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GAO Sustains Protest on Four Billion Dollar Solicitation Evaluation

In its September 18, 2017 decision, the GAO sustained McCann-Erickson USA, Inc.’s (“McCann”) protest challenging the Army’s preliminary elimination of McCann’s proposal for advertising services on an acquisition valued up to $4 billion.  After receiving numerous proposals the Army performed a “compliance review” aimed at thinning the number of proposals before applying the evaluation criteria detailed in the requests for proposals. McCann’s proposal was eliminated for alleged failures in following the proposal preparation instructions. The GAO agreed McCann’s proposal did not comply with the exact format requested in the solicitation, but stated such problems were not sufficient, on their own, to exclude a proposal before taking a more substantive look at the proposal’s contents. This decision is supported by the fact that the solicitation gave no warning the Army would be taking such a harsh pass/fail look at compliance with proposal preparation instructions. It certainly did not help that at least some of the alleged deficiencies of the proposal were found, by the GAO, to really be mistakes by the Army. The GAO walks through such examples including, the Army’s inability to search for McCann’s certifications in the system for award management database, despite being provided the correct name and code. The GAO also found the Army’s refusal to evaluate McCann’s price proposal submission because it was in PDF format rather than the requested Excel format was unreasonable. While previous GAO decisions have supporting an Agency’s harsh response to such unfollowed format requests, here the Army did not put forth any reason why submission in PDF format, rather than Excel, poised any problems. This decision is not quite landmark, but does give push back to the government’s seemingly increasing use of “pre-evaluation…evaluations” in the face of an overwhelming number of proposals. About the Author: Tyler Freiberger
Associate Attorney
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia. The post GAO Sustains Protest on Four Billion Dollar Solicitation Evaluation appeared first on Centre Law & Consulting.
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Awardee’s Below Market Employee Compensation Not a Win for Protester

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
Managing Partner
Barbara Kinosky has more than twenty-five years of experience in all aspects of federal government contracting and is a nationally known expert on GSA and VA Schedules and the Service Contract Act. She has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012, and 2015.   The post Awardee’s Below Market Employee Compensation Not a Win for Protester appeared first on Centre Law & Consulting.
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Wishing You a Happy Thanksgiving

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.
 
About the Author 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.   The post Wishing You a Happy Thanksgiving appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

GSA Reviews FY2016 and FedRAMP Looks Ahead to 2017

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
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.   The post GSA Reviews FY2016 and FedRAMP Looks Ahead to 2017 appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

Changes to Subcontracting Reporting Requirements—Effective November 30, 2017

By Colin Johnson A Final Rule published in the Federal Register July 14, 2016, effective November 1, 2016, amended the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the U.S. Small Business Administration (SBA) , which provide for a Governmentwide policy on small business subcontracting.  One of the changed requirements effects subcontracting reports submitted after November 30, 2017. Specifically, the language at FAR 19.704(a)(10)(iii), 52.219-9(d)(10)(iii), and 52.219-9 Alternate IV (d)(10)(iii)—was revised to require order-level reporting on single-award, indefinite-delivery, indefinite-quantity contracts intended for use by multiple agencies in addition to multiple-award contracts in use by multiple agencies and to clarify that the order-level reporting would be required after November 30, 2017, which is when the Electronic Subcontracting Reporting System (eSRS) will be ready to accommodate this requirement. This rule is implementing the regulatory changes made by the SBA and will allow for the facilitation of allocating subcontracting credits to funding agencies. This allocation will help ensure that funding agencies are recognized and incentivized to promote small business subcontracting on orders.  It is important to keep in mind that these reporting requirements apply to all orders on a single-award IDIQ contract intended for use by multiple agencies regardless of dollar value. These changes will apply to solicitations issued on or after the effective date or at the contracting officer’s discretion in accordance with FAR 1.108(d). FAR Clause 52.219-9, Subcontracting Plan Requirements (JAN 2017), the most recent update of the clause, contains the revised language The post Changes to Subcontracting Reporting Requirements—Effective November 30, 2017 appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

Wojciech Kornacki Quoted in Bloomberg BNA Article on HHS IT Competition Cancellation

Reproduced with permission from Federal Contracts Report, 105 FCR (July 27, 2016). Copyright 2016 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com HHS Couldn’t Justify IT Competition Cancellation, COFC Says The Department of Health and Human Services couldn’t justify its cancellation of an IT competition that a protester claimed was tainted by bias, the U.S. Court of Federal Claims said (Starry Assocs. Inc. v. United States, 2016 BL 241279, Fed. Cl., No. 16-44C, 7/27/16). Judge Eric G. Bruggink set aside the cancellation because there was no evidence the agency meaningfully reviewed its IT needs before making that decision. The court also barred several agency employees from participating in any subsequent competition actions. The case “shows the recent trend that courts will hold federal agencies accountable for arbitrarily canceling solicitations or failing to take meaningful corrective actions. In this case, we have both,” Wojciech Z. Kornacki of Centre Law & Consulting LLC told Bloomberg BNA. It was noteworthy that the court granted injunctive relief, Kornacki said. “The court felt that the public interest favored the injunction because the public had an interest in the integrity of the federal procurement,” he said. “The court found that the agency actions reflected ‘a lack of fidelity to the procurement process.’” This action was necessary for Starry to get access to discovery tools, like depositions, that aren’t available at the Government Accountability Office, said Sandy Hoe, senior of counsel at Covington & Burling LLP. “But that discovery tool in a bid protest is limited to extraordinary situations such as here,” he said. “I would expect to see that tool being used in very few other circumstances.” Prohibiting the government from canceling a solicitation is unusual, he added. “The reasoning makes sense given the bias here, but that relief is only a few steps short of the court directing an award to a party, which is virtually never done,” he said. “Another option the court might have exercised was to order the agency to pay Starry’s bid and proposal costs and allow the solicitation to be canceled. “Apparently, the court was not willing to let the agency off the hook so easily given the agency’s bad conduct,” Hoe said. Award Affirmed Incumbent protester Starry Assocs. Inc. filed a protest with the Government Accountability Office (GAO) after the agency awarded a task order to Intellizant LLC. The agency took corrective action by re-evaluating quotations, but then affirmed the award. Starry filed a second protest that the GAO partially sustained, recommending that the agency re-evaluate Intellizant’s quotation. Shortly thereafter, the agency canceled the solicitation. Starry protested the cancellation as pretextual and biased because it argued the agency was trying to steer the award toward Intellizant. The GAO rejected the protest, so Starry pursued the matter with the court (105 FCR 22, 1/12/16). In April, the court granted Starry’s request to depose agency officials because Starry made a strong bias case against an agency official who previously worked for Intellizant (105 FCR 306, 4/12/16). Reevaluation Not Serious The court concluded that it didn’t have to reach a decision on the bias claim because the cancellation was clearly arbitrary. Once agency officials selected Intellizant, any other result was unwelcome and not seriously considered, the court said. Officials told the GAO and Starry they would undertake a serious re-evaluation of Intellizant’s proposal, but the record didn’t reflect such an effort, the court found. The agency official charged with the cancellation decision said the cancellation was reasonable because other contract vehicles could meet the agency’s needs. However, the record didn’t show that he compared those vehicles, and his supervisor and colleagues didn’t double-check his assertion. Agency officials also said Starry would have received the award had the GAO’s recommendation been followed. Therefore, the court set aside the cancellation decision, and said the agency should again re-evaluate Intellizant’s proposal, as the GAO said in its second decision. In addition, the court enjoined certain officials from participating in any subsequent agency actions in this competition. Depositions with those officials “provide an illuminating, if depressing, window” into how they misrepresented the quality of their evaluation, the court said. Specifically, one official rated Intellizant as technically acceptable despite having insufficient knowledge of the agency’s software, the court said.
  The post Wojciech Kornacki Quoted in Bloomberg BNA Article on HHS IT Competition Cancellation appeared first on Centre Law & Consulting.
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New Decisions in Bid Protests and How Kim Kardashian Made It to the Supreme Court

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
Associate Attorney
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.   The post New Decisions in Bid Protests and How Kim Kardashian Made It to the Supreme Court appeared first on Centre Law & Consulting.
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DOL Raises (and Lowers) Health and Welfare Fringe Rate for Service Contractors

Just when you thought Service Contract Act compliance couldn’t get any more complicated, along comes the U.S. Department of Labor (“DOL”) to prove you wrong. Last week, the DOL issued All Agency Memorandum No. 225 which increased the applicable Health and Welfare (“H&W”) fringe rate from $4.27 per hour to $4.41 effective today, August 1, 2017. While the adjustment to H&W was expected, the DOL’s actions with respect to federal contracts subject to Executive Order 13706 was not. As a refresher, Executive Order 13706 established mandatory paid sick leave for federal contractors. Specifically, the Order requires covered contractors to provide employees with up to 56 hours (seven days) of paid sick leave annually, including for family care and absences resulting from domestic violence, sexual assault and stalking. The requirement applies to new contracts with the federal government that result from solicitations issued on or after January 1, 2017 (or that are awarded outside the solicitation process on or after January 1, 2017). In an unexpected development, AAM No. 225 noted that “[e]mployer contributions that are made to satisfy the employer’s obligations under EO 13707 may not be credited toward the contractor’s [H&W] obligations under the SCA.” The Memorandum continued, “[t]o comply with EO 13706, an alternate health and welfare rate has been established that excludes the sick leave portion of the calculated health and welfare rate.” Specifically, as of August 1, 2017, the H&W rate for contracts subject to EO 13706 will be $4.13 per hour – i.e., $.28 lower than the $4.41 H&W rate applicable to contracts that do not require paid sick leave. While reasonable minds can differ over whether this reduced rate is in fact necessary “to comply with EO 13706,” fallout from the lower alternative rate will likely be immediate. First, affected employees receiving cash in lieu of benefits will undoubtedly note the reduction in pay. In addition, affected contractors may be required to provide negative contract price adjustments in light of the H&W rate decrease. Finally, it will be necessary for contractors to monitor contracts and task orders to determine the appropriate rate particularly as the EO 13706 becomes more prevalent as legacy contracts expire and are replaced by contracts solicited after January 1, 2017. About the Author: David Warner
Partner
David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices. The post DOL Raises (and Lowers) Health and Welfare Fringe Rate for Service Contractors appeared first on Centre Law & Consulting.
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The Procurement Puzzle: Putting the Pieces Together to Boost Federal Sales

The Federal Marketplace can be challenging and risky for the uninitiated, and even for seasoned contractors. The Federal Acquisition Regulation (FAR) alone contains 53 parts over 1,903 pages, including nearly 590 provisions and clauses (some with alternates), and many of which will ultimately find their way into your contracts. And this doesn’t even include Agency-specific acquisition regulations which supplement and implement the FAR. As if securing and administering government contracts were not challenging enough, how about trying to figure out the puzzle of who buys your supplies and services, where and how they buy them, and who do they buy from? Unfortunately, some folks still rely exclusively on agencies’ Forecasts of Contracting Opportunities (FCO) thinking this is all they need for identifying upcoming procurement opportunities. While Federal Law (P.L. 100-656) requires all Federal agencies with procurement budgets of $50+ Million (almost all of them these days) to publish an FCO, the FCOs from most agencies are unfortunately not robust, are hardly all-inclusive with their information, and only tell part of the story. Fortunately putting together the Who—What—When—Where and How puzzle pieces is much easier than securing and administering a contract thanks to the Federal Procurement Data System — Next Generation, commonly known as FPDS-NG or FPDS. A Better Solution A great way to know where procurements are going is to see where they’ve been. That’s where Federal Procurement Data System comes in. It is the real-time relational database serving the government acquisition community as the authoritative source of contract information, which contains summary level data and is used at all levels of the Federal government for policy and trend analysis. The numbers and data in FPDS change every hour of every workday. The system contains millions of transactions, and there are millions of permeations for extracting various combinations of data elements to suit your unique needs. Unlike FPDS, the USAspending.gov website uses a static approach to capturing and reporting data, meaning the data is presented and simple charts and graphs which do not change until the next update, which is required every 30 days under the Federal Funding Accountability and Transparency Act. This makes access to current and real-time data through FPDS is invaluable, and knowing how to put the pieces of this puzzle together can help competitively position your company and help boost your federal sales. Hands-On Learning Don’t be overwhelmed by the idea of learning a system that might new to you though! On August 16, 2016, learn the intricacies of FPDS in one-day course, “Introduction to the Federal Procurement Data System”. This hands-on, dynamic course unlocks the mysteries and power of FPDS for your company’s competitive benefit and includes content such as: Providing an overview and requirements of FPDS reporting by Federal agencies Detailing what transactions are required to be reported along with what is available and what is not available through FPDS Learning who buys what, how they buy, and whether these procurements are conducted through the Federal Supply Schedules Program, Other Government Agency Contracts, or on the open market Identifying when your competitors’ contracts will expire or when other contracts in your commercial line of endeavor are due to expire and be re-competed Discovering if set-asides are used in acquiring the products and services you offer and how you may qualify Explaining the distinct advantages of using FPDS vs. USAspending.gov This course will use a combination of both lecture and hands-on laboratory, whereby participants will create individual FPDS accounts and actually create and run reports using standard reporting as well as the system’s invaluable and powerful ad hoc reporting capabilities. The critical knowledge, skills, and abilities gained from this intense one-day training class can be taken back to the workplace, along with reports ready to be run and re-run to meet your company’s needs. What’s In It for You? Enhance your company’s competitive position in the Federal market place by harnessing the power of procurement data. Stop wasting scarce marketing resources targeting agencies where opportunities do not exist. Instead, use data from FPDS to focus, target, and hone your marketing efforts in areas which will offer the best potential returns on your marketing investment. You’ll also save time by eliminating the need for time-consuming and often costly Freedom of Information Act (FOIA) requests for data. Your competitors have this information and use it to their competitive benefit and advantage, why shouldn’t you? If you want to be the “go-to-person” at your company for this type of data and you want your company to be more competitive, then this course is for you. We look forward to seeing you on August 16, so we can put the puzzle pieces together! About the Author Wayne Simpson, CSCM
Wayne Simpson is a seasoned former Federal executive and acquisition professional who is also a highly-motivated and demonstrative small business advocate, with nearly 38 years of Federal Civilian Service with the U.S. Department of Veterans Affairs (VA), and its predecessor organization, the Veterans Administration.   The post The Procurement Puzzle: Putting the Pieces Together to Boost Federal Sales appeared first on Centre Law & Consulting.
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Lowest-Price, Technically Acceptable (LPTA) Reform Legislation Introduced

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: Describe the agency’s minimum requirements in terms of performance objectives, measures and standards to determine acceptability of LPTA offers. Articulate in solicitations there is no value in offering items/services which will exceed the technical and performance requirements. Require solicitation language stating technical approaches will require no subjective judgment by the source selection authority for one LPTA proposal over another. 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. Contracting officers must also document the contract file with a justification for use of the LPTA evaluation methodology. 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 The post Lowest-Price, Technically Acceptable (LPTA) Reform Legislation Introduced appeared first on Centre Law & Consulting.
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SBA Adopting the 2017 NAICS Size Standards

The U.S. Small Business Administration (SBA) is amending its small business size regulations to incorporate the NAICS revision for 2017.  The proposed rule was issued by the SBA on April 18th and is currently open for comments until June 19th.  The NAICS changes for 2017 include the creation of 21 new industries.  These new NAICS codes were created from combining, reclassifying, or splitting 29 existing industries.  The new NAICS codes have resulted in an increase to the size standards for six NAICS industries and a part of one industry, a decrease to size standards for two, and a change in the size standards from average annual receipts to number of employees for one. When determining these size standards changes for NAICS codes, the SBA uses the following process: If the new NAICS code is comprised of a single NAICS 2012 industry, the same size standard is used. If a new NAICS code is a combination of two or more NAICS 2012 industries or parts of those industries and: The industries all have the same size standard, the new NAICS will have the same size standard. The industries all have the same size measure, but not the same size standard, the new NAICS will use the same size standard for the NAICS 2012 that most closely matches the economic activity or the highest size standard. The industries have different size measures, SBA will use the NAICS 2012 industry that most closely matches the economic activity or the highest size standard amount NAICS 2012 industries. In this situation, the SBA coverts all size standards to single measure such as receipts or employees. A few of the industries effected by this change include crude petroleum extraction, natural gas extraction, mining, major household appliance manufacturing, department stores, electronic shopping, and others. You can find the full list located at the Federal Register. These changes are proposed to be adopted effective 10/1/17 or at the beginning of the fiscal year. Get your comments in while you can! 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.   The post SBA Adopting the 2017 NAICS Size Standards appeared first on Centre Law & Consulting.
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VA Reduces Administrative Burden on SDVOSBs and VOSBs

The Department of Veterans Affairs (VA) published an Interim Final Rule in the February 21, 2017, edition of the Federal Register, increasing the period for re-verification examination by VA’s Center for Verification and Evaluation (CVE) of Service-Disabled Veteran-Owned Small Business (SDVOSB) and Veteran-Owned Small Business (VOSB) program participants from two years to three years. Purpose The purpose of this change, effective February 21, 2017, is to reduce the administrative burden on SDVOSBs and VOSBs participating in VA acquisition set-aside for these types of firms pursuant to the authorities of Public Law 109-461, the Veterans Benefits, Health Care and Information Technology Act of 2006 (the Act), implemented by the VA as the “Veterans First Contracting Program.” The Act requires VA to verify ownership and control of SDVOSBs and VOSBs in order for those firms to participate in acquisitions VA sets aside for SDVOSBs and VOSBs. VA has continuously administered the verification program since February 2010, at which time re-verification was required annually. In June 2012, the re-examination period was extended to two years. In changing from a biennial re-examination eligibility period to three years, VA believes it adequately balances maintaining program integrity while reducing the administrative burden on SDVOSBs and VOSBs. In reaching this determination, VA cited statistical data from Fiscal Year 2016, which showed out of 1,109 reverification applications, only ten were denied, ergo, only 0.9 percent of reverification applications were found to be ineligible after two years. VA relies very heavily on its initial eligibility examination of firms, which it describes as robust, and as such believes the integrity of the program will not be compromised by extending the period for reverification. Process As part of its initial examination, VA CVE reviews personal and company documentation to verify ownership and control by Veterans of the business applying for verification. Documents include personal and company financial statements; Federal personal and business income tax returns; personal history statements; articles of incorporation/organization; corporate by-laws or operating agreements; organizational, annual, and board/member meeting records; stock ledgers and certificates; State-issued certificates of good standing; contract, lease, and loan agreements; payroll records; bank account signature cards; and various licenses. Additionally, VA conducts random, unannounced site examinations of participants in order to examine or further examine a participant’s eligibility, including upon VA’s receipt of specific or credible information that the participant is no longer eligible. Additionally, VA contracting officers and competing SDVOSBs and VOSBs have the right to raise a SDVOSB/VOSB status protest to VA’s Office of Small and Disadvantaged Business Utilization should either have a reasonable basis upon which to challenge the SDVOSB/VOSB status of a VA CVE-verified firm. VA regulations mandate program participants maintain eligibility during its tenure, and if ownership or control changes occur, participants are required to notify VA’s CVE of any changes which would adversely affect the participant’s eligibility as a VA CVE-verified SDVOSB/VOSB. VA maintains the Vendor Information Pages (VIP) Database, a database of firms verified by CVE and eligible to receive awards under the Veterans First Contracting Program. As of February 24, 2017, the VIP Database list 9,287 firms (6,917 SDVOSBs and 2,370 VOSBs). VA’s current Veteran Small Business Regulations are codified at 38 C.F.R. Part 74. Comments Written comments on the Interim Final Rule must be submitted on or before April 24, 2017. Comments may be submitted directly to VA at the address shown in the Federal Register Notice or at www.regulations.gov. Comments should indicate they are submitted in response to “RIN 2900-AP93—VA Veteran-Owned Small Business Verification Guidelines.” Note that all comments received will be available for public inspection at VA’s Central Office in Washington, DC. About the Author: Wayne Simpson
Consultant
Wayne Simpson is a seasoned former Federal executive and acquisition professional who is also a highly-motivated and demonstrative small business advocate, with nearly 38 years of Federal Civilian Service with the U.S. Department of Veterans Affairs (VA), and its predecessor organization, the Veterans Administration.   The post VA Reduces Administrative Burden on SDVOSBs and VOSBs appeared first on Centre Law & Consulting.
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Changes to Trade Agreements Act Thresholds

By Wayne Simpson, CFCM, CSCM New Thresholds for 2018 and 2019 The United States Trade Representative (USTR) has determined and announced new U.S. Dollar Procurement Thresholds implementing U.S. Trade Agreement obligations, effective January 1, 2018, for calendar years 2018 and 2019. The Trade Agreements Act of 1979 (TAA) implements international trade agreements and guarantees non-discriminatory treatment in government procurement. TAA provides the President of the United States authority to waive the Buy American Act and other discriminatory provisions for countries having signed international trade agreements with the United States, and those meeting other criteria such as “Least Developed Countries.”  The President delegates waiver authority to the USTR. The USTR waived the Buy American Act and other discriminatory provisions for acquisitions of eligible products covered by the World Trade Organization Government Procurement Agreement, Free Trade Agreement Acts, and the Israeli Trade Act. Offerors of eligible products receive equal consideration with domestic offers. Perhaps the most significant of the Trade Agreements is the World Trade Organization Government Procurement Agreement.  Free Trade Agreement Acts (FTA) include: The North American Free Trade Agreement (NAFTA), Chile FTA, Singapore FTA, Australia FTA, Morocco FTA, Dominican Republic-Central American FTA, Bahrain FTA, Oman FTA, Peru FTA, Korea FTA, Columbia FTA, and the Panama FTA. Other Trade Agreements include least developed countries designated by the USTR, The Caribbean Basin Trade Initiative, the Israeli Trade Agreement Act, and the Agreement on Trade in Civil Aircraft. Specific thresholds for the respective Trade Agreements is found at Federal Acquisition Regulation (FAR) 25.402. Centre Law and Consulting offers webinars and classroom instruction for the Trade Agreements Act and other contract compliance and administration issues to assist your company.  Centre also offers a wide array of classes taught by attorneys and acquisition professionals to assist you in the Federal Marketplace. CLICK HERE TO SEE/DOWNLOAD A CHART CONTAINING THE NEW TAA THRESHOLDS   About the Author: Wayne Simpson
Consultant
Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official.     The post Changes to Trade Agreements Act Thresholds appeared first on Centre Law & Consulting.
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GSA’s Horizontal Tilt Plus Three Things to Know

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
Managing Partner
Barbara Kinosky has more than twenty-five years of experience in all aspects of federal government contracting and is a nationally known expert on GSA and VA Schedules and the Service Contract Act. She has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012, and 2015.   The post GSA’s Horizontal Tilt Plus Three Things to Know appeared first on Centre Law & Consulting.
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Spring Cleaning for Your GSA Schedule

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.
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About the Author: Julia Coon
Consultant
Julia Coon is GSA and VA Contract Consultant at Centre Law & Consulting. Julia works with the GSA/VA team in preparing new schedule proposals and post-award contract administration. She has experience in producing schedule renewal packages, various modification packages, small business subcontracting plans, and updates to GSA pricelists.   The post Spring Cleaning for Your GSA Schedule appeared first on Centre Law & Consulting.
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An Agency Taking Corrective Action Does Not Necessarily Mean You Will Receive Your Protests Costs

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
Associate Attorney
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow. The post An Agency Taking Corrective Action Does Not Necessarily Mean You Will Receive Your Protests Costs appeared first on Centre Law & Consulting.
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Pre-Award Audit: Is it Time to Panic?

Are you prepared for a letter from the U.S. General Services Administration Office of Inspector General (GSA OIG) stating that your company has been selected for a pre-award audit of the Commercial Sales Practice (CSP) pricing information that will become the basis for the pricing on your contract option extension? The Primary purpose of a Pre-Award Audit The purpose of the pre-award audit pursuant to Clause 52.215-21 Alternate IV (GSAM 515.408(a) (4) of the contract is to ensure that the CSP information is an accurate, current, and complete description of your practices and pricing. Keep in mind that the advisory nature of the pre-award audit is different from most other audits. The results of the pre-award audit will be passed on to your Contracting Officer to provide additional information for negotiation purposes. In addition, you should expect to be granted authority to review the results of the audit. What Happens During a Pre-Award Audit? The auditor will seek to verify the accuracy of the latest CSP information submitted. The auditor will want to know the methodology used to develop the CSP information in addition to the source sales data reviewed in preparing the CSP information. You will be asked to explain why any sales information, such as specific classes of customers or discounting, were excluded and the reasons for the exclusion. The auditor will review your company’s billing and information systems to verify the completeness and accuracy of the information submitted. The auditor will review the terms and conditions with major commercial customer’s master agreements (as applicable).   What Are the Time Constraints and Consequences of Not Complying? Information will be required approximately one (1) month from the receipt of a letter of notification. Contact your assigned auditor within seven (7) days of receipt of the letter and be prepared to discuss specific data requirements. Your Contracting Officer can elect not to extend your contract if there is failure to respond to your auditor. Failure to cooperate with the GSA OIG could result in contract cancellation in accordance with GSAR Clause 552.238-73, Cancellation.   What are the results of GSA OIG pre-award audits? During the reporting period of April 1, 2016 – September 30, 2016, the IG auditors performed pre-award audits of 37 contracts with an estimated value of almost $9.5 billion and recommended that more than $324 million of funds be put to better use. Significant findings included that contractors had supplied commercial sales practices information that was not current, accurate, and complete; had proposed overstated labor rates and used unqualified labor; and that Price Reductions Clause compliance monitoring was ineffective. In summary, the answer to my original question is NO; it is not time to panic. It’s time to ensure your CSP is accurate, current, and complete and provides all required disclosures and that all requested documentation/data is provided to your auditor within the required time frames. If you need assistance in responding to your Contracting Officer/GSA OIG auditor, contact our GSA team.
 
About the Author: 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.   The post Pre-Award Audit: Is it Time to Panic? appeared first on Centre Law & Consulting.
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Trending Federal Contracting Issues You Should Know

How is your relationship with the government going? Have you heard about the “transformational changes” that are being made to the GSA’s Federal Supply Schedules Program? And do you really know how many moons the Earth has? Below is a round up of recently trending Federal Contracting issues you should know about. Overly Restrictive Solicitations. Nexagen Networks of Aberdeen, Maryland, challenged the terms of a task order request issued by the Army for information technology services. Nexagen argued that the solicitation’s requirements for experience with Oracle Endeca Information Discovery (OEID) was unduly restrictive of competition and created bias in favor of the incumbent contractor. GAO denied the protest. From the decision: “Moreover, to the extent Nexagen’s premise is that there is no equivalent software available, that alone would not demonstrate that the TOR’s requirement is unduly restrictive. Again, the issue is not whether the specification restricts competition, but whether the specification is reasonably necessary to meet the agency’s actual needs. Even where specifications are based on a particular product – or, as Nexagen alleges here, a particular firm’s capabilities or experience – we have found that this type of requirement is not improper in and of itself; nor will an assertion that a specification was “written around” features offered by a particular firm provide a sustainable basis for protest if the record establishes that the specification is reasonably related to the agency’s minimum needs”. And so it goes. Gov Con Marketplace Musings Elvis lives. The theme song for incumbents this year is “Heartbreak Hotel”. I am seeing fewer incumbent wins as the government cares less about the relationship and more about the cost. I am also seeing agencies take single-award contracts and, instead of the usual recompete for the follow on contract, they are awarding the work as a task or delivery order off a multiple-award contract vehicle. (Side note – usually the one you are not on.) Multiple requirements are also being bundled into single winner-take-all order awards. What are you seeing in the marketplace? Share your thoughts and observations in the comments below. VA Privatization Veterans Affairs privatization is moving along on several fronts. Sen. John McCain introduced a bill that will allow veterans to opt out of the VA healthcare system and use local healthcare providers. The VA Commission on Care is expected to issue a final report any day now. The draft report shifted health care to for veterans to more private providers. Most veterans groups oppose privatization. Old News and the Creation of Mass Hysteria by Law, Accounting, and Consulting Firms The Supreme Court issued a decision on Escobar holding that the implied false certification theory can be a basis for liability under the False Claims Act (for government contractors) when a defendant submitting a claim makes specific representations about the goods or services provided, but it fails to disclose non-compliance with material statutory, regulatory, or contractual requirements that make those representations misleading with respect to those goods or services; and liability under the FCA for failing to disclose violations of legal requirements does not turn upon whether those requirements were expressly designated as conditions of payment. Key word is material. Final Rule Released on GSA Transactional Data According to the U.S. General Services Administration (GSA) website, a final Transactional Data Reporting (TDR) rule will publish in the Federal Register on June 23, 2016. The rule “will reduce unnecessary burdens on contractors and small businesses and potentially save millions of dollars for the American taxpayer…and will be implemented through a pilot program across GSA contract vehicles.” It is seen as one of the most transformational changes to GSA’s Federal Supply Schedules Program in more than two decades. A Trick Question Use this when you don’t want to pick up the check. How many moons orbit the earth? Answer: 1.5 moons. NASA has just located a mini moon in our orbit. About the Author Barbara Kinosky
Managing Parnter
Barbara Kinosky has more than twenty-five years of experience in all aspects of federal government contracting and is a nationally known expert on GSA and VA Schedules and the Service Contract Act. She has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012, and 2015.   The post Trending Federal Contracting Issues You Should Know appeared first on Centre Law & Consulting.
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Should I stay or should I go? Transactional Data Reporting (TDR)

Over a year ago, GSA published a final General Services Acquisition Regulation (GSAR) rule incorporating Transactional Data Reporting (TDR) into select product and service schedules in the Multiple Award Schedules (MAS) program. Initial participation in the TDR pilot was optional for existing contractors. However, new offerors and existing contractors with upcoming options were required to participate in the pilot. GSA is now making participation in the TDR pilot voluntary. Any vendor required to accept TDR with a new pilot offer, had a TDR option exercised, or added a TDR SIN to their contract will have an opportunity to opt out of TDR.  If a vendor does not take advantage of this one-time opt out, there will be no additional opportunities to get out. You can also opt into TDR on pilot schedules but remember there will be no additional chances to withdraw once you make this election. As a caveat, any vendor who voluntarily accepted the TDR Implementation Mass Mod (A509) will be required to stay in TDR. GSA anticipates refreshing TDR schedules in mid-October. Schedules 03FAC, 51V, 58 I, 72, 73 and 75 will be refreshed to add the legacy clauses back to the solicitation and TDR SINs on Schedules 70 and the Professional Services Schedule (PSS) will reflect the removal of language pertaining to mandatory participation. Once the solicitations are refreshed and not before, vendors will receive a notification from their Contracting Officer (CO). A vendor will have 60 days to respond to their CO with their intent. If no response is received within the 60 days, a vendor will remain in the TDR pilot. What will be required if you make the decision to opt out of TDR? Provide updated Commercial Sales Practices (CSP), current pricelist, and any other information requested by the CO Re-establish a Most Favored Customer (MFC) and Basis of Award (BOA) customer Identify a price/discount relationship as required by the Price Reduction Clause Ensure that your pricing is still fair and reasonable Update your contract via a formal modification to incorporate any revised terms and conditions What are the effective dates for vendors who opt out of TDR and when will Price Reduction tracking become effective? The actual modification opting out of TDR will become effective on day 1 of the next business quarter (January 1st, April 1st, July 1st and October 1st) Price Reduction tracking will begin on day 1 of the business quarter following the date of the modification to opt out The first 72A reporting period will begin on the 1st day of the business quarter following the date of the opt out modification. Continue to remit Industrial Funding Fee (IFF) in the FAS Sales Reporting System (TDR) until that time. If you have any questions on whether you should stay or opt out of the TDR pilot, please contact a member of the GSA consulting team. About the Author: Maureen Jamieson 
Executive Director of Consulting
Maureen Jamieson has more than twenty-five years of experience managing federal contracts. Maureen is highly experienced in solving client pricing problems and implementing effective pricing strategies for placing products and services on GSA Schedule contracts. Maureen also frequently works with clients on effective selling and marketing strategies in the federal market space and is highly skilled as a federal contracts capture or proposal manager. The post Should I stay or should I go? Transactional Data Reporting (TDR) appeared first on Centre Law & Consulting.
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Reminder: Changes to Subcontracting Reporting Requirements—Effective November 30, 2017

By Wayne Simpson A Final Rule published in the Federal Register July 14, 2016, effective November 1, 2016, amended the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the U.S. Small Business Administration (SBA) , which provide for a Governmentwide policy on small business subcontracting.  One of the changed requirements effects subcontracting reports submitted after November 30, 2017. Specifically, the language at FAR 19.704(a)(10)(iii), 52.219-9(d)(10)(iii), and 52.219-9 Alternate IV (d)(10)(iii)—was revised to require order-level reporting on single-award, indefinite-delivery, indefinite-quantity contracts intended for use by multiple agencies in addition to multiple-award contracts in use by multiple agencies and to clarify that the order-level reporting would be required after November 30, 2017, which is when the Electronic Subcontracting Reporting System (eSRS) will be ready to accommodate this requirement. FAR Clause 52.219-9, Subcontracting Plan Requirements (JAN 2017), the most recent update of the clause, contains the revised language. The post Reminder: Changes to Subcontracting Reporting Requirements—Effective November 30, 2017 appeared first on Centre Law & Consulting.
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Groundhog Day Again, Counterfeit Parts, Too Many Boxes

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.
 
About the Author Barbara Kinosky
Managing Partner
Barbara Kinosky has more than twenty-five years of experience in all aspects of federal government contracting and is a nationally known expert on GSA and VA Schedules and the Service Contract Act. She has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012, and 2015.   The post Groundhog Day Again, Counterfeit Parts, Too Many Boxes appeared first on Centre Law & Consulting.
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Early Bird Rates Have Arrived on 2017 Training Courses

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. The post Early Bird Rates Have Arrived on 2017 Training Courses appeared first on Centre Law & Consulting.
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EEOC Issues New Publication on Employer-Provided Leave Under ADA

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

On January 13, 2017, several Federal Acquisition Regulation (FAR) updates went into effect that you should be aware of if you have a small business. The highlights of each rule include: Uniform Use of Line Items – A revised policy statement that requires the use of line items and, as necessary, subline items to improve accuracy, traceability, and usability of procurement data. Acquisition Threshold for Special Emergency Procurement Authority – The simplified acquisition threshold for special emergency procurement authority has been raised from $300,000 to $750,000 within the United States and from $1,000,000 to $1,500,000 outside the United States for acquisitions that, as determined by the head of agency, are used to support a contingency operation or facilitate defenses against or recovery form nuclear, biological, chemical, or radiological attack. Contractor Employee Internal Confidentiality Agreements – This change prohibits the use of appropriated funds to entities that require employees to sign confidentiality agreements that prevent the lawful reporting of fraud, waste, or abuse. Contracts Under the Small Business Administration 8(a) Program – Offers and acceptances are required for individual orders under multiple award contracts that were not set aside for competition among 8(a) contractors. Prohibition on Reimbursement for Congressional Investigations and Inquiries – No new requirements on small businesses, but records will need to be maintained.  
About the Author Colin Johnson
Contracts Manager
Colin Johnson is a Contracts Manager who focuses on business development and federal contracts management. His expertise is in preparing quotes and responses for both government and commercial entities for training and legal support services.   The post FAR Updates That May Impact Your Small Business appeared first on Centre Law & Consulting.
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Centre Law & Consulting

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New Overtime Rule Blocked by Federal Judge

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
Associate Attorney
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.   The post New Overtime Rule Blocked by Federal Judge appeared first on Centre Law & Consulting.
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