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Remember to Timely File Comments… Or Else

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
Associate Attorney
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow. The post Remember to Timely File Comments… Or Else appeared first on Centre Law & Consulting.
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Reenlistment Bait and Switch, Revolving Doors, and Another GAO Report on the 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
Managing Partner
Barbara Kinosky has more than twenty-five years of experience in all aspects of federal government contracting and is a nationally known expert on GSA and VA Schedules and the Service Contract Act. She has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012, and 2015.   The post Reenlistment Bait and Switch, Revolving Doors, and Another GAO Report on the VA appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

Quick Guide to the Bid Protest Process

If you’ve ever encountered the need to file a bid protest, you may remember feeling lost or overwhelmed the first time through the process. Maybe you were just confused and unsure of what would happen as you progressed from one step to the next. If you’re in the middle of a bid protest or foresee the need to enter into one in the future, the quick guide below walks you through a potential scenario of what can be expected. SITUATION Your company just received a non-award letter or have been excluded from the competitive range. You know your team worked hard on the proposal and you have proof that there have been some serious procurement law violations. PROTEST GROUNDS There are two types of protest grounds: pre-award and post-award. Pre-award grounds include protests that solicitations were unduly restrictive, ambiguous, unfair, or biased. Post-award protest grounds include protests that agencies did not follow evaluation criteria; engaged in misleading discussions; or had conflicts of interest, unstated criteria, or unequal treatment. In some situations, the Government Accountability Office (GAO) will also consider non-procurement protests when agencies did not follow their own rules and regulations. STRATEGY Step 1: Do you request a debriefing? Agency debriefings are mandatory in some but not all procurements. Centre
will assist you in determining whether the debriefing is mandatory, in drafting questions, and in preparing for it. The debriefing may reveal agency errors and procurement violations. Not all violations warrant filing a protest. Step 2: Decision Point Deciding whether to protest, at what level, and based on what protest ground(s) is critical. In such a case, Centre Law & Consulting will quickly conduct legal research and fact analysis to advise you on whether you should file a protest, where, and what relief could be expected. Step 3: Review the Agency Report Once you protest, a federal agency has 30 days to file its report along with additional documents relating to its source selection decision. Centre Law & Consulting will review all the documentation. In some cases, the report uncovers new protest grounds that were not apparent during the debriefing. Emails or other documents may also reveal agency bias, conflicts of interest, inaccurate calculations, misleading discussions, or improper evaluations. Step 4: Corrective Action or Outcome Prediction Once an agency realizes that it made serious mistakes, it may take corrective action. In other situations, the GAO may conduct an outcome prediction analysis. This allows all parties to get to the result quicker and cut costs. If everything else fails, the GAO will issue a decision either sustaining, denying, dismissing, or sustaining in part the protest within 100 days. Step 5: Cost Reimbursement Centre Law & Consulting will request cost reimbursement during the initial protest filing when appropriate. We will also document all costs associated with protest litigation to ensure that agencies reimburse the protester once the GAO recommends it. IMPACT The bid protest process is designed to ensure equal competition, fair evaluation, and prejudice to none. Successful protests ensure procurement integrity and result in favorable GAO recommendations including: Re-evaluation of proposals Corrective actions Re-solicitation Cost reimbursement Other remedies include contract termination, contract re-compete, or a new solicitation. The post Quick Guide to the Bid Protest Process appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

Quick Guide to the Bid Protest Process

If you’ve ever encountered the need to file a bid protest, you may remember feeling lost or overwhelmed the first time through the process. Maybe you were just confused and unsure of what would happen as you progressed from one step to the next. If you’re in the middle of a bid protest or foresee the need to enter into one in the future, the quick guide below walks you through a potential scenario of what can be expected. SITUATION Your company just received a non-award letter or have been excluded from the competitive range. You know your team worked hard on the proposal and you have proof that there have been some serious procurement law violations. PROTEST GROUNDS There are two types of protest grounds: pre-award and post-award. Pre-award grounds include protests that solicitations were unduly restrictive, ambiguous, unfair, or biased. Post-award protest grounds include protests that agencies did not follow evaluation criteria; engaged in misleading discussions; or had conflicts of interest, unstated criteria, or unequal treatment. In some situations, the Government Accountability Office (GAO) will also consider non-procurement protests when agencies did not follow their own rules and regulations. STRATEGY Step 1: Do you request a debriefing? Agency debriefings are mandatory in some but not all procurements. Centre
will assist you in determining whether the debriefing is mandatory, in drafting questions, and in preparing for it. The debriefing may reveal agency errors and procurement violations. Not all violations warrant filing a protest. Step 2: Decision Point Deciding whether to protest, at what level, and based on what protest ground(s) is critical. In such a case, Centre Law & Consulting will quickly conduct legal research and fact analysis to advise you on whether you should file a protest, where, and what relief could be expected. Step 3: Review the Agency Report Once you protest, a federal agency has 30 days to file its report along with additional documents relating to its source selection decision. Centre Law & Consulting will review all the documentation. In some cases, the report uncovers new protest grounds that were not apparent during the debriefing. Emails or other documents may also reveal agency bias, conflicts of interest, inaccurate calculations, misleading discussions, or improper evaluations. Step 4: Corrective Action or Outcome Prediction Once an agency realizes that it made serious mistakes, it may take corrective action. In other situations, the GAO may conduct an outcome prediction analysis. This allows all parties to get to the result quicker and cut costs. If everything else fails, the GAO will issue a decision either sustaining, denying, dismissing, or sustaining in part the protest within 100 days. Step 5: Cost Reimbursement Centre Law & Consulting will request cost reimbursement during the initial protest filing when appropriate. We will also document all costs associated with protest litigation to ensure that agencies reimburse the protester once the GAO recommends it. IMPACT The bid protest process is designed to ensure equal competition, fair evaluation, and prejudice to none. Successful protests ensure procurement integrity and result in favorable GAO recommendations including: Re-evaluation of proposals Corrective actions Re-solicitation Cost reimbursement Other remedies include contract termination, contract re-compete, or a new solicitation. The post Quick Guide to the Bid Protest Process appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

Protester Not Found to Be An Interested Party Where It Was The Awardee

Yes, you read the title correctly – a protester actually protested its own future award. In an interesting twist of fate, a company recently filed a pre-award bid protest only to find out that the agency had already evaluated the protester’s bid and intended to award the contract to the protester. Daekee Global Company, Ltd., a South Korean company, protested the terms of a solicitation issued by the Department of Navy for ship husbanding services arguing that the evaluation scheme failed to evaluate offerors’ technical capabilities or past performance. The agency subsequently requested the dismissal of the protest because Daekee had not been prejudiced by the terms of the solicitation. Specifically, the agency argued that Daekee submitted an offer that was evaluated by the agency and that the agency intended to award a contract to Daekee. In response, Daekee argued that the merits of its protest should still be addressed as, even though it would be an awardee, the issues Daekee raised would not be addressed or corrected if its protest were to be dismissed. Unsurprisingly, the GAO did not bite on Daekee’s argument. In its decision, the GAO found that Daekee was not an interested party as it did not suffer any competitive prejudice because Daekee did not suffer any competitive disadvantage or otherwise affect its ability to compete. Because the agency represents that once the protest is resolved and the stay of the award is lifted it will award a contract to Daekee, the GAO found that it does not have jurisdiction to entertain the protest. The post Protester Not Found to Be An Interested Party Where It Was The Awardee appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

Protest Denial Stresses Need of Detail in Proposal Methodologies

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
Associate Attorney
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.   The post Protest Denial Stresses Need of Detail in Proposal Methodologies appeared first on Centre Law & Consulting.
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Proposed Rule VAAR

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
Consultant
Wayne Simpson is a seasoned former Federal executive and acquisition professional who is also a highly-motivated and demonstrative small business advocate, with nearly 38 years of Federal Civilian Service with the U.S. Department of Veterans Affairs (VA), and its predecessor organization, the Veterans Administration.   The post Proposed Rule VAAR appeared first on Centre Law & Consulting.
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Proper Classification of Workers is Important for Compliance with FLSA and SCLS

By now you have probably heard that the Department of Labor’s regulations for the white-collar exemptions to overtime compensation were finalized and will be effective December 1, 2016. You are probably also aware that your company should be analyzing how its employees are classified to ensure it is prepared to comply with the regulations come December 1. What you may not have thought about is how your analysis (and any changes to employee exemption status) may impact your federal government contracts covered by the Service Contract Labor Standards (formerly the Service Contract Act). The final overtime regulations implement significant changes to the salary threshold required for employees in order to be considered exempt. Specifically, the salary level for the executive, administrative, and professional exemptions will become $913 per week or $47,476 annually. Although this is only half of the exemption analysis (which also requires employees meet a duties test), the DOL estimates that roughly 4 million workers will be affected by the change. How Does the Service Contract Labor Standards Come Into Play? The Service Contract Labor Standards (SCLS) generally requires contractors with covered service contracts pay their “service employees” a minimum wage and fringe benefits that have been determined by the Secretary of Labor as prevailing in the locality where the employee is working. These wages and fringe benefits are reflected in one or more wage determinations attached to the SCLS contract. However, only “service employees” are subject to the wage and fringe benefit requirements of the wage determination. Thus, properly classifying a worker as a service employee is extremely important for determining compliance with the SCLS. “Service employees” are in turn defined as any employee that is not exempt from overtime under the administrative, executive, or professional exemptions. Thus, for government contractors, one very likely result of reclassifying employees from exempt to non-exempt under the new FLSA regulations is that these now non-exempt employees will also become subject to SCLS wage and fringe benefit obligations. The difficulty will be in aligning or mapping these now non-exempt “service employees” to the positions on the wage determination (or directory of occupations). Assuming these employees otherwise meet the duties test for the white-collar exemptions (which typically require higher level responsibility and decision-making), the directory of occupations and wage determinations likely do not currently contain positions of a similar nature. Thus, absent proactive action by the DOL, contractors may need to make conformance requests for covered contracts for these newly exempt positions. What Should Contractors Be Doing Now? It is important that contractors assess proper classification of its employees over the next few months to determine which positions may need to be reclassified as non-exempt from overtime starting December 1. In addition, contractors should assess the resulting increase in SCLS applicability for those employees that will now be considered “service employees” and ensure proposals and existing contracts account for any increased costs as a result. The DOL has jurisdiction to pursue claims against contractors that fail to classify workers appropriately. For example, last week the DOL announced a $1.5 million settlement in back wages and fringe benefits with a contractor that allegedly misclassified workers subject to SCLS. Notably, the settlement also covers workers with 10 subcontractors. While the consent findings reflect that the contractor will seek an equitable adjustment to account for its increased costs based on the applicability of SCLS to additional employees, being in the position of paying seven figures worth of back pay while waiting for the government to decide whether an equitable adjustment will be provided is certainly less than ideal. Contractors can be far better positioned when engaged in proactive analysis of proper employee classification along with ensuring that subcontractors are also aware of the applicability of SCLS. About the Author Marina Blickley
Associate Attorney
Marina Blickley is primarily focused in the Government Contracting and Non-Profit industries. She regularly assists clients in all aspects of employment and labor law including representation and defense of employers against claims of employment discrimination, harassment, retaliation/whistleblower, and wage and hour violations before administrative agencies and state and federal courts.   The post Proper Classification of Workers is Important for Compliance with FLSA and SCLS appeared first on Centre Law & Consulting.
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President Trump Notwithstanding, Employment Law Compliance Should Remain A Top Concern in 2017

Over the last few years, the contractor community has braced itself to comply with a slew of new employment regulations issued as a result of Executive Orders by President Obama. These include Paid Sick Leave (up to 7 days), Minimum Wage ($10.20), Fair Pay and Safe Workplaces (reporting of labor law violations and paystub requirements, among others), and the Department of Labor’s regulations increasing the dollar threshold for overtime exemptions under the Fair Labor Standards Act (FLSA). However, several of these regulations are currently being enjoined by courts; and, with the upcoming transition to a new administration, it is likely that many of these requirements will be set aside. It would be a mistake, though, for contractors to be lulled into complacency as a result of the recent federal election as state and local governments have been increasingly active in passing legislation governing employers. For example, many states, counties, and cities passed increased minimum wage requirements, paid sick and family leave laws, wage equality measures, limits on the use of background checks, laws related to medical and recreational use of marijuana, and gender-based restroom ordinances. Federal contractors should continue to monitor legal requirements for the localities they operate in. For those in the D.C. Metro area, additional paid leave requirements are on the horizon. Just last week the D.C. Council passed the “Universal Paid Leave Amendment Act” providing for eight weeks of parental leave, six weeks to care for sick family member, and two weeks for your own personal illness. The leave will be funded through a payroll tax and administered through the government with limits on the benefit amounts workers would receive. The bill must still go through a second vote later this month, but is expected to pass with a veto-proof majority. For those in Maryland, Governor Hogan has announced plans to introduce legislation requiring employers with 50 or more employees provide up to five days of paid sick leave per year. Maryland’s legislature has made advancements towards enacting other paid leave laws as well. So with the incoming new Administration and continuing legal advancements for localities, 2017 appears to be ripe for action and continued change. About the Author Marina Blickley
Senior Attorney
Marina Blickley is primarily focused in the Government Contracting and Non-Profit industries. She regularly assists clients in all aspects of employment and labor law including representation and defense of employers against claims of employment discrimination, harassment, retaliation/whistleblower, and wage and hour violations before administrative agencies and state and federal courts.   The post President Trump Notwithstanding, Employment Law Compliance Should Remain A Top Concern in 2017 appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

Pre-Award Audit: Is it Time to Panic?

Are you prepared for a letter from the U.S. General Services Administration Office of Inspector General (GSA OIG) stating that your company has been selected for a pre-award audit of the Commercial Sales Practice (CSP) pricing information that will become the basis for the pricing on your contract option extension? The Primary purpose of a Pre-Award Audit The purpose of the pre-award audit pursuant to Clause 52.215-21 Alternate IV (GSAM 515.408(a) (4) of the contract is to ensure that the CSP information is an accurate, current, and complete description of your practices and pricing. Keep in mind that the advisory nature of the pre-award audit is different from most other audits. The results of the pre-award audit will be passed on to your Contracting Officer to provide additional information for negotiation purposes. In addition, you should expect to be granted authority to review the results of the audit. What Happens During a Pre-Award Audit? The auditor will seek to verify the accuracy of the latest CSP information submitted. The auditor will want to know the methodology used to develop the CSP information in addition to the source sales data reviewed in preparing the CSP information. You will be asked to explain why any sales information, such as specific classes of customers or discounting, were excluded and the reasons for the exclusion. The auditor will review your company’s billing and information systems to verify the completeness and accuracy of the information submitted. The auditor will review the terms and conditions with major commercial customer’s master agreements (as applicable).   What Are the Time Constraints and Consequences of Not Complying? Information will be required approximately one (1) month from the receipt of a letter of notification. Contact your assigned auditor within seven (7) days of receipt of the letter and be prepared to discuss specific data requirements. Your Contracting Officer can elect not to extend your contract if there is failure to respond to your auditor. Failure to cooperate with the GSA OIG could result in contract cancellation in accordance with GSAR Clause 552.238-73, Cancellation.   What are the results of GSA OIG pre-award audits? During the reporting period of April 1, 2016 – September 30, 2016, the IG auditors performed pre-award audits of 37 contracts with an estimated value of almost $9.5 billion and recommended that more than $324 million of funds be put to better use. Significant findings included that contractors had supplied commercial sales practices information that was not current, accurate, and complete; had proposed overstated labor rates and used unqualified labor; and that Price Reductions Clause compliance monitoring was ineffective. In summary, the answer to my original question is NO; it is not time to panic. It’s time to ensure your CSP is accurate, current, and complete and provides all required disclosures and that all requested documentation/data is provided to your auditor within the required time frames. If you need assistance in responding to your Contracting Officer/GSA OIG auditor, contact our GSA team.
 
About the Author: Maureen Jamieson
Executive Director of Contracts and Consulting
Maureen Jamieson has more than twenty-five years of experience managing federal contracts. She is highly experienced in solving client pricing problems and implementing effective pricing strategies for placing products and services on GSA Schedule contracts.   The post Pre-Award Audit: Is it Time to Panic? appeared first on Centre Law & Consulting.
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Photo Finish Bid Decision Survives Protest

In its May decision, the Government Accountability Office (GAO) denied a bid protest despite agreement that the contract award was all but a tossup. After a three year phased acquisition competition between two contractors for the design of radio detection software used in the U.S. Air Force Special Operations Command aircraft, neither contractor had pulled far ahead of the other. The lack of distinction came even with a complicated and detailed evaluation. From the two factors considered, the Agency assigned ratings for the five different elements of two different sub-factors. All of this just to finish with identical ratings. Both contractors drew “moderate” concern for some of the incomplete portions of the designs, but ultimately the Source Selection Advisory Council (SSAC) leaned toward Northrop Grumman over BAE. In preparing their recommendation, the SSAC admitted, “We do recognize that a different body of stakeholders with similar experience and knowledge could reach an entirely different recommendation based on the same data.” As predicted, a different body did reach another conclusion. The Source Selection Authority (SSA) rejected the recommendation. While the SSA agreed the Northrop Grumman design was likely more advanced and impressive, it “does the warfighter no good until it can be integrated onto their aircraft.” The SSA cited less risk with completion of the BAE design and the small savings in cost for its decision to instead award BAE. The GAO ruled the SSA’s preference, for one in the hand over two in the bush, was a justifiable reason to reject the SSAC’s recommendation. Northrop Grumman focused a large portion of its protest explaining the perceived risks were very short term and therefore not a justifiable reason to discredit the benefits of their design acknowledged by the SSA and SSAC. The GAO refused to decide how the risk should have been evaluated, instead stating the SSA’s concern was not unreasonable and therefore the protest must be denied. About the Author: Tyler Freiberger
Associate Attorney
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia..   The post Photo Finish Bid Decision Survives Protest appeared first on Centre Law & Consulting.
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Pentagon Issues Internal Warning Against Use of Lenovo Equipment

Uh-oh, Lenovo… On September 26, the Pentagon’s Directorate for Intelligence, J-2, reportedly issued an internal report warning against the use of equipment made by computer manufacturer Lenovo because of concerns regarding potential cyber spying against defense networks. J-2 supports the Chairman of the Joint Chiefs of Staff, the Secretary of Defense, Joint Staff, and Unified Commands, and it is the national focal point for crisis intelligence support to military operations, indications, and warning intelligence in DoD as well as Unified Command intelligence requirements. Per a report from Bill Gertz of The Washington Free Beacon, the Chinese Academy of Science, a Chinese government research institute, owns a 27 percent stake in Lenovo Group Ltd. The J-2 report purportedly states that “cyber security officials are concerned that Lenovo computers and handheld devices could introduce compromised hardware into the Defense Department supply chain, posing cyber espionage risks.” The report also purportedly contains a warning that Lenovo is seeking to purchase U.S.-based IT companies in order to gain access to classified defense networks. The cyber security concern surrounding Lenovo is evidently not a new one as Gertz’s article reports that, following the company’s 2014 purchase of IBM’s BladeCenter line of computer servers (for a cool $2.1 billion), the U.S. Navy replaced the IBM servers within the “Aegis” battle management systems deployed on guided missile destroyers and cruisers over concerns that China could hack the warships through the server. And, for those wondering, “why isn’t this a TAA issue?,” the server business Lenovo purchased is based out of North Carolina. Perhaps “country of ownership” will become as relevant as “country of origin.” About the Author: David Warner
Partner
David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation and litigation practices.   The post Pentagon Issues Internal Warning Against Use of Lenovo Equipment appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

Pentagon Issues Internal Warning Against Use of Lenovo Equipment

Uh-oh, Lenovo… On September 26, the Pentagon’s Directorate for Intelligence, J-2, reportedly issued an internal report warning against the use of equipment made by computer manufacturer Lenovo because of concerns regarding potential cyber spying against defense networks. J-2 supports the Chairman of the Joint Chiefs of Staff, the Secretary of Defense, Joint Staff, and Unified Commands, and it is the national focal point for crisis intelligence support to military operations, indications, and warning intelligence in DoD as well as Unified Command intelligence requirements. Per a report from Bill Gertz of The Washington Free Beacon, the Chinese Academy of Science, a Chinese government research institute, owns a 27 percent stake in Lenovo Group Ltd. The J-2 report purportedly states that “cyber security officials are concerned that Lenovo computers and handheld devices could introduce compromised hardware into the Defense Department supply chain, posing cyber espionage risks.” The report also purportedly contains a warning that Lenovo is seeking to purchase U.S.-based IT companies in order to gain access to classified defense networks. The cyber security concern surrounding Lenovo is evidently not a new one as Gertz’s article reports that, following the company’s 2014 purchase of IBM’s BladeCenter line of computer servers (for a cool $2.1 billion), the U.S. Navy replaced the IBM servers within the “Aegis” battle management systems deployed on guided missile destroyers and cruisers over concerns that China could hack the warships through the server. And, for those wondering, “why isn’t this a TAA issue?,” the server business Lenovo purchased is based out of North Carolina. Perhaps “country of ownership” will become as relevant as “country of origin.” About the Author: David Warner
Partner
David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation and litigation practices.   The post Pentagon Issues Internal Warning Against Use of Lenovo Equipment appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

Ownership & Control of Service-Disabled Veteran-Owned Small Businesses

By Wayne Simpson, CFCM, CSCM SBA Issues Proposed Rule –Comments due by March 30, 2018   The U.S. Small Business Administration (SBA) published its proposed rule for Ownership and Control of Service-Disabled Veteran-Owned Small Business Concerns in the Monday, January 29, 2018, edition of the Federal Register. The proposed rule, part of a joint effort by VA and SBA to reduce the regulatory burden on the Veteran Business Community, will amend SBA’s regulations to implement the provisions in Section 1832 of the National Defense Authorization Act of 2017 (NDAA 2017), Public Law 114-328. Section 1832 amends Section 3(q) of the Small Business Act and Section 8127 of 38 United States Code, to standardize definitions of Veteran-Owned Small Businesses (VOSBs) and Service-Disabled Veteran-Owned Small Businesses (SDVOSBs). The proposed rule will consolidate ownership and control requirements in one regulation eliminating duplicative functions. This single rule will streamline the verification and certification processes saving business owners time and money according to SBA. NDAA 2017 mandates there be a single definition of ownership and control for VOSBs and VOSBs, which will apply to VA’s verification and Veterans First Contracting Program procurements, and all other government acquisitions which require self-certification. Under certain circumstances, NDAA provides a firm may qualify as a VOSB or SDVOSB where there is a surviving spouse or an employee stock ownership plan. Also, NDAA 2017 places responsibility for issuing regulations relating to ownership and control for the U.S. Department of Veterans Affairs (VA) verification of VOSBs and SDVOSBs with SBA. It also requires the Secretary of Veterans Affairs to use the regulations established by SBA for establishing ownership and control of VOSBs and SDVOSBs. The Secretary of Veterans Affairs will continue to determine whether individuals are Veterans or Service-Disabled Veterans and be responsible for verification of applicant firms. However, under the proposed new rule, challenges to the status of VOSBs and SDVOSBs based upon issues of ownership and control will be decided by the administrative judges at SBA’s Office Hearings and Appeals (OHA). According to the proposed rule, SBA consulted with VA so as to “properly understand VA’s positions and implement the statutory requirements in a way consistent with both SBA’s and VA’s interpretations.” VA issued its proposed rule in the January 29, 2018, edition of the Federal Register, to update VA’s regulations to codify the changes required under Section 1832 of NDAA 2017. The public comment period for VA’s proposed rule closes on March 12, 2018. Click Here to Comment on VA’s Proposed Rule SDVOSBs and VOSBs are strongly encouraged to review the Section-by-Section Analysis for me detailed information on the proposed rule. Below is a synopsis of the more significant parts SBA’s proposed rule. Some of the language in the proposed rule was adopted from SBA’s Section 8(a) Business Development Regulations, as SBA has always used, and will continue to use its 8(a) Program regulations for guidance on eligibility issues for SDVOSBs. SBA proposes to: Define surviving spouse and requirements for a surviving spouse-owned SDVOSB to maintain program eligibility. Add definitions for “Daily Business Operations,” “Negative Control,” “Participant,” “Unconditional Ownership,” and “Employee Stock Ownership Plan.” Add a new definition for Service-Disabled Veteran with a permanent and severe disability. Add a definition for small business concerns which requires a firm be organized for profit with a place of business in the United States or which operates primarily in the United States, or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor. Add a definition for “Extraordinary Circumstances” under which a Service-Disabled Veteran owner would not have full control over a firm’s decision-making process, but would not render the firm ineligible as a SDVOSB. The new definition will allow minority equity holders to have negative control under five circumstances proposed by SBA and be used by SBA to identify discrete circumstances SBA views as rare. SBA will propose five circumstances for the definition’s use and would be exclusive; SBA would not recognize any other facts or circumstances allowing negative control by individuals who are not service-disabled. Change the requirement for SDVOSB ownership of a partnership from the current requirement of 51% of each type of partnership interest whereby if a partnership had general partners and limited partners, SBA required the SDVOSB be both a general and limited partner. SBA proposes to change this requirement so SDVOSBs will need to own at least 51% of the aggregate voting interest in the partnership. Decide ownership issues without regard to community property laws, similar to SBA’s Women-Owned Small Business Regulations. Adopt language which allows SDVOSB firms owned by surviving spouses of Service-Disabled Veterans to remain eligible for the program, and provides guidelines for continued eligibility. Proposes new language which describes how to determine if a Service-Disabled Veteran controls the Board of Directors of the SDVOSB entity. Adds rebuttable presumptions that a person not working for a firm regularly during normal working hours does not control the firm. SBA notes this is not a full-time devotion requirement. Click Here to Comment on SBA’s Proposed Rule   About the Author: Wayne Simpson
Consultant
Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official.     The post Ownership & Control of Service-Disabled Veteran-Owned Small Businesses appeared first on Centre Law & Consulting.
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One Procurement Produced 24 Protests and a Request for Reconsideration

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

By Tyler Freiberger You’ve likely noticed a flurry of notifications and emails from companies warning you of updated terms and services. The updates were made to comply with Europe’s new General Data Protection Regulations (GDPR), which has been approved since 2016 and went into effect on May 25, 2018. The relevant portion here generally makes it much harder for a website to throw a 200-page legal document at you with vague terms that allow tracking your personal information and selling to the highest bidder. Those companies that previously used such tactics (seems almost all of them) now are required to be far more transparent with their policies for their EU customers and Americans are getting some residual benefits. It is a little ironic that at roughly the same time this protection goes into effect the United States Supreme Court issued a decision making similar, often hidden, legal waivers in employment handbooks/agreements much stronger. In Epic Systems Corp. v. Lewis, the Court ruled 5-4 that employers can include a clause in their employment contracts that require employees to arbitrate their disputes individually and to waive the right to resolve those disputes through class actions. This shows the dramatic shift from the judicial system’s view of arbitration 60 years ago. See, e.g., Bernhardt v Polygraphic Co. of Am., 350 U.S. 198, 203 (1956) As made clear in the decision, Congress purposely wanted to dispel American courts’ distaste for arbitrations by passing the Federal Arbitration Act (FAA). While some see Europe’s GDPR as a move forward for the little guy and this ruling as a knockback, the worries are likely overstated. The National Labor Relations Board (NLRB) has long held that agreements that require employees to resolve their disputes by arbitration on an individual basis are invalid. In fact, the NLRB advocated these agreements as unfair labor practices under Section 8 of the NLRA. The Court in Epic Systems expressly rejected that argument with a harsh dissent from Justice Ginsburg warning that such a ruling greatly undermines employees’ ability to fight back against large companies. Even the majority opinion seemed skeptical of arbitration systems but reluctantly respecting Congressional intent; “this court is not free to substitute its preferred economic policies for those chosen by the people’s representatives.” It’s certainly understandable to question an employment clause that is estimated to cover about 25 million workers in America. Especially when the Consumer Financial Protection Bureau (CFPB) studied the arbitration agreement clauses, then banned companies from using them with consumers last year, on the belief they stifled legitimate complaints of wrongdoing. That belief is difficult to justify given empirical studies show arbitrations are cheaper for all parties and more available for lower income employees than the courts, more likely to result in a win than if the employee went to court, and presented ease of access to a dispute forum on par with the employee covered by powerful unions. So while the world collectively laughs at the scramble to update terms of service agreements, now may be a good time to update those employment agreements with the blessing of mighty SCOTUS.   About the Author: Tyler Freiberger
Associate Attorney
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.     The post One Employment Agreement Update You May Be Thankful For appeared first on Centre Law & Consulting.
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OFCCP’s New Scheduling Letter Expands Intra- and Inter-Agency Data Sharing

Effective July 1, 2016, the Office of Federal Contract Compliance Programs (OFCCP) began using its new scheduling letter for compliance evaluations. One of the most significant changes in the form document relates to the agency’s use of data and information submitted by contractors. The “old” letter stated: “Rest assured that OFCCP considers the information you provide in response to this Scheduling Letter as sensitive and confidential. Therefore, any disclosures we may make will be consistent with the provisions of the Freedom of Information Act.” In contrast, the new letter states: “Please also be aware that OFCCP may use the information you provide during a compliance evaluation in an enforcement action. We may also share that information with other enforcement agencies within DOL, as well as with other federal civil rights enforcement agencies with which we have information sharing agreements.” The National Labor Relations Board’s (NLRB) issuance of its memorandum on July 1, 2016 concerning the collection of information regarding labor law violations per the “Fair Pay and Safe Workplaces” Executive Order must be purely coincidental, no? (OM 16-23) “Interesting times ahead,” contractors. About the Author: David Warner
Partner
David Warner is a seasoned counselor in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David has extensive experience representing contractors in affirmative action, Davis-Bacon Act, and Service Contract Act compliance audits. He also represents businesses with regard to wage and hour compliance, DOL audits, and litigation.   The post OFCCP’s New Scheduling Letter Expands Intra- and Inter-Agency Data Sharing appeared first on Centre Law & Consulting.
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Of Mistletoe and Misclassification

Earlier this week, a U.S. Department of Labor webpage dedicated to the issue of employee misclassification went live. Just in time for the holidays! While much ink has been spilled in recent weeks regarding potential changes of direction at the DOL in a Trump Administration, the new webpage suggests that the agency will continue to view the abuse of independent contractor status as an enforcement priority for the foreseeable future. The new page does not provide any novel substantive content, but it does bring together at a single location a wealth of information in what the DOL self-describes (accurately, one must admit) as a “user-friendly webpage where workers, employers, and government agencies can find information and resources.” For example, some of the substantive topics appearing on the “Pay and Misclassification” page include: Myths About Misclassification Get the Facts on Misclassification Under the FLSA Know Your Rights Video: Employee v. Independent Contractor Employment Relationship Under the FLSA Elaws: Independent Contractors Am I an Employee: Employment Relationships Under the Fair Labor Standards Act Coverage Under the Fair Labor Standards Act Wage-Hour Division Administrator’s Interpretation, The Application of the Fair Labor Standards Act’s “Suffer or Permit” Standard in the Identification of Employees who are Misclassified as Independent Contractors WHD Press Releases about Employee Misclassification as Independent Contractors It is clear that the webpage is intended to arm individuals with the information and tools needed to understand the boundaries of independent contractor/employee status as well as the rights appurtenant to such status. Given the widespread use (and abuse) of independent contractor arrangements in the government contracts industry, contractors would be well counseled to review their current 1099s to ensure that the status can withstand scrutiny as this issue is unlikely to move to the backburner, even with new leadership coming onto the scene in early 2017. About the Author: David Warner
Partner
David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices.   The post Of Mistletoe and Misclassification appeared first on Centre Law & Consulting.
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Centre Law & Consulting

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No Completed PPQs? No Contract.

Last month, in Genesis Design and Development, Inc., B-414254 (Feb. 28, 2017), the Government Accountability Office (GAO) denied a protest challenging the rejection of a proposal where the contractor had failed to provide three past performance questionnaires (PPQs) completed by previous customers. In its proposal, Genesis provided PPQs that provided customer contact information but which did not contain substantive responses from the previous customers. The company argued that it submitted PPQs containing information identifying its past clients and that it reasonably anticipated that the agency would seek the required information directly from its clients. Genesis also suggested that it can be difficult to obtain such information from its clients because they often are too busy to respond in the absence of an inquiry directly from the acquiring activity, and the company noted that, in previous cases, agencies had sought out such information. The GAO was unmoved, holding that the RFP specifically required offerors to submit completed PPQs and that Genesis’s submission did not comply with the express requirements. Given that the RFP also provided that failure to supply required documentation – including PPQs – could result in a proposal’s elimination from consideration, the agency’s rejection of Genesis’s proposal was reasonable. While PPQs can often place offerors in the uncomfortable position of needing to rely on prior COs who are under no obligation to respond or respond in a timely manner, the Genesis decision makes clear that failure to submit completed PPQs can preclude consideration for contract award. About the Author: David Warner
Partner
David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices.   The post No Completed PPQs? No Contract. appeared first on Centre Law & Consulting.
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No April Fools Joke: GSA Refresh/Mass Mods Are Coming!

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

The Ninth Circuit recently ruled in Rizo v. Yovino that a female’s prior salary can be a “factor other than sex,” thus justifying a pay disparity between comparable male and female employees for purposes of the Equal Pay Act. The plaintiff was an employee of the public schools in Fresno County, California. Upon discovering that the County paid her less than her male counterparts for the same work, she brought an action against the County under the Equal Pay Act. The County conceded that it paid the plaintiff less than male employees but argued that the pay differential was based on the plaintiff’s prior salary. Under the Equal Pay Act, there are four exceptions that permit a wage disparity; one of those exceptions is “a differential based on any other factor other than sex.” In determining that prior salary alone can never qualify as a factor other than sex, the district court reasoned that “a pay structure based exclusively on prior wages is so inherently fraught with the risk…that it will perpetuate a discriminatory wage disparity between men and women that it cannot stand, even if motivated by a legitimate non-discriminatory business purpose.” In vacating the district court’s order, the Ninth Circuit held that an employer may base its pay differential on prior salary so long as its use effectuated some business policy and the employer reasonably used it in light of its stated purpose and other practices. The Ninth Circuit remanded the matter back to the district court to evaluate the employer’s business reasons in setting the salaries. Therefore, in essence, the Ninth Circuit has held that an employer may perpetuate existing pay disparities so long as it is part of a company’s business policy. However, this case has the potential to go to the U.S. Supreme Court as other appeals courts have decided this issue differently. About the Author: Heather Mims
Associate Attorney
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.   The post Ninth Circuit Rules Employer Can Pay Female Employee Less Based on Prior Salary appeared first on Centre Law & Consulting.
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New Overtime Rule Blocked by Federal Judge

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

On June 23, 2016, the General Services Administration (GSA) amended the General Services Administration Acquisition Regulation (GSAR) to include clauses that require vendors to report transactional data from orders placed against certain Federal Supply Schedule (FSS) contracts, Governmentwide Acquisition Contracts (GWACs), and Governmentwide Indefinite-Delivery, Indefinite-Quantity (IDIQ) contracts. What does this mean and what do you need to know? First, it’s important to clarify what Transactional Data is. Transactional data refers to the information generated when the Government purchases goods or services from a vendor. It includes specific details such as descriptions, part numbers, quantities, and prices paid for the items purchased. With this final rule, key points to note are: The TDR clause is being implemented under the GSA Schedules program on a pilot basis. TDR implementation for several Schedules and Special Item Numbers (SINs) will begin in August 2016 and extend through Q1 FY2017. Currently, GSA plans for a 3-year pilot affecting specific SINS at which point the pilot will be reassessed. The following Schedules/SINs are impacted by the pilot: 03FAC 51V 58 I 72 73 75 Professional Services Schedule (only for the Engineering SINs) 70 (only for the following SINs: 132 8, 132 32, 132 33, 132 34, 132 54, and 132 55) The new TDR requirements will be mandatory only for new Schedule contracts awarded after the Schedule becomes subject to the pilot and at the time to extend the term of the Schedule contract. Please note that vendors holding existing contracts under pilot Schedules will be encouraged to accept the new clause via a bilateral contract modification. Once accepted, vendors will not need to comply with the Commercial Sales Practices (CSP) and Price Reductions Clause (PRC). Contractors in the pilot program will have ninety (90) days to accept the Mass Mod incorporating TDR. TDR data is reported monthly, and there is a 30-day window to report after the end of the month. GSA is amending its pricing instructions in the General Services Administration Acquisition Manual (GSAM) to place greater emphasis on price analysis when negotiating prices with Schedule vendors. IFF must still be paid quarterly. However, Contractors may choose to remit IFF on a monthly basis when they report their sales, but they must do so through the TDR system. The impact of this new rule remains to be seen, so Centre Law and Consulting will continue to report on TDR news as it develops. About the Author Maureen Jamieson
Executive Director of Contracts & 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. Maureen also frequently works with clients on effective selling and marketing strategies in the federal market space.   The post New GSA Transactional Data Reporting Rule Issued appeared first on Centre Law & Consulting.
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New Federal Contractor Legislation

Yes, Congress is doing more than learning “nyet” and other basic Russian.   The House of Representatives passed the Modernizing Government Technology Act of 2017 (the “MGT Act”) in record time.  The legislation is now in the Senate.  If enacted into law it would create funds for agencies to invest in new, innovative information technology solutions and replace aging legacy systems.  The bill establishes a $500 million central fund to support rapid IT modernization across 24 agencies. Better yet, this innovative legislation moves agencies away from the “spend it or lose it” budget mentality and actually rewards savers with leftover cash to spend in future years.  This is great legislation would create dependable funding for agencies to be able to prioritize IT modernization and move into the cloud and away from the previous century. The legislation was introduced by Reps. Will Hurd (R-Texas), Gerry Connolly (D-Va.) and Robin Kelly (D-Ill.) in the House, and Sens. Tom  Udall (D-N.M.), Jerry Moran (R-Kan.) and Mark Warner (D-Va.) in the Senate. https://www.congress.gov/bill/115th-congress/house-bill/2227/related-bills From the Washington Post.  Proposed legislation to allow the Veterans Administration (VA) to more easily terminate VA employees could be a sign of things to come at all federal agencies. The Accountability and Whistleblower Protection Act, may be signed into law soon. https://www.washingtonpost.com/news/powerpost/wp/2017/06/21/new-va-law-sets-stage-for-government-wide-cut-in-civil-service-protections/?utm_term=.74988474fdf4 Tell your Congressman/woman to support HR 3019 – Promoting Value Based Procurement Act of 2017. It prevents the use of lowest price technically acceptable contract awards (LPTA) for the acquisition of certain services in civilian agencies. It’s a giant step in the right direction. The bill is jointly sponsored by Rep Meadows (R NC) and Rep Beyer (D VA). You can track it on the link below.  https://www.congress.gov/bill/115th-congress/house-bill/3019 About the Author Barbara Kinosky
Managing Partner
Barbara Kinosky has more than twenty-five years of experience in all aspects of federal government contracting and is a nationally known expert on GSA and VA Schedules and the Service Contract Act. She has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012, and 2015.   The post New Federal Contractor Legislation appeared first on Centre Law & Consulting.
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New Decisions in Bid Protests and How Kim Kardashian Made It to the Supreme Court

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