Jump to content
The Wifcon Forums and Blogs

Sign in to follow this  
  • entries
    151
  • comments
    4
  • views
    5,253

Entries in this blog

Centre Law & Consulting

By Colin Johnson

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

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

This rule is implementing the regulatory changes made by the SBA and will allow for the facilitation of allocating subcontracting credits to funding agencies. This allocation will help ensure that funding agencies are recognized and incentivized to promote small business subcontracting on orders.  It is important to keep in mind that these reporting requirements apply to all orders on a single-award IDIQ contract intended for use by multiple agencies regardless of dollar value. These changes will apply to solicitations issued on or after the effective date or at the contracting officer’s discretion in accordance with FAR 1.108(d).

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

The post Changes to Subcontracting Reporting Requirements—Effective November 30, 2017 appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Centre Law & Consulting will be at NCMA World Congress in Chicago from July 23-26, 2017. A number of Centre’s staff have been invited to speak about various federal contracting topics (see below for the topics and times). Centre will also be exhibiting at booth 417.


Monday July 24

Corporate Ethics: Lead from the Top or Pay Through the Nose

A07 • Managing Contracting Organizations • Room 309/311 • Intermediate

David Warner, Partner, Centre Law & Consulting

This session will review recent enforcement actions—including whistleblower, qui tam, and debarment processes— with respect to federal contractors. Hear about the current state of the law concerning “hidden” ethical traps for import/export, ITAR/EAR, and TAA, in addition to the more common traps of the False Claims Act and Foreign Corrupt Practices. Corporate ethics are expected to remain a significant concern for contractors even under the new administration. Leave with guidance to understand the current legal landscape and to identify and mitigate such risk.

The Acquisition Profession’s Essential Tools: Principles of Interpretation

C11 · Foundational Contracting Training • Room 325 · Basic

Kenneth Allen, JD, Attorney and Consultant, Semi-Retired Academic
Barbara Kinosky, Esq., Managing Partner, Centre Law and Consulting

What’s in a word? Lots. Contract interpretation is one of the most important skill sets an acquisition professional can have. Attendees will explore the application of the principles of contract interpretation through real court cases and key federal exceptions.


Tuesday, July 25

Protests Happen, so Now What?

D12 · Foundational Contracting Training · Room 326 · Intermediate

James Phillips Jr, PMP, CFCM, Fellow, Acquisition Consultant, Phillips Training and Consulting Inc.
Barbara S. Kinosky, Esq., Managing Partner, Centre Law and Consulting

When the word protest is used often, both buyer and seller bristle. This presenter speculates on the thinking that the government buyer goes through that ultimately results in a decision that is sustained. Hear key decision points of actual sustained protests.
ACTIVITY: 8-10 short scenarios will be provided for group discussion.

Lessons Gleaned from Successful Protests at GAO

F05 · Business Acumen · Room 326 · Basic

Barbara S. Kinosky, Esq., Managing Partner, Centre Law and Consulting

What makes a protest successful and what can you do to avoid stalling your acquisition due to a protest? With the number of protests increasing, this session gives attendees clear guidance on practices to avoid that will lead to protest.
ACTIVITY: Small groups will discuss protest issues related to specific examples.


Wednesday, July 26

An Overview of GSA’s e-Tools – eOffer/eMod, SIP, TDR Sales Reporting

G15 · Leveraging Advancing Technology · Room 306 · Basic

Maureen Jamieson, Executive Director of Consulting, Centre Law and Consulting
Julia Coon, Consultant, Centre Law and Consulting

This session will show participants how to submit a GSA offer, modifications and other electronic forms such as the CSP-1 and Small Business Subcontracting Plan in eOffer/eMod. Walk through the SIP program and step-by-step instructions for the import/upload process for both products and services. Discussion will focus on GSA’s new Transactional Data Reporting (TDR)/FAS Sales Reporting and the anticipated Formatted Product Tool (FPT).

The post Centre Staff Speaking at NCMA World Congress appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

This July, several of the Centre staff were chosen from a competitive field to lead multiple breakout sessions at the 2017 World Congress in Chicago, IL. World Congress is the National Contract Management Association’s largest education event for contract management, procurement, and acquisition professionals. Individuals from government, industry, and commercial business come together for networking and training for all career levels.

From pressing legal matters to the latest in GSA Schedule updates, come learn the information you’ll need to stay up-to-date in the federal contracting industry. Make sure these three breakout sessions are added to your “must-see” events on your conference schedule:

MONDAY, JULY 24 (11:15am – 12:30pm)
Corporate Ethics: Lead from the Top or Pay Through the Nose
David Warner, Partner

This session will review recent enforcement actions—including whistleblower, qui tam, and debarment processes— with respect to federal contractors. Hear about the current state of the law concerning “hidden” ethical traps for import/export, ITAR/EAR, and TAA, in addition to the more common traps of the False Claims Act and Foreign Corrupt Practices. Corporate ethics are expected to remain a significant concern for contractors even under the new administration. Leave with guidance to understand the current legal landscape and to identify and mitigate such risk.

TUESDAY, JULY 25 (11:15am – 12:30pm)
Protests Happen, so Now What?
Barbara S. Kinosky, Esq., Managing Partner
James Phillips Jr, PMP, CFCM, Fellow, Acquisition Consultant

When the word protest is used often, both buyer and seller bristle. This presenter speculates on the thinking that the government buyer goes through that ultimately results in a decision that is sustained. Hear key decision points of actual sustained protests.

TUESDAY, JULY 25 (4:00pm – 5:15pm)
Lessons Gleaned from Successful Protests at GAO
Barbara S. Kinosky, Esq., Managing Partner

What makes a protest successful and what can you do to avoid stalling your acquisition due to a protest? With the number of protests increasing, this session gives attendees clear guidance on practices to avoid that will lead to protest.

WEDNESDAY, JULY 26 (9:45am – 11:00am)
SIP vs FPT, TDR/FAS Sales Reporting vs 72A, eOffer/eMod
Maureen Jamieson, Executive Director of Consulting
Julia Coon, Consultant

eOffer/eMod is GSA’s online tool to submit GSA offers and modifications that is only accessible to authorized negotiators with digital certificates. This session will show participants how to submit a GSA offer and modifications and other electronic forms. Hear about the SIP program and step-by-step instructions for the import/upload process for both products and services. Discussion will focus on GSA’s new TDR/FAS Sales Reporting and Formatted Product Tool.
 
2017 NCMA World Congress Breakout Sessions | Centre Law & Consulting in Tysons, VA
 

The post Centre Staff Leading Breakout Sessions at 2017 NCMA World Congress appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Centre Law & Consulting (Centre), a leading provider of legal services for federal contractors, has successfully worked on behalf of its client – Phoenix Air – to win a favorable outcome in their bid protest against the Department of the Interior on a recent Request for Proposal (RFP).

At issue was the fact that the Department of the Interior allowed one contractor to be credited for meeting the proposal’s criteria even though it submitted information on one plane while recommending to use another in a $25 million U.S. Naval Sea Systems Command contract for electronic warfare aircraft services. Phoenix Air, the incumbent contractor, received a lower rating than the higher-priced awardee. As a result, Phoenix Air argued that the Department of the Interior misevaluated the submitted proposals by applying unstated evaluation criteria, unreasonably failed to hold discussions, and made an unreasonable source selection decision.

After reviewing the protest, the Government Accountability Office concluded that the evaluation of proposals was indeed unreasonable and inconsistent with the terms of the RFP. They sustained the protest in favor of Phoenix Air.

Given the decision, the Department of the Interior must now reevaluate proposals consistent with the solicitation’s evaluation criteria. The agency can amend the solicitation to advise offerors of the agency’s intended evaluation approach, but if it does, it will need to provide offerors with an opportunity to submit revised proposals before it conducts another review and makes a new decision.

“We are very pleased with the outcome of GAO’s decision in our client’s bid protest. It’s gratifying to know that Phoenix Air will have an opportunity to be more fairly evaluated under the set proposal standards and recompete for the work it has already has a history of doing with the Department of the Interior,” said Barbara Kinosky, Esq., Managing Partner of Centre.

The post Centre Law & Consulting Successfully Sustains Bid Protest for Phoenix Air appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Tune in tonight, Wednesday April 19, at 8:00pm and 11:00pm to the Government Matters show on NewsChannel 8 in the Washington DC area to see a segment featuring Centre Law & Consulting. Wayne Simpson, Consultant with Centre, appears on the show for an interview about the Department of Veterans Affairs’ efforts to reduce the administrative burdens on SDVOSBs and VOSBs.

Government Matters is the only television newscast focused on the business of government. Host Francis Rose recaps the top federal headlines and conducts thought-provoking interviews on tech, security, defense, workforce, and industry issues. Since its launch in August of 2013, Government Matters has hosted some of the top minds in the federal community, including guests from the White House, Congress, Fortune 500 companies, journalism, and the non-profit sector.

NewsChanne 8 Washington DC Logo
 

The post Centre Law & Consulting Featured Tonight on NewsChannel 8 appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Centre Law & Consulting (Centre), a leading provider of training and acquisition services for government agencies, is pleased to announce the award of a contract with the Nuclear Regulatory Commission (NRC) for NRC Acquisition Workforce Training.

Under the contract, Centre will develop and deliver a structured training program which standardizes the education, training, and experience requirements for NRC acquisition professionals, while improving workforce competencies and performance. The instruction provided will include all levels of COR and acquisition courses related to FAC-C & FAC-COR certifications. Courses will be conducted at the NRC’s Professional Development Center and virtually across the United States.

The contract covers a base period of one year with two option years.

“It is an honor to be selected by the NRC as their new training provider, and we are excited to provide our expertise in developing integrated learning solutions for acquisition and procurement personnel,” said Barbara Kinosky, Esq., Managing Partner of Centre. “We look forward to delivering innovative curriculum and content that will strengthen the NRC workforce to align with the NRC’s performance goals.”

Jeffrey Keen, Director of Federal Contracts and Training at Centre Law & Consulting, will serve as Program Manager. He will be the primary point of contact with the NRC and with Hemsley Fraser, a subcontractor that will assist Centre with extensive course customization.

“Our training team is committed to helping the NRC improve the operational knowledge of its staff and we are dedicated to ensuring they receive the best possible support for their training initiatives. We look forward to customizing an education program that will elevate the performance of their employees,” Keen said.

Centre has a long history of working with a variety of government agencies, but this contract marks the first time it will partner with the NRC. Centre was selected based on its experience in creating custom courseware, for its history of providing DAU-approved courses, and for its day-to-day experience in advising government personnel on acquisition and procurement matters.

The post Centre Law & Consulting Awarded NRC Contract for Employee Training appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Centre Law & Consulting (Centre), a leading provider of acquisition services and training for both government agencies and federal contractors, is pleased to announce the award of a contract with the Court Services and Offender Supervision Agency (CSOSA).

Under the contract, Centre will develop and deliver an Executive Contracting Officer’s (COR) Training Program for a base period of one year with two one-year option periods. The training program will focus on increasing the knowledge of CSOSA’s acquisition and non-acquisition personnel in the areas of contract administration, planning, and management for procuring services and supplies in support of the CSOSA mission.

“Centre is excited to have been to be selected by CSOSA to be their training provider, and it’s a testament to our long history of providing high quality acquisition and procurement education. We look forward to providing our expertise to CSOSA and to helping them achieve their goals,” said Barbara Kinosky, Esq., Managing Partner of Centre. “Our unique background in procurement law and regulations and focus on customization will ensure that CSOSA receives the greatest possible support for its COR training program.”

Centre has a long history of working with a variety of government agencies, but this contract marks the first time it will partner with CSOSA. Centre was selected based on its experience in creating custom courseware that is tailored to an agency’s specific needs and for its day-to-day experience in advising acquisition professionals on compliance and implementation.

The post Centre Law & Consulting Awarded CSOSA Contract for Employee Training appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

If you are in the Northern Virginia area, grab some lunch with Centre’s Managing Partner, Barbara Kinosky, on May 23 at the Tower Club in Tysons, VA.

Barbara will be the featured speaker presenting on “Hot Topics for Federal Contractors: A Look at What’s In and What’s Out in 2017” at the Tower Club’s Lunch and Learn series. Attendees will get up to date on all the latest hot topics in the federal contracting industry. What will a Trump presidency continue to look like? Will there be more emphasis on defense spending? How will federal regulations be impacted? Executive orders, compliance, audits – what’s in, what’s out?

Come learn about all this and more!

What:   Hot Topics for Federal Contractors: A Look at What’s In and What’s Out in 2017
Date:    May 23, 2017
Time:    12:30pm – 1:30pm
Where: Tower Club in Tysons, VA

Find out more and register via the Calendar page on the Tower Club’s website.

 

The post Barbara Kinosky to Present at Tower Club Lunch and Learn Event appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Mark your calendars to join Barbara Kinosky at the upcoming Section 809 Panel meeting on April 27 at 11:30am where she will be an invited featured speaker.

Section 809 Panel stakeholder meetings provide a forum for external experts in the defense acquisition community to provide input to representatives of the panel for consideration in the panel’s work. The Section 809 Panel is looking at reforming and streamlining acquisition regulations with a view toward improving the efficiency and effectiveness of the defense acquisition process and maintaining a defense technology advantage. The panel is charged with making recommendations for the amendment or repeal of such regulations that the panel considers necessary, as a result of such review, to:

  • Establish and administer appropriate buyer and seller relationships in the procurement system
  • Improve the functioning of the acquisition system
  • Ensure the continuing financial and ethical integrity of defense procurement programs
  • Protect the best interests of the Department of Defense
  • Eliminate any regulations that are unnecessary for the purposes described

All Section 809 Panel meetings are open to the general public and details are posted to the panel’s website.
 
Section 809 Panel logo
 

The post Barbara Kinosky to Be Featured Speaker at Section 809 Panel appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Mrs. Kinosky has been invited to speak during the “Enterprise Risk Management Session – Managing Fraud Risk through ERM and current trends with GSA Price Reductions” on Thursday, May 5, 2016 at 11:10am in Tysons Corner, VA.

About Barbara Kinosky

Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has over twenty-five years of experience in all aspects of federal government contracting. Barbara is a nationally known expert on GSA and VA Schedules and the Service Contract Act. 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. Prior to establishing Centre, Barbara was the head of a government contracts practice group at a major law firm. She started Centre is 2002 to provide integrated legal, GSA consulting and training services.

About the 21st Annual Government Contracting Update

“Doing business with the US Government is extremely challenging. This event has provided an annual update for the Government Contracting industry for the past 20 years. This year, we will be presenting the update utilizing different formats including panels and breakout sessions with DHG industry leaders, attorneys, and industry representatives who face and address contracting issues and challenges on a daily basis.”

The post Barbara Kinosky Speaker at the 21st Annual Government Contracting Update appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Reproduced with permission from Federal Contracts Report, 105 FCR (Dec. 6, 2016). Copyright 2016 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

Talk More, Fret Less, Proposed Rule Urges Feds, Contractors

Federal acquisition officials are encouraging increased communication between industry and government, in the hope of ensuring a more efficient process for both parties.

An updated regulation would make it clear that it’s in the government’s best interests to talk to industry during all phases of the purchasing process, according to a proposed Federal Acquisition Regulation (FAR) rule published Nov. 29 in the Federal Register. It bolsters the notion, detailed in procurement policy memos issued in 2011 and 2012, that acquisition officials need to fret less about possible negative ramifications of talking to industry, and instead open lines of communication.

Some government contracts attorneys say they approve of the renewed emphasis.

“For a long time, there has been a fear of communication between agencies and contractors, but that needs to continue to change,” Jeff Chiow, a shareholder with the law firm Rogers Joseph O’Donnell PC in Washington, told Bloomberg BNA. “I think it’s absolutely appropriate.”

‘Must Not Hesitate.’
The proposed rule would mandate that the FAR adopt a section of the 2016 National Defense Authorization Act, which made it clear that agency acquisition personnel are “permitted and encouraged to engage in responsible and constructive exchanges with industry, so long as those exchanges are consistent with existing law and regulation and do not promote an unfair competitive advantage to particular firms.”

The proposed language to the FAR takes this one step further, specifically suggesting that government officials “must not hesitate” to communicate with industry as early as possible in the acquisition cycle to help determine what exactly is available in the commercial marketplace.

The rule also would add language to the FAR ensuring that agencies maximize their use of commercial products and services in meeting their requirements.

The key is that agencies should be broadcasting their plans to all competitors, and then have “frank conversations about what’s needed” with them to help determine if their proposals might be tweaked to fit the government’s needs. “The emphasis should be at the beginning of the process, but communication should be ongoing,” he said.

Not all government contracts attorneys agree on the impact of the proposed rule. Some say it wouldn’t do anything to stop the process from tilting toward larger contractors.

“In my opinion, the proposed rule does not materially change the current government and industry procurement cycle interaction or lack thereof,” Barbara Kinosky, managing partner of Centre Law & Consulting, told Bloomberg BNA in an e-mailed statement. “The large companies and those with savvy sales people will always be on the front end of procurements. They did not get to be large businesses by finding out about procurements on eBuy for the first time.”

The rule won’t change a government culture that, as it pertains to smaller procurements, “believes in low price and minimum engagement with contractors,” Kinosky said.

Common Misconceptions.
The proposed FAR rule was spurred by a pair of detailed procurement policy memos titled “Myth-Busting” and “Myth-Busting 2” that discussed “misconceptions” about communication between industry and government during the acquisition process.

The first of the memos, issued Feb. 2, 2011, and authored by Dan Gordon, then the administrator of the Office of Federal Procurement Policy, addressed what he said were 10 common misconceptions, including ungrounded fears that contractor-government communications are often the source of bid protests, and that because contractors are akin to registered lobbyists, conversations with them should be avoided to reduce disclosure burdens.

“While agencies do not have the resources and are not required to meet with every vendor at every step of the acquisition process, information gathered from industry sources plays an invaluable role in the acquisition process,” Gordon wrote. “For this reason, agencies must develop practices that will ensure early, frequent, and constructive communication during key phases of the process.”
 

The post Barbara Kinosky Quoted in Bloomberg BNA Article on Proposed FAR Rule appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

NCMA NOVA Chapter Event on January 27

On January 27, Barbara Kinosky, Esq. will be a featured speaker at the NCMA NOVA chapter’s first monthly meeting of the new year for “Trends 2017 – the Ultimate Ins and Outs of Government Contracting”. Attendees will come up-to-date on all the latest hot topics in the federal contracting industry including:

  • What will a Trump presidency look like?
  • Will there be more emphasis on defense spending?
  • How will federal regulations be impacted?
  • Executive orders, compliance, audits – what’s in, what’s out?

Join us to hear all this and more as part of the January meeting discussion!

Lead Instructor of Service Contract Labor Standards Training Course on February 1-2

The Service Contract Labor Standards (formerly the Service Contract Act) is one of the most challenging acts in federal contracting. With more than 20 years of experience, Barbara has seen many federal contractors fall victim to several common areas of concern.

On February 1-2, Barbara will once again serve as lead instructor for Centre’s Service Contract Labor Standards training course. The content will cover the award and administration of covered contracts and provide detailed information on how to identify and mitigate risk under the SCLS, apply wage and benefit rules, avoid violations, fulfill SCLS obligations, and understand special compliance issues from the Department of Labor.

This course is designed for Contract Managers and Administrators, Contracting Officers and Specialists, Program Managers, Human Resource Managers, Executives, and any personnel responsible for preparing proposals.

See the Centre Training Calendar for more details and registration information.

NCMA SubCon Training Workshop on March 31

Barbara will be a featured workshop leader on March 31 at 8:30am for NCMA’s new SubCon Training Workshops (SubCon) event.

SubCon is designed to provide targeted subcontracting training by industry and government practitioners. A series of workshops will provide interactive discussions around discussions around buying, compliance, post-award management, and leadership.

Her advanced-level workshop – Things I Have Learned as an Arbitrator on How Not to Draft Agreements – will draw on her experience as an expert witness in prime subcontractor disputes and as an arbitrator on the Complex Disputes Panel of the American Arbitration Association. She has seen dozens of cases of “it was clear to me when I drafted it, so why are we in litigation?” Learn from the mistakes of others and avoid common ambiguities in teaming agreements, subcontracts, and other legal documents. If you draft any type of agreement, this session is for you.

More than 200 industry procurement professionals and government program managers are expected at the SubCon event.
 

The post Barbara Kinosky Featured in Upcoming Speaking Engagements appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Awardee’s Below Market Employee Compensation Not a Win for Protester | Centre Law & Consulting in Tysons, VA
 
Warning! This post contains explicit (and depressing) news about low bidders using below market salaries and benefits to win contracts. The Air Force issued a solicitation for information technology services at Joint Base San Antonio. The RFP provided for award to the offeror that submitted a technically-acceptable proposal with the lowest price and a realistic employee compensation plan (ECP). For the ECP evaluation, the solicitation stated that the plans “will be evaluated for realism” and directed offerors to submit their ECPs in accordance with FAR provision 52.222-46.

The purpose of that FAR provision is to evaluate whether offerors will obtain and keep the quality of professional services needed for adequate contract performance. The Air Force compared the awardee, BTAS, Inc.’s proposed compensation for its professional labor categories to that of three other offerors and salary data on salary.com. The Air Force found that on average BTAS’s labor rates and fringe were below that on salary.com but, despite that, the total package was realistic. The short story is that BTAS won with a below market wage and benefit package and Microtechnology protested – and lost.

The GAO held that nothing in FAR 52.222-46 required the Air Force to find that both an offeror’s proposed fringe benefits and salary are, independently, realistic. Instead, the provision requires agencies to assess whether an offeror’s proposed “total compensation” is realistic. They found no basis to conclude that the Air Force’s evaluation of the offeror’s total compensation was unreasonable.

The quick take away is that if an agency follows the evaluation criteria and that the evaluation was not unreasonable, it will be sustained.

Read more on the GAO website.
 
About the Author

Barbara Kinosky Barbara Kinosky
Managing Partner

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

 

The post Awardee’s Below Market Employee Compensation Not a Win for Protester appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

On August 24, 2017, the National Aeronautics and Space Administration’s (NASA) final rule amending the NASA Federal Acquisition Supplement by adding a policy on the use of “award terms” will take effect. Award terms are an incentive for contractors to go above and beyond a satisfactory performance to obtain an additional period of performance. Each award term cannot exceed one year in length, but is in addition to the base and option years.

The difference between exercising an option and an award term is that award terms require excellent performance, while exercising an option only requires acceptable performance. This provides contractors additional incentives to perform as best as possible. Both award terms and contract options can be used under the same contract.

Award terms will most likely be found in contracts that involve long term relationships and for service contracts valued at more than $20 million dollars.  In considering whether to use an award term, the government must weigh the administrative burden and cost of more frequent procurements versus market stability, technology advances, and the need for flexibility.  Contractors may be evaluated and earn an award term for their work in the base period, option periods, and even during earned award terms.  The requirements to provide an award term is that there must be an on-going need for the service, funds available, and the contractor must not be listed in the SAM Exclusions List.  An award term plan must also be included in all contracts that include award terms and contain the following information: evaluation factors, performance standards, adjectival ratings, weighting system, the evaluation period, and decision point timeframes. This rule has the potential to incentivize greater contractor performance on large service contracts.

The full final rule can be found here:

https://www.federalregister.gov/documents/2017/07/25/2017-15520/nasa-federal-acquisition-regulation-supplement-award-term-nfs-case-2016-n027

 

About the Author

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

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

The post Award Terms Now an Option at NASA appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Are You A Federal Acquisition Service GSA MAS Contract Holder? | Centre Law & Consulting in Tysons, VA
 
The General Services Administration (GSA) Federal Acquisition Service (FAS) is planning to refresh all GSA Multiple Award Schedules (MAS) to incorporate provision and clause updates in April 2017. This update will align MAS solicitations and contracts with recent policy changes, including small business subcontracting improvements and updates to Non-Federal Entity access to Schedules, including under the Disaster Purchasing Program. These regulatory changes further codify the Non-Federal entity access authorized under law and previously implemented via policy in GSA Order 4800.2H (now 4800.2I) in June 2013.

GSA FAS will host a public webinar to provide interested parties an opportunity to learn about the planned changes and ask related questions. The webinar will be in a listen-only format with the ability for participants to type questions via an online chat function. Webinar information is provided below.

Date: Wednesday, March 22, 2017
Time: 2:00pm – 3:00pm Eastern Time
Web Meeting Registration Link

GSA FAS will issue a bilateral modification to incorporate the planned changes into existing contracts. MAS contractors will have 90 days to accept the mass modification.

Learn more at GSA Interact.

Information reposted from the General Services Administration.

The post Are You A Federal Acquisition Service GSA MAS Contract Holder? appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

ANNUAL REVIEW 2018: Hot Issues in Federal Contracting | Speaker Lineup

 

TB.jpg

Threase Baker – Panel Discussion: Types of Contract Vehicles

Ms. Threase Baker is the President at ABBTECH Professional Resources, Inc. She joined ABBTECH in 2001 and has more than twenty-five years’ of experience in all areas of the staffing industry with particular emphasis on corporate recruiting, executive placement and staff augmentation. Her customer focus includes both the government and private sector. Prior to her current role at ABBTECH, Threase worked as a Customer Relationship Management (CRM) System project manager which provided vital perspectives on the Information Technology (IT) industry and process.

 

KN.jpg

Keith Nakasone – Panel Discussion: Types of Contract Vehicles

Mr. Keith Nakasone is the new Deputy Assistant Commissioner, Acquisition Management, within the Office of Information Technology Category (ITC) in GSA’s Federal Acquisition Service (FAS). The Federal Acquisition Service provides buying platforms and acquisition services to Federal, State and Local governments for a broad range of items from office supplies to motor vehicles to information technology and telecommunications products and services.

 

BM.jpg

William McCabe – Panel Discussion: Types of Contract Vehicles

Mr. William McCabe is the Chief Financial Officer and Director, Financial Management and Procurement Portfolio for the Program Support Center (PSC), a component of the U.S. Department of Health and Human Services. He brings a wealth of experience and expertise that helps to strengthen PSC’s efforts to provide services more efficiently and effectively. Prior to joining PSC, Mr. McCabe served as the Chief Financial Officer of the Nuclear Regulatory Commission.

 

JW.jpg

Joanne Woytek – Panel Discussion: Types of Contract Vehicles

Ms. Joanne Woytek is the Program Manager for the NASA SEWP Program, a premier Government-Wide Acquisition Contract (GWAC) providing Federal Agencies access to the latest in Information & Communication Technology product solutions. From SEWP’s inception, twenty-five years ago, through to the present, Ms. Woytek continues to be the key figure in the continuing evolution of the program, and in the management of strategic direction, day-to-day operations, and planning of the SEWP program. Ms. Woytek is a 40-year veteran to Goddard Space Flight Center (GSFC) in Greenbelt Maryland and is in her eighteenth year as Program Manager.

 

 

 

The post Annual Review Speaker Lineup appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

In a GAO decision released September 13, 2017, the GAO denied Walker Development & Trading Group, Inc.’s (“Walker”) request for reconsideration of the denial of its costs.

On January 2, 2017, Walker filed a protest arguing that the Department of Veterans Affairs (“VA”) did not properly set a requirement aside for small businesses. In the VA’s report, the contracting officer stated that, after performing market research, she did not have a reasonable expectation that two or more capable small businesses would submit offers.  The GAO subsequently requested additional information on two potentially capable small businesses. Before filing its supplemental report at the request of the GAO, the VA advised the GAO that it intended to take corrective action. As such, the GAO dismissed the protest as academic.

Walker subsequently filed a request that it be reimbursed its costs of pursuing the protest by asserting that it was clearly meritorious and that the agency unduly delayed taking corrective action. The GAO denied Walker’s request, finding that the protest allegation was not clearly meritorious as the resolution of the protest required further record development.

Walker has then requested reconsideration of the GAO’s denial of its costs. However, in order to prevail on a request for reconsideration, a party must set out the factual and legal grounds requiring reversal and the party must specify any errors of law made or information not previously considered.

In its request for reconsideration, Walker argued that the decision contained a legal error as the GAO did not consider whether the VA unduly delayed in taking corrective action. However, as the GAO noted, in order to prevail in a request for reimbursement of costs, the protestor must show both that its protest was clearly meritorious and that the agency unduly delayed in taking corrective action. As Walker already failed to demonstrate that it was clearly meritorious, the GAO did not need to reach the decision as to whether the VA unduly delayed taking corrective action.

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.

The post An Agency Taking Corrective Action Does Not Necessarily Mean You Will Receive Your Protests Costs appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Employees are expensive. It’s little surprise market forces incentivize companies to search for a way to get the same work out of people without paying for holidays, accommodating disabilities, and paying overtime, among countless other requirements. Imagine if you could save all this money within the law and avoid the risk of employment discrimination lawsuits. With all these savings your company could lower the price of your services/goods and edge out the competition. Figure out how to replace the lion’s share of your workforce as independent contractors and you could be living the dream, right?

Well, if your current company is currently staffed entirely by “independent contractors,” then madam/sir I am happy to meet with you to discuss both your unique staffing model and your likely immediate need for outside legal services.  Very rare is the government contractor that truly has “no employees” (though we’ve seen a few try).

That said, statistics show that there are currently an estimated 40 million independent contractors in America.  Clearly not everyone who takes money from you in exchange for a service should be called your employee. But where is the line between my contracting with a freelance plumber and a commercial company drawing billions in revenue from hundreds of thousands of its drivers? As we’ve discussed in prior blog posts, the government contracts industry is rife with the use (and abuse) of independent contractor status; and federal regulators have been tightening the screws on the use of the status.  This past year, arguably more than ever, the courts and legislators across the country are wrestling with the employee/independent contractor distinction with messy results.

Federal courts have increasingly grown skeptical of massive independent contractor agreements but don’t seem sure how to address it given the long precedent defining the relationship. One way is to decrease the incentives of an independent contractor relationship like the 1st Circuit recently did in Oliveira v. New Prime, Inc., restricting the use of mandatory arbitration agreements on independent contractors. In California, the court forced an extra $15 million out of Lyft in a settlement agreement designed to avoid the costly test of their independent contractor classification.

Coast to coast, states are trying to get a handle on independent contractors too. New York’s recent “Freelance Isn’t Free Act” requires that all entities that engage a freelance worker for $800 or more in services execute a written agreement. Where Nevada is attempting to tackle the problem industry by industry rather than with general rules.  Not everyone wants to put breaks on the independent contractor train though. Alaska and Florida have more clearly defined boundaries in favor independent contracting status, though it may just add problems for employers still wrestling with federal regulations on the same issues.

Perhaps the most hopeful part of the confused situation, is this wide variation in responses. There will certainly continue to be growing pains as the legal standards develop, but the unique effects of these policies may offer a chance to evaluate which can keep independent contractor status alive and appropriately limited.

 

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.

The post America’s Continuing Independent Contractor Conundrum appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

NDAA Provision Requires Federal Procurement Through ‘Online Marketplaces’

A provision contained in the National Defense Authorization Act for Fiscal Year 2018 (NDAA), H.R. 2810, covers “Procurement Through Online Marketplaces.”  Section 801 of Act requires the Administrator of the General Services Administration (GSA) to establish for government-wide use a program to procure products through online marketplaces for the purposes of expediting procurements while ensuring reasonable pricing of commercial products.

The GSA Administrator is required to carry out this program by the issuance of more than one contract with more than one online marketplace provider.

Although the program will be available government-wide, the Act specifically directs the Secretary of Defense to (shall) use the online Marketplaces, as appropriate, in the purchase of commercial products.

The Act also provides criteria for use in establishing Federal online marketplaces under the program:

  • is used widely in the private sector, including in business-to-business e-commerce;
  • provides dynamic selection, in which suppliers and products may be frequently updated, and dynamic pricing, in which product prices may be frequently updated;
  • enables offers from multiple suppliers on the same or similar products to be sorted or fileted based on product and shipping price, delivery date, and reviews of suppliers or products;
  • does not feature or prioritize a product of a supplier based on any compensation or fee paid to the online marketplace by the supplier that is exclusively for such featuring or prioritization on the online marketplace;
  • provides the capability for procurement oversight controls, including spending limits, order approval, and order tracking;
  • provides consolidated invoicing, payment, and customer service functions for all transactions;
  • satisfies requirements for supplier and product screening requirements of the Act; and
  • collects information necessary to fulfil the order information requirements of the Act

The Act includes requirements for supplier and product screening.

Products procured through the Federal online marketplace will be deemed to have satisfied competitive procurement requirements if there are offers from two or more suppliers of such a product or similar product with substantially the same physical, functional, or performance characteristics on the online marketplace.  Procurements consummated using the online marketplace will be deemed an award of a prime contract for purposes of goals under the Small Business Act.  Nothing in the Act shall be construed as limiting the authority of a department or agency to restrict competition to small business concerns.

NDAA passed the U.S. House of Representatives on July 14, 2017.  The U.S. Senate agreed to a motion to proceed with action on July 25, 2017.

 

About the Author:

Wayne Simpson | Centre Law & Consulting Wayne Simpson
Consultant

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

The post Amazon.gov? appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

In a decision on July 10, 2017, the GAO found that an agency reasonably canceled its solicitation after a protest where the agency’s requirements were time dependent.

Tien Walker, a small business, protested the cancelation of the solicitation issued by the Department of State for public opinion polling surveys to be conducted in South Asia. Specifically, the selected contractor was to conduct two public opinion surveys in Afghanistan, with the first survey to be completed before the start of the Muslim observance of Ramadan. Before the solicitation’s closing time, Tien Walker filed a protest with the GAO alleging that the solicitation was unduly restrictive and not properly set aside for small businesses. In response, the Department of State notified that GAO that it had canceled the solicitation and would not resolicit the polling survey. The GAO then dismissed Tien Walker’s protest as academic.

Tien Walker has now protested the cancelation of the solicitation as improper. Specifically, Tien Walker argued that the Department of State unreasonably canceled the solicitation as a pretext to avoid the GAO’s review of its protest.

In denying the protest, the GAO noted that a contracting agency has broad discretion in deciding whether to cancel a solicitation. The GAO further noted that an agency need only establish a reasonable basis to support its decision to cancel a solicitation. Where a protester argues that the agency’s rational for cancellation of a solicitation is mere pretext, the GAO will nonetheless still examine the reasonableness of the agency’s actions.

The Department of State’s rationale for canceling the solicitation relied upon the required stay of contract award and performance due to Tien Walker’s initial protest. The agency further clarified that even if Tien Walker’s first protest was denied, no contractor would have been able to complete the first survey prior to Ramadan. Therefore, the GAO found that the agency’s rationale for canceling the solicitation was reasonable and was not a pretext to avoid awarding the contract on a competitive basis. As such, the GAO denied the protest.

 

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.

The post Agency Found to Have Reasonably Canceled Solicitation Due to Protest appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

A New Source Selection Procedure You May Not Know | Centre Law & Consulting in Tysons VA
 
In April 2016, the Department of Defense (DoD) published a memorandum expanding DoD Source Selection Procedures beyond Tradeoff and Lowest Price Technically Acceptable (LPTA) to include Value Adjusted Total Evaluated Price (VATEP) Tradeoff. This newer procedure’s intent is to help define how the government evaluates contractor capabilities that go beyond minimum requirements and reach the government’s objective.

Although it’s been an option since April, we’re finding that many people still are unfamiliar with it. And we’ve certainly not seen it used in many solicitations yet either.

What does VATEP do?

VATEP Tradeoff monetizes a contractor’s performance and capabilities that exceed the minimum threshold and reach a maximum level. It provides a dollar amount or percentage that would then be “credited” to the contractor’s price proposal. This “credit” will not affect the amount awarded, only the government evaluated price. It is important to keep in mind that if the contractor’s price falls outside the affordability cap, this “credit” would still not bring a price below it.

For example, let’s say the government wants a chair made. The government states that the chair needs a minimum of three legs so it won’t fall over, but they would prefer a chair with four legs. Being the entrepreneur that you are, you have the capability to make chairs that have both three and four legs. Making a chair with three legs is considerably cheaper than four, but you are not sure how much the government values that extra leg if a traditional Best Value Tradeoff evaluation was used. VATEP puts a dollar figure on that leg, which would then be subtracted from your proposed price to reach the government evaluated price.

How does it help me?

By putting a specific value on a contractor’s performance and capabilities that reach the objective level, it provides the contractor clarity on whether to pursue additional performance beyond the government’s minimum requirements. If a company know it will cost them $500 to put that extra leg on all the chairs and the government only values the leg at $250, then the company knows it should only offer the government the three-legged chair instead.

This new procedure certainly won’t make sense for every requirement, but it does offer the government a way to make the process less cryptic. Could we see more agencies start to use this?

Only time will tell.

 
About the Author

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.

 

The post A Newer Source Selection Procedure You May Not Know appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

By Tyler Freiberger 

In 2016 alone, the federal government spent $58.8 billion with minority or woman owned small businesses and another $16.3 billion with businesses run by disabled veterans. The vast majority of these prime contract awards were specifically not the result of open market, merit based competition. Rather, it was the result of the government openly steering more government dollars toward groups otherwise disadvantaged in society.  While there is some debate over the effectiveness of some of these programs, it clearly gives billions of reasons for the disadvantaged to start a small business and get a leg up on work with the government.

A great gig if you can get it, right? So great, non-qualifying persons and companies are willing to defraud the government to take advantage of these programs. The methods for this crime can be very simple; some programs allow contractors to self-certify as disadvantaged small business with no third-party review. Contractors can simply falsely certify disadvantaged status and move ahead.  In contrast, some schemes require greater complexity; winning the award with a company owned by a qualifying person but then funneling the money and the work through a series of other non-qualifying entities. A recent string of high-profile arrests and seizures shows this may be a surprisingly large portion of the awards set aside for disadvantaged or veteran owned business.

In October of 2017, four men plead guilty to participating in such a scheme to obtain construction contracts in South Carolina. According to the DOJ, for over a dozen years “the defendants hid the fact that construction companies were not controlled by minorities, veterans, women or the disabled in order to receive the lucrative contracts.” While the contracted work was performed properly, the scam took in over $350 million intended for minority or woman groups.

A similar action is developing in Milwaukee, where the government has begun seizing the assets of a contractor they suspect has won almost $300 million in construction contracts meant for minorities and military veterans. The fact these frauds were ever discovered is almost as shocking as the amounts. Both examples involved minorities, women, or disabled veterans falsely claiming they owned a business in order to receive the government’s favor. However, the businesses were instead run by a spouse or friend that took the lion’s share of the profits. Without an insider blowing the whistle on this type of intimate activity, it is difficult to imagine how the government could ever detect it.

In the above examples, one contractor is facing two years in jail, while the other has had his home and cars seized pending criminal charges. All this despite government agreement that the contracts were performed well, even some with honors. Regardless, this post-harm punishment seems to be the government’s only option for deterrence and is therefore justifiably harsh. The Small Business Administration works with the Justice Department to detect such abuse, but still primarily relies on reporting by whistle blowers or competitors. Until a more robust system of detection is organized, we will likely never truly know how big of a problem this fraud is.

 

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.

 

 

The post $650 Million in Small Business Awards Given to Fraudulent Companies appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Bid Protest: “Professional Compensation” Sinks Contract Award | Centre Law & Consulting in Tysons, VA
 
Last week, the Government Accountability Office (GAO) released the public version of its decision sustaining the protest of contractor A-P-T Research, Inc. with respect to a procurement with the National Aeronautics and Space Administration (NASA) for various support services. In addition to a potential impaired objectivity organizational conflict of interest, the protest was sustained because the awardee’s proposed professional compensation was at the low end of the experience and compensation scales used for evaluation. With that, the contemporaneous record lacked a reasoned basis for finding the professional compensation and related costs to be acceptable or realistic.

Because a cost-reimbursement contract’s cost is driven in significant measure by labor costs, the procuring agency is required to evaluate each offeror’s direct labor rates to ensure that they are realistic. The purpose of a review of compensation for professional employees under the provision at FAR § 52.222-46 is to determine whether offerors will obtain and keep the quality of professional services needed for adequate contract performance and to evaluate whether offerors understand the nature of the work to be performed. As the FAR provision states, the “professional compensation proposed will be considered in terms of its impact upon recruiting and retention, its realism, and its consistency with a total plan for compensation.” Further supporting information including “data, such as recognized national and regional compensation surveys and studies of professional, public, and private organizations, used in establishing the total compensation structure” are to be provided.

In brief, the Agency sustained the protest because “the record contains no meaningful explanation of how [NASA] concluded that [the awardee] would be able to retain” the proposed incumbent employees at the compensation offered, which would result in significant pay decreases. Rather, the record contained only general statements that concerns regarding compensation had been addressed via discussions.

Notably, the Agency did not express a view on the argument that FAR § 52.222-46 requires a direct comparison of proposed compensation and actual incumbent compensation rates. However, it is clear that under-cutting on professional salaries can be a dangerous gambit.

About the Author:

David Warner | Centre Law & Consulting 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 “Professional Compensation” Sinks Contract Award appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

On April 18, 2017, the U.S. Small Business Administration (SBA) published a proposed rule in the Federal Register to amend its regulations to adopt and incorporate the U.S Office of Management and Budget’s (OMB) North American Industry Classification System (NAICS) revisions for 2017, identified as “NAICS 2017.”  SBA proposes to adopt the updated table of size standards effective October 1, 2017, to coincide with beginning of the government’s next fiscal year.

NAICS 2017 creates 21 new industries by reclassifying, combining or splitting 29 existing industries under changes made in “NAICS 2012.”

SBA’s proposed size standards for the 21 new industries have resulted in an increase in size standards for six NAICS 2012 industries and part of one, a decrease to size standards for two, a change in the size standards measure from average gross annual receipts to average number of employees for one industry.  There are no changes for 20 industries and part of one.

SBA included six tables in its proposed rule showing the changes, which occur in the following NAICS Sectors:  21, Mining; 33, Manufacturing; 45, Retail Trade; 51, Information; 53, Real Estate and Rental Leasing; 54, Professional, Scientific, and Technical Services; and 72, Accommodation and Food Services.  We recommend consulting these tables if your business is engaged in one of these NAICS Sectors to determine if your business is impacted by the changes.

A note to large business prime contractors with Small Business Subcontracting Plans:  These changes could also impact the size status of your suppliers and subcontractors which may impact your ability to meet your Small Business Subcontracting Goals.

Why are NAICS Codes Important to Federal Contractors?

NAICS classifies business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. economy.  NAICS Industry Codes define establishments based on the activities in which they are primarily engaged.

NAICS Codes are important in the conduct of U.S. Government procurements, as a NAICS Code is assigned to each procurement by the procuring contracting officer.  NAICS Codes have a size standard assigned by SBA which will determine whether a business is small or other than small (large) business in response to a government procurement.  Companies may be a small business under one NAICS Code, and other than small (large) business under another.  Click here to view SBA’s Size Standards Table, updated February 26, 2016.

The corresponding size standard to a NAICS Code assigned by the contracting officer to a government procurement is especially important when the procurement is conducted using a set-aside for small business, as it will determine a company’s eligibility to participate under a small business set-aside.

More Information on NAICS Codes

Visit the U.S Census Bureau’s North American Industry Classification System website where you can use their useful tool to search NAICS by key word, sector, or NAICS Code:

https://www.census.gov/eos/www/naics/

 

About the Author:

Wayne Simpson | Centre Law & Consulting Wayne Simpson
Consultant

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

 

The post “NAICS 2017” Revisions appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

By David Warner

I had intended to write about the Supreme Court’s recent decision denying certiorari in the 11th Circuit’s decision in Evans v. Georgia Regional Hospital, thereby declining to resolve the existing circuit split concerning whether sexual orientation is a protected characteristic under Title VII. But then yet another story dropped with high profile allegations of sexual harassment, and the siren call of timely “click-bait” won out over the finer points of Supreme Court jurisprudence. And, wait, here’s yet another story that dropped literally as I was typing this paragraph.

As it appears the nation could use a refresher course, let’s review, shall we?

Sexual harassment – it’s illegal and has been since 1964. Interestingly, there have been relatively few developments in the substantive law around sexual harassment since the Faragher and Ellerth decisions in 1998. Despite subsequent years of HR professionals and management-side employment lawyers beating the drum regarding the necessity of robust anti-harassment policies, training, and proactive response to internal complaints, sexual harassment claims continue to be alarmingly prevalent. In FY 2016 alone the EEOC received almost 7,000 administrative complaints of sexual harassment.

In July 2016, the EEOC issued a report from its Select Task Force on the Study of Harassment in the Workplace. The report merits review in its entirety, but certain of its conclusions concerning “risk factors” are eerily prescient of the current Zeitgeist.

For example, the Task Force noted that workplaces with “High Value” employees and those with “Significant Power Disparities” are particularly prone for harassment issues – i.e., where rules of behavior are viewed as not applying equally to all levels of an organization or to certain “untouchable” employees. While it is easy to pile-on to movie producers, directors, on-air talent, more on-air talent, celebrity chefs, and the like, employers should recognize that significant power disparities exist in literally every working environment. And, per Faragher and Ellerth, it is incumbent upon employers to take steps to ensure that their workplaces are free from conduct that might give rise to claims and potential liability.

The steps remain clear. First, promulgate a clear and strong anti-harassment policy with multiple avenues of complaint, absolute prohibitions against retaliation for good faith complaints, and clear commitment that the policy applies to all levels of the organization. Second, senior management must own and drive a “speak up” culture – you do it for False Claims Act and other compliance issues, right? Third, train your employees on the policy and expectations. For organizations of any size, often separate training for executives/managers and line employees permits for freer discussion and proactive identification of problem areas. Finally, promptly investigate and respond to complaints as they are brought forward, including implementation of harsh discipline where appropriate.

While the law of harassment may not have changed, the cultural environment definitely has. If the headlines have revealed anything, it is that no employee – no matter how senior or “important” – is untouchable now. The human condition being what it is, sexual harassment will likely always be an unfortunate reality in the workplace. The culture’s tolerance for those that abet it, however, appears to be at an end.

 

About the Author:

David Warner | Centre Law & Consulting 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 “Let’s Talk About Sex[ual Harassment], Baby!” appeared first on Centre Law & Consulting.


View the full article

Sign in to follow this  
×