the acting director until a new labor secretary appoints a permanent director. Under Shiu, OFCCP established new data collection and analysis requirements for the hiring of protected veterans and individuals with disabilities; instituted nondiscrimination protections based on sexual orientation and gender identity; sanctioned pay transparency; and rescinded 1970 sex discrimination guidelines, replacing them with regulations based on new cases and amendments to Title VII of the 1964 Civil Rights Act, as related to discrimination based on gender. Read more on Bloomberg BNA.

Government Sourcing Saves, but Not Enough

When the government spends $2 billion, you would think that saving $470 million in the process would be a good thing. And it is, but to the Government Accountability Office (GAO) it’s not enough. The GAO recently issued a report that looked at agency spending that occurred within blanket purchase agreements and other FSSI programs. The report concluded that the relatively low use of FSSIs diminished the potential savings. Having a lack of accountability to use the programs was partly to blame. As an example, even the Strategic Sourcing Leadership Council who is responsible for FSSI governance only directed 10% of their collective spending to FSSIs. The bottom line? As the report says, “Although federal strategic sourcing initiatives have saved agencies almost $500 million in the past four years, the Government Accountability Office said the millions could become billions if the initiatives were more widely used.” Read more on FCW’s website.

Could DC Metro Woes Lead to the Creation of Another Federal Agency

After being appointed to the Metro Board of Directors only about two years ago, Metro Board Chairman Jack Evans has consistently reported on the Metro’s failings over that time period. And now, Evans says, it is time for a change. Evans has now urged for a federal takeover of the transit system, stating that only a body that can fire employees and restructure without outside interference can fix the agency’s dire problems. Evans proposes a small board to run the Metro with five members appointed by the President. Evans believes that this board is necessary as a condition to get federal funds to help cover Metro’s operating deficits, which is estimated at $290 million in the next fiscal year. While the idea might be great in theory, Evans admits that the creation of the board would face major legal and political challenges. In facts Evans admits that he might not even have support behind the idea: “The region is resistant to change of any kind. Nobody wants to change anything, even as the house is burning down.” More information is in the Washington Post.

Another GAO Report on the VA

The GAO did a review on Veterans Health Administration (VHA) operations. They identified deficiencies in its organizational structure and recommended changes that would require significant restructuring to address, including eliminating and consolidating program offices and reducing VHA central office staff. However, VHA does not have a process that ensures recommended organizational structure changes are evaluated to determine appropriate actions and implemented. This is inconsistent with federal standards for internal control for monitoring, which state that management should remediate identified internal control deficiencies on a timely basis. Read more on the GAO website.

 
About the Author

Barbara Kinosky Barbara Kinosky
Managing Partner

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

 

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If you’ve ever encountered the need to file a bid protest, you may remember feeling lost or overwhelmed the first time through the process. Maybe you were just confused and unsure of what would happen as you progressed from one step to the next. If you’re in the middle of a bid protest or foresee the need to enter into one in the future, the quick guide below walks you through a potential scenario of what can be expected.

SITUATION

Your company just received a non-award letter or have been excluded from the competitive range. You know your team worked hard on the proposal and you have proof that there have been some serious procurement law violations.

PROTEST GROUNDS

There are two types of protest grounds: pre-award and post-award. Pre-award grounds include protests that solicitations were unduly restrictive, ambiguous, unfair, or biased. Post-award protest grounds include protests that agencies did not follow evaluation criteria; engaged in misleading discussions; or had conflicts of interest, unstated criteria, or unequal treatment. In some situations, the Government Accountability Office (GAO) will also consider non-procurement protests when agencies did not follow their own rules and regulations.

STRATEGY

Step 1: Do you request a debriefing?
Agency debriefings are mandatory in some but not all procurements. Centre
will assist you in determining whether the debriefing is mandatory, in drafting questions, and in preparing for it. The debriefing may reveal agency errors and procurement violations. Not all violations warrant filing a protest.

Step 2: Decision Point
Deciding whether to protest, at what level, and based on what protest ground(s) is critical. In such a case, Centre Law & Consulting will quickly conduct legal research and fact analysis to advise you on whether you should file a protest, where, and what relief could be expected.

Step 3: Review the Agency Report
Once you protest, a federal agency has 30 days to file its report along with additional documents relating to its source selection decision. Centre Law & Consulting will review all the documentation. In some cases, the report uncovers new protest grounds that were not apparent during the debriefing. Emails or other documents may also reveal agency bias, conflicts of interest, inaccurate calculations, misleading discussions, or improper evaluations.

Step 4: Corrective Action or Outcome Prediction
Once an agency realizes that it made serious mistakes, it may take corrective action. In other situations, the GAO may conduct an outcome prediction analysis. This allows all parties to get to the result quicker and cut costs. If everything else fails, the GAO will issue a decision either sustaining, denying, dismissing, or sustaining in part the protest within 100 days.

Step 5: Cost Reimbursement
Centre Law & Consulting will request cost reimbursement during the initial protest filing when appropriate. We will also document all costs associated with protest litigation to ensure that agencies reimburse the protester once the GAO recommends it.

IMPACT

The bid protest process is designed to ensure equal competition, fair evaluation, and prejudice to none. Successful protests ensure procurement integrity and result in favorable GAO recommendations including:

  1. Re-evaluation of proposals
  2. Corrective actions
  3. Re-solicitation
  4. Cost reimbursement

Other remedies include contract termination, contract re-compete, or a new solicitation.

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A Quick Guide to the Bid Protest Process | Centre Law & Consulting in Tysons VA
 
If you’ve ever encountered the need to file a bid protest, you may remember feeling lost or overwhelmed the first time through the process. Maybe you were just confused and unsure of what would happen as you progressed from one step to the next. If you’re in the middle of a bid protest or foresee the need to enter into one in the future, the quick guide below walks you through a potential scenario of what can be expected.

SITUATION

Your company just received a non-award letter or have been excluded from the competitive range. You know your team worked hard on the proposal and you have proof that there have been some serious procurement law violations.

PROTEST GROUNDS

There are two types of protest grounds: pre-award and post-award. Pre-award grounds include protests that solicitations were unduly restrictive, ambiguous, unfair, or biased. Post-award protest grounds include protests that agencies did not follow evaluation criteria; engaged in misleading discussions; or had conflicts of interest, unstated criteria, or unequal treatment. In some situations, the Government Accountability Office (GAO) will also consider non-procurement protests when agencies did not follow their own rules and regulations.

STRATEGY

Step 1: Do you request a debriefing?
Agency debriefings are mandatory in some but not all procurements. Centre
will assist you in determining whether the debriefing is mandatory, in drafting questions, and in preparing for it. The debriefing may reveal agency errors and procurement violations. Not all violations warrant filing a protest.

Step 2: Decision Point
Deciding whether to protest, at what level, and based on what protest ground(s) is critical. In such a case, Centre Law & Consulting will quickly conduct legal research and fact analysis to advise you on whether you should file a protest, where, and what relief could be expected.

Step 3: Review the Agency Report
Once you protest, a federal agency has 30 days to file its report along with additional documents relating to its source selection decision. Centre Law & Consulting will review all the documentation. In some cases, the report uncovers new protest grounds that were not apparent during the debriefing. Emails or other documents may also reveal agency bias, conflicts of interest, inaccurate calculations, misleading discussions, or improper evaluations.

Step 4: Corrective Action or Outcome Prediction
Once an agency realizes that it made serious mistakes, it may take corrective action. In other situations, the GAO may conduct an outcome prediction analysis. This allows all parties to get to the result quicker and cut costs. If everything else fails, the GAO will issue a decision either sustaining, denying, dismissing, or sustaining in part the protest within 100 days.

Step 5: Cost Reimbursement
Centre Law & Consulting will request cost reimbursement during the initial protest filing when appropriate. We will also document all costs associated with protest litigation to ensure that agencies reimburse the protester once the GAO recommends it.

IMPACT

The bid protest process is designed to ensure equal competition, fair evaluation, and prejudice to none. Successful protests ensure procurement integrity and result in favorable GAO recommendations including:

  1. Re-evaluation of proposals
  2. Corrective actions
  3. Re-solicitation
  4. Cost reimbursement

Other remedies include contract termination, contract re-compete, or a new solicitation.

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Yes, you read the title correctly – a protester actually protested its own future award. In an interesting twist of fate, a company recently filed a pre-award bid protest only to find out that the agency had already evaluated the protester’s bid and intended to award the contract to the protester.

Daekee Global Company, Ltd., a South Korean company, protested the terms of a solicitation issued by the Department of Navy for ship husbanding services arguing that the evaluation scheme failed to evaluate offerors’ technical capabilities or past performance. The agency subsequently requested the dismissal of the protest because Daekee had not been prejudiced by the terms of the solicitation. Specifically, the agency argued that Daekee submitted an offer that was evaluated by the agency and that the agency intended to award a contract to Daekee. In response, Daekee argued that the merits of its protest should still be addressed as, even though it would be an awardee, the issues Daekee raised would not be addressed or corrected if its protest were to be dismissed.

Unsurprisingly, the GAO did not bite on Daekee’s argument. In its decision, the GAO found that Daekee was not an interested party as it did not suffer any competitive prejudice because Daekee did not suffer any competitive disadvantage or otherwise affect its ability to compete. Because the agency represents that once the protest is resolved and the stay of the award is lifted it will award a contract to Daekee, the GAO found that it does not have jurisdiction to entertain the protest.

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Protest Denial Stresses Need of Detail in Proposal Methodologies | Centre Law & Consulting in Tysons, VA
 
A single weak link in a contractor’s proposal resulted in its highly praised proposal losing to one with fewer evaluated strengths.

Seeking mission support services in its work to counter improvised threats, such as IEDs and other homemade explosives, the Joint Improvised-Threat Defense Organization (JIDO) recently issued a task order for subject matter expertise. Its award drew a protest from Sev1Tech, Inc. challenging JIDO’s choice of Amyx, Inc. for the task order.

When evaluating the contractors’ proposals, JIDO stressed it was seeking a coherent discussion of how the offeror proposes to meet its requirements rather than a restatement of the requirements or a listing of what it proposes to do. The protesting contractor received heaps of praise for most of its methodologies, with the final evaluation resulting in Sev1Tech having nine strengths compared to Amyx’s six strengths. However, the lack of detail on just one technical requirement snowballed into a worry that the hypothetical flaw would negate all of Sev1Tech’s noted strengths.

JIDO decided Sev1Tech had only provided general statements regarding what it was proposing to do to satisfy a specific technical requirement. As a result, the agency found that it was unclear how the protester would satisfy the requirements of the solicitation and assigned a “significant weakness” to the element in its evaluation. Even with this weakness, Sev1Tech still retained more strengths in its proposal, but the agency feared the risk of a flaw in this single section would compromise the entire task order.

The protester insisted its technical rating was evaluated too low, given the numerous positive comments found in the evaluation, and that the awarded contractor’s evaluation was too high due to missing programs in its proposal.

The General Accountability Office denied the protest after finding JIDO’s demand for details formed a reasonable basis to assign the technical rating. It also ruled the missing programs were not required in the solicitation and, therefore, could not be considered a material term.

In sum, the decision should serve as a cautionary tale for providing not just what a contractor can perform, but exactly how it plans to do so.

About the Author:

Tyler Freiberger Headshot | Centre Law & Consulting in Tysons, VA 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.

 

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On May 17, 2017, the Department of Veterans Affairs (VA) published a proposed rule in the Federal Register to revise and streamline the VA Acquisition Regulation (VAAR).  Public comments are invited and must be submitted no later than July 17, 2017, to be considered in formulating the Final Rule.  Codified acquisition regulations may only be amended and revised through formal rulemaking under the Office of Federal Procurement Policy Act.  For ease of reference, information on how to submit comments appears at the end of this post.

Summary

VA is proposing to revise, streamline, and update its acquisition regulation, whereby all parts of the VAAR will be reviewed in phased increments to revise or remove any policy superseded by changes in the Federal Acquisition Regulation (FAR), to remove any procedural guidance internal to VA, and to incorporate any new regulations or policies.

According to VA, the proposed rule will correct inconsistencies, remove redundant and duplicative material covered by the FAR, deleted outdated material and information, and appropriately renumber VAAR text, clauses and provisions where required, to comport with the FAR format numbering and arrangement.  The Proposed Rule is intended to streamline the VAAR to implement and supplement the FAR only when required, and remove internal agency guidance in keeping with the FAR principles concerning agency acquisition regulations.

A VAAR Section-by-Section Synopsis of Changes Covered by the Proposed Rule is attached.

How to Submit Written Comments:

Written comments may be submitted through www.Regulations.gov; by mail or hand-delivery to Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AP50—Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-V001—parts 801, 802, 803, 812, 814, 822, and 852).” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. This is not a toll-free number. In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov.

VAAR Section-by-Section Synopsis of Changes Covered by the Proposed Rule:

VAAR Part 801 – Department of Veterans Affairs Acquisition Regulation System

  • Removes an information collection burden previously included in the VAAR based on an outdated practice of providing bid envelopes.

VAAR Part 802 – Definition of Words and Terms

  • Adds two new definitions to define key terms used within the revised VAAR Part 803, Improper Business Practices and Personal Conflicts of Interest, dealing with debarment and suspensions which will be applicable when referenced in the future in other VAAR Parts: Debarment and Suspension Committee; and Suspension and Debarring Official.

VAAR Part 803 – Improper Business Practices and Personal Conflicts of Interest

  • Proposes clarifying language regarding the prohibition of contracts from making reference in their commercial advertising regarding VA contracts to avoid implying the government approves or endorses the contractor’s products, services, or commercial line of endeavor.
  • Proposes removal and reserves for future use, VAAR Subpart 803.1, Safeguards, and VAAR Section 803.101, Standards of Conduct, since it contains procedural guidance and a delegation of authority internal to VA and will be in the VA Acquisition Manual (VAAM).
  • The Proposed Rule removes Section 803.101-3, Department Regulations, since it contains information on standards of conduct and financial disclosure for VA employees and is internal procedural guidance internal to VA and will be in the VAAM.
  • VA’s Proposed Rule will remove Section 803.104, Procurement Integrity, and Section 803.104-7, Violations or possible violations, since they contain procedural guidance and a delegation of authority is internal to VA and will be in the VAAM.
  • In Subpart 803.2, Contractor Gratuities to Government Personnel, VA proposes to update its policy governing improper business practices and personal conflicts of interests to make VA’s policies clear, to provide notice of due process rights and to establish who in VA determines whether or not a violation of the Gratuities clause has occurred and what procedures are followed when the Suspension and Debarring Official (SDO) makes that decision.
  • In Section 803.204, VA’s Proposed Rule removes portions of Section 803.204, Treatment of violations, which contain procedural guidance and a delegation of authority internal to VA and will be moved to the VAAM. To ensure VA contractors are apprised of their rights, VA proposes to revise Section 803.204 to add the responsibility of the SDO for determining whether or not a violation of the Gratuities clauses has occurred and what action will be taken, as well as a paragraph stating that when the SDO determines a violation has occurred and debarment is being considered, the SDO shall follow the requirements at VAAR 809.406-3.
  • In Subpart 803.3, Reports of Suspected Antitrust Violations, VA proposes to remove Section 803.303, Reporting suspected antitrust violations, since it contains guidance to VA employees internal to VA and will be moved to the VAAM.
  • In Subpart 803.4, Contingent Fees, VA’s Proposed Rule removes and reserves the entire subpart and to remove the underlying Section 803.405, Misrepresentations or Violations of the Covenant Against Contingent Fees, since it contains guidance to VA employees internal to VA and will be moved to the VAAM.
  • In Subpart 803.5, Other Improper Business Practices, VA proposes to remove Section 803.502, Subcontractor Kickbacks, since it provides direction to VA employees and is internal VA and will be moved to the VAAM.
  • In Section 803.570, Commercial advertising, VA’s Proposed Rule revises the language of Subsection 803.570-1, Policy, to clarify the intent to prohibit advertising which implies a Government endorsement of the contractor’s products or services.
  • In Subpart 803.6, Contracts with Government Employees or Organizations Owned or Controlled by Them, VA is proposing to remove and reserve the entire subpart and to remove the underlying Section 803.602, Exceptions, since it delegates authority to authorize an exception to the policy in FAR 3.601. This delegation will be moved to the VAAM.
  • In Subpart 803.7, Voiding and Rescinding Contracts, VA proposes to remove and reserve the entire subpart and to remove the underlying sections. VA further proposes to remove Section 803.703, Authority, since it is a delegation of authority, internal to VA, moving the delegation to the VAAM.  VA also proposes to remove Section 803.705, Procedures, as it duplicates FAR 3.705.  A short paragraph directing VA Heads of Contracting Activities to follow the procedures of FAR 3.705 was added to the VAAM.
  • In Subpart 803.8, Limitation on the Payment of Funds to Influence Federal Transactions, VA’s Proposed Rule removes and reserves the entire subpart and to remove the underlying sections. VA also propose to remove Section 803.804, Policy, and Section 803.806, Processing Suspected Violations, all internal VA procedural guidance being moved to the VAAM.
  • VA further proposes to add Subpart 803.11, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions. This implements part of FAR Clause 52.203-16, Preventing Personal Conflicts of Interest, by requiring the signing of a Non-Disclosure Agreement by certain contractor covered employees performing acquisition functions closely associated with inherently governmental functions in order to prohibit disclosure of non-public information accessed through performance on a Government contract. This will also each contractor and subcontractor at any tier whose employees perform acquisition functions closely associated with inherently governmental functions to obtain the signed non-disclosure forms from each covered employee.
  • The Proposed Rule also removes and reserves subpart 803.70, Contractor Responsibility to Avoid Improper Business Practices, and to remove its underlying Section 803.7000, Display of the VA Hotline Poster and its prescription at section 803.7001, Contract clause, because it is unnecessary and duplicates FAR coverage. FAR 52.203-14, Display of Hotline Poster(s), as prescribed at FAR 3.1004(b), which provides adequate coverage for VA. VA internal procedures regarding fill-in information for the clause will be covered in the VAAM.

VAAR Part 812 – Acquisition of Commercial Items

  • VAAR Section 812.301, paragraph (b)(13), VA proposes to change the name of provision at VAAR 852.214-74 to Marking of Bid Samples to better reflect the requirement of the provision.

VAAR Part 814 – Sealed Bidding

  • VA proposes to delete VAAR Subpart 814.1, Sealed Bidding, in its entirety. The Proposed Rule also deletes Sections 814.104, Types of Contracts, and Section 814.104-70, Fixed-Price Contracts with Escalation, as unnecessary since both simply require compliance with FAR 16.303-1 through 16.203-4.  Ergo, no additional VAAR text is required.
  • VA also proposes to revise Section 814.201(a)-(f) by removing paragraphs (a)-(b) since they deal with numbering of Invitations for Bids (IFBs) and consist of internal agency procedures more properly covered in Subpart 804-16 of the VAAM.
  • The Proposed Rule adds a new Subsection, 814.201-2, Part I—The Schedule, to explain how award will be made on summary bids and bids on groups of items to ensure this is clear to the public.
  • In Subsection 814.201-6, Solicitation Provisions, VA proposes to remove as unnecessary paragraph (a), which addresses bid envelopes, since labeling of bids is a customary and usual commercial practice, and the use of the Optional Form (OF) 17, which is optional, and is no longer a standard practice.
  • The Proposed Rule proposes to redesignate paragraph (b) as (a) and to revise item (1) to prescribe new Provision 852.214-71, Restrictions on Alternate Item(s); item (2) to clarify the conditions for including the VAAR Provision 852.214-72, Alternate Items; and item (3) to prescribe the VAAR Provision 852.214-73, Alternate Packaging and Packing, when bids will be allowed based on different packaging and packing. VA also proposes to redesignate paragraph (c) as (b) and to add a prescription for VAAR Provision 852.214-74, Marking of Bid Samples.
  • The Proposed Rule adds Section 814.202, General rules for solicitation of bids and Subsection 814.202-4, Bid samples, requiring samples to be from the manufacturer providing supplies or services under the contract. This ensures the products that are actually proposed and would be delivered under the contract, if awarded, are the products submitted for evaluation.  Paragraph (g), requires bid samples be retained for the period of contract performance or until settlement of any claim the Government may have against the contractor.  Retention is intended for inspection purposes under FAR 14.202-4(g)(4).
  • The Proposed Rule deletes Section 814.203, Methods of Soliciting Bids, and Subsection 814.203-1, Transmittal to Prospective Bidders, as the practice specified of furnishing a bid envelope or sealed bid label is out of date with existing practices.
  • VA proposes to delete Section 814.204, Records of Invitations for Bids and Records of Bids, as it contains instructions internal to VA and will be moved to the VAAM.
  • The Proposed Rule also deletes Section 814.208, Amendment of Invitation for Bids as out-of-date with existing practices regarding sending amendments.
  • In Subpart 814.3, Submission of Bids, VA proposes to delete Section 814.301, Responsiveness of Bids, since there is no authority to refer the question of timeliness to the U.S. Government Accountability Office (GAO) except in the context of a protest.
  • The Proposed Rule also deletes Section 814.302, Bid submission, as duplicative of FAR 14.302(a) and therefore unnecessary.
  • VA proposes to revise Section 814.304, Submission, Modification, and Withdrawal of Bids, to delete internal procedures, to stipulate a limited time period for a late bidder to submit evidence of timeliness, and to renumber this paragraph (f) accordingly to comport with FAR and VAAR numbering conventions.
  • In subpart 814.4, Opening of Bids and Award of Contract, VA proposes to delete the entire subpart because the information is either redundant to the FAR and is adequately covered there or it is comprised of agency internal procedures to be incorporated into the VAAM, as noted specifically below.
  • VA proposes to delete Section 814.401, Receipt and Safeguarding of Bids, because coverage in the VAAR is unnecessary as the FAR adequately covers.
  • The Proposed Rule also deletes Sections 814.402, Opening of Bids; 814.403, Recording of Bids; 814.404, Rejection of Bids; 814.404-1, Cancellation of Invitations After Opening; 814.404-2, Rejection of Individual Bids; 814.407, Mistakes in Bids; 814.407-3, Other Mistakes Disclosed Before Award; and, 814.407-4, Mistakes After Award, as these are VA internal procedures and will be incorporated into the VAAM.
  • VA also proposes to delete Section 814.404-70, Questions Involving the Responsiveness of a Bid, as there is no authority to refer questions of bid responsiveness to the GAO other than in the context of a protest, and, the overall responsibility for this determination rests with the contracting officer. Coverage in FAR 14.301, Responsiveness of Bids, is adequate and no further VAAR coverage is required.
  • The Proposed Rule deletes Sections 814.408, Award, and 814.408-70, Award When Only One Bid is Received, because coverage in the VAAR is unnecessary as it is adequately covered by FAR 14.408-1(b).
  • VA proposes to delete Section 814.408-71, Recommendation for Award (Construction) as these procedures are no longer in use within VA’s Office of Construction and Facilities Management.
  • VA’s Proposed Rule also deletes Section 814.409, Information to Bidders, as unnecessary since the requirement not to disclose is contained in FAR part 3 and need not be duplicated in the VAAR.

VAAR Part 822 – Application of Labor Laws to Government Acquisitions

  • In Subpart 822.3, Contract Work Hours and Safety Standards Act, VA proposes revisions to Section 822.304, Variations, Tolerances, and Exemptions, to use plain language to state the conditions which must be met to permit use of the variation to Contract Work Hours and Safety Standards (the statute) (historically known as the Contract Work Hours and Safety Standards Act), granted by the Secretary of Labor regarding the payment of overtime under contracts for nursing home care for Veterans.
  • VA also proposes revisions to Section 822.305, Contract Clause, to change the title of the Cause at VAAR 852.222-70 to Contract Work Hours and Safety Standards—Nursing Home Care for Veterans, in order to reflect the way the FAR refers to the historical titles based on the Positive Law codification.
  • In Subpart 822.4, Labor Standards for Contracts Involving Construction, VA’s proposed revisions will remove and reserve Subpart 822.4, Labor Standards for Contracts Involving Construction, since this subpart contains procedural guidance on the types of labor standards involved in construction contracting, internal to VA and more appropriate for inclusion in the VAAM.
  • The Proposed Rule also removes the underlying Section 822.406, Administration and Enforcement and Subsection 822.406-11, Contract Terminations, which falls under this subpart since it contains procedural guidance and will be moved to the VAAM.

VAAR Part 852 – Solicitation Provisions and Contract Clauses

  • VA’s Proposed Rule revises VAAR Clause 852.203-70, Commercial Advertising, to use plain language, remove gender-specific wording, and to clarify the intent to prohibit advertising which implies a Government endorsement of the contractor’s products or services.
  • The Proposed Rule removes VAAR Clause 852.203-71, Display of Department of Veterans Affairs Hotline Poster, because VA will instead use FAR Clause 52.203-14, Display of Hotline Poster(s), as prescribed at FAR 3.1004. The FAR clause permits insertion of fill-in language to identify an agency’s hotline poster and VA will include language in its internal agency procedures detailing the requirement to insert the information regarding its agency specific hotline poster.
  • The Proposed Rule also removes VAAR Provision 852.214-70, Caution to Bidders—Bid Envelopes, because the practices described within the provision are obsolete with the advent of posting on the Government-wide point of entry (GPE) via the Federal Business Opportunities (govor FBO.gov) Web page or via a linked interface off of FBO.gov.   VA no longer issues Bid Envelopes or OF 17, Sealed Bid Label, described in the provision, when electronically posting IFBs, thus making the provision obsolete and unnecessary.
  • VA’s Proposed Rule also revises the individual prescription references for the following clauses based on the restructuring of 814.201-6: 214-71, Restrictions on Alternate Item(s); 852.214-72, Alternate Item(s); and 852.214-73, Alternate Packaging and Packing.  The Proposed Rule further revises the title, text and prescription language of VAAR Provision 852.214-74 which now reads, Bid Samples, to Marking of Bid Samples to describe better what the provision is about and to distinguish it from a FAR provision called “Bid Samples.”  VA uses plain language to describe the principal purpose, which is to ensure bidder’s packages including bid samples are clearly marked and identified with the words Bid Samples, as well as complete lettering/numbering and description of the related bid item(s), the number of the IFB, and the name of the bidder submitting the bid samples.
  • VA’s Proposed Rule also removes language stating the preparation and transportation of the bid sample must be prepaid by the bidder as this language is unnecessary because FAR Clause 52.214-20, Bid Samples, already contains language covering the bidder’s responsibilities in this regard. Further, the prescription language for VAAR Provision at 814.201-6(b) which was renumbered to comport with FAR and VAAR numbering and arrangement will also be revised.
  • Lastly, VA’s Proposed Rule revises VAAR Clause 852.222-70, Contract Work-Hours and Safety Standards Act—Nursing Home Care Contract Supplement, to change the title to Contract Work Hours and Safety Standards—Nursing Home Care for Veterans, to better reflect the substance and coverage of the clause and to align the name of the clause with the revised current reference in lieu of the historical title of the act. This revision will also clarify the clause has flow-down requirements and applies to subcontractors at any tier when the stated conditions in the VAAR clause are met.

The Proposed Rule may be viewed in its entirety in the Federal Register by clicking here.

 

About the Author:

Wayne Simpson | Centre Law & Consulting Wayne Simpson
Consultant

Wayne Simpson is a seasoned former Federal executive and acquisition professional who is also a highly-motivated and demonstrative small business advocate, with nearly 38 years of Federal Civilian Service with the U.S. Department of Veterans Affairs (VA), and its predecessor organization, the Veterans Administration.

 

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