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GAO Sustains Protest on Four Billion Dollar Solicitation Evaluation

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. About the Author: Tyler Freiberger
Associate Attorney
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia. The post GAO Sustains Protest on Four Billion Dollar Solicitation Evaluation appeared first on Centre Law & Consulting.
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GSA Federal Supply Schedule Description Too Limited For Contractor to Receive Award

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
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 GSA Federal Supply Schedule Description Too Limited For Contractor to Receive Award appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

Do You See a Link Between Maintaining Your GSA Schedule and the Movie Psycho?

By Maureen Jamieson As quoted by Norman Bates in Psycho – “She just goes a little mad sometimes. We all go a little mad sometimes. Haven’t you?” I’m not naming names, but I have worked with many clients who have gone quite mad when working to ensure compliance with their GSA Schedules. Having just celebrated Halloween, I am reminded of some frightening misconceptions surrounding GSA Schedules. Maintaining compliance with your schedule can be a grueling experience. Let’s not forget that blood-curdling stress as you prepare to meet or talk to your Industrial Operations Analyst (IOA) or that bone-chilling realization that you forgot to pay your Industrial Funding Fee (IFF) on time. Do you understand GSA’s current terms and conditions? Do you have the knowledge to ensure compliance with your GSA Schedule? Take Centre’s True or False quiz (with answer key below) beginning with our teams most frequently asked questions: The Maximum Order Threshold (MOT) established for a GSA Schedule contract serves as a limit on the dollar value of individual task orders placed under that Schedule. GSA contractors must accept the Governmentwide purchase card for orders under the micro-purchase threshold ($3,500). The 0.75% Industrial Funding Fee (IFF) is already included in the price of items on GSA Advantage!. An advantage for sellers under Federal Supply Schedule (FSS) orders is that the Government has no audit rights. Participating Dealers on a Schedule contract may bill the government directly on behalf of the Schedule holder. A digital certificate is required to report sales and pay the Industrial Funding Fee (IFF) in the new Transactional Data Reporting (TDR) FAS Sales Reporting System. GSA/VA Schedule Price Lists submitted via the Schedules Input Program (SIP) are automatically posted to GSA Advantage. Multiple modification actions such as economic price adjustments and deletion mods can be combined in one modification and submitted via the eMod system. Only authorized negotiators with signature authority and digital certificates are permitted to submit certain modifications and sign modifications in the eMod system. Digital certificates automatically renew every two years. Not maintaining compliance with the terms and conditions of your GSA Schedule can cost your company money, time and unwanted stress. If you’re feeling GSA stress or just want to learn more about GSA Schedules, consider attending our GSA Boot Camp on November 14 and 15 at Centre’s office located in Tysons, VA. See our website for details. ANSWER KEY: 1) False 2) True 3) True 4) False 5) True 6) True 7) False 8) False 9) True 10) False The post Do You See a Link Between Maintaining Your GSA Schedule and the Movie Psycho? appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

Timeliness of Bid Protests

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

Centre Law & Consulting

 

The Great Migration: GSA Sales Reporting and IFF Transition – 72A to FAS SRP

By Julia Coon, Clause 552.238-74 Industrial Funding Fee and Sales Reporting requires all General Services Administration (GSA) Schedule contractors to report sales within 30 calendar days following the completion of the reporting period and remit the Industrial Funding Fee (IFF) within 30 calendar days following the end of each reporting quarter. Over the next twelve months, GSA will be transitioning all GSA Schedule contracts from the legacy 72A Reporting System to the new Federal Acquisition Service (FAS) Sales Reporting Portal (SRP). The process will take place in three phases: Phase One: Notification Contractors will receive an email from GSA stating the date to begin reporting sales and submitting IFF in the FAS SRP. The date provided will be the first day of a reporting quarter, and no action is required until the end of the reporting period when it is time to report sales and submit the IFF. Example: The contract is assigned a 1/1/2019 transition date, but no action is necessary until the January – March 2019 sales are required to be reported by April 30, 2019. Phase Two: Final Reporting in the 72A Reporting System Contractors will complete the final sales report and IFF remittance in the legacy 72A Reporting System. Example: If the contract is assigned a 1/1/2019 transition date, the October 2018 – December 2018 sales and IFF will be the final report in the 72A System. Phase Three: Transfer History from Legacy 72A Reporting System to the new FAS SRP GSA will migrate the contract sales history to the FAS SRP. This will not occur until contractors have completed the last sales report in the 72A System. If there is a discrepancy between the IFF owed versus the IFF paid, contractors will be notified via email before the migration. Where do you stand? Contractors who are not participating in the Transactional Data Reporting (TDR) pilot will continue to report quarterly sales by Special Item Number (SIN) and remit IFF in the new system within 30 days following completion of the reporting quarter. Contractors who are participating in the TDR pilot should already be completing reporting requirements in the FAS SRP. Currently digital certificates are required to access the FAS SRP; however, the MAS Program Management Office confirmed that GSA will be moving to a multi-factor authentication process in the coming months. All users will be required to register in the new system even if you are currently using a digital certificate to access the system. At the time of registration, you will have the option to select receiving the security code via phone or email. Contractors using a generic email address should choose to receive the security code via email at the time of registration. Once registered in the FAS SRP, users will be able to access any GSA Schedule contract where their email address appears on the contract. To prepare for this transition, it is essential to review all authorized negotiators and points of contact currently listed on the contract to ensure anyone reporting sales and remitting the IFF is included. If updates are needed, you will need to submit a modification in the eMod system for your Contracting Officer’s approval. If you are unsure which reporting system to use during the transition, you can look up your contract using the VSC Sales Reporting Lookup Tool. If you have any questions regarding the change or using the new FAS SRP, you can reach out to our GSA consulting team. Want to learn more? Attend our Boot Camp for GSA Schedules training course.   About the Author: Julia Coon
Consultant
Julia Coon is GSA and VA Contract Consultant at Centre Law & Consulting. Julia works with the GSA/VA team in preparing new schedule proposals and post-award contract administration. She has experience in producing schedule renewal packages, various modification packages, small business subcontracting plans, and updates to GSA price lists.    
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Centre Law & Consulting

Centre Law & Consulting

 

OCI and FCA: Two Acronyms You Never Want to See Together…

By William Weisberg, Organizational Conflicts of Interest (OCI) are a well-known fixture of government contracting. OCI has its own FAR subsection, FAR part 9.5, and figures prominently in several GAO bid protests every year. OCIs can be waived by the Government, and mitigated by contractors, with the Government’s approval. OCIs are situations where a contractor either has an unfair competitive advantage from previous work done, has impaired objectivity, or has other prohibited items. I spend a fair amount of my professional life advising clients on how to mitigate or avoid OCIs, and in protesting OCIs during competitive procurements. Bad News Everyone agrees that OCIs are bad. But until a recent False Claims Act settlement (FCA) between the Department of Justice (DOJ) and a contractor, we didn’t know just how bad. In recent years, many if not all solicitations require contractors to certify that they do not have an OCI or identify any potential OCIs. This certification certainly seems like a material certification under the Supreme Court’s Escobar standard, because FAR part 9.5 generally prohibits the award of a contract to an offeror with an un-waived and unmitigated OCI. Violations For false OCI certifications, the Government would not award a contract, and certainly not pay invoices submitted under the contract. A clear FCA violation. But until now, most contractors assumed that the worst thing that could happen with an OCI is that they lost a contract after a GAO bid protest. Sending a message A recent DOJ announcement of a $110,000 False Claims Act settlement with a Colorado-based IT company, stemming from false statements regarding the lack of an OCI, surprised many. To say the case landed with a loud bang is an understatement. The danger to contractors is obvious. OCIs can be tough to identify, particularly because they can be created by subcontractors or even individual employees based on their prior positions. Failure to properly screen for OCIs can lead to false statements and false claims based on the “reckless disregard for accuracy” standard that Courts and DOJ use as an alternative to intentional violations. The takeaway from this recent OCI case is straightforward but urgent. Contractors should implement a formal OCI screening process as part of their proposal preparation and should document both the methodology and the result. That process should also be integrated into their formal Government Contract Compliance Program. About the Author: William Weisberg, Esq
Of Counsel
William Weisberg is a government contracts attorney with 30 years of experience. Bill received his undergraduate degree from the University of Virginia (where he was an Echols Scholar) in 1983 and his law degree from the George Washington University in 1986. Bill practiced with large international law firms for over 25 years, the last 10 of which he led his firms’ Government Contract and Grant practice groups. Bill formed his own boutique government contract firm in 2013.    
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2019 Trend Predictions for the Government Contracting Industry

By Angel Davis Happy New Year and Happy Contracting! As we enter 2019, we have the opportunity to make and commit to several resolutions with the hope of remaining steadfast and following through with at least a few. As an industry, a company and an individual now is the time to set goals for the new year. What can we expect in 2019? 2019 will undoubtedly continue being a year of technological disruption. Due to that, this year our government will place a high value on: Acquisition reform Cyber-security Innovation Government-Industry collaboration As thought leaders within government and industry, we must be prepared to adapt to these changes and ensure that the workforce is equipped with the appropriate tools and resources to make effective business decisions that have the least amount of risk and the best overall value. Is your organization, adequately equipped to support these changes? Acquisition reform While Acquisition Reform is not a new topic, its importance is heightened as we discover more innovative ways to deliver services and products, in a more streamlined way in support of all government agencies. As the Acquisition Reform initiative continues to mature, input from industry leaders and stakeholders will help to shape future acquisition reform policies. Let’s resolve to initiate continuous dialogue in support of Acquisition Reform initiative. Cyber-Security With the constant challenges of Cyberwarfare, vigorous Cyber-Security solutions must be implemented in order to protect government and industry networks. Federal regulations will continuously be revised to keep up with the constant Cyber threats. Is your organization prepared to deliver services and products in accordance with these new regulations? Has the cost and business risk been analyzed to support and implement these cyber-security solutions? Innovation and collaboration With the evolution of Other Transaction Agreements (OTAs), Block Chain, Artificial Intelligence (AI) and many other Smart Technologies, Government- Industry collaboration is significant. We must work together to utilize these new technologies to support innovation within the Government Contracting and Acquisition communities. This new technology will undoubtedly drive the future of Government Contracting. We should anticipate solicitations being shaped to support such technological advances and be prepared to respond accordingly. Centre Law and Consulting, LLC., takes pride in supporting our clients and providing consulting and training services that align with the latest Federal Regulations and Emerging Technologies. As you head into the New Year, please contact us to find out how we can support your organization’s New Year Resolutions.  
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The Ghosts of Performances Past (Or Lack Of)

By Stephanie Fine, Esq. With the holidays upon us and the new year just around the corner, it is time to start thinking about new solicitations in the pipeline for the next calendar year and your record of past performance. Almost every government proposal requires information on past performance, and it’s inarguably one of the most critical parts. Why does past performance matter?
Past performance shows the government that your company is capable of performing the work it says it can. It’s also used as a discriminator in the evaluation and selection process to evaluate how well your company has delivered on similar programs. For small companies that possess no past performance in a particular area or who are looking to break into a new government contracting area, it can be challenging to win federal contracts without relevant and quality past performance. Build it and they will come A smart way to build your past performance so that you can eventually become a prime contractor is through subcontracting. Subcontracting is one of the most highly used methods for obtaining past performance. With government requirements growing in size and scope, there is an enormous opportunity for businesses to perform specific needs of a larger contract as a subcontractor. Some very large contracts even require a subcontracting plan to outsource to small business subcontractors. Others require large companies to subcontract with small businesses. One way to get your foot in the door is to team up with a reputable and experienced company that has experience working with the government in a specific area. Prior to the government issuing a solicitation, you can identify possible teaming partners, and reach out to them either by cold calling or sending emails, and then demonstrating to these companies how your business’ background and solutions can benefit their future work. The proactive approach Another way to land a subcontracting opportunity is to identify recent awards and reach out to the business that received the contract and find out whether there is an opportunity for a subcontracting relationship. A recent awardee of a contract may be seeking the resources that your company has to help fulfill the contract requirements. Once you have earned past performance as a subcontractor on a federal contract, you can point to those federal projects as evidence of understanding how these type project requirements work, which will help establish your credibility as a federal prime contractor. About the Author: Stephanie Fine, Esq.
Proposal Writer
Stephanie Fine is a Proposal Writer for Federal Contracts and Training. She is responsible for managing the proposal processing including preparing proposal responses and acquiring new business opportunities, and the development of the pipeline used for solicitation tracking and proposal development. She is experienced in business development and proposal management and also worked as a practicing attorney in commercial litigation and insurance defense.    
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Centre Law & Consulting

Centre Law & Consulting

 

GAO Bid Protest Statistics Are Out And Show Changes To Most Prevalent Grounds For Sustaining Protests

At the end of each fiscal year, the GAO submits its Bid Protest Annual Report to Congress. This report details the number of cases received by GAO (which includes protests, cost claims, and requests for reconsideration) and a summary of the overall outcomes of the cases. In FY2018, 2,607 cases were filed at the GAO, of those 2,474 were bid protests (the remaining approximately 130 cases being cost claims and requests for reconsideration). Only 622 of those cases reached a decision on the merits, with only 92 of those cases being sustained (a mere 15% of cases). The effectiveness rate which includes a protester obtaining some form of relief from the agency, including corrective action or the GAO sustaining the protest, was slightly down from FY2017 at 44%. While the sustain rate is slightly down from the 47% in FY2017 (which only amounted to a decrease in seven cases), the statistics are relatively similar to that of the preceding year. However, the more important takeaway this year may be the GAO’s most prevalent grounds for sustaining protests. The GAO’s annual bid protest reports have been including this information since the implementation of the FY2013 NDAA, which required the GAO to include in its annual report to Congress a summary of the most common grounds for sustaining protests during the year. For FY2018, the most prevalent reasons for sustaining protests according to the GAO were: Unreasonable technical evaluation Unreasonable cost or price evaluation Flawed selection decision Of note is the difference between the FY2018 most prevalent grounds and the FY2017 most prevalent grounds. While unreasonable technical evaluation remains the most prevalent reason for sustaining a protest for the third year in a row, flawed selection decision was bumped up to third most prevalent ground from fifth in FY2017. Also noteworthy is the absence of unreasonable past performance evaluation form this list. Unreasonable past performance evaluation has been the second most prevalent ground for sustaining a protest for the most past three fiscal years (FY2015, FY2016, and FY2017). Thus, while it remains to be seen if the absence of sustained protests on the ground of unreasonable past performance evaluation will continue into FY2019, it remains a protester’s best bet to allege an unreasonable technical evaluation to get relief from the GAO, even if the chances of a sustain remain low overall. About the Author: Heather Mims
Associate Attorney
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.    
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Centre Law & Consulting

Centre Law & Consulting

 

“The Frog That Roared?” Supreme Court’s Weyerhaeuser Co. Decision May Open The Door For Increased Scrutiny of Agency Decision-Making

Last week the United States Supreme Court issued its decision in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service regarding an agency determination that certain lands were a “critical habitat” for the endangered dusky gopher frog and could not be developed. While some contemporaneous accounts of the oral arguments anticipated a likely split along ideological lines, the Court’s eventual decision was a unanimous one that overturned the lower courts’ affirmation of the agency’s actions. While those of us who parse language and logic for a living may have fist-pumped at the Court’s holding that one cannot designate an area a “critical habitat” without first determining the area to be “habitat,” the larger import of the decision is found in its discussion of the scope of judicial review under the federal Administrative Procedures Act (APA). In this regard, the Court noted that the APA creates a “basic presumption of judicial review [for] one ‘suffering legal wrong because of agency action,’” which may be rebutted only if the relevant statute precludes review or if the action is “committed to agency discretion by law.” Below, the Fish and Wildlife Service contended, and the lower courts agreed, that the Endangered Species Act (ESA) commits to the agency’s Secretary’s discretion the decision not to exclude an area from the critical habitat designation. The Court noted the “tension” between the prohibition of judicial review for actions “committed to agency discretion” and the APA’s contrary command that courts set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Reviewing the relevant text of the ESA, the Court noted that the decision was not “wholly discretionary and therefore unreviewable.” Rather, the statute cabined the agency’s discretion and required that the agency consider economic and other impacts when making its decision. Thus, the Court described Weyerhaeuser’s claim as a “familiar one” in administrative law – i.e., that the agency purportedly did not appropriately consider all of the relevant factors that the statute sets forth to guide the agency in the exercise of its discretion. As a result, the lower courts had erred in simply deferring to the agency’s exclusion decision and failing to substantively review the contention that the agency had “ignored some costs and conflated the benefits” in rendering its decision. The ultimate import of Weyerhaeuser will only be known in time, which has not stopped partisans on either side from hailing the decision as either the beginning of the end of the “Administrative State” or the end of wildlife as we know it. While it is likely neither of the above, the decision does put agencies on notice that the scope of federal judicial review is quite broad, and that few “discretionary” actions will be insulated from challenge under the APA moving forward. About the Author: David Warner
Partner
David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices.
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Centre Law & Consulting

Centre Law & Consulting

 

GSA BREAKING NEWS – CONSOLIDATION OF 24 SCHEDULES INTO ONE SINGLE SCHEDULE

By Maureen Jamieson On November 27, 2018, GSA announced they will be consolidating their 24 Multiple Award Schedules (MAS) into one single Schedule for both products and services. The consolidated schedule will come with one set of terms and conditions. According to GSA, the reason for the consolidation is to make it easier and more efficient to do business with federal, state and local governments. When will the consolidation take place? According to Multiple Award Schedules Program Management Office Director Stephanie Shutt, GSA plans to finalize the new schedule and begin awarding contracts under the vehicle by fiscal year 2020. She also explained that GSA will help current Schedule holders migrate to the one schedule as their current schedules begin to expire. The transformation is expected to take approximately two years. According to Federal Acquisition Service Commissioner, Alan Thomas, “A single schedule for products and services will make it easier for customers to find and purchase the solutions they need to meet their respective missions.” He is also quoted as saying, “It will also provide a single-entry point to MAS with consistent practices applied across the program and save vendors from the burden of managing contracts on multiple schedules.” The good news for future and current GSA Schedule holders is that it should be easier to submit an offer and modifications after this consolidation. Currently, there is no consistency in how schedules are awarded or managed across the 24 Schedules. A single set of terms and conditions will ensure consistency and assist in making compliance with Schedule terms and conditions easier to follow. Centre Law & Consulting will continue to monitor and report updates on the consolidation of the MAS Schedules via our blog and emails to our clients.   About the Author: Maureen Jamieson 
Executive Director of Consulting
Maureen Jamieson has more than twenty-five years of experience managing federal contracts. Maureen is highly experienced in solving client pricing problems and implementing effective pricing strategies for placing products and services on GSA Schedule contracts. Maureen also frequently works with clients on effective selling and marketing strategies in the federal market space and is highly skilled as a federal contracts capture or proposal manager.      
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Centre Law & Consulting

Centre Law & Consulting

 

The 116th Congress More Congressional Review Act Action?

By Wayne Simpson, CFCM, CSCM In 2017 when the new administration entered office, and with both houses of Congress controlled by the same party in the 115th Congress, the Congressional Review Act of 1996 was used dozens of times in the first session of the 115th Congress to rescind Executive Orders, regulations, rules and policies issued by the previous administration.  As of June 2018, 17 public laws were enacted using this authority. Fast forward to the 116th Congress convening at Noon Eastern Time January 3, 2019.  With both houses of Congress being controlled by different parties in the new Congress, and the Senate controlled by the same party as the Executive Branch, will the newly elected Congress seek to use the Congressional Review Act to attempt to undo changes made during the first two years of President Trump’s Administration?  More importantly, will they be successful?  Probably not, but it will be interesting to watch.  Any attempts will certainly show the opposition’s displeasure with targeted Executive Orders and regulations. Since this law took effect long after many of us had completed seventh grade Civics Class, here’s a quick primer.  The Congressional Review Act of 1996 was passed as part of the Small Business Regulatory Enforcement Fairness Act (SBREFA), signed by President Clinton on March 12, 1996.  SBREFA provides additional avenues for small businesses to participate in and have access to the Federal regulatory arena. SBREFA gives small businesses more influence over the development of regulations; additional compliance assistance for Federal rules; and new mechanisms for addressing enforcement actions by agencies. The Congressional Review Act is an oversight tool used by Congress to overturn rules issued by an executive agency or executive orders issued by the President.  It is most commonly used to address actions of a previous administration.  Federal agencies must submit a report to each house of Congress and the Government Accountability Office (GAO) containing a copy of rules issued.  The submission to Congress and GAO must include a concise statement of the rule, whether the rule is a “Major Rule” and the rule’s proposed effective date. Members of Congress then have specified time periods to submit/take corrective action using a joint resolution of disapproval.  The joint resolution must be approved by both houses of Congress.  The joint resolution is then sent to the President for signature.  If the President vetoes the joint resolution, Congress can override the President’s veto.  If signed by the President, the Congressional Review Act states the “Rule shall not take effect or continue.”  The rule may not be reissued in “substantially the same form” as the disapproved rule.  Also, provisions that had become effective would be retroactively negated. The Congressional Review Act also prohibits judicial review of any “determination, finding, action or omission” thereunder.  The act does not define what would constitute a rule that is “substantially the same” as the nullified rule.  But one very recent and excellent example of the Act’s effect on government procurement is the case of E.O. 13673 “Fair Pay and Safe Workplaces” which is no more. Perhaps this is why it is often said “Live by the Executive Order/Die by the Executive Order—Here today/gone tomorrow.”  It may also be why the late German author Otto von Bismarck once said:  Laws are like sausages, it is better not to see them being made.  President Kennedy later communicated this to Americans as well. America has survived 115 Congresses—it will undoubtedly survive the next.   About the Author: Wayne Simpson
Consultant
Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official.  
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Centre Law & Consulting

Centre Law & Consulting

 

Barbara Kinosky Speaker at the 21st Annual Government Contracting Update

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.
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The Overhaul of the U.S. Export Controls Will Benefit Small Businesses

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

By Tyler Freiberger, While attitudes about Marijuana and state laws controlling the drug continue to shift toward recreational use, the common advice has been that most employers may still terminate employees for even medical use of the drug unless restricted in particular states. In fact, typically the rule has been that if you are a government contractor, you are required to prohibit its use by your employees. While many states have moved toward protecting medical, or even recreational use of marijuana during employees’ off-time, no state prohibits employers for terminating employees to comply with federal requirements. But what that means is becoming murky. Regardless of the state laws controlling, most federal contractors are subject to the rather toothless Drug-free Workplace Act, which remains unchanged in recent years. While the penalties for violating the act could end in disbarment, it is particularly easy to comply with; write a section in your employment handbook saying not to do drugs and threaten to penalize people that do.  But the loose requirements of the Act are now causing quite the employment lawyer’s headache. Does the Act actually require contractors to prohibit off the job drug use? At least one Federal Court says no. Connecticut is one of several states that not only allows registered users to obtain medical marijuana, but it actively prohibits discrimination against medical use “ nless required by federal law or required to obtain funding…” When one Nursing home refused to hire an employee whom tested positive for the drug, the employer argued it was subject to the Drug-Free Workplace Act and thus was required to terminate drug users and in this case, refuse to hire one. The court held federal law does not preempt PUMA’s prohibition on employers’ firing or refusing to hire qualified medical marijuana patients, even if they test positive on an employment-related drug test because the act does not require drug testing and does not regulate employees who use illegal drugs outside of work while off-duty. This Connecticut case is currently on appeal. While in my humble opinion may be reversed as it requires a very narrow reading of the Federal Drug Act, and a very broad reading of discrimination (typically saying I don’t want to hire employees that break the federal law is seem as a darn good non-discriminatory reason to fire someone), contractors should certainly have their attention on this issue as it unravels. About the Author: Tyler Freiberger
Associate Attorney
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.  
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Centre Law & Consulting

Centre Law & Consulting

 

The Earth is Flat but Not My Driveway

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

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: We finally have some (forthcoming) guidance from DOL and GSA. In summary, current Wage Determinations (WDs) will be deleted from all existing schedule contracts. GSA policies and procedures will be updated to direct ordering activity contracting officers to incorporate the appropriate Wage Determinations at the task order level. I have always said the FAR directs the contracting officers to make this determination and not the contractor. This is consistent with the FAR. A GSA Mass Mod will be issued in approximately 10 days across all Schedules incorporating these changes. 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: You can’t bid higher than your Schedule rates. 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. 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
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.   The post GSA Schedule Update: Breaking News on Service Contract Act (SCLS) – What To Do Now appeared first on Centre Law & Consulting.
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EEOC Issues New Publication on Employer-Provided Leave Under ADA

Earlier this week, the Equal Employment Opportunity Commission (EEOC) issued a publication related to the rights of individuals with disabilities under the Americans with Disabilities Act (ADA) when requesting leave from work as a reasonable accommodation. While the ADA clearly requires employers provide qualified disabled individuals with a “reasonable accommodation” to permit the individual to perform the essential functions of the job, the entitlement to leave as such an accommodation has been a focus of the EEOC and litigation in recent years. The EEOC noted in its press release, that “[d]isability charges filed with the EEOC reached a new high in fiscal year 2015, increasing over 6 percent from the previous year” and that the EEOC has identified a “prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation.” Thus, the publication seeks to provide general information related to assessing requests for leave under the ADA and also provides examples of leave requests and the EEOC’s determination of appropriate action. Employee requests for leave linked to medical conditions (e.g., stress, depression, etc.) have been on the rise including, for example, requests for telework, breaks, reduced schedules, and extended time off. Given the ADA’s now more expansive definition of disability, these requests must be assessed by employers for compliance with ADA in addition to other various state or federal laws prior to making a determination. Being informed about the ADA requirements is essential in ensuring these requests are handled in an appropriate manor. The required “interactive process” is not a one-size fits all approach and specifically contemplates a review of whether alternative forms of reasonable accommodations may be effective in meeting the employee’s needs. Thus, while an employee may seek leave as an accommodation, the employer may propose other accommodations that may permit the employee to return to work sooner or be more productive while at work. In addition, while the EEOC still has not provided a bright-line on what length or frequency of leave may become an undue burden, it is worth repeating that when an employee requests “indefinite leave” (i.e., leave without any indication as to when or whether the employee will return) the EEOC has determined that such leave would be an undue burden and, thus, not required to be provided by the ADA. This publication supplements other available resources available from the EEOC and should be consulted by those responsible for reviewing reasonable accommodation requests and company leave policies. The publication also covers modifications to existing leave policies, maximum leave policies, communication with employees on leave (including when returning to work from leaves covered by FMLA), the “interactive process” in assessing reasonable accommodation requests, and undue hardship considerations. About the Author: Marina Blickley
Associate Attorney
Marina Blickley focuses on the Government Contracting and Non-Profit industries. She regularly assists clients in all aspects of employment and labor law including employment discrimination, harassment, retaliation/whistleblower, compensation practices, and wage and hour violations. Marina also represents companies in commercial litigation matters concerning contract disputes, restrictive covenants/non-competes, business conspiracy, misappropriation of trade secrets, and computer fraud and theft.   The post EEOC Issues New Publication on Employer-Provided Leave Under ADA appeared first on Centre Law & Consulting.
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GSA Issues Presentation on Changes to Multiple Award Schedules

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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Maureen Jamieson Quoted in Bloomberg BNA Article on Trade Agreements Act

Reproduced with permission from Federal Contracts Report, 105 FCR (May 11, 2016). Copyright 2016 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com GSA Sends Warning Letters to Contractors Over Origins of Products The General Services Administration (GSA) is clamping down on thousands of federal contractors to ensure that products sold to government agencies are made in the U.S. or are otherwise in compliance with the Trade Agreement Act (TAA), Bloombery BNA has learned. Regional GSA offices in Fort Worth, Texas, and Kansas City, Missouri, emailed letters dated May 5 to more than 2,800 schedule contract holders that directed vendors to “review their total offering of product” by submitting a spreadsheet that verified the countries of origin of each schedule contract product, as well as copies of a Certificate of Origin or other certification from the manufacturer on its letterhead for products made in the U.S. or in a TAA-designated country. “The continued reoccurrence of non-compliant product threatens the integrity of the [Multiple Aware Schedule] contracts and GSA Advantage! website which federal customers rely on to make daily purchases that are compliant with the Federal Acquisition Regular (FAR),” the GSA letter said. “This threat cannot be tolerated for the good for the federal procurement community, MAS business line, and continued success of a primary system you rely on to serve federal customers.” The letter provided to Bloomberg BNA was unsigned but included the name of a Fort Worth-based GSA contracting officer at the bottom. The letter, addressed to “Dear GSA Partner,” noted that over the past year, the Multiple Award Schedule program had responded to “numerous” congressional inquiries and Freedom of Information Act requests regarding allegations of failed compliance with the TAA and the Buy American Act. Made In America In January, Sen. Charles Schumer (D-N.Y.) said the GSA Advantage! website had listed products that were described as “made in America” but in fact were produced overseas. He said the GSA should review its website labels and excise products that are falsely listed. The Buy American Act, in place since 1933, and the regulation that stems from it significantly restricts the federal government from purchasing non-American-made products. The TAA stretches the law by allowing the purchase of end products from the U.S. or designated countries, which, according to GSA’s website, includes World Trade Organization government procurement agreement countries; free-trade agreement countries; least-developed countries; and Caribbean Basin countries. The designated country list, which includes 124 nations, excludes prominent U.S. trading partners China and India. The letter from the Great Southwest Region in Fort Worth ordered companies that have found products manufactured in non-TAA designated countries to remove all such products from their TAA contract; upload a new and revised catalog to GSA’s Schedule Input Program; and send an updated price list and terms and conditions to the National Schedules Information Center. The GSA gave companies that received the letter five days, until the close of business May 10, to respond. Businesses that didn’t reply in time face severe penalties, according to the letter, including, typed in bold letters, “the removal of your entire GSAdvantage file.” In a statement, a GSA spokesperson told Bloomberg BNA: “Once learning of products being offered on a Schedule contract that are potentially non-compliant with the Trade Agreements Act (TAA), or when the country of manufacture is otherwise misrepresented, GSA will conduct an immediate review an take swift action to ensure that vendors remove non-compliant products from Schedule contracts and GSA Advantage!.” Unmanned Vehicles According to the GSA spokesperson, 2,872 letters were emailed to contractors from the agency’s offices in Fort Worth and Kansas City. That included 308 emails sent to Schedule 51V Hardware Superstore contractors; 1,184 to Schedule 84 providers of security, facilities management, marine craft and emergency/disaster response-related goods; 641 to Schedule 56 makers of building materials and supplies and alternative energy solutions; 361 to Schedule 66 producers of test and measurement equipment, unmanned scientific vehicles and geographic environmental analysis equipment; and 378 emails to Schedule 7 makers of hospitality and cleaning equipment, sanitizers and toiletries. The spokesperson confirmed the GSA was targeting those specific schedules and products because of congressional and other complaints. “Those schedules are among the first group of targeted schedules with identified risk that GSA is reviewing,” the spokesperson said. Attorneys who represent contractors that received the emailed letter told Bloomberg BNA they are asking GSA for extensions to conduct necessary research into their product lines, and to complete all the needed paperwork. Maureen Jamieson, executive director of contracts and consulting at Centre Law & Consulting in Tysons Corner, Va., said she has heard from several clients concerned about the letter, including some based in Fort Worth and another that was contacted by GSA’s Kansas City office. She said GSA had not yet responded to her requests for an extension. “I’ve been hearing from clients of many years. They’re coming out of the woodwork,” Jamieson told Bloomberg BNA, adding that she was concerned about the tight turnaround time the GSA’s directive gave contractors. “If you’re going to do it right, it just requires more time, ” she said. Day One “It’s definitely been a scramble, I guess you could say,” Gunjan Talati, a Washington-based partner with Thompson Hine, told Bloomberg BNA. Talati said companies have been responsible for complying with the underlying requirements – that they adhere to the rules put forth in the TAA and Buy American Act – “since Day One.” But regardless of how diligent companies have been in fully adhering to those laws in the past, he said, “I look at this as a wake-up call.” Compliance with the TAA is often a complicated affair that can require “a detailed examination of the product’s manufacturing process,” Talati and fellow Thompson Hine Partner Lawrence Prosen wrote in a client advisory issued a day after GSA emails were sent. This includes a determination as to whether articles from one country have been “substantially transformed” into a new and different article of commerce that is distinctly different from the original item, they wrote.
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Uncompensated Overtime and the Tooth Fairy

My granddaughter recently lost a baby tooth in the ‘usual way.’ One morning, she felt the tooth begin to move the slightest bit. She wiggled it back and forth throughout the day and by dinner…Voile! Only one day later, she lost two more courtesy of her dentist to make room for the incoming ‘permanent’ ones. The Tooth Fairy kept the commitment of retrieving the lost teeth from under her pillow in a timely fashion – in this case staying up late on two consecutive nights – and rewarded her for pain and suffering with a selfie stick. (Wow, times have changed!) This made me wonder, does the Tooth Fairy earn overtime for work performed in excess of a statutory number of ceiling hours or is that position salaried? (I’ve had a long term and continuing relationship with the Tooth Fairy, so I want to proceed carefully.) The question of overtime relates to the Fair Labor Standards Act (FLSA). The FLSA provides for a federal minimum wage, a standard 40-hour workweek, and pay at time-and-a-half rate for all overtime hours. The Act also includes several exemptions under which certain employees are not entitled to overtime pay. Currently to meet most exemptions, in addition to meeting a duties test, an employee must be paid on a salary basis at least $455 per week ($23,600 annually). There is a belief that payment of a salary is the only requirement to avoid overtime pay obligations. This is not correct. Also, a new regulation will more than double this minimum salary threshold later this year, but these are topics for tomorrow! If the Tooth Fairy is not FLSA-exempt, there is a federal entitlement for a time-and-a-half rate for any hours worked in excess of 40 hours. Conversely, if the Tooth Fairy is FLSA-exempt, hours worked in excess of 40 hours weekly are considered Uncompensated Overtime (UCOT). I’ve always had nagging concerns about UCOT – that it’s somehow a ‘bad’ thing – so I researched UCOT. The Regulation requires the solicitation provision at FAR 52.237-10 (Identification of Uncompensated Overtime) in requirements for technical or professional services which will be acquired on an hourly basis: Uncompensated overtime means the hours worked without additional compensation in excess of an average of 40 hours per week by direct charge employees who are exempt from the Fair Labor Standards Act. Compensated personal absences such as holidays, vacations, and sick leave shall be included in the normal work week for purposes of computing uncompensated overtime hours. FAR goes on to provide this example: Uncompensated overtime rate is the rate that results from multiplying the hourly rate for a 40-hour work week by 40, and then dividing by the proposed hours per week. For example, 45 hours proposed on a 40-hour work week basis at $20 per hour would be converted to an uncompensated overtime rate of $17.78 per hour ($20.00 × 40 divided by 45 = $17.78) The key to both the provision and the example might be the term ‘proposal’. If an offeror proposes UCOT, then it is part of its technical and pricing plan that should be evaluated during cost realism. What if a contractor does not propose UCOT yet incurs UCOT? Unforeseen situations requiring additional labor hours or surge efforts are not uncommon in professional service industries. In this situation, can the contractor invoice for these uncompensated hours? Invoicing – always a significant issue – becomes more important when fee is linked to achieving a level of effort. Can the contractor profit on UCOT hours? UCOT is not illegal. How a contractor motivates its employees, both FLSA and FLSA-exempt, to satisfy employee and customer seems a matter for industry not Government. If you are pondering the loss of revenue on the part of the employee, consider that there may be other opportunities and means to compensate employees, such as additional benefits, compensatory time, or bonuses. As in so many other federal procurement matters, competition will affect retention rates of those who propose intentionally to overwork their employees. UCOT is discussed as a subtopic in Centre’s Federal Contract Basics Course. As for the Tooth Fairy, there are an increasing number of ‘clients’ for whom Tooth Fairy must provide services. I know from experience that each ‘client’ has at least one parent and probably others (grandparents, for example!) standing by to ensure success. Tooth Fairy and I aren’t so close these days that we can discuss FLSA status, but I’d like to think with all those hours and all those satisfied ‘clients’ Tooth Fairy has earned many overtime hours as a non-exempt worker. And Tooth Fairy, what’s a selfie stick anyhow? About the Author: Rich Zimmerman
Project Manager
Richard E. Zimmerman has more than 25 years of experience as a contracts professional both in Government and the private sector. His excellent background in FAR, Agency supplements, and their application over the procurement life cycle make him a critical resource for PMs, prime contractors, and subcontractors. The post Uncompensated Overtime and the Tooth Fairy appeared first on Centre Law & Consulting.
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Kinosky and Blickley Featured on Webinar Discussing HR Issues for Government Contractors

On May 11, Centre Law & Consulting’s attorneys Barbara Kinosky and Marina Blickley were featured guests on Give Me 5, a webinar hosted by Women in Public Policy (WIPP). The online series is designed to educate women business owners on how to apply for and secure federal procurement opportunities. Give Me 5: Where Human Resources and Government Contracts Intersect Webinar Summary: Federal contractors are subject to a unique set of rules, laws and regulations. Many of these laws and regulations also apply to subcontractors. This session covers the more complicated areas where HR and government contracts intersect, including: OFCCP – latest news on increased HR compliance requirements Executive Order actions and recent regulatory changes Common challenges to complying with the Service Contract Labor Standards/Service Contract Act Tips for handling whistleblower and relator complaints Handling mandatory disclosures Changes to implement now  
Listen to the Podcast  |  View the Presentation In addition, Marina also wrote a post for Women in Biz Blog discussing new regulations that came out after the webinar and are planned to go into effect on December 1, 2016.
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Too Big to Be Small, Too Small to Be Big

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

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

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

About the Author: Wojciech Kornacki
Government Contract and Compliance Counsel
Wojciech Kornacki focuses on federal Government contract compliance, bid protests, and federal litigation. He represents clients in matters involving Government Accountability Office bid protests, federal agency debarments, Boards of Contract Appeals litigation, and Export Controls (ITAR and EAR) and Trade Agreements Act compliance.   The post Seven Steps for an Effective Compliance Program for the Buy American Statute and Trade Agreements Act appeared first on Centre Law & Consulting.
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Don’t Get Caught By the Federal Civil Penalties “Catch up” Adjustments

On June 7, 2016, the U.S. Department of State announced that it is implementing “catch-up” adjustments to the maximum amounts of the monetary penalties it assesses for regulatory violations. Under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, federal agencies must make a one time “catch-up” adjustment to their civil monetary penalties in order to account for inflation. Federal agencies are required to publish interim final rules with the initial penalty adjustment amounts by July 1, 2016, and the new penalty levels must take effect not later than August 1, 2016. The Penalties The U.S. Department of State Directorate of Defense Trade Controls assesses penalties for violations of the Arms Export Control Act and International Traffic in Arms Regulations. The following amounts will be assessed for certain violations after August 1, 2016, regardless of when the actual violation occurred: Each violation of The Arms Export Control Act, 22 U.S.C. §2778. This Act imposes export and import controls on certain defense articles and defense services. This includes registration, reporting, record keeping, and due diligence requirements, among many others. Previously, the maximum penalty was $500,000. The new maximum penalty will not exceed $1,094,010 per one violation. Each violation of the The Arms Export Control Act, 22 U.S.C. §2779a. This section of the Act prohibits incentive payments to satisfy any offset agreements under certain circumstances. Generally, any U.S. supplier of defense articles or services sold, licensed, or exported, among others, is prohibited from making any incentive payments for the purpose of satisfying, in whole or in part, any offset agreement with a foreign country. Defense offset agreements are understood as side agreements that provide additional incentives to the purchaser. Previously, the maximum penalty was $500,000. The new maximum penalty will not exceed $795,445 per one violation. Each violation of The Arms Export Control Act, 22 U.S.C. §2780. This section of the Act prohibits transactions with countries supporting acts of international terrorism. Transactions include exporting (directly or indirectly) or otherwise providing (by sale, lease, loan, grant, or other means) of any munitions items, providing credit guarantees, or otherwise facilitating the acquisition of any munitions. Previously, the maximum penalty was $500,000. The new maximum penalty will not exceed $946,805 per one violation. What Can I Do Before August 1, 2016? Have no fear and double-check whether you are compliant. The U.S. Department of State Directorate of Defense Trade Controls expects each U.S. exporter of defense articles and services to have comprehensive operational compliance programs. This may include policies and procedures on: Corporate commitment to the International Traffic in Arms Regulations (ITAR) compliance Tracking of controlled items and technical data Due diligence and internal monitoring Training and awareness Penalties for violations Reporting non-compliance issues The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 allows the U.S. Department of State to exercise its discretion to determine whether it should assess civil monetary penalties lower than the maximum amount. If your compliance program identifies at least one ITAR violation, it may be beneficial to consider whether mandatory reporting is required and whether to report it before the maximum penalties increase on August 1, 2016. You can learn more about the U.S. export controls and compliance requirements on June 23, 2016 during our webinar on New Opportunities for Small Businesses and U.S. Exporters.
Note that is post is for educational use only and does not constitute legal advice.

About the Author: Wojciech Kornacki
Government Contract and Compliance Counsel
Wojciech Kornacki focuses on federal Government contract compliance, bid protests, and federal litigation. He represents clients in matters involving Government Accountability Office bid protests, federal agency debarments, Boards of Contract Appeals litigation, and Export Controls (ITAR and EAR) and Trade Agreements Act compliance.   The post Don’t Get Caught By the Federal Civil Penalties “Catch up” Adjustments appeared first on Centre Law & Consulting.
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