Jump to content
The Wifcon Forums and Blogs

Sign in to follow this  
  • entries
    130
  • comments
    2
  • views
    4,175

Entries in this blog

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

Centre Law & Consulting

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.

 

The post Pre-Award Audit: Is it Time to Panic? 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

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

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.

 

The post Department of Labor Publishes Final Rule For OFCCP Sex Discrimination Guidelines appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

NDAA Provision Requires Federal Procurement Through ‘Online Marketplaces’

A provision contained in the National Defense Authorization Act for Fiscal Year 2018 (NDAA), H.R. 2810, covers “Procurement Through Online Marketplaces.”  Section 801 of Act requires the Administrator of the General Services Administration (GSA) to establish for government-wide use a program to procure products through online marketplaces for the purposes of expediting procurements while ensuring reasonable pricing of commercial products.

The GSA Administrator is required to carry out this program by the issuance of more than one contract with more than one online marketplace provider.

Although the program will be available government-wide, the Act specifically directs the Secretary of Defense to (shall) use the online Marketplaces, as appropriate, in the purchase of commercial products.

The Act also provides criteria for use in establishing Federal online marketplaces under the program:

  • is used widely in the private sector, including in business-to-business e-commerce;
  • provides dynamic selection, in which suppliers and products may be frequently updated, and dynamic pricing, in which product prices may be frequently updated;
  • enables offers from multiple suppliers on the same or similar products to be sorted or fileted based on product and shipping price, delivery date, and reviews of suppliers or products;
  • does not feature or prioritize a product of a supplier based on any compensation or fee paid to the online marketplace by the supplier that is exclusively for such featuring or prioritization on the online marketplace;
  • provides the capability for procurement oversight controls, including spending limits, order approval, and order tracking;
  • provides consolidated invoicing, payment, and customer service functions for all transactions;
  • satisfies requirements for supplier and product screening requirements of the Act; and
  • collects information necessary to fulfil the order information requirements of the Act

The Act includes requirements for supplier and product screening.

Products procured through the Federal online marketplace will be deemed to have satisfied competitive procurement requirements if there are offers from two or more suppliers of such a product or similar product with substantially the same physical, functional, or performance characteristics on the online marketplace.  Procurements consummated using the online marketplace will be deemed an award of a prime contract for purposes of goals under the Small Business Act.  Nothing in the Act shall be construed as limiting the authority of a department or agency to restrict competition to small business concerns.

NDAA passed the U.S. House of Representatives on July 14, 2017.  The U.S. Senate agreed to a motion to proceed with action on July 25, 2017.

 

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 Amazon.gov? 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

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

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..

 

The post Photo Finish Bid Decision Survives Protest 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

One DOE Procurement Produced 24 Protests and a Request for Reconsideration | Centre Law & Consulting in Tysons, VA
 
On March 31, 2017, the Government Accountability Office (GAO) released a press release concerning a bid protest decision that resolved seventeen protests, which challenged the award of contracts by the Department of Education (DOE) for student loan debt collection services.

On March 27, 2017, the GAO sustained several of the protests in part, finding that DOE made several prejudicial errors in evaluating the proposals, which led it to making unreasonable source selection decisions. The GAO recommended that the DOE reevaluate proposals and make new source selection decisions. The decision itself was issued under a protective order – hence the press release – because the decision may contain proprietary or source selection sensitive information.

While the decision regarding the seventeen protests discussed above is still not publicly available, on April 6, 2017, the GAO issued a decision in which it declined to reconsider the protests decision. Two intervenors who had received awards in the original procurement filed “motions to vacate” asking that the GAO reconsider and rescind its decision issued on March 27, 2017.

This denial of reconsideration gives us a little bit more background into the procurement. The GAO notes in its decision that between December 19, 2016 and January 9, 2017, it received twenty-four protests relating to the DOE procurement. The GAO dismissed five for various procedural or pleading deficiencies. Of the remaining nineteen, seventeen of those were consolidated as they raised several common challenges to the agency’s evaluation of proposals and ultimate award decisions. Those seventeen were decided in the above referenced protected decision. The remaining protests were withdrawn and are currently being pursued at the Court of Federal Claims. Notice of intent to file at the Court was filed by the protestor at the Court of Federal Claims on March 24, and the GAO was notified on March 28 that the protestor was withdrawing its protest.

In their request for reconsideration, the two intervenors sought to nullify the GAO’s decision sustaining the protests based on the March 24 pre-filing notice arguing that the notice had the immediate and automatic effect of divesting the GAO of jurisdiction under 4 C.F.R. § 21.11(b). In denying the request, the GAO noted that it was not actually provided notice until March 28 when the protester withdrew its protest, which was one day after it issued its decision on March 27. Furthermore, this particular protest was not among the seventeen consolidated protests that the GAO decided in the March 27 decision. Finally, the GAO noted that the mere fact that a notice of intent to file a complaint was filed does not automatically divest the GAO of jurisdiction but rather triggers the requirement for it to consider whether dismissal is required under 4 C.F.R. § 21.11(b). Specifically, (b) only requires dismissal where the GAO determines that the subject matter of the protest is before a court of competent jurisdiction. Therefore, all things considered, the GAO dismissed the requests for reconsideration.

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 One Procurement Produced 24 Protests and a Request for Reconsideration appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

If you are in the Northern Virginia area, grab some lunch with Centre’s Managing Partner, Barbara Kinosky, on May 23 at the Tower Club in Tysons, VA.

Barbara will be the featured speaker presenting on “Hot Topics for Federal Contractors: A Look at What’s In and What’s Out in 2017” at the Tower Club’s Lunch and Learn series. Attendees will get up to date on all the latest hot topics in the federal contracting industry. What will a Trump presidency continue to 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?

Come learn about all this and more!

What:   Hot Topics for Federal Contractors: A Look at What’s In and What’s Out in 2017
Date:    May 23, 2017
Time:    12:30pm – 1:30pm
Where: Tower Club in Tysons, VA

Find out more and register via the Calendar page on the Tower Club’s website.

 

The post Barbara Kinosky to Present at Tower Club Lunch and Learn Event appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

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.

 

The post Dumpster Fire, Constitutional Crisis, or Perhaps Just Business as Usual appeared first on Centre Law & Consulting.


View the full article

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.


View the full article

Centre Law & Consulting

Bid Protests: Incumbent Protests Failure of Navy to Release Incumbent’s Proprietary Data | Centre Law & Consulting in Tysons, VA
 
Just when you think you have heard it all, along comes the preaward protest of Fluor Federal Solutions, LLC, B-414223, March 29, 2017.

Fluor alleged that the Department of the Navy, Naval Facilities Engineering Command, solicitation was ambiguous. Fluor claimed that that offerors could not meaningfully price their proposals because of the ambiguous requirement it contained and that proposals received could not be meaningfully compared and evaluated. The interesting quirk was that Fluor was the incumbent, and they wanted to “level the playing field” so that all offerors were bidding to the same requirement and leaving no ambiguity. Fluor’s method of doing so was to have the Navy release Fluor’s proprietary data, after it waived its rights in the data.

The Government Accountability Office (GAO) dismissed this ground of protest. They held that the protester failed to establish that it is an interested party to challenge the lack of data. This is legal speak for saying that Fluor cannot protest on behalf of other potential bidders. Fluor was not prejudiced by the failure of other offerors to see the Fluor proprietary data.

It’s an interesting twist on a protest.
 
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 Incumbent Files Preaward Protest for Navy’s Failure to Release Incumbent’s Proprietary Data appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Ninth Circuit Rules Employer Can Pay Female Employee Less Than Male Based On Prior Salary | Centre Law & Consulting in Tysons, VA
 
The Ninth Circuit recently ruled in Rizo v. Yovino that a female’s prior salary can be a “factor other than sex,” thus justifying a pay disparity between comparable male and female employees for purposes of the Equal Pay Act.

The plaintiff was an employee of the public schools in Fresno County, California. Upon discovering that the County paid her less than her male counterparts for the same work, she brought an action against the County under the Equal Pay Act. The County conceded that it paid the plaintiff less than male employees but argued that the pay differential was based on the plaintiff’s prior salary.

Under the Equal Pay Act, there are four exceptions that permit a wage disparity; one of those exceptions is “a differential based on any other factor other than sex.”

In determining that prior salary alone can never qualify as a factor other than sex, the district court reasoned that “a pay structure based exclusively on prior wages is so inherently fraught with the risk…that it will perpetuate a discriminatory wage disparity between men and women that it cannot stand, even if motivated by a legitimate non-discriminatory business purpose.” In vacating the district court’s order, the Ninth Circuit held that an employer may base its pay differential on prior salary so long as its use effectuated some business policy and the employer reasonably used it in light of its stated purpose and other practices. The Ninth Circuit remanded the matter back to the district court to evaluate the employer’s business reasons in setting the salaries.

Therefore, in essence, the Ninth Circuit has held that an employer may perpetuate existing pay disparities so long as it is part of a company’s business policy. However, this case has the potential to go to the U.S. Supreme Court as other appeals courts have decided this issue differently.

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 Ninth Circuit Rules Employer Can Pay Female Employee Less Based on Prior Salary appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Just in time for the consummate workaholic acquisition professional to read while lying on the beach this summer, and for those who never want to get too far away from the Federal Acquisition Regulation (FAR), the General Services Administration (GSA) Office of Government-wide Policy, in conjunction with the FAR Council announced June 20, 2017, the release of the FAR in the Kindle Bookstore.

The FAR is now available in eBook format for free in the Amazon Kindle bookstore.  Users can highlight text, bookmark sections, even send quotes via e-mail.  According to Acquisition.Gov, the eBook format is proving very popular with procurement professionals with thousands of downloads in the Apple iBooks Store.

Information on how to download the FAR on Amazon Kindle and Apple iBooks is available at:  https://www.acquisition.gov/mobileaccess.

The post The FAR Now Available in the Kindle Bookstore appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

This July, several of the Centre staff were chosen from a competitive field to lead multiple breakout sessions at the 2017 World Congress in Chicago, IL. World Congress is the National Contract Management Association’s largest education event for contract management, procurement, and acquisition professionals. Individuals from government, industry, and commercial business come together for networking and training for all career levels.

From pressing legal matters to the latest in GSA Schedule updates, come learn the information you’ll need to stay up-to-date in the federal contracting industry. Make sure these three breakout sessions are added to your “must-see” events on your conference schedule:

MONDAY, JULY 24 (11:15am – 12:30pm)
Corporate Ethics: Lead from the Top or Pay Through the Nose
David Warner, Partner

This session will review recent enforcement actions—including whistleblower, qui tam, and debarment processes— with respect to federal contractors. Hear about the current state of the law concerning “hidden” ethical traps for import/export, ITAR/EAR, and TAA, in addition to the more common traps of the False Claims Act and Foreign Corrupt Practices. Corporate ethics are expected to remain a significant concern for contractors even under the new administration. Leave with guidance to understand the current legal landscape and to identify and mitigate such risk.

TUESDAY, JULY 25 (11:15am – 12:30pm)
Protests Happen, so Now What?
Barbara S. Kinosky, Esq., Managing Partner
James Phillips Jr, PMP, CFCM, Fellow, Acquisition Consultant

When the word protest is used often, both buyer and seller bristle. This presenter speculates on the thinking that the government buyer goes through that ultimately results in a decision that is sustained. Hear key decision points of actual sustained protests.

TUESDAY, JULY 25 (4:00pm – 5:15pm)
Lessons Gleaned from Successful Protests at GAO
Barbara S. Kinosky, Esq., Managing Partner

What makes a protest successful and what can you do to avoid stalling your acquisition due to a protest? With the number of protests increasing, this session gives attendees clear guidance on practices to avoid that will lead to protest.

WEDNESDAY, JULY 26 (9:45am – 11:00am)
SIP vs FPT, TDR/FAS Sales Reporting vs 72A, eOffer/eMod
Maureen Jamieson, Executive Director of Consulting
Julia Coon, Consultant

eOffer/eMod is GSA’s online tool to submit GSA offers and modifications that is only accessible to authorized negotiators with digital certificates. This session will show participants how to submit a GSA offer and modifications and other electronic forms. Hear about the SIP program and step-by-step instructions for the import/upload process for both products and services. Discussion will focus on GSA’s new TDR/FAS Sales Reporting and Formatted Product Tool.
 
2017 NCMA World Congress Breakout Sessions | Centre Law & Consulting in Tysons, VA
 

The post Centre Staff Leading Breakout Sessions at 2017 NCMA World Congress appeared first on Centre Law & Consulting.


View the full article

Centre Law & Consulting

Executive Order for More Accountability at Department of Veterans Affairs | Centre Law & Consulting in Tysons, VA
 
The Department of Veterans Affairs (VA) has come under intense scrutiny from Congress, Veterans, and taxpayers in recent years in large part due to its patient wait time scandal. The first bills to pass the U.S. House of Representatives in the current 115th Congress included The Ensuring VA Employee Accountability Act. The Congress.gov website has numerous current bills pending pertaining to VA accountability, and there was no shortage of proposed accountability legislation in the 114th Congress.

Now the President has weighed in as well. On April 27, 2017, President Trump traveled across Lafayette Park from the White House to the VA Central Office to sign Executive Order (EO) 13793, “Improving Accountability and Whistleblower Protection at the Department of Veterans Affairs.”

The intent of the EO is to improve accountability and whistleblower protection at VA. It directs the Secretary of Veterans Affairs to establish an Office of Accountability and Whistleblower Protection and to appoint a special assistant to serve as the office’s Executive Director.

This new office must be established within 45 days of the EO (therefore, by June 11, 2017), and VA must provide funding and administrative support “consistent with applicable law and subject to the availability of appropriations.”

The VA Office of Accountability and Whistleblower Protection shall advise and assist the Secretary in using, as appropriate, all available authorities to discipline or terminate a VA manager or employee who has violated the public’s trust and failed to carry out his or her duties on behalf Veterans and to recruit, reward, and retain high-performing employees.

In addition, the office will identify statutory barriers to the Secretary’s authority to discipline or terminate any employee who has jeopardized the health, safety, or well-being of a Veteran, reporting such barriers to the Secretary for consideration as to the need for legislative changes.

Finally, the VA Office of Accountability and Whistleblower Protection is charged with the responsibility to work closely with VA components to ensure swift and effective resolution of Veterans complaints of wrongdoing at VA, ensure adequate investigation and correction of wrongdoing at VA, and protect employees who lawfully disclose wrongdoing from retaliation.

The EO does provide the Secretary with some flexibility in establishing the VA Office of Accountability and Whistleblower Protection. The Secretary may consider whether some or all of the functions are currently performed by an existing VA office, component, or program and to determine if certain administrative capabilities necessary to operate the office are redundant. Additionally, the Secretary may consider whether combining VA’s Office of Accountability and Whistleblower Protection with another VA office, component, or program may improve VA’s efficiency, effectiveness, or accountability.

A copy of EO 13793 was published in the Tuesday, May 2, 2017, edition of the Federal Register.

About the Author:

Wayne Simpson | 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 Executive Order for More Accountability at Department of Veterans Affairs appeared first on Centre Law & Consulting.


View the full article

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.


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

Small Business Contracting Goals for “Manageable Spend”

On May 25, 2017, with only 128 days remaining in Fiscal Year 2017, the Secretary of Veterans Affairs issued VA’s Fiscal Year 2017 small business goals.  This is actually an improvement over when the Fiscal Year 2014 goals were issued with only 38 days remaining in the fiscal year.  Fiscal Year 2014 was the last time the Secretary of Veterans Affairs issued a Small Business Goaling Memorandum.

In response to a May 24, 2017, Freedom of Information Act request for VA’s Fiscal Year 2015, 2016, and 2017 Secretary of Veterans Affairs Goaling Memorandums, VA provided a copy of the Fiscal Year 2017 Secretary’s Goaling Memorandum, along with a no responsive records response for copies of the Fiscal Year 2015 and Fiscal Year 2016 Secretary’s Small Business Goaling Memorandums.  A no responsive records response can only mean the VA Secretary did not issue the annual goaling memorandum for those years.

VA’s Office of Small and Disadvantaged Business Utilization, an organizational element of the Office of the Secretary, is responsible for preparing and coordinating the Secretary’s annual small business goaling memorandum.  It appears this was not done for Fiscal Years 2015 and 2016.

The VA Secretary’s Fiscal Year 2017 Small Business Goaling Memorandum makes it official:  VA’s department-wide goals for Service-Disabled Veteran-Owned Small Business (SDVOSB) and Veteran-Owned Small Business (VOSB) remain at 10% and 12%, respectively.  These goals have been flatlined since Fiscal Year 2010, despite VA substantially exceeding the goals each year.

Interestingly, the VA Secretary’s Fiscal Year 2017 Small Business Goaling discusses a Fiscal Year 2016 piloted effort to concentrate on spend areas where active goals management is most likely to produce results.  VA identified “manageable spend” areas based on VA-funded contract actions, but excluded major health care contracts, large-dollar major construction actions, and mandatory domestic delivery service contracts under the Federal Strategic Sourcing Initiative.  Since no goaling memorandum was issued by the Secretary in Fiscal Year 2016, it is unlikely many people outside VA would have known of this change.

VA’s Fiscal Year 2017 Small Business Goals are established at the statutory level for Women-Owned Small Business (5%), Small Disadvantaged Business (5%), and HUBZone Small Business (3%).  VA’s Small Business goal was reduced from 32% last fiscal year, to 28.5% for Fiscal Year 2017.  The Secretary’s memorandum also establishes VA’s Fiscal 2017 subcontracting goals.

VA decreased its small business subcontracting goal from 17.5% to 17.0%, while increasing the goals for Service-Disabled Veteran-Owned Small Business and Veteran-Owned Small Business by 2%, from 5% and 3%, respectively, to 7% and 5% respectively.

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 Issues Fiscal Year 2017 Small Business Goals 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

Recently, in the matter of SK Hart Properties LLC, the unsuccessful incumbent contractor for the General Services Administration’s office in Salt Lake City protested the Agency’s decision to use a “fixed tenant improvement allowance.” At its heart, the contractor submitted it does not need the full amount listed for improvements in the solicitation for the contract because its space is relatively prepared for the Agency to use as is. Because the incumbent contractor would not charge the Agency the full amount allowed to alter the space, assuming they will increased their bid price above the competitor, who had a lower base rate of rent but arguably needs closer to the full amount to meet the Agency’s needs.  The incumbent failed to win either the award or the protest, despite arguing the procurement artificially increased their bid price by requiring it to claim expenses they would not incur.

The GAO sided with the Agency who agreed the funds may not actually be spent, but that not including a fixed allowance would unjustly allow the incumbent to rely on improvements to their space previously paid for by the government. No mandate required the Agency to eliminate advantages held by the incumbent, but their decision to do so is permitted. This form of pricing also allowed the Agency to focus on the rental rate, without worrying if proposed improvement costs were correct.

The decision offers a unique example of the GAO attempting to foster competition under the Competition in Contracting Act, even if it results in increased costs to the government.

 

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 Fixed Costs for Rental Space Survives Challenge 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

Sign in to follow this  
×