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Centre Law & Consulting

GSA’s Streamlined Offer Process for Successful Legacy Contractors | Centre Law & Consulting in Tysons VA
 
As many contractors are approaching the end of their 20-year contract period in the FSS program, the General Services Administration (GSA) has made it possible for successful legacy contractors to follow a streamlined offer process for their new 20-year contract. Clause A-FSS-11 has been updated so that a contractor can now submit an offer for a new contract under the same Schedule at any time during the existing contract period.

Process Requirements

In order to follow the streamlined offer process, contractors must meet ALL of the following criteria:

  • The contractor has an existing Schedule and is submitting a new offer for the same SINs and Schedule
  • Sales under the existing contract have averaged a minimum of $25,000 per year for the previous five years of reported sales
  • There is a demonstrated pattern of satisfactory past performance under the existing contract

To simplify the process for successful legacy contractors, GSA added clause SCP-FSS-001-S Instructions Applicable to Successful FSS Program Contractors to all solicitations. The following requirements were eliminated from SCP-FSS-001-S:

  • Readiness Assessment
  • Financial Statements
  • Corporate Experience
  • Past Performance (Open Ratings)
  • Relevant Project Experience

The Pathway to Success training requirement is also expected to be eliminated from SCP-FSS-001-S in all solicitations via a refresh/mass mod that is due to be released shortly. The Pathway to Success training has already been removed from Schedule IT 70 via Refresh 40.

Notes on Proposal Submissions

The eMod system has not been updated to distinguish between successful legacy proposals and new contractor proposals, however. In order to override the eMod system, contractors will need to either add a note manually in the system on the applicable page or upload a blank document for all items that are not required by SCP-FSS-001-S.

When submitting your legacy proposal, you should include a listing of all active submitted quotes, established BPAs, and awarded orders under the existing contract. For each, the contractor must include the ordering activity name and point of contact, RFQ/BPA/order number, dollar value, and period of performance (including options). This information can be uploaded in eOffer as an “Other (optional – offeror defined)” document. The new legacy contract will overlap with the existing one until the agreed upon cancellation date of the existing contract. Contractors will utilize the new legacy contract for all new business opportunities.

Our Recommendation

In order to ensure a smooth transition from the existing contract to the new legacy contract, Centre recommends updating your existing contract prior to submitting a new legacy proposal. Review the labor categories, pricing, and other terms and conditions. If changes need to be made, modify your existing contract now so you can move the existing contract to the new legacy contract. However, please note an updated CSP-1 is required when submitting your legacy contract.

About the Author:

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

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

 

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Centre Law & Consulting

GSA's Horizontal Pricing Analysis Tool and Three Things to Know | Centre Law & Consulting in Tysons, VA
 

It’s A Slant Downward

When you negotiate a GSA Schedule or renewal, the GSA contracting officer reviews your pricing against, well, your past pricing. But when GSA buyers buy, they will now have tools to compare your pricing with the competition. It started with transactional data reporting, and now GSA is openly moving to a horizontal pricing model at least for products. Your carefully prepared sales data to get a product or service on schedule is becoming meaningless as GSA implements more tools for buyers to compare prices for what may or may not be similar items.

Tom Sharpe, FAS Commissioner, has unveiled the latest buying tool, the Horizontal Pricing Analysis Tool. Its purpose is to “analyze price variability for identical Schedule items”. It shows the competitive range of pricing for a specific item and whether or not a vendor is proposing an offer within that range.

Now that the Horizontal Pricing Analysis Tool is in use, COs are reaching out to vendors whose prices exceed a competitive range, notifying them of comparative pricing with identical items on Schedule, and engaging them in a dialogue about both pricing and non-price factors.

Buyers and sellers, please make sure apples are applies and not avocados. Is delivery FOB origin or destination? What are the warranties? What is the delivery time? We all have stories about the deep discount competitor whose delivery time is in dog years, yet their price is low. That may be okay if you don’t need it soon, as defined in your lifetime.

Now on to other news…

Protests

Jacobs Technology is hanging on to its $132 million Army award. ManTech TSG-1 JV protested that it was unreasonably assigned a weakness in its proposal. GAO held that ManTech couldn’t establish that the Army was unreasonable in assigning a weakness to its proposal based upon unstated evaluation criteria. Champagne flows at Jacobs.

That Wall

The Department of Homeland Security does not have enough loose change in its sofa cushions to fund THE wall, so President Trump is preparing a supplemental budget request for at least $6.6 billion. And for those of you wall builders, here is the link to the presolicitation notice.

Growth Areas 2017

A new study by Onvia lists the top 10 fastest-growing areas in government contracting for 2017 that include technology, telecommunications, healthcare, and construction.
 
About the Author

Barbara Kinosky Barbara Kinosky
Managing Partner

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

 

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Have you been hacked yet? Has your personal information been exposed by foreign hackers? Worried this year’s election results might be tampered with foreign cyber attacks? Well, you are not the only one worried about future cyber attacks. The U.S. Government is worried too, and to combat that, the General Services Administration (GSA) will release four Cybersecurity Special Item Numbers (SINs) for its GSA Schedule 70 for Information Technology procurement.

A refresh of the Schedule 70 solicitation is expected to be released in September that will include these new Cybersecurity SINs. GSA is referring to these new SINs as Highly Adaptive Cybersecurity Services (HACS) SINs. The HACS SINs were mandated by the Obama Administration’s Cybersecurity National Action Plan. This is no small initiative, but rather a plan to invest $19 billion in an attempt to ensure “Americans have the security tools to protect their identities online, that companies can protect and defend their operations and information from hackers, and that the U.S. Government protects the private information citizens provide for federal benefits and services” (Source).

The HACS SINs will be divided into four distinct SINs:

  • Penetration Testing under SIN 132-45A
  • Incident Response under SIN 132-45B
  • Cyber Hunt under SIN 132-45C
  • Risk and Vulnerability Assessment under SIN 132-45D

The vetting process for vendors will be the most thorough and detailed of any SIN on Schedule 70. While vendors will have requirements similar to those for services SINs such as SIN 132-51, the HACS SINs will also require vendors to pass an oral technical evaluation. These oral technical evaluations will be scenario-based in an attempt by GSA to ascertain the knowledge level of the prospective vendor. Vendors will be given a pass/fail grade after an undetermined time (target is seven days) from the completion of the oral evaluation. Vendors who are not able to pass this oral evaluation will not be allowed to submit an offer or modification for any HACS SIN for at least six months from the date of their previous evaluation. Oral evaluations will be conducted virtually and each SIN will have its own scenario that vendors will have to address and complete. GSA will allow up to five key personnel to attend these oral evaluations from the vendor, but no recording devices of any kind will be allowed during the evaluation. These evaluations could take anywhere between forty minutes to three hours by GSA’s estimates, depending on how many HACS SINs the vendor is proposing in their offer/modification.

There will be no limit to the number of awardees of the HACS SINs, but GSA is targeting to have an initial fifteen vendors awarded once the HACS SINs are officially rolled out. The turnaround time for GSA will be dependent on the number of vendors who propose the HACS SINs, but GSA is creating a dedicated tiger team to evaluate new offers and modifications that include the HACS SINs. GSA’s target for evaluation is seven days for modifications and forty five days for new offers.

While there is still more to be revealed about these new HACS SINs, it is clear GSA is making a concerted effort to put these new SINs at the top of their priority list. If you want to be in the front of the line to get these new SINs awarded on your contract, be sure to check the GSA Interact site and submit your modifications/offers through the eMod/eOffer site.

For more information regarding GSA and the HACS SINs, be sure to register to attend Centre Law and Consulting’s next Boot Camp for GSA Schedules training course on November 9-10, 2016.

About the Author

Michael Glazer
Contracts Manager

Michael Glazer focuses primarily on GSA/VA Schedule consulting. He regularly assists clients in all aspects of FSS contract management including contract negotiations, modifications, IFF reporting, subcontracting plans and reporting, IOA assessments, and other contract compliance issues. Michael also provides experience with GSA Alliant 1 & 2, ITES 3H and 3S, CIO-CS and SP3, and other large IDIQ contracts on an as needed basis to clients.

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Centre Law & Consulting

Alleluia! Inconsistence SCA implementation from GSA be gone!

GSA has finally issued guidance on the implementation of the Service Contract Labor Standards (formerly called the Service Contract Act). It seems like dog years ago and certainly several changes of leadership at GSA when I first met with them about issuing uniform SCLS guidance.

How Do We Know This?

GSA published a draft refresh of Schedule 23V (firetrucks, auto, and auto parts and accessories) which contains the draft guidance along with some SCA/SCLS questions and answers. However, GSA tells us that this (draft) guidance will be finalized pronto and implemented across the board on all schedules. The grand Wizard of Oz will finally speak to all in Munchkin Land.

What You Need to Know Now:

  1. We finally have some (forthcoming) guidance from DOL and GSA. In summary, current Wage Determinations (WDs) will be deleted from all existing schedule contracts.
  2. GSA policies and procedures will be updated to direct ordering activity contracting officers to incorporate the appropriate Wage Determinations at the task order level.
  3. I have always said the FAR directs the contracting officers to make this determination and not the contractor. This is consistent with the FAR.
  4. A GSA Mass Mod will be issued in approximately 10 days across all Schedules incorporating these changes.
  5. Although the revised Schedule 23V Refresh is a DRAFT summary of what is to come, it highlights the significant changes. There are FAQs that provide a good summary specific to SCA.

 
Centre’s Concerns:

  1. You can’t bid higher than your Schedule rates.
  2. If you are bidding on a task order proposal that incorporates a WD for an area that is higher priced than your schedule rates, you may have to modify your GSA Schedule. We don’t know if GSA will process modifications to support bidding and not billed rates but GSA, this can be an issue. I predict mass confusion here, just like when the Wicked Witch of the West flies over Oz.
  3. All GSA Catalogs will need to be revised to remove the SCA matrix. There will be less work at the Schedule level now on SCA/SCLS.

 
Need More Information?

Email me at bkinosky@centrelawgroup.com if you want the GSA FAQs and Schedule 23V with the pertinent sections. I will also be posting more details on our SCA LinkedIn Forum. For even more help, consider reaching out to us if you need legal or GSA consulting services. We are all about the SCLS/SCA compliance.

Want Training?

We offer a variety of educational courses throughout the year on these and many other topics. See what’s coming up on our Course Calendar or browse our complete Course Catalog.

About the Author:

Barbara Kinosky Barbara Kinosky
Managing Parnter

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

 

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GSA Reviews FY2016 and FedRAMP Looks Ahead to 2017 | Centre Law & Consulting in Tysons VA
 
As we now have FY2016 in the rear-view mirror, the government has begun to look back at the past year and look ahead to 2017.

GSA

In the case of GSA, the Federal Acquisition Service (FAS) commissioner, Tom Sharpe, reflected on the successes of the FAS program over the past year in a recent blog post. In it, he explains that GSA has achieved its three-year goal as the government acquisition marketplace. Sharpe then goes on to explain that the FAS initiative, Category Management, has helped with those goals. He defines Category Management as “the process of managing product or service categories as strategic business units and customizing them to meet customer needs.” What this means to contractors is that they should expect more initiatives like the Government-wide Laptop/Desktop initiative that includes GSA Schedule 70, SEWP, and CIO-CS.

FedRAMP

FedRAMP has also released its goals for 2017. These goals fall under three categories: More Cloud to Choose From, Transform Security Authorizations, and Stronger FedRAMP Community. To achieve these goals, FedRAMP wants to increase Cloud Services offerings from 72 to 150 and raise the number of FedRAMP ready service providers to 50 within the next year. Over the next six months, FedRAMP wants to increase the efficiency of providers who are able to receive a Provisional Authorization to Operate (P-ATO), redesign the Continuous Monitoring authorization process to be smoother and more agile, and focus on increasing the number of authorizations for low impact Software as a Service (SaaS) offerings. FedRAMP will work to achieve a stronger community over the course of 2017 by hosting two industry days to connect agencies with service providers and two industry roundtables to help agencies connect with one another. With these goals in place, GSA contractors can anticipate an increase in competition on the Cloud Computing Services SIN 132-40 on the IT 70 Schedule as well as an increase in opportunities.

For More Information

If you would like more information or additional training regarding IT 70’s FASt Lane initiative, the Formatted Pricing Tool (FPT), Transactional Data Reporting (TDR), the IT 70 Health SIN, the Cloud SIN, or the Cyber SINs, then be sure to attend the next Bootcamp for GSA Schedules training course on February 7-8, 2017.
 
About the Author

Michael Glazer | Centre Law & Consulting in Tysons VA Michael Glazer
Contracts Manager

Michael Glazer focuses primarily on GSA/VA Schedule consulting. He regularly assists clients in all aspects of FSS contract management including contract negotiations, modifications, IFF reporting, subcontracting plans and reporting, IOA assessments, and other contract compliance issues. Michael also provides experience with GSA Alliant 1 & 2, ITES 3H and 3S, CIO-CS and SP3, and other large IDIQ contracts on an as needed basis to clients.

 

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GSA has finally acted on the request from customer agencies and industry partners to allow Order Level Materials (OLMs), frequently called Other Direct Costs (ODCs), into the Multiple Award Schedule (MAS) program.

GSA is proposing to amend the General Services Administration Acquisition Regulation (GSAR) to establish special ordering procedures per FAR 8.403 (b). These new procedures will clarify the authority to acquire OLMs when placing an order or establishing a BPA against a Federal Supply Schedule contract.

As background, currently most commercial Indefinite-Delivery/Indefinite Quantity (IDIQ) contracts have the flexibility to acquire OLMs. This authority extends to contracts awarded pursuant to FAR Part 12 and orders awarded pursuant to FAR Subpart 16.5 and 8.4. However; Subpart 8.4 was never updated and as a result the ability to acquire OLMs was never fully implemented in the MAS program.

The proposed GSA rule includes some of the following amendments (a full list can be found in the proposed rule):

  • Add to GSAR 515.408 (c) that “offerors are not required to complete the commercial sales practices disclosure for order level materials”
  • Prohibiting order-level materials from being the primary basis of the order
  • Limiting the total value of order-level materials to 33 % of the overall order value
  • Require the order-level materials to be purchased under a separate Special Item Number (SIN) to allow GSA to monitor sales and evaluate use
  • Requiring the ordering activity contracting officers to determine that all prices for these materials are fair and reasonable
  • Include controls to ensure any ceiling increases have been justified and approved in accordance with FAR 8.405.6.

The final rule will only apply to the following GSA Schedules:

  1. Federal Supply Schedule 03 FAC: Facilities Maintenance and Management
  2. Federal Supply Schedule 56: Buildings and Building Materials/Industrial Services and Supplies
  3. Federal Supply Schedule 70: General Purpose Information Technology Equipment, Software, and Services
  4. Federal Supply Schedule 71: Furniture
  5. Federal Supply Schedule 84: Total Solutions for Law Enforcement, Security, Facilities Management, Fire, Rescue, Clothing, Marine Craft, and Emergency/Disaster Response
  6. Federal Supply Schedule 00CORP: All Professional Services
  7. Federal Supply Schedule 738X: Human Resources and EEO Services

The proposed GSAR rule was published September 9, 2016 and is open for a 60 day comment period.

About the Author:

Maureen Jamieson | Centre Law & Consulting Maureen Jamieson
Executive Director of Contracts and Consulting

Maureen Jamieson has more than twenty-five years of experience managing federal contracts. She is highly experienced in solving client pricing problems and implementing effective pricing strategies for placing products and services on GSA Schedule contracts.

 

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GSA OIG Reviews Industrial Operations Analysts:  What's In Your IOA’s Report Card? | Centre Law & Consulting in Tysons, VA
 
As a consultant assisting clients prepare for their Industrial Operations Analyst (IOA) visit, I am surprised by the anxiety that precedes these “I’m here to help you” visits. I receive comments from “I didn’t sleep all night” and “I forgot my Basis of Award (BOA) customer” to “Will the IOA cancel my contract as I forgot to pay my Industrial Funding Fee for the last quarter.” The anxiety has increased over the last two years as the IOAs are now reviewing your GSA Schedule annually if you have annual sales exceeding $150,000. While the majority of IOAs are trying to help you understand compliance with your schedule requirements, there are a few that want to add to your anxiety. I witnessed the IOA who started the visit with the comment that she was there to get money back for GSA and an IOA who threatened cancellation of the schedule (and no, IOAs cannot cancel your schedule contract).

In GSA’s Office of Inspector General (OIG) Semiannual Report to Congress for the period of April 1, 2016 through September 30, 2016, the tables were turned and the IOAs were reviewed.

IOA Assessment Report Purpose

The OIG conducted an audit of the contractor assessments program to determine if:

  1. Contractor assessments were effective to determine contractors’ compliance with schedule contract terms and conditions
  2. IOAs were conducting their assessments in accordance with FAS guidance
  3. IOAs were communicating those results in a timely fashion and in the appropriate format
  4. IOAs were developing and completing training in accordance with program requirements

 

IOA Assessment Report Findings

As a result, the OIG concluded the following:

  1. Assessments add value as a method to monitor contractor compliance with terms and conditions of schedule contracts
  2. IOAs are generally conducting assessments in accordance with guidance
  3. OAs are effectively communicating those results in a timely fashion and in the required format

 

IOA Assessment Areas of Improvement

The OIG also concluded that although the assessments were generally effective, they identified areas that could be improved “to enhance the consistency, completeness, and value of the assessments and reports.” For example:

  1. FAS guidance does not provide specific requirements for sampling schedule sales transactions to ensure that contractors are properly reporting and remitting Industrial Funding Fees and resumes to verify that qualified labor for services are being provided for customer agencies.
  2. IOAs are not consistently reporting on labor qualifications. As a result, FAS does not have assurance that labor qualifications were assessed.
  3. FAS has not established a formalized, national training curriculum for experienced IOAs.

 
Therefore, recommendations from the OIG to the FAS Commissioner include:

  1. Revising the IOA Training Manual to include details on a risk-based sampling methodology
  2. Revising the assessment report template to include a specific section for reviewing labor qualifications to ensure consistent assessments
  3. Establishing and implementing a formal national training curriculum for experienced IOAs

 

What Can I Do?

In summary, Contract Clause 552.215-71 (Examination of Records) allows the IOA to review contractors’ records to verify contractual compliance. Their role is to conduct contractor assessments as well as monitor sales reporting, sales adjustments, and Industrial Funding Fee remittance (previously conducted by your Administrative Contracting Officer).

Remember that the results of the IOA visit are advisory to your Contracting Officer (CO). Their assessment will be included in your GSA file for review prior to your Option Renewal. If you receive a negative assessment or don’t agree with a finding, you should submit a letter of clarification to your CO.

The best thing you can do to in advance of your IOA visit is to be prepared. Gather all documents requested by your IOA prior to the visit or virtual call. Review the terms and conditions of your schedule and know your Basis of Award and discounting. Ensure your GSA Schedule catalog is up to date and matches the last awarded modification. If you stay compliant with the requirements of your Schedule, then you will have a successful IOA review.

Your IOA contact information can be found at https://vsc.gsa.gov/tools/aco_ioa.cfm and Centre’s GSA Consultants are available to assist you through the process as well.

About the Author:

Maureen Jamieson | Centre Law & Consulting Maureen Jamieson
Executive Director of Contracts and Consulting

Maureen Jamieson has more than twenty-five years of experience managing federal contracts. She is highly experienced in solving client pricing problems and implementing effective pricing strategies for placing products and services on GSA Schedule contracts.

 

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The GSA FAS Office of Acquisition Management is planning to refresh all Multiple Award Schedules to incorporate provision and clause updates. For Schedules that offer services, both professional and nonprofessional, the solicitation refresh and corresponding mass modification will also update the application of the Service Contract Labor Standards (SCLS) to align with the U.S. Department of Labor’s SCLS compliance procedures.

They recently issued a presentation that outlines the planned changes and updates in the modification. GSA Overview of Planned MAS Changes, courtesy of the GSA to learn more.
 

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In its September 18, 2017 decision, the GAO sustained a protest over a task order awarded to a contractor whom only had one of the two required services listed on their General Services Administration (“GSA”) Federal Supply Schedule (“FSS”).

The United States Navy attempted to acquire 120-250 hotel rooms for civil service mariners in the Norfolk, Virginia area. The Agency invited vendors to submit offers through the GSA’s e-buy system, with instructions to only submit services on a current GSA Schedule contract. Unfortunately for the awardee, the request for quotation (“RFQ”) also required shuttles from the hotels to the work sites.

While the decision takes pains to describe in detail the intricacies of GSA Schedules, the result is simple. The original awardee simply did not have transportation services included as “additional services” as required. The RFQ listed two separate tasks orders, one of which was transportation by shuttle. Despite the awardee’s ability to provide these services, the RFQ clearly emphasized the award would be made exclusively through the GSA thereby excluding companies without all required services listed on the Schedule.

About the Author:

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

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.

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It’s been a bit chaotic around here recently and I’m surrounded by boxes everywhere I look. More on that below. But I did have a few minutes to catch up on some big developments that have been going on in the federal contracting world. These are a few things that caught my attention, and we’ll see what kind of impact they have for us on the road ahead.

Acquisition Reform Once More

Holy guacamole. It’s 2007 all over again. Does anyone remember the Services Acquisition Reform Act of 2003 (SARA)? Under SARA a panel was formed to review acquisition laws and regulations and to recommend any necessary changes. I testified before the panel and got a lovely 2007 Report in return that I keep on my bookshelf. It reminds me how hard it is to implement change because not much has changed. Now the Department of Defense (DoD) has announced the creation of a new Advisory Panel on Streamlining and Codifying Acquisition Regulations, with the goal of finding ways to streamline the Pentagon acquisition process.

The panel will be headed by Deidre Lee, former Director of Defense Procurement and Acquisition Policy and former Office of Federal Procurement Policy Administrator. Interestingly enough, Dee was also instrumental in creating the 2007 SARA Panel report. I am going to email her and ask her if it is Groundhog Day again. Read more at Defense News.

Protests and a Win Against Low Price

CACI-Federal and Booz Allen Hamilton protested the Defense Information Systems Agency’s (DISA) Encore III solicitation for IT services. These multiple award contracts have a maximum value of $17.5 billion. The GAO held that DISA conducted a flawed cost/price evaluation.

The GAO held that the evaluation scheme precluded meaningful evaluation of proposals’ costs to the government. The solicitation terms were flawed, according to the GAO, because they anticipated the award of both fixed-price and cost-reimbursement contract line item numbers, but they didn’t require offerors to propose cost-reimbursable labor rates or contemplate the evaluation of those rates. This is more of a win against low price “evaluations”. The GAO website has more information.

Counterfeit Part Protection

DoD issued a final rule on August 30 amending the Defense Federal Acquisition Regulation Supplement (DFARS) to protect contractors from costs incurred when they accidentally use counterfeit electronic parts. The protections only apply if the contractors have an active structure in place to detect and avoid counterfeit parts. Read the details on the Federal Register.

Boxes Upon Boxes

It’s amazing how much “stuff” an office can accumulate! The best way to know for sure is when you have to pack it all up to move. The Centre Law & Consulting office moved earlier this week into a brand new space. And while the move was only a mile down the road, we still had to take on all the joys and headaches that come with such a relocation. I think the paint is finally dry, but the boxes are still being unpacked.

One space that is unpacked – and perhaps one of the best parts of the new office – is our large, light-filled training room. There’s something about the wall of windows that makes it so inviting. Our first course in the new space kicks off tomorrow and we can’t wait to hear what the attendees think of it. We’d love to welcome you to our new training room too. See our training calendar for all our upcoming courses.

Centre Law & Consulting Training Room in Tysons, VA
 
About the Author

Barbara Kinosky Barbara Kinosky
Managing Partner

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

 

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

Trump Administration Begins Government Shutdown Preparations

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

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

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

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

Read the full story on Government Executive.

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

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

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

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

Read the full story on the Nextgov website.

Trump Signs EO to Bolster “Buy American” Laws

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

Read the full story on the White House website.

Hard Knocks for GSA’s Transactional Data Reporting Program

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

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

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

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

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

Barbara Kinosky Barbara Kinosky
Managing Partner

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

 

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Any contractor is frustrated when they fail to win a solicitation award.  Getting edged out on price by a few percentage points, receiving a low technical rating due to a misread proposal, or dealing with confusing evaluation criteria; all legitimate complaints. But imagine if your protest was not even considered, despite clear proof you sent it on time, as instructed.  That’s exactly what happened to Ghazan Neft Gas, for its proposal on a fixed-priced supply and delivery contract of fuel to the US Embassy in Afghanistan.

The solicitation instructed proposals to be sent via email, and Ghazan did just that on March 13th, well before the April 3rd deadline.  On April 8th, Ghazan inquired as to the status of its application, only to learn the Agency had not received the proposal. When Ghazan discovered the contract had been rewarded to another, it filed a protest with the GAO.

Ghazan provided screenshots and declarations showing the proposal was sent to the correct email address on March 13th. The original email was also forwarded from Ghazan’s sent folder.    The Agency simply denied receiving the document and that a review of its inbox and junk folders did not find the email.

The GAO sided with the Agency, stating it was Ghazan’s responsibility to ensure the Agency received the protest and also its burden to prove the delivery occurred. Given Ghazan could show they clearly did send the proposal electronically to the correct place, but still failed to meet the burden, contractors should expect that only written confirmation by the government agency would meet the test.

 

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

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.

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GAO Won’t Reconsider Protests Dismissed During Jurisdiction Lapse | Centre Law & Consulting in Tysons VA
 
Back on November 28, 2016, both Analytic Strategies LLC and Gemini Industries, Inc.’s protests were dismissed by the GAO for lack of jurisdiction. The firms initially protested the General Services Administration’s (GSA) exclusion of their proposals under a task order to provide mission support services for the Joint Improvised-Threat Defeat Agency (JIDA). The protests were subsequently dismissed by the GAO as its statutory grant of jurisdiction to consider such protests had expired. Congress subsequently reinstated the GAO’s jurisdiction and, as such, the contractors requested that their initial protests be reinstated.

By way of background, in 1994, Congress enacted the Federal Acquisition Streamlining Act (FASA) which, in part, established a general bar against protests filed in connection with military and civilian agency task and delivery orders issued under multiple award IDIQ contracts, with limited exceptions. However, the National Defense Authorization Act (NDAA) for Fiscal Year 2008 amended FASA to grant GAO jurisdiction to hear protests in connection with orders placed under IDIQ contracts where the order exceeded $10 million. The Fiscal Year 2012 NDAA amended the GAO’s jurisdiction and established a sunset date whereby the grant of jurisdiction to hear protests in connection with orders placed under IDIQs valued in excess of $10 million expired after September 30, 2016. On December 14, 2016, the Protest Authority Act was signed into law, which removed the sunset provision and reinstated GAO’s jurisdiction over protests of task orders placed under civilian agency IDIQ contracts valued in excess of $10 million.

With specific relevance to this protest, on April 20, 2016, GSA issued a task order request (TOR) to contractors under a specific IDIQ, including Analytic Strategies and Gemini Industries. The solicitation estimated the total value of the cost-plus-award-fee portion of the task order to be between $126,081,247 and $132,717,104. On September 21 and October 18, 2016, GSA informed Analytic Strategies and Gemini Industries, respectively, that it would no longer consider their responses to the TOR for award. Analytic Strategies filed its protest on October 3, and Gemini Industries filed its protest on October 28. Approximately one month later, GSA dismissed the protests as its jurisdiction to consider these protests had expired on September 30. The contractors subsequently filed requests for reconsideration once the GAO’s jurisdiction was reinstated.

In denying the reconsideration request, the GAO noted that it has repeatedly determined that its authority to hear a protest, including its jurisdiction to hear task and delivery order protests, is based on the filing date of the protest. The GAO, in finding that it did not possess jurisdiction at the time the protests were filed, noted that merely because the Protest Authority Act removed the sunset provision did not change the fact that the sunset provision did previously exist. The Act contained no statement as to its effective date, thus it is deemed to take effect on the date of its enactment. Furthermore, the GAO noted that retroactive application of a law is disfavored and should not be done in this case.

For more information, read the GAO decision in Analytic Strategies LLC; Gemini Industries, Inc. – Reconsideration; B-413758.4; B-413758.5 (Mar. 8, 2017).

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

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

 

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In a decision publicly released on May 30, 2017, Alphaport Inc. – Reconsideration, B-414086.3 (May 23, 2017), the GAO denied a request for reconsideration regarding a nearly $25 million contract. The GAO originally denied Alphaport, Inc.’s bid protest challenging the National Aeronautics and Space Administration’s (NASA) award of a contract to Banner Quality Management, Inc. for technical support services.

The solicitation was awarded as a single cost-plus-fixed-fee contract based on best value, focusing on three evaluation factors: technical capability, cost/price, and relevant experience and past performance. Regarding the cost factor, the solicitation stated that evidence of an approved accounting system would be required for award of the contract. Evidence of the approved accounting system would be shown by submitting four specific documents.

Alphaport initially challenged the award to Banner by alleging that the solicitation contained a material requirement to submit certain documentation to demonstrate the acceptability of the offeror’s accounting system. Despite NASA finding Banner’s accounting system acceptable, Banner only submitted three of the four required documents. Alphaport sought reconsideration after the GAO determined that the agency’s evaluation and selection decision were reasonable and consistent with the terms of the solicitation.

Specifically, Alphaport argued that the GAO erroneously concluded that the agency’s evaluation was reasonable because the adequacy of an accounting system is generally a matter of responsibility. In denying the request for reconsideration, the GAO reminded Alphaport that its decision already addressed its allegation that the agency waived a material requirement of the solicitation when it concluded that the solicitation’s material requirement was for an acceptable accounting system rather than specific documentation. Indeed, the GAO noted that Alphaport did not actually challenge the adequacy of Banner’s accounting system but only that the agency did not comply with a material RFP requirement. The GAO found no error of law and instead found that Alphaport merely disagreed with its determination.

 

About the Author:

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

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

 

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The U.S. Government Accountability Office (GAO) recently released a report recommending several changes to the Department of Defense’s (DoD) deployable biometrics programs. Deployable biometric capabilities like fingerprint scanners, voice recognition hardware, and iris scanning devices are used as intelligence collection platforms by the DoD. According to the report, these programs are responsible for DoD capturing or killing 1,700 individuals and preventing 92,000 more from accessing DoD bases over the past decade.

While the GAO acknowledged several successful components of DoD’s biometric capabilities, it also made six recommendations to enhance biometric strategic planning. Further, GAO warned that DoD “may have missed an opportunity to leverage existing, viable, and less costly alternatives.”

A critical recommendation was GAO’s final one: DoD should stop determining which contract support to use based on the lowest price. Too often, DoD relies on lowest cost, technically-acceptable solicitations (i.e. choosing the lowest priced bid by a contractor that meets the minimum requirements.) According to the report, this absolute preference for low bidding has resulted in staffing shortages in contractor provided services. While the GAO still supports use of the lowest price solicitation structure for low skilled services, GAO expressed concern of its usefulness for highly technical/skilled tasks, such as information technology security and latent fingerprint examination. GAO recommends using tradeoff selection criteria in determining contract support; this approach could enhance the quality of contract offers and improve contractor hiring and retention through better compensation.

The advantages of using a best value solicitation for these more advanced DoD services are clear. The Department would have greater discretion to determine if a price discount is worth a reduction in quality, and what effect that sacrifice could have on the end goal – for example, quickly and properly processing a potentially hostile individual’s DNA. With the passing of the National Defense Authorization Act for Fiscal Year 2017, DOD will almost certainly follow GAO’s recommendation for a solicitation method. The Act directs the DoD to avoid using lowest price solicitations for information technology contracts, to the maximum extent practicable. (Pub. L. No. 114-328, div. A, title VIII, subtitle C, § 813(c) (Dec. 23, 2016)). Further, DoD reviewed a draft of the GAO report, and concurred with all six recommendations. DoD also cited actions it plans to take to address the recommendations. GAO believes that if DoD completes these actions, it will adequately address the concerns outlined.

About the Author:

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

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.

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In September of 2016, Aurotech Inc. won an award for a blanket purchase agreement with Health and Human Services, FDA. Discover Tech made a persuasive protest of that award, resulting in the FDA taking corrective action, and to reevaluate Aurotech’s and Discover Tech’s quotations. After the FDA revised its initial award, now choosing Discover Tech in the award determination, Aurotech filed an unsuccessful protest.

Aurotech challenged the Agency’s evaluation of how Discover Tech’s reductions to its quoted price would affect the technical and management approaches, and therefore its ratings. It also alleged Discover Tech did not explain in full how it had reduced its price from the first award determination. The GAO found the agency had reasonably evaluated the vendor’s explanation for the price reduction.  Specifically, that Discovery Tech’s new understanding of initial deadlines for the contract, allowed them to reduce labor costs without hurt quality.

Which brings us to the more interesting bid protest topic; when does a clarification become a discussion? Aurotech next alleged that the FDA held unequal exchanges with the two vendors.  Similar to Aurotech’s accusation Discovery Tech failed to explain its price reduction, the Agency was also curious of the price drop during its evaluation. The Agency contract specialist contacted Discovery Tech asking how the reduction in staffing could happen, without adjusting the technical quotation/management approach. Discover Tech explained its initial mistake evaluating deadlines which had caused the previous higher staff prediction.

The GAO considered this a clarification, or limited exchange used to resolve clerical mistakes. Aurotech obviously disagreed, calling this exchange an opportunity for Discovery Tech to cure a crucial failure in its proposal. The GAO was most persuaded by the fact no change to the proposal occurred.  Had the vender been allowed to modify its technical and management approach, the GAO would have considered this a discussion, requiring both parties to be involved. Given Aurotech was also asked for a clarification on a different subject, the GAO denied the bid on the ground the FDA treated the vendors unequally.

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

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.

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In its September 18, 2017 decision, the GAO sustained McCann-Erickson USA, Inc.’s (“McCann”) protest challenging the Army’s preliminary elimination of McCann’s proposal for advertising services on an acquisition valued up to $4 billion.  After receiving numerous proposals the Army performed a “compliance review” aimed at thinning the number of proposals before applying the evaluation criteria detailed in the requests for proposals. McCann’s proposal was eliminated for alleged failures in following the proposal preparation instructions.

The GAO agreed McCann’s proposal did not comply with the exact format requested in the solicitation, but stated such problems were not sufficient, on their own, to exclude a proposal before taking a more substantive look at the proposal’s contents. This decision is supported by the fact that the solicitation gave no warning the Army would be taking such a harsh pass/fail look at compliance with proposal preparation instructions.

It certainly did not help that at least some of the alleged deficiencies of the proposal were found, by the GAO, to really be mistakes by the Army. The GAO walks through such examples including, the Army’s inability to search for McCann’s certifications in the system for award management database, despite being provided the correct name and code. The GAO also found the Army’s refusal to evaluate McCann’s price proposal submission because it was in PDF format rather than the requested Excel format was unreasonable. While previous GAO decisions have supporting an Agency’s harsh response to such unfollowed format requests, here the Army did not put forth any reason why submission in PDF format, rather than Excel, poised any problems.

This decision is not quite landmark, but does give push back to the government’s seemingly increasing use of “pre-evaluation…evaluations” in the face of an overwhelming number of proposals.

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

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.

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In its August 25, 2017 decision the GAO sustained a bid protest from David Jones CPA PC (“Jones”) on the Department of Veterans Affairs’ (“VA”) refusal to establish a blanket purchase agreement following a request for quotations on Equal Employment Opportunity claims investigations. The principle issue of the decision revolved around the VA’s elimination of Jones’ proposal because of a single line item.

The solicitation advised offerors that technical approach was significantly more important than past performance and that, combined, technical approach and past performance were significantly more important than price. The solicitation also warned the VA would not establish a blanket purchase agreement with any vendor if the price submission was “questionable for reasonableness.” Jones was assigned a “good” technical rating but the VA also determined Jones had submitted an unreasonable price for a single line item. Ironically, every other line item in Jones’ proposal was lower than the mean of the other offerors. Following this initial evaluation, Jones was eliminated from consideration, with no further analysis from the VA.

The VA unsuccessfully argued that the solicitation supported exclusion based on a single high priced line item because the solicitation required not-to-exceed quantity for each line item. The GAO noted the premise of this argument was flawed because the solicitation did not provide any estimated quantities for the lines items.  Most importantly, the GAO took issue with the VA lack of evaluation on the effect of this single item’s price on the agreement as a whole. In order to justify exclusion, the VA needed to evaluate if that single line item would have created an overall unreasonably high price, or at least created an unacceptable risk that the price would be too high on a typical government order.

About the Author:

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

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.

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On August 29, 2016, the Air Force issued an RFP seeking base operations support services at an Air Force Base in Mississippi. The solicitation advised offerors that the agency would award the contract “to the proposal with the lowest evaluated price from among those proposals evaluated to be acceptable.” The RFP further stated that the technical evaluation team would evaluate the lowest-price offeror and then, as needed, evaluate higher priced offerors in order of price rank, to assign a rating of Acceptable or Unacceptable.

The protester, PAE, was found to be technically acceptable but had the second lowest price of all offerors and, thus, award was made to the lowest offeror. PAE subsequently filed a protest arguing that the agency performed an inadequate evaluation of unbalanced pricing and failed to evaluate the realism of offeror’s pricings.

In evaluating the protest, the GAO found that, absent a solicitation provision expressly or implicitly providing for a price realism evaluation, agencies are neither required nor permitted to conduct one in awarding a fixed-price contract. The GAO further found that, even though the solicitation required the agency to analyze whether the offerors’ prices were unbalanced, PAE failed to sufficiently allege that the awardee’s prices were overstated or unbalanced.

In dismissing the protest, the GAO found that PAE failed to allege a sufficient basis of protest because it had not alleged that the awardee’s prices were overstated or unbalanced and, thus, even where an agency acts in error, the GAO will not sustain a protest unless the protestor can show that it was prejudiced by the error. The GAO likewise found that PAE’s additional protest grounds, including failure to conduct meaningful discussions, were not a legally sufficient basis for a protest because the evaluation scheme challenged by PAE was not the type of deficiency required to be addressed during discussions.

About the Author:

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

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

 

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Recently, in the matter of SK Hart Properties LLC, the unsuccessful incumbent contractor for the General Services Administration’s office in Salt Lake City protested the Agency’s decision to use a “fixed tenant improvement allowance.” At its heart, the contractor submitted it does not need the full amount listed for improvements in the solicitation for the contract because its space is relatively prepared for the Agency to use as is. Because the incumbent contractor would not charge the Agency the full amount allowed to alter the space, assuming they will increased their bid price above the competitor, who had a lower base rate of rent but arguably needs closer to the full amount to meet the Agency’s needs.  The incumbent failed to win either the award or the protest, despite arguing the procurement artificially increased their bid price by requiring it to claim expenses they would not incur.

The GAO sided with the Agency who agreed the funds may not actually be spent, but that not including a fixed allowance would unjustly allow the incumbent to rely on improvements to their space previously paid for by the government. No mandate required the Agency to eliminate advantages held by the incumbent, but their decision to do so is permitted. This form of pricing also allowed the Agency to focus on the rental rate, without worrying if proposed improvement costs were correct.

The decision offers a unique example of the GAO attempting to foster competition under the Competition in Contracting Act, even if it results in increased costs to the government.

 

About the Author:

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

Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.

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The Federal Government continues to issue more and more cybersecurity rules, Executive Orders and guidance for federal contractors, and the latest addition is the Federal Acquisition Regulation Part 52.204-21 – Basic Safeguarding of Covered Contractor Information Systems, published in June 2016. This new rule establishes new definitions of “Covered Contractor Information System”, “Federal Contract Information”, and outlines 15 new safeguarding requirements and procedures for federal contractors. FAR Part 52.204-21 supplements many other existing cybersecurity rules that Federal contractors have to already comply with.

When it comes to meeting cybersecurity requirements, the first question is whether the new rule applies. For example, vendors of commercial items may not be affected by the rule in the same way as contractors storing and managing government information containing non-public and sensitive data. The new rule applies to “Covered Contractor Information System” which is defined as an information system that is owned or operated by a contractor that processes, stores, or transmit Federal Contract Information. Thus, it is important to understand your specific contract requirements relating to such information, and to check whether your contract includes FAR Part 52.204-21. Most experts agree that this rule could have a very broad application.

What is “Federal Contract Information”?

It is information that is not intended for public release, that is provided by or generated for the Government under a contract to develop or deliver a product or service to the Government, but not including information provided by the Government to the public (such as on public websites) or simple transactional information, such as necessary to process payments.

What is “Safeguarding”?

The new rule defines “safeguarding” as measures or controls that are prescribed to protect information systems, and it lists 15 different security controls. Essentially, the security controls can be divided into (1) user controls, (2) use controls, and (3) information system controls. User controls involve limiting access to authorized users. Use controls refer to limiting the types of transactions and functions that authorized users are permitted to execute. Finally, information system controls refer to periodic scans of the information systems and real-time scans of files from external sources as they are being downloaded, opened or executed. Read the details of all the 15 requirements.

What Are Other Cybersecurity Requirements?

There are many. Probably, one of the most important ones is the new publication setting out the minimum standards on protecting controlled unclassified information.

The National Institute of Standards and Technology Special Publication 800-171 “Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations” is designed to help federal agencies in protecting the confidentiality of controlled unclassified information when it is stored on nonfederal information systems and organizations. This in turn means that federal contractors have to comply with the recommended requirements. This publication has been developed pursuant to the Federal Information Security Modernization Act of 2014.

What Are Some of the Best Ways to Satisfy the New 15 Cybersecurity Safeguarding Requirements and Procedures?

It all starts with appropriate policies and internal procedures, proper training, contingency planning, periodic assessments and remedial actions, and constant risk monitoring.

If you have further questions about the new cybersecurity rules, or require training, feel free to contact us.

About the Author:

Wojciech Kornacki | Centre Law & Consulting Wojciech Kornacki
Government Contract and Compliance Counsel

Wojciech Kornacki focuses on federal Government contract compliance, bid protests, and federal litigation. He represents clients in matters involving Government Accountability Office bid protests, federal agency debarments, Boards of Contract Appeals litigation, and Export Controls (ITAR and EAR) and Trade Agreements Act compliance.

 

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This guide pinpoints some of the major government contracts-related developments that occurred over the last six months. These developments create new opportunities and compliance requirements that people who conduct business with the Federal Government need to know about.

Major Regulatory Developments

Compliance: False Claims Act Penalties Almost Double
The U.S. Department of Justice issued an interim rule increasing monetary penalties for contractors. Civil monetary penalties under certain sections of the False Claims Act are increased from $5,500 to $10,781 (minimum penalty), and from $11,000 to $21,563 (maximum penalty). Considering that each transaction or invoice could be considered as a separate violation, compliance is paramount. You can read the entire rule, and it will be effective on August 1, 2016.

Compliance: New Cybersecurity Requirements For Federal Contractors
The U.S. Department of Defense, NASA and GSA issued a final rule amending the Federal Acquisition Regulation by adding a new subpart for the basic safeguarding of contractor information systems that process, store, or transmit Federal contracting information (FCI). (FAR 52.204-21) FCI means “information, not intended for public release, that is provided by or generated for the Government under a contract to develop or deliver a product or service to the Government, but not including information provided by the Government to the public (such as on public Web sites) or simple transactional information, such as necessary to process payments.” This rule is expected to be applicable to most, if not all, of the new contracts. It is effective as of June 15, 2016.

Opportunity: Small Business Mentor-Protégé Program
The SBA is amending its regulations to establish a Government-wide mentor protégé program for all small business concerns. The new rule also makes changes to the current joint-venture provisions. This development is expected to create many new opportunities for small and not so small businesses. This rule will be effective on August 24, 2016.

Compliance: No Discrimination on the Basis of Sex
The U.S. Department of Labor’s Office of Federal Contract Compliance Programs created new nondiscrimination obligations that affect certain Federal Government contractors and subcontractors. The new obligations relate to the Executive Order 11246 – Equal Employment Opportunity. This order prohibits discrimination in employment on the basis of sex and requires employers to take affirmative action to ensure that applicants and employees are treated without regard to their sex. You can read our article on this major development or read the final rule, which will be effective on August 14, 2016.

Opportunity: Export Control Reform Revisions
As part of the Export Control Reform initiative, the Department of State updated the definitions of “export”, and “reexport or retransfer” in the International Traffic in Arms Regulations (ITAR). This is seen as a positive development by many because now the new ITAR definitions will be better synchronized with the Export Administration Regulations definitions. This rule will be effective on September 1, 2016.

Opportunity: GSA Transactional Data Reporting
GSA amended its rules to now require Federal Supply Schedule (FSS) contractors to report transactional data from orders placed against certain FSS contracts, Government-wide Acquisition Contracts and Government-wide Indefinite-Delivery, Indefinite-Quantity (IDIQ) contracts. Some experts believe that this rule could potentially result in significant savings to federal contractors because it may eliminate other reporting requirements. You can read our article on this development or review the rule, which became effective as of June 23, 2016.

Opportunity: The Freedom of Information Improvement Act of 2016
This law is designed to make major changes to the current Federal Government record disclosure practices. Among others, federal agencies are expected to post more records online and make records available to requesters in an electronic format. You can read a good summary on the White House website. This act became Public Law No. 114-185 on June 30, 2016.

Compliance: The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015
This law requires federal agencies to adjust the level of civil monetary penalties with an initial “catch-up” adjustment through an interim final rulemaking, and make subsequent annual adjustments for inflation. This act became Public Law 114-74 on November 2, 2015. Now, federal agencies are required to publish interim final rules with the initial penalty adjustment amounts by July 1, 2016, and the new penalty levels will be legally binding on August 1, 2016. You can read our article on this development.

Significant Legal Decisions

Compliance: Universal Health Services, Inc. v. United States Et Al. Ex Rel. Escobar Et Al. (2016)
In this case, the U.S. Supreme Court considered whether a defendant should face False Claims Act (FCA) liability only if it failed to disclose the violation of a contractual, statutory, or regulatory provision that the Federal Government expressly designated a condition of payment. The Court answered this question by stating that defendants could be liable for violating certain requirements even if the requirements were not designated as conditions of payment. Any misrepresentation about compliance with a statutory, regulatory, or contractual requirement had to be material to the Federal Government’s payment decision in order to be actionable under the FCA. This case was decided on June 16, 2016.

Opportunity: Kingdomware Technologies, Inc. V. United States (2016)
In this case, the U.S. Supreme Court considered whether the Department of Veterans Affairs had to award contracts to veteran-owned small business concerns when there was a reasonable expectation that 2 or more such concerns would bid for the contract at a fair and reasonable price that offered best value to the U.S. Government. The Court answered this question with a unanimous yes! This decision creates many new opportunities for veteran-owned small business concerns. This case was decided on June 16, 2016.

Compliance: Remington Arms Co., LLC, v. The United States, and Colt Defense, LLC, and FN America, LLC (2016)
In this post-award bid protest, the U.S. Court of Federal Claims examined whether the contracting officer’s (“CO”) decision to award a contract to Colt while Colt was still in bankruptcy and labeled “high risk” by the Defense Contract Management Agency was arbitrary, capricious, and an abuse of discretion. The Court concluded that the CO’s decision was arbitrary and capricious because it was not supported by the record which showed that Colt was undergoing bankruptcy proceedings. This case was decided on March 30, 2016.

Opportunity: B-411466.3, Fluor Energy Technology Services, LLC
In this matter, the Government Accountability Office (“GAO”) recommended full reimbursement of costs for filing and pursuing protest where the agency unduly delayed taking corrective action in the face of a clearly meritorious protest. The protester was able to show that a reasonable agency inquiry into initial protest allegations would have revealed prejudicial errors in the agency’s cost realism evaluation. This matter was decided on June 7, 2016.

Note that is post is for educational use only and does not constitute legal advice.

About the Author:

Wojciech Kornacki | Centre Law & Consulting Wojciech Kornacki
Government Contract and Compliance Counsel

Wojciech Kornacki focuses on federal Government contract compliance, bid protests, and federal litigation. He represents clients in matters involving Government Accountability Office bid protests, federal agency debarments, Boards of Contract Appeals litigation, and Export Controls (ITAR and EAR) and Trade Agreements Act compliance.

 

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Federal Circuit Reverses $80,000 Fee Award in Bid Protest | Centre Law & Consulting in Tysons, VA
 
In a recent ruling, the Federal Circuit in Dellew Corporation v. United States reversed a legal fees award to a contractor because the agency had taken corrective action on the bid protest before it was decided in court on the merits.

In initially awarding the fees and costs, the Court of Federal Claims found that comments it made during the hearing and prior to the Government taking corrective action materially altered the position of the parties so that the contractor qualified as a “prevailing party” under the Equal Access to Justice Act (EAJA), a requirement under the statute for the Court to award fees and costs. Specifically, the Court of Federal Claims focused on certain comments it made during the parties’ oral arguments. The Court stated that it provided “hints” about its views favorable to the contractor on the merits and told the parties that it had drafted an opinion. The Court of Federal Claims also repeatedly expressed its belief that corrective action would be appropriate.

As a result, the Government agreed to take corrective action and the bid protest was dismissed as moot. The contractor subsequently sought attorney fees and costs under the EAJA. In awarding nearly $80,000 in fees and costs, the Court of Federal Claims held that it, in making substantive comments during the oral argument regarding the merits of the case, the Court materially altered the relationship between the parties such that the contractor qualified as a prevailing party under the EAJA.

However, in reversing the fee award, the Federal Circuit held that the contractor was not a prevailing party as required by the EAJA because the Government voluntarily took the corrective action and the Court’s comments about the merits of the case made during the hearing did not constitute sufficient grounds to convey prevailing party status. Therefore, the Federal Circuit reversed the fee award of nearly $80,000.

About the Author:

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

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

 

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FAR Updates That May Impact Your Small Business | Centre Law & Consulting in Tysons VA
 
On January 13, 2017, several Federal Acquisition Regulation (FAR) updates went into effect that you should be aware of if you have a small business. The highlights of each rule include:

  • Uniform Use of Line Items – A revised policy statement that requires the use of line items and, as necessary, subline items to improve accuracy, traceability, and usability of procurement data.

Acquisition Threshold for Special Emergency Procurement Authority – The simplified acquisition threshold for special emergency procurement authority has been raised from $300,000 to $750,000 within the United States and from $1,000,000 to $1,500,000 outside the United States for acquisitions that, as determined by the head of agency, are used to support a contingency operation or facilitate defenses against or recovery form nuclear, biological, chemical, or radiological attack.

Contractor Employee Internal Confidentiality Agreements – This change prohibits the use of appropriated funds to entities that require employees to sign confidentiality agreements that prevent the lawful reporting of fraud, waste, or abuse.

Contracts Under the Small Business Administration 8(a) Program – Offers and acceptances are required for individual orders under multiple award contracts that were not set aside for competition among 8(a) contractors.

Prohibition on Reimbursement for Congressional Investigations and Inquiries – No new requirements on small businesses, but records will need to be maintained.

 
About the Author

Michael Glazer | Centre Law & Consulting in Tysons VA Colin Johnson
Contracts Manager

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

 

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Bid Protests: Failure to Submit Signed JV Agreement Rendered Proposal Technically Unacceptable | Centre Law & Consulting in Tysons, VA
 
In a decision publicly released on Friday, March 31, in CJW-Desbuild JV, LLC, B-414219 (Mar. 17, 2017), the Government Accountability Office (GAO) denied a protest challenging the rejection of a proposal where the contractor had failed to provide a signed joint venture agreement with its proposal.

In issuing the RFP, the Department of the Navy, Naval Facilities Engineering Command (NAVFAC) stated that award of the construction and repair contract would be made on a best value basis, with price and non-price factors considered. The non-price evaluation factors were construction experience, safety, and past performance. With regards to the construction experience factor, the RFP instructed Joint Venture (JV) offerors to submit relevant project experience completed by the JV entity. If none existed, the RFP instructed JV members to submit individual project experience but to also submit a signed copy of the JV agreement indicating the proposed participation of each JV member. The RFP stated that failure to submit the agreement would be considered unacceptable.

CJW-Desbuild JV was subsequently rated “unacceptable” under the construction experience factor for failure to provide the signed copy of its JV agreement. CJW Desbuild argued that its failure to submit a signed copy was a “minor oversight” and that it was “unreasonable” for the agency to downgrade its proposal. CJW Desbuild further argued that NAVFAC should have used clarifications in order to permit the JV to submit its signed agreement.

The GAO disagreed and found that because the requirement for a signed JV agreement was specifically linked to technical acceptability, it could not be considered an informality. The GAO also concluded that the JV’s failure to provide its signed agreement could not have been remedied through clarifications, as clarifications cannot be used to cure deficiencies or material omissions in a proposal. Furthermore, the GAO noted that even if the protestor’s failure to submit the signed agreement had been a minor clerical error, the agency is permitted, but not required, to give it the opportunity to correct it via clarifications.

About the Author:

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

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

 

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