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Centre Law & Consulting

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

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

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

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

About the Author:

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

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

The post GAO Sustains Protest on Four Billion Dollar Solicitation Evaluation appeared first on Centre Law & Consulting.


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Are You A Federal Acquisition Service GSA MAS Contract Holder? | Centre Law & Consulting in Tysons, VA
 
The General Services Administration (GSA) Federal Acquisition Service (FAS) is planning to refresh all GSA Multiple Award Schedules (MAS) to incorporate provision and clause updates in April 2017. This update will align MAS solicitations and contracts with recent policy changes, including small business subcontracting improvements and updates to Non-Federal Entity access to Schedules, including under the Disaster Purchasing Program. These regulatory changes further codify the Non-Federal entity access authorized under law and previously implemented via policy in GSA Order 4800.2H (now 4800.2I) in June 2013.

GSA FAS will host a public webinar to provide interested parties an opportunity to learn about the planned changes and ask related questions. The webinar will be in a listen-only format with the ability for participants to type questions via an online chat function. Webinar information is provided below.

Date: Wednesday, March 22, 2017
Time: 2:00pm – 3:00pm Eastern Time
Web Meeting Registration Link

GSA FAS will issue a bilateral modification to incorporate the planned changes into existing contracts. MAS contractors will have 90 days to accept the mass modification.

Learn more at GSA Interact.

Information reposted from the General Services Administration.

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Centre Law & Consulting

In September of 2016, Aurotech Inc. won an award for a blanket purchase agreement with Health and Human Services, FDA. Discover Tech made a persuasive protest of that award, resulting in the FDA taking corrective action, and to reevaluate Aurotech’s and Discover Tech’s quotations. After the FDA revised its initial award, now choosing Discover Tech in the award determination, Aurotech filed an unsuccessful protest.

Aurotech challenged the Agency’s evaluation of how Discover Tech’s reductions to its quoted price would affect the technical and management approaches, and therefore its ratings. It also alleged Discover Tech did not explain in full how it had reduced its price from the first award determination. The GAO found the agency had reasonably evaluated the vendor’s explanation for the price reduction.  Specifically, that Discovery Tech’s new understanding of initial deadlines for the contract, allowed them to reduce labor costs without hurt quality.

Which brings us to the more interesting bid protest topic; when does a clarification become a discussion? Aurotech next alleged that the FDA held unequal exchanges with the two vendors.  Similar to Aurotech’s accusation Discovery Tech failed to explain its price reduction, the Agency was also curious of the price drop during its evaluation. The Agency contract specialist contacted Discovery Tech asking how the reduction in staffing could happen, without adjusting the technical quotation/management approach. Discover Tech explained its initial mistake evaluating deadlines which had caused the previous higher staff prediction.

The GAO considered this a clarification, or limited exchange used to resolve clerical mistakes. Aurotech obviously disagreed, calling this exchange an opportunity for Discovery Tech to cure a crucial failure in its proposal. The GAO was most persuaded by the fact no change to the proposal occurred.  Had the vender been allowed to modify its technical and management approach, the GAO would have considered this a discussion, requiring both parties to be involved. Given Aurotech was also asked for a clarification on a different subject, the GAO denied the bid on the ground the FDA treated the vendors unequally.

About the Author:

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

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

The post GAO Threads The Needle With Clarifications Versus Discussions appeared first on Centre Law & Consulting.


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

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

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

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

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

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

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

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

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

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VA National Acquisition Center Issues Updated Small Business Subcontracting Plan Template | Centre Law & Consulting in Tysons, VA
 
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 | Centre Law & Consulting 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.

 

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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.

pic.png

 

About the Author

Barbara Kinosky Barbara Kinosky
Managing Partner

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

 

 

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Pre-Award Audit: Is It Time To Panic? | Centre Law & Consulting in Tysons, VA
 
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 | Centre Law & Consulting Maureen Jamieson
Executive Director of Contracts and Consulting

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

 

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Centre Law & Consulting (Centre), a leading provider of training and acquisition services for government agencies, is pleased to announce the award of a contract with the Nuclear Regulatory Commission (NRC) for NRC Acquisition Workforce Training.

Under the contract, Centre will develop and deliver a structured training program which standardizes the education, training, and experience requirements for NRC acquisition professionals, while improving workforce competencies and performance. The instruction provided will include all levels of COR and acquisition courses related to FAC-C & FAC-COR certifications. Courses will be conducted at the NRC’s Professional Development Center and virtually across the United States.

The contract covers a base period of one year with two option years.

“It is an honor to be selected by the NRC as their new training provider, and we are excited to provide our expertise in developing integrated learning solutions for acquisition and procurement personnel,” said Barbara Kinosky, Esq., Managing Partner of Centre. “We look forward to delivering innovative curriculum and content that will strengthen the NRC workforce to align with the NRC’s performance goals.”

Jeffrey Keen, Director of Federal Contracts and Training at Centre Law & Consulting, will serve as Program Manager. He will be the primary point of contact with the NRC and with Hemsley Fraser, a subcontractor that will assist Centre with extensive course customization.

“Our training team is committed to helping the NRC improve the operational knowledge of its staff and we are dedicated to ensuring they receive the best possible support for their training initiatives. We look forward to customizing an education program that will elevate the performance of their employees,” Keen said.

Centre has a long history of working with a variety of government agencies, but this contract marks the first time it will partner with the NRC. Centre was selected based on its experience in creating custom courseware, for its history of providing DAU-approved courses, and for its day-to-day experience in advising government personnel on acquisition and procurement matters.

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SBA Adopting the 2017 NAICS Size Standards-Centre Law and Consulting in Tysons Corner, VA

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:

  1. If the new NAICS code is comprised of a single NAICS 2012 industry, the same size standard is used.
  2. 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 | Centre Law & Consulting in Tysons VA Colin Johnson
Contracts Manager

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

 

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In a decision publicly released on May 30, 2017, Alphaport Inc. – Reconsideration, B-414086.3 (May 23, 2017), the GAO denied a request for reconsideration regarding a nearly $25 million contract. The GAO originally denied Alphaport, Inc.’s bid protest challenging the National Aeronautics and Space Administration’s (NASA) award of a contract to Banner Quality Management, Inc. for technical support services.

The solicitation was awarded as a single cost-plus-fixed-fee contract based on best value, focusing on three evaluation factors: technical capability, cost/price, and relevant experience and past performance. Regarding the cost factor, the solicitation stated that evidence of an approved accounting system would be required for award of the contract. Evidence of the approved accounting system would be shown by submitting four specific documents.

Alphaport initially challenged the award to Banner by alleging that the solicitation contained a material requirement to submit certain documentation to demonstrate the acceptability of the offeror’s accounting system. Despite NASA finding Banner’s accounting system acceptable, Banner only submitted three of the four required documents. Alphaport sought reconsideration after the GAO determined that the agency’s evaluation and selection decision were reasonable and consistent with the terms of the solicitation.

Specifically, Alphaport argued that the GAO erroneously concluded that the agency’s evaluation was reasonable because the adequacy of an accounting system is generally a matter of responsibility. In denying the request for reconsideration, the GAO reminded Alphaport that its decision already addressed its allegation that the agency waived a material requirement of the solicitation when it concluded that the solicitation’s material requirement was for an acceptable accounting system rather than specific documentation. Indeed, the GAO noted that Alphaport did not actually challenge the adequacy of Banner’s accounting system but only that the agency did not comply with a material RFP requirement. The GAO found no error of law and instead found that Alphaport merely disagreed with its determination.

 

About the Author:

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

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

 

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Protest Denial Stresses Need of Detail in Proposal Methodologies | Centre Law & Consulting in Tysons, VA
 
A single weak link in a contractor’s proposal resulted in its highly praised proposal losing to one with fewer evaluated strengths.

Seeking mission support services in its work to counter improvised threats, such as IEDs and other homemade explosives, the Joint Improvised-Threat Defense Organization (JIDO) recently issued a task order for subject matter expertise. Its award drew a protest from Sev1Tech, Inc. challenging JIDO’s choice of Amyx, Inc. for the task order.

When evaluating the contractors’ proposals, JIDO stressed it was seeking a coherent discussion of how the offeror proposes to meet its requirements rather than a restatement of the requirements or a listing of what it proposes to do. The protesting contractor received heaps of praise for most of its methodologies, with the final evaluation resulting in Sev1Tech having nine strengths compared to Amyx’s six strengths. However, the lack of detail on just one technical requirement snowballed into a worry that the hypothetical flaw would negate all of Sev1Tech’s noted strengths.

JIDO decided Sev1Tech had only provided general statements regarding what it was proposing to do to satisfy a specific technical requirement. As a result, the agency found that it was unclear how the protester would satisfy the requirements of the solicitation and assigned a “significant weakness” to the element in its evaluation. Even with this weakness, Sev1Tech still retained more strengths in its proposal, but the agency feared the risk of a flaw in this single section would compromise the entire task order.

The protester insisted its technical rating was evaluated too low, given the numerous positive comments found in the evaluation, and that the awarded contractor’s evaluation was too high due to missing programs in its proposal.

The General Accountability Office denied the protest after finding JIDO’s demand for details formed a reasonable basis to assign the technical rating. It also ruled the missing programs were not required in the solicitation and, therefore, could not be considered a material term.

In sum, the decision should serve as a cautionary tale for providing not just what a contractor can perform, but exactly how it plans to do so.

About the Author:

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

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

 

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Mrs. Kinosky has been invited to speak during the “Enterprise Risk Management Session – Managing Fraud Risk through ERM and current trends with GSA Price Reductions” on Thursday, May 5, 2016 at 11:10am in Tysons Corner, VA.

About Barbara Kinosky

Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has over twenty-five years of experience in all aspects of federal government contracting. Barbara is a nationally known expert on GSA and VA Schedules and the Service Contract Act. She has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012 and 2015. Prior to establishing Centre, Barbara was the head of a government contracts practice group at a major law firm. She started Centre is 2002 to provide integrated legal, GSA consulting and training services.

About the 21st Annual Government Contracting Update

“Doing business with the US Government is extremely challenging. This event has provided an annual update for the Government Contracting industry for the past 20 years. This year, we will be presenting the update utilizing different formats including panels and breakout sessions with DHG industry leaders, attorneys, and industry representatives who face and address contracting issues and challenges on a daily basis.”

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The GSA FAS Office of Acquisition Management is planning to refresh all Multiple Award Schedules to incorporate provision and clause updates. For Schedules that offer services, both professional and nonprofessional, the solicitation refresh and corresponding mass modification will also update the application of the Service Contract Labor Standards (SCLS) to align with the U.S. Department of Labor’s SCLS compliance procedures.

They recently issued a presentation that outlines the planned changes and updates in the modification. GSA Overview of Planned MAS Changes, courtesy of the GSA to learn more.
 

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Earning Only 78% of What a Similarly Situated Male Employee Is Paid? | Centre Law & Consulting in Tysons VA
 
Alas, I am not expecting my phone to start ringing off the hook. But the week of “Equal Pay Day” is as good a time as any for contractors to kick the tires on their pay practices to ensure observed pay disparities are supported by legitimate differentiators.

Perhaps no employment statistic is bandied about so frequently in politics and the press than the “gender pay gap” whereby women are purported to earn only 78 cents for every dollar earned by men. With April 4 having been “Equal Pay Day,” much digital ink was getting spilled concerning female workers allegedly earning less than their male “counterparts.” Alas (again), most but not all of the click-bait tends to be hopelessly innumerate, failing to capture or account for legitimate non-discriminatory reasons for observed differences in the aggregate data from which the 78% figure is derived.

Despite the political hand-wringing, the law surrounding individual pay discrimination is robust and well delineated. Indeed, in addition to pay discrimination being actionable under Title VII, since 1963 the federal Equal Pay Act (“EPA”) has required that men and women in the same workplace be given equal pay for equal work. All forms of pay are covered including salary, overtime pay, bonuses, stock options, profit sharing, life insurance, vacation and holiday pay, allowances and reimbursement for travel expenses, and benefits. The jobs need not be identical in every respect, but they must be “substantially equal.” Rather than relying upon particular job titles, a claimant must show that she and her male counterpart performed substantially equal work in terms of skill, effort, and responsibility. A job will be considered unequal, despite having the same general core responsibilities, if the more highly paid job involves additional tasks which (1) require extra effort, (2) consume a significant amount of the time, and (3) are of an economic value commensurate with the pay differential.

Federal contractors subject to EO 11246 are expected to routinely evaluate their compensation systems to ensure that they are not resulting in discriminatory outcomes. The applicable regulations require that such “self-audits” assess whether race or gender-based compensation disparities exist, that the audits occur periodically, and that results be reported internally to management. While the OFCCP does not require a particular methodology, its own compliance officers are generally directed to review individual data, group data into pay grades or job groups, and conduct summary analyses. The CO is also to assess quantitative factors such as the size of any overall average pay differences based on race (minority vs. non-minority) and gender (female vs. male), the number of job groups where average pay differences exceed a certain threshold, or the number of employees negatively affected within job groups.

In addition to the individualized EPA factors mentioned above, data such as particular skill or certifications; education; work experience; the position, level, or function; tenure in a position; performance ratings; and other compensation-related inputs should be considered. For smaller contractors, simple Excel “table and sort” analyses may be sufficient. For more complex employers, more sophisticated statistical analyses, such as multiple regression, may be appropriate and more valuable.

If contractors are not already routinely performing these sorts of analyses (preferably in conjunction with counsel for privilege purposes), they should. Again, it’s required by EO 11246; and innumeracy around the “wage gap” notwithstanding, pay discrimination can and does occur. It is far cheaper to identify and remedy unexplained disparities without the involvement of the DOL or the courts.

About the Author:

David Warner | Centre Law & Consulting David Warner
Partner

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

 

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Federal Circuit Reverses $80,000 Fee Award in Bid Protest | Centre Law & Consulting in Tysons, VA
 
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 | Centre Law & Consulting in Tysons VA Heather Mims
Associate Attorney

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

 

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Government Shutdown Deadline Looms While GSA Takes It on the Chin Over TDR Program | Centre Law & Consulting in Tysons, VA
 

Trump Administration Begins Government Shutdown Preparations

Negotiators are hard at work behind the scenes this week trying to reach a budget agreement that will keep government agencies open, but the Trump administration has begun preparing for a shutdown that could begin on April 29, barring any congressional action.

Representatives on both sides of the aisle are hopeful about reaching an agreement that would fund all agencies through the end of the fiscal year in September, but the Trump Administration could stand firm on its funding priorities, which would make an agreement more difficult.

Perhaps one of the biggest issues is “The Wall.” Trump has asked for an extra $33 billion to go toward the U.S.-Mexico border wall with increased immigration enforcement. Democrats seem to have no issue with shutting down the government if the spending bill includes this funding, and Republicans appear to not want to risk calling their bluff, indicating “they would deal with the administration’s supplemental request separately from the regular appropriations bill,” according to Government Executive.

There will of course be give and take, deal-making and trading going on behind the scenes. I guess we’ll have to wait and see how things shake out on April 29.

Read the full story on Government Executive.

DOJ and GSA Work to Build New Government-Wide FOIA Portal

Coming soon to a computer near you: a single streamlined website where you can submit Freedom of Information Act requests to any agency.

Well, that’s at least what the Department of Justice (DOJ) and General Services Administration (GSA) are working to achieve as they collaborate together on a new national portal. The DOJ has actually been working towards a single portal since 2010 when it introduced FOIA.gov and began working with GSA on small improvements to the site back in 2014. This new partnership hopes to introduce a new singular portal.

You are encouraged to provide input about your FOIA experiences as the agencies work through the development process. Send an email with your comments to National.FOIAPortal@usdoj.gov by April 28.

Read the full story on the Nextgov website.

Trump Signs EO to Bolster “Buy American” Laws

President Trump signed a new Executive Order (EO) that focuses on buying American products. Under the EO, agencies must complete a full review of their procurement procedures to assess their compliance with “Buy American” laws. A report of their findings is due to the Secretary of Commerce and Office of Management and Budget (OMB) within 150 days. A final report will go to the President within 220 days along with recommendations for how to better implement Buy American laws.

Read the full story on the White House website.

Hard Knocks for GSA’s Transactional Data Reporting Program

The General Services Administration (GSA) has been taking a lot of hits recently on their new Transactional Data Reporting (TDR) program. Harsh criticism has been coming from all directions, and government contracting consultants have strongly advised their clients not to take part in it.

If you’re unfamiliar with TDR, it’s a program that allows contractors to provide data about transactions made through their Schedule contracts in exchange for not having to follow the Price Reduction Clause (PRC) and the Commercial Services Practices (CSP) provision. Contractors have been rallying for years to change the PRC. While they were happy to see GSA making changes, the concern over TDR has continued to grow since it was unveiled.

You’ve got to give credit to the GSA Deputy Commissioner of the Federal Acquisition Service, Kevin Youel Page, though. Instead of staying silent and steadfast, he’s ready to hear contractors’ concerns and take action to address the issues. The TDR program management office even set up an email address where anyone can send in questions or concerns.

Meanwhile, some within the industry are already debating the long-term viability of the TDR program. So far, GSA has only announced a three-year pilot and no public support has come from the Trump administration.

Read the full story on Federal News Radio’s website.
 
About the Author

Barbara Kinosky Barbara Kinosky
Managing Partner

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

 

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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 | Centre Law & Consulting David Warner
Partner

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

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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.

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

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

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The U.S. Department of Labor issued a final rule revising its sex discrimination guidelines for federal contractors found at 41 CFR Part 60-20. The final rule is effective August 15, 2016, is the first significant change to the guidelines since 1970, and it clarifies DOL positions with respect to issues of compensation, pregnancy, and harassment among others. Unsurprisingly given recent amendments to EO 11246, the Rule also provides specific guidance with respect to issues regarding sexual orientation and gender identity.

While it will take time for contractors and counsel to digest all 195 pages of the final Rule notice, one section of immediately accessible interest is the Rule’s appendix concerning “Best Practices,” which, while technically voluntary, provide insight into the DOL’s perspective and priorities with respect to sex discrimination. Specifically, the Rule states the following as best practices for contractors:

  1. Avoiding the use of gender-specific job titles such as “foreman” or “lineman” where gender-neutral alternatives are available
  2. Designating single-user restrooms, changing rooms, showers, or similar single-user facilities as sex-neutral
  3. Providing, as part of the broader accommodations policies, light duty, modified job duties or assignments, or other reasonable accommodations to employees who are unable to perform some of their job duties because of pregnancy, childbirth, or related medical conditions
  4. Providing appropriate time off and flexible workplace policies for men and women
  5. Encouraging men and women equally to engage in caregiving-related activities
  6. Fostering a climate in which women are not assumed to be more likely to provide family care than men
  7. Fostering an environment in which all employees feel safe, welcome, and treated fairly by developing and implementing procedures to ensure that employees are not harassed because of sex. Examples of such procedures include:
  • Communicating to all personnel that harassing conduct will not be tolerated
  • Providing anti-harassment training to all personnel
  • Establishing and implementing procedures for handling and resolving complaints about harassment and intimidation based on sex.

While certain of the prescriptions fall squarely within the realm of “Personnel Management 101,” the recommendation regarding gender neutral restrooms and similarly facilities furthers the theme of 2016 as the “Year of The Restroom Wars”.

Although the guidance is not intended to substantively change contractors’ legal obligations, contractors would be well counseled to take the opportunity to review their leave and benefit policies and practices to ensure that they are in line with the DOL’s regulations and its emphasis on gender neutrality with respect to all employment practices.

About the Author:

David Warner | Centre Law & Consulting David Warner
Partner

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

 

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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.

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

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

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Bid Protests: Failure to Submit Signed JV Agreement Rendered Proposal Technically Unacceptable | Centre Law & Consulting in Tysons, VA
 
In a decision publicly released on Friday, March 31, in CJW-Desbuild JV, LLC, B-414219 (Mar. 17, 2017), the Government Accountability Office (GAO) denied a protest challenging the rejection of a proposal where the contractor had failed to provide a signed joint venture agreement with its proposal.

In issuing the RFP, the Department of the Navy, Naval Facilities Engineering Command (NAVFAC) stated that award of the construction and repair contract would be made on a best value basis, with price and non-price factors considered. The non-price evaluation factors were construction experience, safety, and past performance. With regards to the construction experience factor, the RFP instructed Joint Venture (JV) offerors to submit relevant project experience completed by the JV entity. If none existed, the RFP instructed JV members to submit individual project experience but to also submit a signed copy of the JV agreement indicating the proposed participation of each JV member. The RFP stated that failure to submit the agreement would be considered unacceptable.

CJW-Desbuild JV was subsequently rated “unacceptable” under the construction experience factor for failure to provide the signed copy of its JV agreement. CJW Desbuild argued that its failure to submit a signed copy was a “minor oversight” and that it was “unreasonable” for the agency to downgrade its proposal. CJW Desbuild further argued that NAVFAC should have used clarifications in order to permit the JV to submit its signed agreement.

The GAO disagreed and found that because the requirement for a signed JV agreement was specifically linked to technical acceptability, it could not be considered an informality. The GAO also concluded that the JV’s failure to provide its signed agreement could not have been remedied through clarifications, as clarifications cannot be used to cure deficiencies or material omissions in a proposal. Furthermore, the GAO noted that even if the protestor’s failure to submit the signed agreement had been a minor clerical error, the agency is permitted, but not required, to give it the opportunity to correct it via clarifications.

About the Author:

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

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

 

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photo-finish-bid-decision-survives-protest | Centre Law & Consulting in Tysons, VA
 
In its May decision, the Government Accountability Office (GAO) denied a bid protest despite agreement that the contract award was all but a tossup.

After a three year phased acquisition competition between two contractors for the design of radio detection software used in the U.S. Air Force Special Operations Command aircraft, neither contractor had pulled far ahead of the other. The lack of distinction came even with a complicated and detailed evaluation. From the two factors considered, the Agency assigned ratings for the five different elements of two different sub-factors. All of this just to finish with identical ratings. Both contractors drew “moderate” concern for some of the incomplete portions of the designs, but ultimately the Source Selection Advisory Council (SSAC) leaned toward Northrop Grumman over BAE.

In preparing their recommendation, the SSAC admitted, “We do recognize that a different body of stakeholders with similar experience and knowledge could reach an entirely different recommendation based on the same data.”

As predicted, a different body did reach another conclusion. The Source Selection Authority (SSA) rejected the recommendation. While the SSA agreed the Northrop Grumman design was likely more advanced and impressive, it “does the warfighter no good until it can be integrated onto their aircraft.” The SSA cited less risk with completion of the BAE design and the small savings in cost for its decision to instead award BAE.

The GAO ruled the SSA’s preference, for one in the hand over two in the bush, was a justifiable reason to reject the SSAC’s recommendation.

Northrop Grumman focused a large portion of its protest explaining the perceived risks were very short term and therefore not a justifiable reason to discredit the benefits of their design acknowledged by the SSA and SSAC. The GAO refused to decide how the risk should have been evaluated, instead stating the SSA’s concern was not unreasonable and therefore the protest must be denied.

About the Author:

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

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

 

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100-days-administration.jpg
 
Say what one will about our still-new President (and I will), there appear to be very few among the chattering class who hold a “neutral” view about him. A little over 100 days into his administration and certain corners are already routinely beating the drum of impeachment. And the ink spilled over the Comey firing and recent reports concerning what was either a benign discussion of known intelligence information (from one perspective) or the revealing of “highly classified information” to his Russian puppet masters (from another) suggest that the fever pitch of commentary is not going to be lowering in volume any time soon.

Dumpster Fire, Constitutional Crisis, or Perhaps Just Business as Usual | Centre Law & Consulting in Tysons VA And yet, if one sets both ends of the partisan hyperbole aside, a funny thing appears to be happening on the way to the dumpster fire which is purportedly the Trump Administration – governance. For example, while conservatives may be chafed by having to accept Alexander Acosta in lieu of the more ideologue burger exec Andrew Puzder at the head of the Department of Labor, the much maligned “Fair Pay and Safe Workplaces Executive Order” is already history. Many expect that the even more maligned, revised and expanded EEO-1 form (requiring reporting of pay data) is likely to end up in the dust bin this summer. Similarly, the legislative wrangling around the Affordable Care Act continues apace as well.

On judicial appointments, seen by many as one of the signature issues of the campaign, Trump is also widely perceived as delivering on his promises. With the judicial filibuster having been “nuked” to clear the path for Neil Gorsuch to join the U.S. Supreme Court, Trump has been active in identifying slates of candidates for lower court benches. Last week, the White House announced Trump’s “third wave” of judicial appointments (following Gorsuch and the nomination of Judge Amul R. Thapar of Kentucky to serve as a Circuit Judge on the U.S. Court of Appeals for the Sixth Circuit). Notably, two of the ten nominees – Professor Amy Coney Barrett of Notre Dame University Law School and Justice Joan Larsen of the Michigan Supreme Court – are former law clerks of the late-Justice Antonin Scalia, and another – David Stras of the Minnesota Supreme Court – was a clerk for Justice Clarence Thomas. Of course, not everyone is pleased with the selections, but we do seem to have come a long way from thoughts of nominating his sister to the high court.

While I’m not one to believe that Trump (or his predecessor for that matter) is a master of three-dimensional political chess, which the rest of us rubes simply can’t comprehend, sometimes the allegedly oncoming dumpster fire or ill-conceived tweet looks an awful lot like “stray voltage.” Or, rather, business as usual in Washington, D.C.

About the Author:

David Warner | Centre Law & Consulting David Warner
Partner

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

 

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

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

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