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Centre Law & Consulting

 
So later today I am hosting a lunch at my house. And unless Desoto (the Spanish explorer who looked for the Fountain of Youth in Florida) has been visiting my family room, I have a major water leak. There is water everywhere. I just lost a small business set-aside contract to an unfathomably low, low, low price bidder, and the cat barfed all over my new carpet. It’s not even noon yet! So in an attempt to turn my day around, I hopped online to see what others are up to in hopes of finding something more interesting and uplifting!

Here is a round up of trending Government Contracting news I found that caught my eye.

SBA Expands Mentor-Protégé to All Small Businesses
Kudos to the Small Business Administration for great rule drafting. The SBA just expanded the mentor-protégé program to include all small businesses. The program is government wide. The primary incentive for large businesses to participate as mentors is the ability to form a joint venture (JV) with their protégé to pursue small business set-aside contracts without worrying about affiliation issues. And that sticky wicket, past performance is addressed in the rule. Agencies must evaluate the past performance of each member of the JV as opposed to just the JV. NextWin posted a great white paper on this. Applications must be submitted through the www.certify.sba.gov.portal. The new rule allows mentors to own up to 40% of their protégé’s. SBA has confirmed that they will be receiving applications starting October 1. And for those of you who suffer from insomnia, here is the complete rule for your late night reading pleasure.

Key Person Departs and So Does URS Contract
URS Federal Services protested the loss of a Navy contract. The solicitation required offerors to propose eight key personnel. After proposal submission one of the key staff left URS. As a result, the URS proposal was given a deficiency which cost it the award. URS protested. The GAO held that when an agency has notice of the withdrawal of key personnel during the proposal evaluation process it can either evaluate the proposal as submitted or reopen discussions. Here the Navy evaluated the proposal as having only seven key people instead of the required eight. Read more in the GAO decision.

Update on GSA Transactional Data
GSA just issued an update on the schedule for implementing the transactional data pilot program. This link shows what schedules will be impacted and the roll out date.

Open Source Code
GSA published a good comprehensive blog on open source code. It’s part of the federal government’s big push toward open source development. GSA has a CIO policy that supports releasing GSA software as open source, but this is a very controversial issue with industry.

P.S. – With all the changes that happen in the world of federal contracting, you need a dependable resource to keep you advised on best practices. So keep us in mind for meeting your small business WOSB goals when it comes to acquisition support and training.

About the Author

Barbara Kinosky Barbara Kinosky
Managing Partner

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

 

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Centre Law & Consulting

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

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

What is “Federal Contract Information”?

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

What is “Safeguarding”?

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

What Are Other Cybersecurity Requirements?

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

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

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

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

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

About the Author:

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

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

 

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Centre Law & Consulting

 
For those of you enjoying these last few days of summer, here is a quick hit guide to recent employment developments to be aware of before you rush back into the full swing of things:

Fair Pay and Safe Workplaces Executive Order

The Department of Labor (DOL) announced yesterday that the final regulations implementing the Fair Pay and Safe Workplaces Executive Order will be published today. The regulations (which cover contractor self-reporting of labor law violations) will become effective October 25, 2016 and will be implemented in phases. Stay tuned for more on these important new regulations!

Severance Agreements

The Securities and Exchange Commission (SEC) has taken the position that severance agreements that require employees to forfeit subsequent monetary awards for whistleblowing violate Federal securities laws. In 2011, the SEC adopted a rule prohibiting any action that impedes communication with the SEC about potential securities law violations. The SEC has increasingly been reviewing severance agreements and potential violations of this rule. This culminated in two six-figure settlements announced earlier this month with companies that required employees to waive their right to any individual recovery arising from communicating with a government agency. This is language that is permitted by other Federal agencies, so companies should review their standard severance agreements to ensure that they are not running afoul of the SEC’s rules.

DOL Settles Overtime Lawsuit

It is being reported that the DOL recently settled its own decade-long lawsuit with a union for $7 million in back overtime wages owed to various white-collar employees at the DOL. Keep in mind this is the DOL, the Agency responsible for enforcing the Fair Labor Standards Act (FLSA) along with other wage and hour laws. A quick take away is that the overtime regulations and classification of employees are complicated – even for the DOL! Perhaps this is a good time to remind you that the salary thresholds for Federal overtime exemptions are changing effective December 1, 2016. Is your company ready?

Updated Workplace Posters

The DOL has updated the mandatory workplace posters covering the FLSA and the Employee Polygraph Protection Act (EPPA) effective August 1, 2016. The revised FSLA poster and EPPA poster are available from the DOL’s website. The Federal Family and Medical Leave Act poster was also recently updated in April. This may be a good time to review your workplace posters to ensure you have all the required and up to date postings.

EEO-1 Due

For employers with 100 or more employees or Federal Government contractors with 50 or more employees and covered contracts, don’t forget to complete your EEO-1 by September 30. The survey is now open.

About the Author

Marina Blickley | Centre Law & Consulting Marina Blickley
Associate Attorney

Marina Blickley is primarily focused in the Government Contracting and Non-Profit industries. She regularly assists clients in all aspects of employment and labor law including representation and defense of employers against claims of employment discrimination, harassment, retaliation/whistleblower, and wage and hour violations before administrative agencies and state and federal courts.

 

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

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

The HACS SINs will be divided into four distinct SINs:

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

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

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

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

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

About the Author

Michael Glazer
Contracts Manager

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

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Centre Law & Consulting

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

Acquisition Reform Once More

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

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

Protests and a Win Against Low Price

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

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

Counterfeit Part Protection

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

Boxes Upon Boxes

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

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

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

Barbara Kinosky Barbara Kinosky
Managing Partner

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

 

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Centre Law & Consulting

 
Journalist Michael Kinsley once said, “A gaffe is when a politician tells the truth – some obvious truth he isn’t supposed to say.” The same can now be said of unions talking about Executive Order 13673 regarding “Fair Pay and Safe Workplaces.”

Now, who could possibly object to fair pay and safe workplaces? Well, let’s let the Teamsters for a Democratic Union explain the obvious truth (that they aren’t supposed to say) about how the reporting and “blacklisting” aspects of that that innocuous sounding executive order will work in practice. In an August 22 blog post entitled Obama ‘Blacklisting’ Rule – New Leverage for Unions, the union posits the following scenario (complete with colorful dialogue):

Consider a union that strikes an auto plant for a new contract. Soon after workers hit the bricks, the union president has the following conversation with the general manager.

Morris, we are two weeks into this goddam strike and the company shows no sign of accepting a fair labor agreement. That is your prerogative, but I think you need to take a fresh look. For one thing, we have filed six ULP charges over the company’s failure to provide information, illegal surveillance, and intimidation on the picket line – and are getting ready to file three more. The NLRB investigator has indicated that he will be recommending complaints on at least four of our charges.

You say that the NLRB is toothless but you are apparently unaware that the rules of the game have drastically changed. Under a new Order issued by the President, a federal contractor that incurs NLRB or other labor law complaints must report them to federal contracting agencies and face the prospect of losing existing and future contracts. Putting it plainly: unless you settle this strike within the next few days and the union withdraws its charges, you are likely to be marked as a “repeat labor law offender,” one of the highest categories of wrongdoing under the President’s Order. Check this out with your hotshot legal team.

Counting all of its divisions, this corporation has federal contracts in the hundreds of millions. Do you really want to jeopardize this pot of gold to save a few hundred thousand dollars in the union contact?

“Fair” indeed. And welcome, contractors, to the “obvious truth” that the Fair Pay and Safe Workplaces executive order will be a powerful new tool for union organizing campaigns.

About the Author:

David Warner | Centre Law & Consulting David Warner
Partner

David Warner is a seasoned counselor in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David has extensive experience representing contractors in affirmative action, Davis-Bacon Act, and Service Contract Act compliance audits. He also represents businesses with regard to wage and hour compliance, DOL audits, and litigation.

 

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The Environmental Protection Agency (EPA) has issued a final rule regarding self-certification for Disadvantaged Business Enterprises (DBE) in procurements under EPA financial assistance agreements, which will be effective on October 26, 2016 if no adverse comment is received. If an adverse comment is received by the EPA, the rule will be withdrawn. However, the EPA expects to receive no adverse comments.

Current Major Components of the EPA’s DBE Program

EPA’s DBE Program was first implemented through 40 CFR part 33 on March 26, 2008 with four major components program: DBE Certification, Negotiating Fair Share Goals, Good Faith Efforts, and Reporting Accomplishments. Currently, the DBE Certification process requires a Minority Business Enterprise (MBE) or Woman Business Enterprise (WBE) to be certified as such by an appropriate agency (federal, state, locality, Indian Tribe, or qualifying independent private organization). The other current components of the program require that goals are established with the EPA, that there is an opportunity to compete for procurements, and that a report is sent to the EPA on the success of the program with respect to MBEs & WBEs.

Key Changes

This final rule makes three key changes to the EPA’s DBE program. The first is the creation of a self-certification platform. The second is the increase to the threshold to be exempted from negotiating fair share objectives from $250,000 to $1,000,000. The third and final change is that the frequency of reporting to the EPA has been revised to annually and the threshold of $150,000 is now codified. There are additional minor changes in the Final Rule, but the three above will have the most impact on an organization.

Self-Certification Impact on Affected Organizations

If your firm wishes to take advantage of this revision and is a qualifying organization, you will be able to self-certify through the Small Business Vendor Profile System at www.epa.gov. You will be required to provide the appropriate information and confirm that the eligibility requirements have been met. After certifying that you have met the eligibility requirements, no EPA review will be required. This change will significantly decrease the time it takes for organizations to be certified as MBEs or WBEs, as organizations will no longer be required to obtain other qualifying certification from the government. However, self-certification through the EPA’s DBE Program under the new rule will not be recognized by other organizations and such certification will remain valid only 3 years. Therefore, qualified organizations will continue to have an obligation to re-register to maintain their status as an MBE or WBE. Firms that choose to certify through this option will be published on the Office of Small Business Program’s web site, and you should always review the final rule for additional impacts it may have on your organization.

About the Author

Colin Johnson
Contracts Manager

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

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

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

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

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

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

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

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

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

About the Author:

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

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

 

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Centre Law & Consulting

 

Potential Intervenors Denied Intervention in Multi-Billion Dollar Protest as Having No Legal “Interest” in Protest

The Court of Federal Claims issued a decision on September 27, 2016 denying two motions to intervene in a bid protest.

Nevada Site Science Support and Technologies Corporation (NVS3T) filed a bid protest alleging that the Department of Energy’s decision to rescind a multi-billion dollar contract awarded to it based on ownership issues involving the Plaintiff was arbitrary and capricious. Following the bid protest, Mission Support & Test Services, LLC and Nuclear Security & Technology, LLC filed Motions to Intervene.

The Court, in denying the motions to intervene, relied on Rule 24 of the Rules of the Court of Federal Claims and found that the potential intervenors have no real interest in the dispute. Rather, their interest is simply potentially being awarded the contract if the Plaintiff loses the protest.

Perhaps the Court said it best: “However, the simple fact that a party might benefit form another’s legal misfortune does not lead to an understanding that said party should have a role in occurrence of that legal misfortune. If a singer suffers a voice injury and is, as result, fired from her job, it is hardly conceivable to believe that a Court would allow a rival singer to intervene in that case on the side of the employer simply because he might subsequently get the newly vacant job!”

Nevada Site Science Support and Technologies Corporation v. United States, Fed. Cl., No. 16-1118C, 9/27/16, available at https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2016cv1118-31-0.

Protest Deemed Moot Due to Completion of Contracts

In a decision on September 26, 2016 from the Court of Federal Claims, the Court found that Plaintiff’s protest was rendered moot in light of the fact that the contracts have been completed.

This post-award bid protest involved a Plaintiff’s challenge to the Government’s use of research and development funds to develop software that the Plaintiff claims is already commercially available.

As way of background, in 2004, the U.S. Navy on behalf of the Department of Defense’s Combating Terrorism Technical Support Office (CTTSO) awarded a contract to Georgia Tech Applied Research Corporation (GTARC) for development of a program to aid first responders dealing with hazardous materials. In 2008, GTARC received a contract to enhance the program it developed. The resulting system was developed as “freeware” – a product free of charge to first responders at all levels of government.

The contracts at issue in Alluviam’s bid protest were not awarded until 2013 and 2014 – the Broad Agency Announcements (BAA) were issued in 2013 and 2014, seeking development of technologies related to chemical, biological, radiological, nuclear, or explosives. Alluviam submitted a proposal to the 2013 BAA but was eliminated from competition at an early stage, which it did not protest; Alluviam declined to submit a bid for the 2014 BAA. Both contracts were awarded to GTARC and are now near completion.

In February 2016, Alluviam filed an agency protest challenging the 2014 contract claiming that the agency improperly used the BAA procedure and that a member of the agency staff had a conflict of interest with GTARC. After the protest was denied at the agency level, Alluviam filed the protest at the Court of Federal Claims.

The Court, in determining that Plaintiff lacks standing to bring this bid protest, noted the fact that Alluviam did not protest the agency’s rejection of its proposal under the 2013 BAA, nor did it submit any proposal for the 2014 BAA. The Court further found that Alluviam is essentially challenging the Government’s procurement method in developing an already available commercial product, but Alluviam should have challenged that method when the agency begun this process in 2004 – now, nearly twelve years later, Plaintiff lacks the standing to object to the completed contracts.

The agency made its decision to approach the development of hazardous material response programs nearly twelve years ago when it awarded its first contract to GTARC in 2004, and the work performed is now nearly complete. Because Alluviam was aware of this development approach since 2004, it lacked standing to bring the protest. The Court also found that the completion of the contracts rendered the case moot.

Alluviam , LLC v. United States, et al., Fed. Cl., No. 16-614C, 9/26/16, available at https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2016cv0614-87-0.

Kim Kardashian Has Made It to the Supreme Court – Kind Of

In more fun news – thanks to Justice Stephen Breyer, Kim Kardashian will be forever included on the transcript for a Supreme Court case.

On October 4, 2016, Justice Breyer brought up the celebrity in oral arguments in the matter of Shaw v. United States, a case involving whether the bank-fraud statute’s language “scheme to defraud a financial institution” requires proof of a specific intent to cheat a bank. Specifically, the case involved the appeal of Lawrence Shaw, who was convicted of bank fraud after transferring $300,000 to his account from another’s.

In discussing the necessary intent for bank-fraud and questioning whether the defendant must have the intent to cause the bank to lose money, Justice Breyer analogized the situation to more recent events (for those of us that don’t keep up with the Kardashians, Kim was recently robbed of nearly $10 million in jewelry while in Paris): “Even Kardashian’s thief, if there is one, believes that all jewelry is insured. Indeed over insured. So it’s not theft?” Breyer continued, “I’m asking you, if the local person comes to the door and says, dear Miss Kardashian, I am your local jewelry cleaner. Please give me your jewelry. She does. And that’s not fraud. He wanted to get the jewelry. He tried to get the – he also believed that the friend has just loaned it for the evening, that she’s triple insured, and that she won’t even lose any money because the publicity will be worth it. Okay?”

A full copy of the Supreme Court transcript is available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/15-5991_7648.pdf.

About the Author:

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

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

 

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

SITUATION

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

PROTEST GROUNDS

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

STRATEGY

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

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

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

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

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

IMPACT

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

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

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

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As many contractors are approaching the end of their 20-year contract period in the FSS program, the General Services Administration (GSA) has made it possible for successful legacy contractors to follow a streamlined offer process for their new 20-year contract. Clause A-FSS-11 has been updated so that a contractor can now submit an offer for a new contract under the same Schedule at any time during the existing contract period.

Process Requirements

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

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

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

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

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

Notes on Proposal Submissions

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

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

Our Recommendation

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

About the Author:

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

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

 

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Uh-oh, Lenovo…

On September 26, the Pentagon’s Directorate for Intelligence, J-2, reportedly issued an internal report warning against the use of equipment made by computer manufacturer Lenovo because of concerns regarding potential cyber spying against defense networks. J-2 supports the Chairman of the Joint Chiefs of Staff, the Secretary of Defense, Joint Staff, and Unified Commands, and it is the national focal point for crisis intelligence support to military operations, indications, and warning intelligence in DoD as well as Unified Command intelligence requirements.

Per a report from Bill Gertz of The Washington Free Beacon, the Chinese Academy of Science, a Chinese government research institute, owns a 27 percent stake in Lenovo Group Ltd. The J-2 report purportedly states that “cyber security officials are concerned that Lenovo computers and handheld devices could introduce compromised hardware into the Defense Department supply chain, posing cyber espionage risks.” The report also purportedly contains a warning that Lenovo is seeking to purchase U.S.-based IT companies in order to gain access to classified defense networks.

The cyber security concern surrounding Lenovo is evidently not a new one as Gertz’s article reports that, following the company’s 2014 purchase of IBM’s BladeCenter line of computer servers (for a cool $2.1 billion), the U.S. Navy replaced the IBM servers within the “Aegis” battle management systems deployed on guided missile destroyers and cruisers over concerns that China could hack the warships through the server.

And, for those wondering, “why isn’t this a TAA issue?,” the server business Lenovo purchased is based out of North Carolina. Perhaps “country of ownership” will become as relevant as “country of origin.”

About the Author:

David Warner | Centre Law & Consulting David Warner
Partner

David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation and litigation practices.

 

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Pentagon Issues Internal Warning Against Use of Lenovo Equipment | Centre Law & Consulting in Tysons VA
 
Uh-oh, Lenovo…

On September 26, the Pentagon’s Directorate for Intelligence, J-2, reportedly issued an internal report warning against the use of equipment made by computer manufacturer Lenovo because of concerns regarding potential cyber spying against defense networks. J-2 supports the Chairman of the Joint Chiefs of Staff, the Secretary of Defense, Joint Staff, and Unified Commands, and it is the national focal point for crisis intelligence support to military operations, indications, and warning intelligence in DoD as well as Unified Command intelligence requirements.

Per a report from Bill Gertz of The Washington Free Beacon, the Chinese Academy of Science, a Chinese government research institute, owns a 27 percent stake in Lenovo Group Ltd. The J-2 report purportedly states that “cyber security officials are concerned that Lenovo computers and handheld devices could introduce compromised hardware into the Defense Department supply chain, posing cyber espionage risks.” The report also purportedly contains a warning that Lenovo is seeking to purchase U.S.-based IT companies in order to gain access to classified defense networks.

The cyber security concern surrounding Lenovo is evidently not a new one as Gertz’s article reports that, following the company’s 2014 purchase of IBM’s BladeCenter line of computer servers (for a cool $2.1 billion), the U.S. Navy replaced the IBM servers within the “Aegis” battle management systems deployed on guided missile destroyers and cruisers over concerns that China could hack the warships through the server.

And, for those wondering, “why isn’t this a TAA issue?,” the server business Lenovo purchased is based out of North Carolina. Perhaps “country of ownership” will become as relevant as “country of origin.”

About the Author:

David Warner | Centre Law & Consulting David Warner
Partner

David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation and litigation practices.

 

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

Process Requirements

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

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

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

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

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

Notes on Proposal Submissions

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

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

Our Recommendation

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

About the Author:

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

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

 

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

SITUATION

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

PROTEST GROUNDS

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

STRATEGY

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

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

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

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

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

IMPACT

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

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

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

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

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

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

Then the Pentagon Asks Congress for $6 Billion More

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

Former Pixar Exec to Head GSA’s TTS

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

Another Revolving Door

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

Government Sourcing Saves, but Not Enough

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

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

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

Another GAO Report on the VA

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

 
About the Author

Barbara Kinosky Barbara Kinosky
Managing Partner

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

 

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

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

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

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

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

GSA

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

FedRAMP

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

For More Information

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

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

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

 

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

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

What does VATEP do?

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

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

How does it help me?

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

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

Only time will tell.

 
About the Author

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

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

 

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It’s that time of year again! Early bird rates have arrived on all 2017 training courses!

Visit our Training Calendar to see the full slate of courses, and be sure to use code EARLYBIRD2017 to save $100 off your registration fee when signing up before December 30, 2016.

Early Bird Rates on 2017 Training Courses - Save $100 on Registration | Centre Law & Consulting in Tysons VA

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As we lead up to Thanksgiving later this week, many of us are in final preparations for the holiday. Some are making last minute trips to the grocery store while others are looking for pants with elastic waistbands.

However you’re celebrating this year, we at Centre Law & Consulting hope you enjoy a feast filled with friends and family. We hope you have many things to be thankful for this holiday season.

happy-thanksgiving
 
About the Author

Barbara Kinosky Barbara Kinosky, Esq.
Managing Partner

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

 

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NCMA NOVA Chapter Event on January 27

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

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

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

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

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

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

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

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

NCMA SubCon Training Workshop on March 31

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

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

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

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

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

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

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

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

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

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New Overtime Rule Blocked by Federal Judge | Centre Law & Consulting in Tysons VA
 
Hopefully you had already heard by now that the Department of Labor issued a new overtime rule that would require employers to pay time and a half to employees that worked more than forty hours a week and earned less than $47,476 a year. This raised the minimum earning level by about two times – from the current standard of $23,660 – and would have affected about 4.2 million American workers. The rule also established an automatic updating mechanism that would adjust the minimum salary level every three years. It was supposed to take effect on December 1, 2016; however, this rule has been blocked from going into effect by a federal judge in Texas.

U.S. District Judge Amos Mazzant issued a preliminary injunction on November 22 in a case filed by several states (twenty-one to be exact) challenging the rule against the Wage and Hour Division of the Department of Labor. The state plaintiffs argued that that new rule would cause an increase in government costs in their states and would cause businesses to have to pay substantially larger salaries.

In issuing the preliminary injunction, Judge Mazzant found that the plaintiffs have shown a likelihood of success on the merits because the rule exceeds the Department’s authority under Chevron. He further found that the plaintiffs will suffer irreparable harm if the preliminary injunction is not granted as agencies operating within budget constraints will have to comply with the rule to the detrimental effect on government services that benefit the public.

Furthermore, the judge found that the balance of hardships favors the plaintiff because: “(1) the States will be required to spend substantial sums of unrecoverable public funds if the Final Rule goes into effect; and (2) the Final Rule causes interference with government services, administrative disruption, employee terminations or reclassifications, and harm to the general public.”

In issuing the injunction, Judge Mazzant found a nationwide injunction to be proper as the new overtime rule is applicable to all states, not just the states participating in the suit. Furthermore, it is unclear the duration of this nationwide preliminary injunction. Specifically, Judge Mazzant enjoined the Department from implementing and enforcing the new overtime regulations “pending further order of this Court.”

In a prepared statement, the Department of Labor stated that it “strongly disagrees with the decision by the court, which has the effect of delaying a fair day’s pay for a long day’s work for millions of hardworking Americans.”

The statement goes on to read, “The Department’s Overtime Final Rule is the result of a comprehensive, inclusive rule-making process, and we remain confident in the legality of all aspects of the rule. We are currently considering all of our legal options.”

Read the statement in full or find more information, including Judge Mazzant’s order.

About the Author:

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

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

 

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

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

IOA Assessment Report Purpose

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

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

 

IOA Assessment Report Findings

As a result, the OIG concluded the following:

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

 

IOA Assessment Areas of Improvement

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

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

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

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

 

What Can I Do?

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

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

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

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

About the Author:

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

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

 

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