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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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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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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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Centre Law & Consulting

Centre Law & Consulting

 

Removal of Fair Pay and Safe Workplaces Rule from the Federal Acquisition Regulation

By Wayne Simpson A Final Rule was published in the November 6, 2017 (corrected and republished in the November 8, 2017) edition of the Federal Register removing all regulations relating to the Fair Pay and Safe Workplaces Executive Order issued by President Barrack Obama (Executive Order No. 13673, July 31, 2014). In March 2017, using the authority of the Congressional Review Act, Congress passed House Joint Resolution 37, which disapproved the final rule submitted by the U.S. Department of Defense, the U.S. General Services Administration, and the National Aeronautics and Space Administration and published in the August 25, 2016, edition of the Federal Register. In the Joint Resolution, Congress resolved that the final rule “shall have no force or effect.” On March 27, 2017, President Trump signed House Joint Resolution 37 into law which became Public Law 115-11.  Under the Congressional Review Act, a rule shall not take effect or continue if Congress enacts a joint resolution of disapproval.  Any rule taking effect which is later made of no force or effect by enactment of a joint resolution shall be treated as though such rule had never taken effect. The Final Rule implementing Fair Pay and Safe Workplaces in the Federal Acquisition Regulation was effective for solicitations issued and contracts awarded before, on, or after October 25, 2016.  Contracting officers have been directed to modify, “to the maximum extent practicable,” existing contracts to remove any solicitation provisions and contract clauses related to the Fair Pay and Safe Workplaces Rule because they are unenforceable by law. The Final Rule implementing Public Law 115-11 is effective November 6, 2017.  The entire rule, including amendments published on December 16, 2016, in the Federal Register, is removed as a result of the Final Rule. The 115th Congress has been busy using the authority of the Congressional Review Act.  As of November 2, 2017, of the eighty-two (82) pieces of legislation signed into law by President Trump, sixteen (16) are enacting joint resolutions to disapprove of rules issued by the Obama Administration. It is often said, “Live by the executive order, die by the executive order.”  Fair Pay and Safe Workplaces is no more. The post Removal of Fair Pay and Safe Workplaces Rule from the Federal Acquisition Regulation appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

Costs for Filing Bid Protest Denied Even When Agency Does Not Dispute a Meritorious Protest

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
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 Costs for Filing Bid Protest Denied Even When Agency Does Not Dispute a Meritorious Protest 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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Centre Law & Consulting

Centre Law & Consulting

 

Seller Beware!

There is an aphorism that goes “Buyer Beware”; time-honored sage advice to be sure.  But perhaps a new aphorism is in order for the Federal marketplace: “Seller Beware.” Many vendors and contractors selling to the Federal Government under contracts awarded under some type of small business set-aside are frequently unaware of an important requirement tucked neatly away in set-aside clauses.  This requirement is set forth as portion of the clause which normally begins with the word “Agreement.” As an example, Federal Acquisition Regulation (FAR) Clause 52.219-5, Notice of Total Small Business Set-Aside (Nov 2011), contains the following as part of the clause: “(d) Agreement. A small business concern submitting an offer in its own name shall furnish, in performing the contract, only end items manufactured or produced by small business concerns in the United States or its outlying areas. If this procurement is processed under simplified acquisition procedures and the total amount of this contract does not exceed $25,000, a small business concern may furnish the product of any domestic firm. This paragraph does not apply to construction or service contracts.” So why do set-aside clauses contain such an agreement?  The answer is simple:  The Small Business Administration’s (SBA) Nonmanufacturer Rule, often referred to as “NMR.” (Ref:  13 C.F.R. Section 121.406(b)). In brief, the NMR requires small businesses receiving awards under the various set-asides used in government procurements, to provide their own product, or that of another domestic small business manufacturer or processor, unless SBA has granted an individual waiver to NMR for the procurement, or the procurement is covered by a class waiver to the NMR, also issued by SBA, and the contracting officer uses the class waiver. The NMR also addresses how nonmanufacturers may qualify as a small business concern for a requirement to provide manufactured products or other supply items as a nonmanufacturer as well as for Kit Assemblers. Unfortunately, all too often companies rely on the fact the government issued and awarded the procurement using small business set-aside procedures believe they are somehow protected or immunized from the consequences of non-compliance.  The agreement provision in the various set-aside clauses can only be waived by an SBA issued waiver for an individual procurement, or when the contracting officer uses an existing class waiver.  Unless the procurement is covered by an SBA waiver. SBA amended its regulations in 2016 indicating the NMR does not apply to procurements between $3,500 and $150,000.   However, the FAR still sets the applicability threshold for NMR at $25,000. Non-compliance with NMR can have significant consequences for a company, ranging from contract enforcement actions to potential liability under the False Claims Act (FCA).  FCA looms large these days as increasingly more qui tam lawsuits are being filed under FCA by disgruntled and former employees, and even a company’s competitors, as the person bringing the qui tam lawsuit can receive a lucrative payout. Other set-aside clauses contain agreements relating to the NMR as well.  Please be sure to thoroughly review the requirements of the set-aside clause(s) under which you are submitting an offer. Sellers Beware!  Protect your company by ensuring absolute compliance with NMR.  Centre Law and Consulting offers a comprehensive 90-minute webinar on the NMR to help small businesses mitigate vulnerabilities in this area and to fully understand the requirements of NMR and ensure their compliance. Best wishes for every continued success in the Federal Marketplace!   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 Seller Beware! appeared first on Centre Law & Consulting.
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Centre Law & Consulting

Centre Law & Consulting

 

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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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

Centre Law & Consulting

 

What’s In A Name?

In its July 17, 2017, decision the GAO partially sustained a protest after an agency conducted an unreasonable past performance evaluation. Timberline LLC’s award for the maintenance and deactivation of manufactured housing units in Louisiana was protested by MLU services after MLU noticed an oddity about Timberline LLC’s submitted past performance history. Put simply, the contracts submitted for evaluation were not Timberline LLC’s. In fact, the past contracts were not even the Timberline LLC’s proposed subcontractor’s, its sister company, Timberline Construction Group, LLC. In its submission, Timberline LLC’s proposal provided seven completed contracts to demonstrate its “proven ability to successfully perform a diverse group of services in response to different kinds of disasters in many different geographical locations.” These submissions simply identified “Timberline” as the performing party. At first, this strategy worked. The agency considered Timberline LLC’s past experience “outstanding.” However, as alleged by the protestor, these contracts were performed by Timberline Home, Inc., a wholly separate corporate entity. The Agency defended its decision, claiming it had confirmed “key personnel” from Timberline LLC had performed the work under Timberline Home. However the GAO held this was not nearly enough to comply with the solicitation requirements. While an agency is free to consider the experience of key individuals and predecessor companies, Timberline LLC didn’t provide this information in its proposal. As a result, the agency’s reliance on those past contracts to evaluate Timberline LLC was not reasonable, and therefore the protest was sustained. 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 What’s In A Name? appeared first on Centre Law & Consulting.
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VA National Acquisition Center Issues Updated Small Business Subcontracting Plan Template

Large business prime contractors holding Federal Supply Schedule (FSS) contracts issued by the Department of Veterans Affairs (VA) National Acquisition Center (NAC) may want to take note. Updated Small Business Subcontracting Plan Template
The VA NAC posted an updated Small Business Subcontracting Plan Template to its website in February 2017. This latest version of the template is dated January 26, 2017. VA NAC also updated its VA FSS Subcontracting Plan Training presentation in January 2017, providing detailed information on how to complete the new VA FSS Subcontracting Plan Template. Current VA NAC contract holders should ensure their new and ensuing subcontracting plans are submitted to the VA NAC for approval no later than 30 calendar days prior to expiration of their current plans. It should be noted VA does not accept or recognize digital or electronic signatures at this time. It requires the email submission of subcontracting plans contain a scanned wet signature. VA NAC continues to step-up enforcement of timely submissions. Delinquent submissions of subcontracting plans and Electronic Subcontracting Reporting System (eSRS) data can result in negative Contractor Performance Assessment Reporting System (CPARS) assessments, issuance of Cure Notices, or other contract enforcement actions which could jeopardize continued performance under the contract. Small Business Size Standards Changed
Federal small business size standards changed significantly effective February 26, 2016, for North American Industry Classification System (NAICS) Codes covering manufacturing (NAICS Sectors 31-33). For example, perhaps one of the most common NAICS Codes used in VA procurements, NAICS 339112, Medical and Surgical Supplies Manufacturing, increased from 500 to 1,000 employees. Therefore, contract holders should check to see if their size status has changed. Some “large” businesses are now classified as “small” under the new size standards, and small businesses are not required to submit subcontracting plans. If your size status has changed from large to small, contact your contracting officer to determine if a small business subcontracting plan is still required. A subcontracting plan is required until the contracting officer advises it is no longer required. What Can You Do Next?
Centre provides turn-key Small Business Subcontracting Plan support to large business VA FSS Contractors using best practices to develop commercial subcontracting plans and administer their small business subcontracting program. This includes conducting formal surveys to ascertain size and socioeconomic procurement preference program status of suppliers and subcontractors, eSRS submissions, and preparation of justifications for achievement shortfalls against negotiated small business and socioeconomic procurement preference program category goals. Contact Wayne Simpson to find out more, get started with your supplier survey, or determine the best next steps for your company. 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 National Acquisition Center Issues Updated Small Business Subcontracting Plan Template appeared first on Centre Law & Consulting.
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Third Time’s the Charm? Not so Much for this Protester

In its July 28, 2017 decision, the GAO denied a protest and found an agency’s decision to negotiate a sole-source contract with a Historically Underutilized Business Zone (HUBZone) to be reasonable based on the agency’s lack of progress in meeting its HUBZone goals. JRS Staffing Services, B-414630, B414630.2 (July 28, 2017). The original solicitation process from the Department of Justice, Bureau of Prisons (BOP), underwent several rounds. The BOP originally issued a solicitation without any restriction on competition. However, following a protest from JRS, they agency canceled the solicitation in order to conduct market research to determine whether it would be feasible to set the contract aside for small businesses. Several months later, the BOP awarded a HUBZone sole-source contract to ProHill. JRS subsequently protested that award, challenging the BOP’s failure to post a notice of its intent to award a sole-source contract on the FedBizOpps website. The BOP subsequently terminated the sole-source contract in order to being the procurement process over. One month later, the BOP posted a statement of work and a sources sought notice for the requirement on the FedBizOpps website, which included a market research questionnaire. One more month later, BOP posted a notice of the agency’s intent to negotiate a sole-source contract with ProHill, a HUBZone. JRS subsequently filed its third protest regarding this BOP contract. In challenging the BOP’s decision to negotiate a HUBZone sole-source award with ProHill, JRS argued that the award was based on flawed market research as the solicitation could have been competed as a WOSB set aside as both JRS and ProHill are WOSBs. In denying JRS’s protest, the GAO noted that the FAR expressly provides that there is no order of precedence between the WOSB and HUBZone programs and agencies may consider both the results of their market research and their progress in fulfilling their small business goals. Here, it was reasonable that the agency’s decision to use the HUBZone program was based primarily on its lack of progress in meeting its HUBZone goals whereas the agency had already exceeded its WOSB goals. Therefore, the GAO dismissed JRS’s protest.   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 Third Time’s the Charm? Not so Much for this Protester appeared first on 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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Kinosky and Blickley Featured on Webinar Discussing HR Issues for Government Contractors

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

In its September 18, 2017 decision, the GAO sustained a protest over a task order awarded to a contractor whom only had one of the two required services listed on their General Services Administration (“GSA”) Federal Supply Schedule (“FSS”). The United States Navy attempted to acquire 120-250 hotel rooms for civil service mariners in the Norfolk, Virginia area. The Agency invited vendors to submit offers through the GSA’s e-buy system, with instructions to only submit services on a current GSA Schedule contract. Unfortunately for the awardee, the request for quotation (“RFQ”) also required shuttles from the hotels to the work sites. While the decision takes pains to describe in detail the intricacies of GSA Schedules, the result is simple. The original awardee simply did not have transportation services included as “additional services” as required. The RFQ listed two separate tasks orders, one of which was transportation by shuttle. Despite the awardee’s ability to provide these services, the RFQ clearly emphasized the award would be made exclusively through the GSA thereby excluding companies without all required services listed on the Schedule. About the Author: Tyler Freiberger
Associate Attorney
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia. The post GSA Federal Supply Schedule Description Too Limited For Contractor to Receive Award appeared first on Centre Law & Consulting.
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EPA Issues Final Rule on Self-Certification for Disadvantaged Business Enterprises

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. The post EPA Issues Final Rule on Self-Certification for Disadvantaged Business Enterprises appeared first on Centre Law & Consulting.
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The Overhaul of the U.S. Export Controls Will Benefit Small Businesses

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

By David Warner On September 15, 2015, President Obama signed the Executive Order requiring federal contractors and subcontractors to provide one hour of paid sick leave for every 30 hours worked, up to at least seven days per year. Both the EO and its implementing regulations, finalized on September 30, 2016, made clear that the EO only applied to “new contracts,” defined as 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. With that date a year in the rearview mirror, the “bill” is beginning to come due. As previously reported, one unexpected wrinkle with the EO’s implementation was the DOL’s establishment of an “alternate health and welfare rate” that purports to exclude 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 the sick leave EO is $4.13 per hour – $.28 lower than the $4.41 H&W rate applicable to contracts that do not require paid sick leave. While the higher H&W rate will effectively be phased out as contracts expire and are replaced with “new contracts,” for the next several years contractors will be required to closely monitor their contracts to ensure the correct H&W rate is applied. In addition, a common question contractors pose as more and more contracts require paid sick leave is whether they can combine sick and vacation entitlements into a single paid time off or “PTO” bucket. Per the DOL’s sick leave FAQ, “Sure, why not?” But while the “single bucket of leave” structure may seem simpler to administer, there are several hidden compliance challenges, particularly for contracts subject to the Service Contract Labor Standards (“SCLS”). First, under the SCLS vacation does not accrue over time but instead “cliff vests” in a single lump on a given employee’s anniversary date. Thus, an immediate challenge is coordinating the vesting of the two types of leave within the bucket – i.e., sick leave accruing annually over a calendar year while vacation cliff vesting on a single date. In addition, SCLS has actual cash value for the employee – i.e., once vested the employee must either take or be paid for the leave at the earliest of his or her next anniversary date, the end of their employment or the end of the contract. In contrast, sick leave has no cash value – i.e., it is only paid if taken. Finally, per the above, SCLS vacation cannot be carried forward from year to year. In contrast, EO sick leave must be permitted to be carried forward from year to year (though the carry-over can be capped at fifty-six (56) hours. So, while the combined PTO structure remains a theoretical possibility, it is not at all clear that it can be administered compliantly, or at least done so as efficiently as administering sick and vacation leave separately.   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 Mandatory Sick Leave Giving Service Contractors A Headache appeared first on Centre Law & Consulting.
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Federal Circuit Reverses $80,000 Fee Award in Bid Protest

In a recent ruling, the Federal Circuit in Dellew Corporation v. United States reversed a legal fees award to a contractor because the agency had taken corrective action on the bid protest before it was decided in court on the merits. In initially awarding the fees and costs, the Court of Federal Claims found that comments it made during the hearing and prior to the Government taking corrective action materially altered the position of the parties so that the contractor qualified as a “prevailing party” under the Equal Access to Justice Act (EAJA), a requirement under the statute for the Court to award fees and costs. Specifically, the Court of Federal Claims focused on certain comments it made during the parties’ oral arguments. The Court stated that it provided “hints” about its views favorable to the contractor on the merits and told the parties that it had drafted an opinion. The Court of Federal Claims also repeatedly expressed its belief that corrective action would be appropriate. As a result, the Government agreed to take corrective action and the bid protest was dismissed as moot. The contractor subsequently sought attorney fees and costs under the EAJA. In awarding nearly $80,000 in fees and costs, the Court of Federal Claims held that it, in making substantive comments during the oral argument regarding the merits of the case, the Court materially altered the relationship between the parties such that the contractor qualified as a prevailing party under the EAJA. However, in reversing the fee award, the Federal Circuit held that the contractor was not a prevailing party as required by the EAJA because the Government voluntarily took the corrective action and the Court’s comments about the merits of the case made during the hearing did not constitute sufficient grounds to convey prevailing party status. Therefore, the Federal Circuit reversed the fee award of nearly $80,000. 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 Federal Circuit Reverses $80,000 Fee Award in Bid Protest appeared first on Centre Law & Consulting.
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Executive Order for More Accountability at Department of Veterans Affairs

The Department of Veterans Affairs (VA) has come under intense scrutiny from Congress, Veterans, and taxpayers in recent years in large part due to its patient wait time scandal. The first bills to pass the U.S. House of Representatives in the current 115th Congress included The Ensuring VA Employee Accountability Act. The Congress.gov website has numerous current bills pending pertaining to VA accountability, and there was no shortage of proposed accountability legislation in the 114th Congress. Now the President has weighed in as well. On April 27, 2017, President Trump traveled across Lafayette Park from the White House to the VA Central Office to sign Executive Order (EO) 13793, “Improving Accountability and Whistleblower Protection at the Department of Veterans Affairs.” The intent of the EO is to improve accountability and whistleblower protection at VA. It directs the Secretary of Veterans Affairs to establish an Office of Accountability and Whistleblower Protection and to appoint a special assistant to serve as the office’s Executive Director. This new office must be established within 45 days of the EO (therefore, by June 11, 2017), and VA must provide funding and administrative support “consistent with applicable law and subject to the availability of appropriations.” The VA Office of Accountability and Whistleblower Protection shall advise and assist the Secretary in using, as appropriate, all available authorities to discipline or terminate a VA manager or employee who has violated the public’s trust and failed to carry out his or her duties on behalf Veterans and to recruit, reward, and retain high-performing employees. In addition, the office will identify statutory barriers to the Secretary’s authority to discipline or terminate any employee who has jeopardized the health, safety, or well-being of a Veteran, reporting such barriers to the Secretary for consideration as to the need for legislative changes. Finally, the VA Office of Accountability and Whistleblower Protection is charged with the responsibility to work closely with VA components to ensure swift and effective resolution of Veterans complaints of wrongdoing at VA, ensure adequate investigation and correction of wrongdoing at VA, and protect employees who lawfully disclose wrongdoing from retaliation. The EO does provide the Secretary with some flexibility in establishing the VA Office of Accountability and Whistleblower Protection. The Secretary may consider whether some or all of the functions are currently performed by an existing VA office, component, or program and to determine if certain administrative capabilities necessary to operate the office are redundant. Additionally, the Secretary may consider whether combining VA’s Office of Accountability and Whistleblower Protection with another VA office, component, or program may improve VA’s efficiency, effectiveness, or accountability. A copy of EO 13793 was published in the Tuesday, May 2, 2017, edition of the Federal Register. 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 Executive Order for More Accountability at Department of Veterans Affairs appeared first on Centre Law & Consulting.
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New GSA Transactional Data Reporting Rule Issued

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
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.   The post New GSA Transactional Data Reporting Rule Issued appeared first on Centre Law & Consulting.
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Reenlistment Bait and Switch, Revolving Doors, and Another GAO Report on the 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
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 Reenlistment Bait and Switch, Revolving Doors, and Another GAO Report on the VA appeared first on Centre Law & Consulting.
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Centre Law & Consulting Featured Tonight on NewsChannel 8

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.
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Dirty Rotten Scoundrels

Trick question, how much does the government charge contractors to register for SAM or any other government database?  The answer is zero, zip, zilch.   There is no charge to register for any government database.  And neither the Wizard of Oz nor any of these vendors can get you no bid contracts from any federal agency. Let’s start with Mr. Pirolo and his FEMA contract registration scheme. FEMA Contract Registration.   Michael Pirolo, the owner of Government Contract Registry (GCR) was sentenced to four years and two months in federal prison for wire fraud. Pirolo served as the president of GCR doing business as FEMA Contract Registration. He employed telemarketers who, during communications with victim-companies, falsely claimed that, for a fee, GCR would “register” the companies with FEMA to enable them to receive preference in obtaining contracts from FEMA.  The telemarketers stated that for a one-time fee of $500, the customer would be registered with FEMA, and that this registration would place the customer on a list of preferred vendors. When the need for a vendor arose, the GCR telemarketer falsely stated that FEMA would bypass the contract acquisition process, contact the registered victim-company, and then offer a no-bid contract.  Mr. Pirolo netted hundreds of thousands of dollars before he was caught. https://www.justice.gov/usao-mdfl/pr/palm-harbor-man-sentenced-prison-defrauding-more-1000-companies-over-fema-contracts SAM Registration.   There are companies who market their services to federal contractors to handle their SAM registration renewals.  These companies require you to give them your password and user name for SAM.  Then they charge you for updating your SAM registration.  Your SAM update is always free on www.sam.gov.   I don’t even have time to tell you about all the GSA Schedule emails I get about the wonderful world of no bid contracts that I will get from GSA once I sign up with this GSA Schedule vendor.  Centre Law has its own PSS Schedule so I see what is going on in the industry.  My inbox is full of these types of emails. Here is a screenshot from one of the many emails from vendors that I receive.  I had to input information on several different screens before I got to the one below.  In my opinion, it looks like an official government website but it is not. It does not appear obvious at first, but the company does note on its website that it is a private company: “U.S. Contractor Administration is not a government agency. We are a third-party federal registration processing firm.”   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 Dirty Rotten Scoundrels appeared first on Centre Law & Consulting.
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How to Lose an Award in a Single Email Exchange

Federal contractors often feel a great sense of relief when they are selected for an award. However, the recent GAO decision  regarding a request for quotations for supplying diesel shows just how quickly a business relationship with the federal government can sour. Bluehorse Corporation, an Indian Small Business, successfully submitted the lowest price quote on supply and delivery of around 30,000 gallons of diesel for use in a construction project. The Request for Quotations stated; “All fuel delivery must be coordinated with the construction manager who will schedule delivery dates and quantities. Please note: that all fuel will not be delivered at one time but in stages as the project progresses.” Bluehorse submitted its quotation noting it had “the ability to 7,500 gallons of fuel per delivery.” After choosing Bluehorse’s quote, the contracting officer (“CO”) forwarded the purchase order to Bluehorse for 4,000 gallons of fuel every three to four weeks, delivered to two 4,000 gallon capacity tanks. Things between the two quickly turned south in one day. Bluehorse responded in confusion, pointing to the solicitation, which stated the two tanks had a 5,000 gallon capacity.  The CO ignored this provision and instead pointed to language indicating 4,000 gallons would be delivered every three to four weeks.  Bluehorse insisted on clarification for the tank capacity, and receiving no response then wrote, “be aware that our offer was made on the ability to make a 7,500 (gallon) drop (into two 5,000 tanks.)” The CO offered only an ultimatum, sign the purchase agreement or refuse. The two parties went back and forth with the CO informing Bluehorse their delivery of 7,500 gallons was unacceptable. When Bluehorse did not immediately provided the signed purchase order, the CO rescinded the offer.  Bluehorse filed a protest the very next day claiming the Agency relied upon unstated criteria. The GAO disagreed, stating a quotation that fails to conform to a solicitation’s material terms and conditions is unacceptable. Here the solicitation explicitly stated the CO would determine delivery dates and quantities. The solicitation also suggested the Agency “typically” orders 4,000 gallons per delivery. In its email exchange, Bluehorse indicated it would only be making 7,500 gallon deliveries, which is a condition unacceptable in the GAO’s decision. The Bluehorse decision should be takin as a serious warning that awards can quickly dissolve without a tactful hand steering the negotiations.  It is easy to imagine the protest would not have been necessary had Bluehorse approached the tank capacity confusion with more deference or humility to the CO. 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 How to Lose an Award in a Single Email Exchange appeared first on Centre Law & Consulting.
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