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Centre Law & Consulting

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 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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Give Me 5 Webinar Features Barbara Kinosky and Marina Blickley to Discuss HR Issues for Government Contractors | Centre Law & ConsultingOn 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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In a GAO decision released September 13, 2017, the GAO denied Walker Development & Trading Group, Inc.’s (“Walker”) request for reconsideration of the denial of its costs.

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

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

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

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

About the Author:

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

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

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Ten Things I Hate About Incurred Cost Proposals | Centre Law & Consulting in Tysons VA
 
If you remember the late 1990’s romantic comedy “10 Things I Hate About You” you might know that it did a lot of great things. It provided the platform for the venerable Heath Ledger’s coming out party, introduced the world to Julia Stiles, reminded us the kid from Third Rock from the Sun was, in fact, still here on Earth, and made more than $50M at the box office. Not too bad.

But as the law of unintended consequences often works, it also inspired this blog article about Incurred Cost Proposals.

With all apologies to the awful heading, the Incurred Cost Proposal does evoke some very specific emotion from those tasked with preparing, auditing, re-auditing, reading, reviewing, negotiating, or most importantly – signing them. They are a necessary evil for most services-based U.S. Government contractors. While the purpose of the Incurred Cost Proposal is a simple enough merit – to settle indirect costs under cost-type contracts between contractors and the U.S. Government – the evolution of the Incurred Cost Proposal has caused pain easily on par with that of Ms. Stiles’ loss of her Australian beau. And while Ms. Stiles was capable of some beautiful poetry to express her torment, I am not as skilled in that trade and so you will simply get an unpoetic list of 10 Things I Hate About Incurred Cost Proposals.

  1. The ICE Model – Using a model that every time you open it tells you “An error has occurred” is not a confidence inspiring event for a document that is supposed to be current, accurate, and complete.
  2. Your Name – Why did the FAR give you one name, the “Indirect Cost Rate Proposal”, but the industry and DCAA give you so many others? The Incurred Cost Proposal, the Incurred Cost Submission, the Indirect Cost Submission, The Indirect Cost Proposal, the ICS, the ICE Model, etc. We are happy to call them anything the government desires – just don’t call them delinquent.
  3. Audits Focused on Direct Costs – While I also hate that audits are untimely, I think I more dislike that the current audit environment is focused on direct costs. We had a recent experience where not a single indirect cost was sampled. For an “Indirect Cost Rate Proposal” audit, it’s a little odd that the indirect cost rate received so little attention. And, of course, forget the fact that all the direct costs have been submitted for government review already on each and every monthly invoice. This trend has found its way into the T&M labor costs specifically through MRDs, which have cost enormous sums of questioned costs to contractors who don’t have labor qualification support in the way of resumes more than 5 years ago.
  4. Unallowable cost sampling – What would this list be without mention unallowable costs. It must be done, but it sure is tedious. Now if we could just get to an agreement on which costs are expressly unallowable.
  5. Schedule J Subcontract Information – How much more information on my supply chain can I provide? Every new iteration of the ICE Model asks for more. It is becoming easier to acquire a subcontractor than monitor and report on them.
  6. Inconsistent Application of the DCAA Adequacy Checklist – The concept is great; however, the execution lacks some consistency. We’re even okay with the annual updating of the checklist to provide even greater comfort that our submissions are in fine shape for an audit. What we do hate is the inconsistent application of what meets adequacy within the checklist. DCAA is provided great liberty to accept or not accept certain elements of adequacy for purposes of commencing with an audit. Some consistency would nice. And, worst of all, the off-checklist item that leads to inadequacy determination takes the prize for most frustrating element of the process.
  7. When Total Cost Absorption reconciliation doesn’t work – Okay, not everything about the Indirect Cost Rate Proposal is a procedural flaw of our friends at the Government. Few accounting frustrations rival completing your proposal and performing the total cost reconciliation only to see that something isn’t working. You can always diagnose them, but not without a strong cup of coffee.
  8. Corporate Home Office “Incurred Cost Proposals” – If you have a corporate home office you may have been asked for one of these. Or maybe you haven’t. It’s impossible to tell since the request for these is not consistent across DCAA offices. In the event you are unfamiliar with what they are, they are a summary of those corporate home office costs allocated to the G&A pools of cost accounting segments. They’re easy to hate since all of this information is already included in the segment-level indirect cost rate proposal. It’s duplicative and with all the work done to be compliant, duplication of effort is not something we like to deal with (or clients like to pay for). However, it has been our experience that if you don’t submit it, you risk being deemed inadequate – even though this isn’t on the adequacy checklist, see # 7 above. They are a particular quagmire for entities with overseas parents where certification of G&A costs for U.S. Government accounting is an unfamiliar task.
  9. Executive Compensation – Figuring out the award dates of contracts in the middle of the year, determining which agencies each contract belongs to, then evaluating which employees the executive compensation applies to. Determining executive compensation limits in the current environment is a game of labyrinth. Once you figure this rubix cube out, you have to get an Advance Agreement with your customer to use blended rates in order to comply. Then once you have the maximum allowable amount determined, you need to evaluate if the labor costs beneath that are “reasonable” through market data searches, surveying, and a host of similar corroborative evidence.
  10. IR&D and B&P costs – These are everyone’s favorite bouncing ball. They’re in the overhead base, but also the G&A pool. This topic dominates almost all new contractors’ first FAR lesson. And when they’re not specifically identified in the project ledger they can become quite tricky. Forget if you’re a major contractor with heavy IR&D expenses and have to now both report on them and get pre-approval from your Contracting Officer or risk them being deemed unallowable.

 
But wait, there’s more!
If you’d like to share your own stories of Incurred Cost Proposals, or – even better – learn more about best practices for handling them, then join us for the “Incurred Cost Proposals: A Year In Review” webinar on January 12. Just one hour of your time now might save you many more if you’re up to speed on these current insights!

AUTHOR’S NOTE: As consultants, we routinely assist clients with the preparation of their Indirect Cost Rate Proposals. Please do not take our poor attempt at humor in this article as a lack of enthusiasm in any way for these services. We just liked the article heading as a forum to illustrate some of the contracting community’s frustrations.

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

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

 

 

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

It’s A Slant Downward

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

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

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

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

Now on to other news…

Protests

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

That Wall

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

Growth Areas 2017

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

Barbara Kinosky Barbara Kinosky
Managing Partner

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

 

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Centre Law & Consulting

On June 23, 2016, the General Services Administration (GSA) amended the General Services Administration Acquisition Regulation (GSAR) to include clauses that require vendors to report transactional data from orders placed against certain Federal Supply Schedule (FSS) contracts, Governmentwide Acquisition Contracts (GWACs), and Governmentwide Indefinite-Delivery, Indefinite-Quantity (IDIQ) contracts.

What does this mean and what do you need to know?

First, it’s important to clarify what Transactional Data is. Transactional data refers to the information generated when the Government purchases goods or services from a vendor. It includes specific details such as descriptions, part numbers, quantities, and prices paid for the items purchased.

With this final rule, key points to note are:

  • The TDR clause is being implemented under the GSA Schedules program on a pilot basis. TDR implementation for several Schedules and Special Item Numbers (SINs) will begin in August 2016 and extend through Q1 FY2017.
  • Currently, GSA plans for a 3-year pilot affecting specific SINS at which point the pilot will be reassessed. The following Schedules/SINs are impacted by the pilot:
    • 03FAC
    • 51V
    • 58 I
    • 72
    • 73
    • 75
    • Professional Services Schedule (only for the Engineering SINs)
    • 70 (only for the following SINs: 132 8, 132 32, 132 33, 132 34, 132 54, and 132 55)
  • The new TDR requirements will be mandatory only for new Schedule contracts awarded after the Schedule becomes subject to the pilot and at the time to extend the term of the Schedule contract. Please note that vendors holding existing contracts under pilot Schedules will be encouraged to accept the new clause via a bilateral contract modification. Once accepted, vendors will not need to comply with the Commercial Sales Practices (CSP) and Price Reductions Clause (PRC).
  • Contractors in the pilot program will have ninety (90) days to accept the Mass Mod incorporating TDR.
  • TDR data is reported monthly, and there is a 30-day window to report after the end of the month.
  • GSA is amending its pricing instructions in the General Services Administration Acquisition Manual (GSAM) to place greater emphasis on price analysis when negotiating prices with Schedule vendors.
  • IFF must still be paid quarterly. However, Contractors may choose to remit IFF on a monthly basis when they report their sales, but they must do so through the TDR system.

The impact of this new rule remains to be seen, so Centre Law and Consulting will continue to report on TDR news as it develops.

About the Author

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

Maureen Jamieson has more than twenty-five years of experience managing federal contracts. She is highly experienced in solving client pricing problems and implementing effective pricing strategies for placing products and services on GSA Schedule contracts. Maureen also frequently works with clients on effective selling and marketing strategies in the federal market space.

 

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Effective July 1, 2016, the Office of Federal Contract Compliance Programs (OFCCP) began using its new scheduling letter for compliance evaluations.

One of the most significant changes in the form document relates to the agency’s use of data and information submitted by contractors. The “old” letter stated:

Rest assured that OFCCP considers the information you provide in response to this Scheduling Letter as sensitive and confidential. Therefore, any disclosures we may make will be consistent with the provisions of the Freedom of Information Act.”

In contrast, the new letter states:

Please also be aware that OFCCP may use the information you provide during a compliance evaluation in an enforcement action. We may also share that information with other enforcement agencies within DOL, as well as with other federal civil rights enforcement agencies with which we have information sharing agreements.”

The National Labor Relations Board’s (NLRB) issuance of its memorandum on July 1, 2016 concerning the collection of information regarding labor law violations per the “Fair Pay and Safe Workplaces” Executive Order must be purely coincidental, no? (OM 16-23)

“Interesting times ahead,” contractors.

About the Author:

David Warner | 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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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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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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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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Bill Seeks to Limit Improper LPTA Use

Although Lowest-Price, Technically Acceptable (LPTA) procurements are conducted as part of the “best value” continuum, nothing seems to get the ire of industry up more than LPTA procurements, and the government’s seemingly ever-increasing use of the LPTA method.  Help may be on the way to curb the use of improper LPTA procurements in civilian departments.  The National Defense Authorization Act of 2017 already placed restrictions on use of LPTA procurements by the Department of Defense for procuring knowledge-based services.

Representative Mark Meadows introduced the “Promoting Value Based Procurement Act of 2017,” June 22, 2017.  The Bill, H.R. 3019, currently has three co-sponsors, all representatives from the Federal contractor-saturated Congressional Districts in Northern Virginia.

H.R. 3019 would amend the Federal Acquisition Regulation (FAR) requiring Federal civilian departments and agencies to take additional steps when conducting LPTA procurements.

If enacted, H.R. 3019 will require Federal civilian departments and agencies, when it comes to an LPTA procurement, civilian agencies must:

  1. Describe the agency’s minimum requirements in terms of performance objectives, measures and standards to determine acceptability of LPTA offers.
  1. Articulate in solicitations there is no value in offering items/services which will exceed the technical and performance requirements.
  1. Require solicitation language stating technical approaches will require no subjective judgment by the source selection authority for one LPTA proposal over another.
  1. Require source selection authorities reviewing technical proposals have high confidence offers other than the lowest-priced offer would not result in the identifying factors which provide value or benefit to the contracting agency.
  1. Contracting officers must also document the contract file with a justification for use of the LPTA evaluation methodology.
  1. Determine use of LPTA reflects full life-cycle costs, to include costs for operation and support.

H.R. 3019 restricts use of LPTA for IT services, cybersecurity services, advanced electronic testing, systems engineering and technical assistance services, and other similar “knowledge-based” professional services.  Restrictions also apply to the use of LPTA procurement strategies for acquiring personal protective equipment, and knowledge-based training or logistics services in support of overseas contingency operations.

H.R. 3019 was referred to the Committee on Oversight and Government Reform.  There is no related bill in the Senate at this time.

 

By Wayne Simpson

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

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

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

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

Read more on the GAO website.
 
About the Author

Barbara Kinosky Barbara Kinosky
Managing Partner

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

 

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Spring Cleaning for Your GSA Schedule | Centre Law & Consulting in Tysons, VA
 
As spring approaches, it’s the time of year when we are all busy dusting off and cleaning up around the house, but do not forget to spruce up your General Services Administration (GSA) Schedule contract as well.

Below are key items to consider when spring cleaning your GSA Schedule:

Authorized Negotiators/Digital Certificates: Have you reviewed the authorized negotiators on your GSA Schedule recently? If any authorized negotiators need to be removed or added, this can be completed via an administrative modification. Has it been two years since your received your digital certificate or did you get a new computer recently? It is important to check that your digital certificate is still valid and is on your current computer. Without a digital certificate, an authorized negotiator will not be able to access the eMod system. If the information on your digital certificate does not match what is listed in the authorized negotiator table in eMod, you will need to complete an administrative modification to make the updates. NOTE: Digital Certificates are only valid for two years.

Administrative Contract Data: Ensure that the Contract Administrator, phone and fax number, e-mail address, website, and physical address are up-to-date on your contract. GSA will use this information to communicate with you, so you do not want to miss out on important updates.

Pricing – Commercial Price List: Have you issued a new commercial price list and need to increase your prices? It is time to complete an Economic Price Adjustment (EPA) modification in accordance with 552.216-70.

Pricing – Market Rates: Have your completed your annual EPA modification in accordance with I-FSS-969(b)(2)? If not, it is time to review the Bureau of Labor Statistics (BLS) website to find the market indicator applicable to your contract and request an EPA modification.

Additions: Do you have new products or services that you want to add to your GSA Schedule? If you have sold these new products or services, it is time to submit an addition modification to include these new products and/or services on your Schedule.

Deletions: Are there any products or services that you no longer offer? It is time to complete a deletion modification to remove these products or services from your schedule. If you have products, have you verified the Country of Origin (COO) for them lately? If the COO has changed to a non-Trade Agreement Act compliant country, you must submit a deletion modification to remove those products immediately.

Terms & Conditions: Have your reviewed your terms and conditions within the last year? It is important to evaluate your Basis of Award (BOA) and Commercial Sales Practices (CSP) annually to determine if there have been any changes. Reviewing this information annually will help prepare you for your Option Renewal. If anything has changed in regards to your BOA or CSP, it’s time to complete a term and condition modification.

GSA Advantage! Price List: Is your GSA Advantage! price list up-to-date? Ensure that your price list has been updated per the last modification awarded under your GSA Schedule. If you have not updated your price list in two years, you will receive a notice from GSA that will require action within 90 days or your price list will be removed from GSA Advantage.

Mass Modifications: Have you checked to ensure that all mass modifications have been accepted? Click here to verify their status. If you have long outstanding mass modifications, it is possible that your PIN has expired. You will need to reach out to your Administrative Contracting Officer (ACO) to obtain a new PIN.

Small Business Reports: If you are a large business, ensure that all of your subcontracting reports are submitted. Below are the reporting deadlines for both Individual Small Business Subcontracting Plans and Commercial Small Business Subcontracting Plans.

Calendar Period Report Due Date Due
10/01 – 03/31 ISR (Individual Plan) 04/30
04/01 – 09/30 ISR (Individual Plan) 10/30
10/01 – 09/30 SSR (Commercial Plan) 10/30

 
IFF Reports: Are all of your Industrial Funding Fee (IFF) reports complete? Reports and IFF remittance must be completed within 30 calendar days following the completion of each reporting quarter. Even if you had zero sales during the reporting period, you are still required to complete your reports.

Before completing any modifications to clean up your GSA Schedule, review the modifications instructions applicable to your schedule to ensure that you submit all required documentation. If you need assistance updating your contract, reach out to our GSA consulting team.

GSA Schedule Spring Cleaning Checklist free download | Centre Law & Consulting in Tysons, VA
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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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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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Bid Protests: Protester’s Costs for Filing Bid Protest Denied Even Where Agency Does Not Dispute a Meritorious Protest | Centre Law & Consulting in Tysons, VA
 
In a recent GAO decision, Boise Cascade Wood Products, LLC, B-413987.2 (Apr. 3, 2017), the GAO denied a small business’ request for reimbursement of the costs of filing and pursing a bid protest where the protester argued that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest.

In this matter, the protester pursued a protest against the Forest Service, which involved both a timber sale and a procurement of services. Specifically, the Forest Service issued a solicitation for a forest stewardship contract, which typically also involves the sale of timber or forest products and the performance of certain services. What gives this decision its interesting twist is that the Forest Service’s implementing regulations provide that when the value of timber removed through the contract exceeds the total value of the services, it shall be considered a contract for the sale of property.

As a general matter, sales by a federal agency are not procurements of property or services and are not within the GAO’s bid protest jurisdiction. However, the GAO will consider protests concerning sales by a federal agency if that agency has agreed in writing to have protests decided by the GAO; the Forest Service has expressly agreed to this, creating a non-statutory agreement with the GAO.

In this case, as the value of the timber significantly exceeded the value of the services, the agency determined to solicit the contract as a timber sale. As such, the GAO found that the cost reimbursement request was precluded by its regulations, which establish that it will not recommend the payment of protest costs in connection with non-statutory protests.

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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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

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

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

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

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

About the Author:

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

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

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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.

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

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

NewsChanne 8 Washington DC Logo
 

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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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