Jump to content
The Wifcon Forums and Blogs

Sign in to follow this  
  • entries
    151
  • comments
    4
  • views
    5,278

Entries in this blog

Centre Law & Consulting

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 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 GSA Federal Supply Schedule Description Too Limited For Contractor to Receive Award appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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

Fair Pay and Safe Workplaces Executive Order

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

Severance Agreements

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

DOL Settles Overtime Lawsuit

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

Updated Workplace Posters

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

EEO-1 Due

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

About the Author

Marina Blickley | Centre Law & Consulting Marina Blickley
Associate Attorney

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

 

The post End of Summer Employment Law Developments appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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

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

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

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

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

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

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

About the Author:

David Warner | Centre Law & Consulting David Warner
Partner

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

 

The post “Kinsley Gaffes” and Safe Workplaces appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.

 

The post VA National Acquisition Center Issues Updated Small Business Subcontracting Plan Template appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.


View the full article

Centre Law & Consulting

NCMA NOVA Chapter Event on January 27

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

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

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

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

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

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

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

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

NCMA SubCon Training Workshop on March 31

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

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

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

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

The post Barbara Kinosky Featured in Upcoming Speaking Engagements appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.

The post Are You A Federal Acquisition Service GSA MAS Contract Holder? appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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

SITUATION

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

PROTEST GROUNDS

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

STRATEGY

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

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

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

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

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

IMPACT

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

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

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

The post Quick Guide to the Bid Protest Process appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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

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

NewsChanne 8 Washington DC Logo
 

The post Centre Law & Consulting Featured Tonight on NewsChannel 8 appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.

The post DOL Raises (and Lowers) Health and Welfare Fringe Rate for Service Contractors appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.

 

The post Protest Denial Stresses Need of Detail in Proposal Methodologies appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Reproduced with permission from Federal Contracts Report, 105 FCR (May 11, 2016). Copyright 2016 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

GSA Sends Warning Letters to Contractors Over Origins of Products

The General Services Administration (GSA) is clamping down on thousands of federal contractors to ensure that products sold to government agencies are made in the U.S. or are otherwise in compliance with the Trade Agreement Act (TAA), Bloombery BNA has learned.

Regional GSA offices in Fort Worth, Texas, and Kansas City, Missouri, emailed letters dated May 5 to more than 2,800 schedule contract holders that directed vendors to “review their total offering of product” by submitting a spreadsheet that verified the countries of origin of each schedule contract product, as well as copies of a Certificate of Origin or other certification from the manufacturer on its letterhead for products made in the U.S. or in a TAA-designated country.

“The continued reoccurrence of non-compliant product threatens the integrity of the [Multiple Aware Schedule] contracts and GSA Advantage! website which federal customers rely on to make daily purchases that are compliant with the Federal Acquisition Regular (FAR),” the GSA letter said. “This threat cannot be tolerated for the good for the federal procurement community, MAS business line, and continued success of a primary system you rely on to serve federal customers.”

The letter provided to Bloomberg BNA was unsigned but included the name of a Fort Worth-based GSA contracting officer at the bottom.

The letter, addressed to “Dear GSA Partner,” noted that over the past year, the Multiple Award Schedule program had responded to “numerous” congressional inquiries and Freedom of Information Act requests regarding allegations of failed compliance with the TAA and the Buy American Act.

Made In America

In January, Sen. Charles Schumer (D-N.Y.) said the GSA Advantage! website had listed products that were described as “made in America” but in fact were produced overseas. He said the GSA should review its website labels and excise products that are falsely listed.

The Buy American Act, in place since 1933, and the regulation that stems from it significantly restricts the federal government from purchasing non-American-made products. The TAA stretches the law by allowing the purchase of end products from the U.S. or designated countries, which, according to GSA’s website, includes World Trade Organization government procurement agreement countries; free-trade agreement countries; least-developed countries; and Caribbean Basin countries. The designated country list, which includes 124 nations, excludes prominent U.S. trading partners China and India.

The letter from the Great Southwest Region in Fort Worth ordered companies that have found products manufactured in non-TAA designated countries to remove all such products from their TAA contract; upload a new and revised catalog to GSA’s Schedule Input Program; and send an updated price list and terms and conditions to the National Schedules Information Center.

The GSA gave companies that received the letter five days, until the close of business May 10, to respond. Businesses that didn’t reply in time face severe penalties, according to the letter, including, typed in bold letters, “the removal of your entire GSAdvantage file.”

In a statement, a GSA spokesperson told Bloomberg BNA: “Once learning of products being offered on a Schedule contract that are potentially non-compliant with the Trade Agreements Act (TAA), or when the country of manufacture is otherwise misrepresented, GSA will conduct an immediate review an take swift action to ensure that vendors remove non-compliant products from Schedule contracts and GSA Advantage!.”

Unmanned Vehicles

According to the GSA spokesperson, 2,872 letters were emailed to contractors from the agency’s offices in Fort Worth and Kansas City. That included 308 emails sent to Schedule 51V Hardware Superstore contractors; 1,184 to Schedule 84 providers of security, facilities management, marine craft and emergency/disaster response-related goods; 641 to Schedule 56 makers of building materials and supplies and alternative energy solutions; 361 to Schedule 66 producers of test and measurement equipment, unmanned scientific vehicles and geographic environmental analysis equipment; and 378 emails to Schedule 7 makers of hospitality and cleaning equipment, sanitizers and toiletries.

The spokesperson confirmed the GSA was targeting those specific schedules and products because of congressional and other complaints. “Those schedules are among the first group of targeted schedules with identified risk that GSA is reviewing,” the spokesperson said.

Attorneys who represent contractors that received the emailed letter told Bloomberg BNA they are asking GSA for extensions to conduct necessary research into their product lines, and to complete all the needed paperwork.

Maureen Jamieson, executive director of contracts and consulting at Centre Law & Consulting in Tysons Corner, Va., said she has heard from several clients concerned about the letter, including some based in Fort Worth and another that was contacted by GSA’s Kansas City office. She said GSA had not yet responded to her requests for an extension.

“I’ve been hearing from clients of many years. They’re coming out of the woodwork,” Jamieson told Bloomberg BNA, adding that she was concerned about the tight turnaround time the GSA’s directive gave contractors. “If you’re going to do it right, it just requires more time, ” she said.

Day One

“It’s definitely been a scramble, I guess you could say,” Gunjan Talati, a Washington-based partner with Thompson Hine, told Bloomberg BNA.

Talati said companies have been responsible for complying with the underlying requirements – that they adhere to the rules put forth in the TAA and Buy American Act – “since Day One.” But regardless of how diligent companies have been in fully adhering to those laws in the past, he said, “I look at this as a wake-up call.”

Compliance with the TAA is often a complicated affair that can require “a detailed examination of the product’s manufacturing process,” Talati and fellow Thompson Hine Partner Lawrence Prosen wrote in a client advisory issued a day after GSA emails were sent. This includes a determination as to whether articles from one country have been “substantially transformed” into a new and different article of commerce that is distinctly different from the original item, they wrote.
 

The post Maureen Jamieson Quoted in Bloomberg BNA Article on Trade Agreements Act appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.

 

The post Federal Circuit Reverses $80,000 Fee Award in Bid Protest appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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 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 What’s In A Name? appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.

The post Centre Law & Consulting Successfully Sustains Bid Protest for Phoenix Air appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.

 

The post Government Shutdown Deadline Looms While GSA Takes It on the Chin Over TDR Program appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.

 

The post GAO Won’t Reconsider its Decision Upholding NASA’s Award of a $24.6 Million Contract appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.

The post Centre Law & Consulting Awarded CSOSA Contract for Employee Training appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.

The post Third Time’s the Charm? Not so Much for this Protester appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

In the past I have written about subcontracting compliance from the Contractor Purchasing System Review (CPSR) audit prospective. The three step process of system existence, system procedure adequacy and compliance is a very effective way to meet the FAR 44.3 CPSR goal of “efficiency and effectiveness with which the contractor spends Government funds and complies with Government policy when subcontracting”. How efficient and effective the contractor procurement system performs goes beyond these three steps. Some of the factors that commonly impact on the acquisition process include planning, proper description of needs and funding. This article touches on a few aspects of these factors that if ignored can degrade the efficiency and effectiveness of your outsourcing processes.

Planning is the major factor and can encompass the other two, but each is worth discussing. Planning encompasses many things that don’t always get the attention they deserve. One thing is certain, if you don’t take the time to do a good comprehensive job up front you will pay for it later! One of the major aspects of planning is in the proposal phase make or buy decisions. The make or buy analysis is part of the process for creating a winning team.

You want to offer the client a winning team that meets their needs on time and at the right price. Do you provide the goods, components and services in-house or can you improve the “product” and pricing through partnering and subcontracting? The answer is to look for the best combination to win the contract. Is the outsourcing function within your company adequately represented on the proposal team? The subcontracting team can add value through market research identifying potential source and supporting small business plan development. Additionally, the subcontracting team can work with proposal team members on issue including flow down requirements, terms and conditions and pricing support.

Have you ever hear the complaint that the government wants you to competitively award scope that was promised to a team member? If the original proposal clearly identifies the team member as the teaming source for a specific scope, then the source selection issue is complete. In fact, you may be able to get the Contracting Officer to include the team member in clause 52.244-2(j) excluding them from the consent process. Unfortunately I have seen cases where the winning proposal used information from a subcontractor but did not clearly describe the teaming arrangement in line with FAR 9.6. If the original proposal had included a clear description of the teaming arrangement, you have a solid basis for the subcontract source selection and a solid response when the CPSR team questions the adequacy of your subcontract competition activities. The outsourcing function needs to be an active member of the proposal team to make sure the ground work is laid right up front!

A proper description of needs is not a new subject. Too often the internal customer (aka end user or requisitioner) is left to his or her own to come up with what is needed. The outsourcing function should be involved with the internal customer working with them to identify the best ways to meet their needs. If it is a recurring need, do you set up a competitively awarded catalog or blanket purchase arrangement? Or, do you set up a larger order with multiple deliveries coordinated with the internal customer’s schedule? If the internal customers’ needs are so specific that it limits competition, then you have the opportunity to work with them to do the market research to find alternatives or to substantiate the single or sole-source justification. In either case, you have a solid response when the CPSR team questions the adequacy of competition activities or basis for a commercial item determination. The outsourcing function needs to be actively involved with the internal customer right up front!

Funding is a subject that doesn’t always get the attention it deserves. Sure, you need money to support a purchase order/subcontract, and Under DFARS 252.244-7001 (c) (4), properly authorized requisitions are required.  But there are other issues around funding that can hamper efficient and effective outsourcing. One issue that can negatively impact you is adequate funding.

Inadequate funding on a requisition can lead to delays and increased costs in prime contract performance. Proper project planning and budgeting helps, but the funding source(s) and acquisition planning need to be worked together. For example, rental of heavy construction equipment should be based on the construction schedule the equipment is supporting. You would think that means a six month rental should be funded for six months. But, sometimes you see it “incrementally” funded through a series of requisitions. Here is where efficiency and effectiveness go out the window. The buyer/subcontract administrator must issue a series of monthly modification to add funds (buyer time away from other work). If the funding requisition is delayed, then invoices sit in Accounts Payable waiting for sufficient committed funds to pay the invoice (both buyer and A/P clerk have time away from other work). Late payments leads to stop work threats, complaints to the Contracting Officer, and questions/findings on accounting and purchasing audits (now management, buyers, A/P clerks and others have more time away from other work). When payment is slow, disgruntled subcontractors are less inclined to bid new work or offer better pricing (more work again and potential system audit issues related to a variety of issues such as; timely award, adequate competition, fair and reasonable pricing, subcontract closeout and file documentation).  Again, early involvement of the outsourcing function can help eliminate problems before they occur saving time and resources that would otherwise be consumed trying to patch and fix things later in the process.

I hope my point is clear. Early involvement by your subcontracting and purchasing staff pays big rewards to the overall success of your company. Beyond timely and successful prime contract performance, another benefit is improved compliance. When I see problems during compliance audits and CPSR reviews, the “root cause” is frequently the result of a “reactive procurement system” trying to fix things that could have been avoided by early, effective involvement with internal customer. With time being taken away from the primary task of procuring the goods and services needed, quality and compliance suffer. When people have the time and tools to do their jobs, they are going to give you the kind of results you need, successfully perform the prime contract and meet client audit expectations. That’s how you maintain an approved purchasing system!

About the Author

Jack Hott headshot | Centre Law & Consulting in Tysons, VA Jack Holt has more than four decades of experience as a contracts professional in Government and the private sector. A retired Air Force officer, he served multiple acquisition related assignments with The Air Force and Defense Contract Management Agency. These assignments included Assistant Professor of Acquisition Management, Air Force Institute of Technology, multiple in-plant assignments where he functioned as Principle Administrative Contracting Officer/DACO managing contract administration, pricing, government property, CAS and overhead approvals, supplier quality, and subcontract management.

After leaving the Air Force, Mr. Hott became principle consultant to a small veteran owned business developing and presenting training on a variety of government contracting subjects including cost/price analysis, contract administration and Cost Accounting Standards.

The post Maintaining an Approved Purchasing System – Things That Get in the Way appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

By Wayne Simpson

A Final Rule published in the Federal Register July 14, 2016, effective November 1, 2016, amended the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the U.S. Small Business Administration (SBA) , which provide for a Governmentwide policy on small business subcontracting.  One of the changed requirements effects subcontracting reports submitted after November 30, 2017.

Specifically, the language at FAR 19.704(a)(10)(iii), 52.219-9(d)(10)(iii), and 52.219-9 Alternate IV (d)(10)(iii)—was revised to require order-level reporting on single-award, indefinite-delivery, indefinite-quantity contracts intended for use by multiple agencies in addition to multiple-award contracts in use by multiple agencies and to clarify that the order-level reporting would be required after November 30, 2017, which is when the Electronic Subcontracting Reporting System (eSRS) will be ready to accommodate this requirement.

FAR Clause 52.219-9, Subcontracting Plan Requirements (JAN 2017), the most recent update of the clause, contains the revised language.

The post Reminder: Changes to Subcontracting Reporting Requirements—Effective November 30, 2017 appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.

 

The post Failure to Submit Signed JV Agreement Rendered Proposal Technically Unacceptable appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.

 

The post Earning Only 78% Of What A Similarly Situated Male Employee Is Paid? Call Me! appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.

The post Centre Law & Consulting Awarded NRC Contract for Employee Training appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.”

The post Barbara Kinosky Speaker at the 21st Annual Government Contracting Update appeared first on Centre Law & Consulting.


View the full article

Sign in to follow this  
×