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Centre Law & Consulting

On Thursday, June 29, 2017, Wayne Simpson will be testifying on behalf of the National Veterans Small Business Coalition (NVSBC), before the U.S. House of Representatives Committee on Veterans Affairs’, Subcommittee on Oversight and Investigations.

The subcommittee is holding a legislative hearing on four bills related to strengthening acquisitions at the Department of Veterans Affairs (VA). These bills include H.R. 2006, H.R. 2749, H.R. 2781, and another unnumbered bill currently in draft. The hearing is scheduled for 10:00 AM Eastern Time in Room 334 of the Cannon House Office Building.

FedBizAssist, L.L.C., is a supporting member of NVSBC. NVSBC is the largest not-for-profit organization of its kind representing America’s Veteran-owned small businesses to the Federal government, giving a collective voice to these businesses on legislative, regulatory, and policy issues affecting Federal procurement. NVSBC seeks to enhance procurement opportunities for veteran small business entrepreneurs engaged in, or seeking to enter the Federal Marketplace.

Please support America’s Service-Disabled Veteran-Owned Small Businesses and Veteran-Owned Small Businesses and legislation which enhances Federal procurement opportunities for these firms. Consider joining NVSBC and supporting its Communications Campaign.

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Centre Law & Consulting

Bid Protests: No Completed PPQs? No Contract. | Centre Law & Consulting in Tysons, VA
 
Last month, in Genesis Design and Development, Inc., B-414254 (Feb. 28, 2017), the Government Accountability Office (GAO) denied a protest challenging the rejection of a proposal where the contractor had failed to provide three past performance questionnaires (PPQs) completed by previous customers.

In its proposal, Genesis provided PPQs that provided customer contact information but which did not contain substantive responses from the previous customers. The company argued that it submitted PPQs containing information identifying its past clients and that it reasonably anticipated that the agency would seek the required information directly from its clients. Genesis also suggested that it can be difficult to obtain such information from its clients because they often are too busy to respond in the absence of an inquiry directly from the acquiring activity, and the company noted that, in previous cases, agencies had sought out such information.

The GAO was unmoved, holding that the RFP specifically required offerors to submit completed PPQs and that Genesis’s submission did not comply with the express requirements. Given that the RFP also provided that failure to supply required documentation – including PPQs – could result in a proposal’s elimination from consideration, the agency’s rejection of Genesis’s proposal was reasonable.

While PPQs can often place offerors in the uncomfortable position of needing to rely on prior COs who are under no obligation to respond or respond in a timely manner, the Genesis decision makes clear that failure to submit completed PPQs can preclude consideration for contract award.

About the Author:

David Warner | Centre Law & Consulting David Warner
Partner

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

 

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On May 17, 2017, the Department of Veterans Affairs (VA) published a proposed rule in the Federal Register to revise and streamline the VA Acquisition Regulation (VAAR).  Public comments are invited and must be submitted no later than July 17, 2017, to be considered in formulating the Final Rule.  Codified acquisition regulations may only be amended and revised through formal rulemaking under the Office of Federal Procurement Policy Act.  For ease of reference, information on how to submit comments appears at the end of this post.

Summary

VA is proposing to revise, streamline, and update its acquisition regulation, whereby all parts of the VAAR will be reviewed in phased increments to revise or remove any policy superseded by changes in the Federal Acquisition Regulation (FAR), to remove any procedural guidance internal to VA, and to incorporate any new regulations or policies.

According to VA, the proposed rule will correct inconsistencies, remove redundant and duplicative material covered by the FAR, deleted outdated material and information, and appropriately renumber VAAR text, clauses and provisions where required, to comport with the FAR format numbering and arrangement.  The Proposed Rule is intended to streamline the VAAR to implement and supplement the FAR only when required, and remove internal agency guidance in keeping with the FAR principles concerning agency acquisition regulations.

A VAAR Section-by-Section Synopsis of Changes Covered by the Proposed Rule is attached.

How to Submit Written Comments:

Written comments may be submitted through www.Regulations.gov; by mail or hand-delivery to Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AP50—Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-V001—parts 801, 802, 803, 812, 814, 822, and 852).” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. This is not a toll-free number. In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov.

VAAR Section-by-Section Synopsis of Changes Covered by the Proposed Rule:

VAAR Part 801 – Department of Veterans Affairs Acquisition Regulation System

  • Removes an information collection burden previously included in the VAAR based on an outdated practice of providing bid envelopes.

VAAR Part 802 – Definition of Words and Terms

  • Adds two new definitions to define key terms used within the revised VAAR Part 803, Improper Business Practices and Personal Conflicts of Interest, dealing with debarment and suspensions which will be applicable when referenced in the future in other VAAR Parts: Debarment and Suspension Committee; and Suspension and Debarring Official.

VAAR Part 803 – Improper Business Practices and Personal Conflicts of Interest

  • Proposes clarifying language regarding the prohibition of contracts from making reference in their commercial advertising regarding VA contracts to avoid implying the government approves or endorses the contractor’s products, services, or commercial line of endeavor.
  • Proposes removal and reserves for future use, VAAR Subpart 803.1, Safeguards, and VAAR Section 803.101, Standards of Conduct, since it contains procedural guidance and a delegation of authority internal to VA and will be in the VA Acquisition Manual (VAAM).
  • The Proposed Rule removes Section 803.101-3, Department Regulations, since it contains information on standards of conduct and financial disclosure for VA employees and is internal procedural guidance internal to VA and will be in the VAAM.
  • VA’s Proposed Rule will remove Section 803.104, Procurement Integrity, and Section 803.104-7, Violations or possible violations, since they contain procedural guidance and a delegation of authority is internal to VA and will be in the VAAM.
  • In Subpart 803.2, Contractor Gratuities to Government Personnel, VA proposes to update its policy governing improper business practices and personal conflicts of interests to make VA’s policies clear, to provide notice of due process rights and to establish who in VA determines whether or not a violation of the Gratuities clause has occurred and what procedures are followed when the Suspension and Debarring Official (SDO) makes that decision.
  • In Section 803.204, VA’s Proposed Rule removes portions of Section 803.204, Treatment of violations, which contain procedural guidance and a delegation of authority internal to VA and will be moved to the VAAM. To ensure VA contractors are apprised of their rights, VA proposes to revise Section 803.204 to add the responsibility of the SDO for determining whether or not a violation of the Gratuities clauses has occurred and what action will be taken, as well as a paragraph stating that when the SDO determines a violation has occurred and debarment is being considered, the SDO shall follow the requirements at VAAR 809.406-3.
  • In Subpart 803.3, Reports of Suspected Antitrust Violations, VA proposes to remove Section 803.303, Reporting suspected antitrust violations, since it contains guidance to VA employees internal to VA and will be moved to the VAAM.
  • In Subpart 803.4, Contingent Fees, VA’s Proposed Rule removes and reserves the entire subpart and to remove the underlying Section 803.405, Misrepresentations or Violations of the Covenant Against Contingent Fees, since it contains guidance to VA employees internal to VA and will be moved to the VAAM.
  • In Subpart 803.5, Other Improper Business Practices, VA proposes to remove Section 803.502, Subcontractor Kickbacks, since it provides direction to VA employees and is internal VA and will be moved to the VAAM.
  • In Section 803.570, Commercial advertising, VA’s Proposed Rule revises the language of Subsection 803.570-1, Policy, to clarify the intent to prohibit advertising which implies a Government endorsement of the contractor’s products or services.
  • In Subpart 803.6, Contracts with Government Employees or Organizations Owned or Controlled by Them, VA is proposing to remove and reserve the entire subpart and to remove the underlying Section 803.602, Exceptions, since it delegates authority to authorize an exception to the policy in FAR 3.601. This delegation will be moved to the VAAM.
  • In Subpart 803.7, Voiding and Rescinding Contracts, VA proposes to remove and reserve the entire subpart and to remove the underlying sections. VA further proposes to remove Section 803.703, Authority, since it is a delegation of authority, internal to VA, moving the delegation to the VAAM.  VA also proposes to remove Section 803.705, Procedures, as it duplicates FAR 3.705.  A short paragraph directing VA Heads of Contracting Activities to follow the procedures of FAR 3.705 was added to the VAAM.
  • In Subpart 803.8, Limitation on the Payment of Funds to Influence Federal Transactions, VA’s Proposed Rule removes and reserves the entire subpart and to remove the underlying sections. VA also propose to remove Section 803.804, Policy, and Section 803.806, Processing Suspected Violations, all internal VA procedural guidance being moved to the VAAM.
  • VA further proposes to add Subpart 803.11, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions. This implements part of FAR Clause 52.203-16, Preventing Personal Conflicts of Interest, by requiring the signing of a Non-Disclosure Agreement by certain contractor covered employees performing acquisition functions closely associated with inherently governmental functions in order to prohibit disclosure of non-public information accessed through performance on a Government contract. This will also each contractor and subcontractor at any tier whose employees perform acquisition functions closely associated with inherently governmental functions to obtain the signed non-disclosure forms from each covered employee.
  • The Proposed Rule also removes and reserves subpart 803.70, Contractor Responsibility to Avoid Improper Business Practices, and to remove its underlying Section 803.7000, Display of the VA Hotline Poster and its prescription at section 803.7001, Contract clause, because it is unnecessary and duplicates FAR coverage. FAR 52.203-14, Display of Hotline Poster(s), as prescribed at FAR 3.1004(b), which provides adequate coverage for VA. VA internal procedures regarding fill-in information for the clause will be covered in the VAAM.

VAAR Part 812 – Acquisition of Commercial Items

  • VAAR Section 812.301, paragraph (b)(13), VA proposes to change the name of provision at VAAR 852.214-74 to Marking of Bid Samples to better reflect the requirement of the provision.

VAAR Part 814 – Sealed Bidding

  • VA proposes to delete VAAR Subpart 814.1, Sealed Bidding, in its entirety. The Proposed Rule also deletes Sections 814.104, Types of Contracts, and Section 814.104-70, Fixed-Price Contracts with Escalation, as unnecessary since both simply require compliance with FAR 16.303-1 through 16.203-4.  Ergo, no additional VAAR text is required.
  • VA also proposes to revise Section 814.201(a)-(f) by removing paragraphs (a)-(b) since they deal with numbering of Invitations for Bids (IFBs) and consist of internal agency procedures more properly covered in Subpart 804-16 of the VAAM.
  • The Proposed Rule adds a new Subsection, 814.201-2, Part I—The Schedule, to explain how award will be made on summary bids and bids on groups of items to ensure this is clear to the public.
  • In Subsection 814.201-6, Solicitation Provisions, VA proposes to remove as unnecessary paragraph (a), which addresses bid envelopes, since labeling of bids is a customary and usual commercial practice, and the use of the Optional Form (OF) 17, which is optional, and is no longer a standard practice.
  • The Proposed Rule proposes to redesignate paragraph (b) as (a) and to revise item (1) to prescribe new Provision 852.214-71, Restrictions on Alternate Item(s); item (2) to clarify the conditions for including the VAAR Provision 852.214-72, Alternate Items; and item (3) to prescribe the VAAR Provision 852.214-73, Alternate Packaging and Packing, when bids will be allowed based on different packaging and packing. VA also proposes to redesignate paragraph (c) as (b) and to add a prescription for VAAR Provision 852.214-74, Marking of Bid Samples.
  • The Proposed Rule adds Section 814.202, General rules for solicitation of bids and Subsection 814.202-4, Bid samples, requiring samples to be from the manufacturer providing supplies or services under the contract. This ensures the products that are actually proposed and would be delivered under the contract, if awarded, are the products submitted for evaluation.  Paragraph (g), requires bid samples be retained for the period of contract performance or until settlement of any claim the Government may have against the contractor.  Retention is intended for inspection purposes under FAR 14.202-4(g)(4).
  • The Proposed Rule deletes Section 814.203, Methods of Soliciting Bids, and Subsection 814.203-1, Transmittal to Prospective Bidders, as the practice specified of furnishing a bid envelope or sealed bid label is out of date with existing practices.
  • VA proposes to delete Section 814.204, Records of Invitations for Bids and Records of Bids, as it contains instructions internal to VA and will be moved to the VAAM.
  • The Proposed Rule also deletes Section 814.208, Amendment of Invitation for Bids as out-of-date with existing practices regarding sending amendments.
  • In Subpart 814.3, Submission of Bids, VA proposes to delete Section 814.301, Responsiveness of Bids, since there is no authority to refer the question of timeliness to the U.S. Government Accountability Office (GAO) except in the context of a protest.
  • The Proposed Rule also deletes Section 814.302, Bid submission, as duplicative of FAR 14.302(a) and therefore unnecessary.
  • VA proposes to revise Section 814.304, Submission, Modification, and Withdrawal of Bids, to delete internal procedures, to stipulate a limited time period for a late bidder to submit evidence of timeliness, and to renumber this paragraph (f) accordingly to comport with FAR and VAAR numbering conventions.
  • In subpart 814.4, Opening of Bids and Award of Contract, VA proposes to delete the entire subpart because the information is either redundant to the FAR and is adequately covered there or it is comprised of agency internal procedures to be incorporated into the VAAM, as noted specifically below.
  • VA proposes to delete Section 814.401, Receipt and Safeguarding of Bids, because coverage in the VAAR is unnecessary as the FAR adequately covers.
  • The Proposed Rule also deletes Sections 814.402, Opening of Bids; 814.403, Recording of Bids; 814.404, Rejection of Bids; 814.404-1, Cancellation of Invitations After Opening; 814.404-2, Rejection of Individual Bids; 814.407, Mistakes in Bids; 814.407-3, Other Mistakes Disclosed Before Award; and, 814.407-4, Mistakes After Award, as these are VA internal procedures and will be incorporated into the VAAM.
  • VA also proposes to delete Section 814.404-70, Questions Involving the Responsiveness of a Bid, as there is no authority to refer questions of bid responsiveness to the GAO other than in the context of a protest, and, the overall responsibility for this determination rests with the contracting officer. Coverage in FAR 14.301, Responsiveness of Bids, is adequate and no further VAAR coverage is required.
  • The Proposed Rule deletes Sections 814.408, Award, and 814.408-70, Award When Only One Bid is Received, because coverage in the VAAR is unnecessary as it is adequately covered by FAR 14.408-1(b).
  • VA proposes to delete Section 814.408-71, Recommendation for Award (Construction) as these procedures are no longer in use within VA’s Office of Construction and Facilities Management.
  • VA’s Proposed Rule also deletes Section 814.409, Information to Bidders, as unnecessary since the requirement not to disclose is contained in FAR part 3 and need not be duplicated in the VAAR.

VAAR Part 822 – Application of Labor Laws to Government Acquisitions

  • In Subpart 822.3, Contract Work Hours and Safety Standards Act, VA proposes revisions to Section 822.304, Variations, Tolerances, and Exemptions, to use plain language to state the conditions which must be met to permit use of the variation to Contract Work Hours and Safety Standards (the statute) (historically known as the Contract Work Hours and Safety Standards Act), granted by the Secretary of Labor regarding the payment of overtime under contracts for nursing home care for Veterans.
  • VA also proposes revisions to Section 822.305, Contract Clause, to change the title of the Cause at VAAR 852.222-70 to Contract Work Hours and Safety Standards—Nursing Home Care for Veterans, in order to reflect the way the FAR refers to the historical titles based on the Positive Law codification.
  • In Subpart 822.4, Labor Standards for Contracts Involving Construction, VA’s proposed revisions will remove and reserve Subpart 822.4, Labor Standards for Contracts Involving Construction, since this subpart contains procedural guidance on the types of labor standards involved in construction contracting, internal to VA and more appropriate for inclusion in the VAAM.
  • The Proposed Rule also removes the underlying Section 822.406, Administration and Enforcement and Subsection 822.406-11, Contract Terminations, which falls under this subpart since it contains procedural guidance and will be moved to the VAAM.

VAAR Part 852 – Solicitation Provisions and Contract Clauses

  • VA’s Proposed Rule revises VAAR Clause 852.203-70, Commercial Advertising, to use plain language, remove gender-specific wording, and to clarify the intent to prohibit advertising which implies a Government endorsement of the contractor’s products or services.
  • The Proposed Rule removes VAAR Clause 852.203-71, Display of Department of Veterans Affairs Hotline Poster, because VA will instead use FAR Clause 52.203-14, Display of Hotline Poster(s), as prescribed at FAR 3.1004. The FAR clause permits insertion of fill-in language to identify an agency’s hotline poster and VA will include language in its internal agency procedures detailing the requirement to insert the information regarding its agency specific hotline poster.
  • The Proposed Rule also removes VAAR Provision 852.214-70, Caution to Bidders—Bid Envelopes, because the practices described within the provision are obsolete with the advent of posting on the Government-wide point of entry (GPE) via the Federal Business Opportunities (govor FBO.gov) Web page or via a linked interface off of FBO.gov.   VA no longer issues Bid Envelopes or OF 17, Sealed Bid Label, described in the provision, when electronically posting IFBs, thus making the provision obsolete and unnecessary.
  • VA’s Proposed Rule also revises the individual prescription references for the following clauses based on the restructuring of 814.201-6: 214-71, Restrictions on Alternate Item(s); 852.214-72, Alternate Item(s); and 852.214-73, Alternate Packaging and Packing.  The Proposed Rule further revises the title, text and prescription language of VAAR Provision 852.214-74 which now reads, Bid Samples, to Marking of Bid Samples to describe better what the provision is about and to distinguish it from a FAR provision called “Bid Samples.”  VA uses plain language to describe the principal purpose, which is to ensure bidder’s packages including bid samples are clearly marked and identified with the words Bid Samples, as well as complete lettering/numbering and description of the related bid item(s), the number of the IFB, and the name of the bidder submitting the bid samples.
  • VA’s Proposed Rule also removes language stating the preparation and transportation of the bid sample must be prepaid by the bidder as this language is unnecessary because FAR Clause 52.214-20, Bid Samples, already contains language covering the bidder’s responsibilities in this regard. Further, the prescription language for VAAR Provision at 814.201-6(b) which was renumbered to comport with FAR and VAAR numbering and arrangement will also be revised.
  • Lastly, VA’s Proposed Rule revises VAAR Clause 852.222-70, Contract Work-Hours and Safety Standards Act—Nursing Home Care Contract Supplement, to change the title to Contract Work Hours and Safety Standards—Nursing Home Care for Veterans, to better reflect the substance and coverage of the clause and to align the name of the clause with the revised current reference in lieu of the historical title of the act. This revision will also clarify the clause has flow-down requirements and applies to subcontractors at any tier when the stated conditions in the VAAR clause are met.

The Proposed Rule may be viewed in its entirety in the Federal Register by clicking here.

 

About the Author:

Wayne Simpson | Centre Law & Consulting Wayne Simpson
Consultant

Wayne Simpson is a seasoned former Federal executive and acquisition professional who is also a highly-motivated and demonstrative small business advocate, with nearly 38 years of Federal Civilian Service with the U.S. Department of Veterans Affairs (VA), and its predecessor organization, the Veterans Administration.

 

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On August 24, 2017, the National Aeronautics and Space Administration’s (NASA) final rule amending the NASA Federal Acquisition Supplement by adding a policy on the use of “award terms” will take effect. Award terms are an incentive for contractors to go above and beyond a satisfactory performance to obtain an additional period of performance. Each award term cannot exceed one year in length, but is in addition to the base and option years.

The difference between exercising an option and an award term is that award terms require excellent performance, while exercising an option only requires acceptable performance. This provides contractors additional incentives to perform as best as possible. Both award terms and contract options can be used under the same contract.

Award terms will most likely be found in contracts that involve long term relationships and for service contracts valued at more than $20 million dollars.  In considering whether to use an award term, the government must weigh the administrative burden and cost of more frequent procurements versus market stability, technology advances, and the need for flexibility.  Contractors may be evaluated and earn an award term for their work in the base period, option periods, and even during earned award terms.  The requirements to provide an award term is that there must be an on-going need for the service, funds available, and the contractor must not be listed in the SAM Exclusions List.  An award term plan must also be included in all contracts that include award terms and contain the following information: evaluation factors, performance standards, adjectival ratings, weighting system, the evaluation period, and decision point timeframes. This rule has the potential to incentivize greater contractor performance on large service contracts.

The full final rule can be found here:

https://www.federalregister.gov/documents/2017/07/25/2017-15520/nasa-federal-acquisition-regulation-supplement-award-term-nfs-case-2016-n027

 

About the Author

Colin Johnson | Centre Law & Consulting in Tysons VA Colin Johnson
Contracts Manager

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

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The answer should be: very worried.  Even if you are involved in a small company or small law firm, you can be a target.  Everyone needs to take appropriate precautions.

Even though we seem to be hearing nonstop horror stories about servers being held for ransom or personal information stolen from websites, there are things that you can do to minimize the chances that you or your company will be the next victim.

You need to establish a set of security rules that will apply to everyone in the firm – and they should be rigorously enforced.  The biggest exposure does not come from hardware or software, but from your humans.  Everyone on the staff should be trained in how to compute safely.   They should never open an email – even if is from someone they know — if it seems suspicious in any way.  Never click on a link in an email unless you are sure that it is taking you someplace safe.  At worst, you’ll delete an email that was legitimate, but if it is important the sender will try to contact you again.  Users should not be able to add new programs to the network.

In order to access your network (whether you are in the cloud or have a server in the office), you should utilize two-factor authentication.  In addition to a complex and frequently changed password, the user should be required to input an additional set of numbers that are texted to a smart phone or a different email address.  These systems are not foolproof, but they reduce the chances that a someone who gets a password will be able to get into the network.  The system should automatically lock-out IDs after a certain number (3? 5?) of unsuccessful attempts to log-in.  If it is really an authorized user who keeps screwing up his or her password, they will call the system operator to straighten it out eventually.

You should make sure that each workstation has modern anti-virus/anti-malware software installed, and it is updated regularly.  The defensive programs should be installed on any device that it attached to your network, including mobile devices.  If you use Windows, you should be on the latest version. Every time an operating system update is released, it should be installed, as much of the updating is to plug security holes.

You should have a back-up system for all of your data, both at the server and workstation level.  If you use a cloud service such as those provided by Microsoft, Amazon, or other big providers, they have a built-in back-up protocol.  If you use a different vendor, check to see what their back-up protocol is.  Often, it will be a replication to a different server farm.   Back-up drives attached to each workstation, if configured properly, will protect against loss of data due to mechanical problems at the workstation.  But they may not protect again a ransomware attack, since the back-up drive may be similarly infected.  Therefore, it is somewhat more secure to use an on-line back-up system be employed since most malware attack software won’t “see” the online connection as an attached drive, and won’t be able to encrypt it.

Any device that stores business or client information should be encrypted.  For office workstations this means a program like Bitlocker.  For mobile devices, the default encryption and password may suffice, but you should supplement this with a remote ability to locate and or wipe the device.  Many of the instances of unauthorized access have been due to loss of a mobile phone or theft of a laptop.  Make sure that if this happens, the finder will be unable to do anything with the data on the device.

If your business or law firm network is going to be accessed by others, make sure that there is strong firewall protections between the various segments of the network.  The greatest vulnerability may come from access to a contractor’s system that has full access to your system.  Before allowing anyone remote access to your system, make sure that they have adequate security.

Lawyers should be aware that there are ethical rules that obligate you to make certain that you have taken “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”  Model Rule of Professional Conduct 1.6(c).  The rules also note that competent representation requires that an attorney, “to maintain the requisite knowledge and skill, . . . keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . . “  Comment 8, Rule 1.1

In spite of all of your protections, some bad guy may still be able to penetrate your system and steal or encrypt your data.   Your protection package should include cybersecurity insurance that will cover the expected costs of investigation, remediation, notification, fines, credit monitoring, litigation defense, an damages flowing from business interruption.   Yes, these premiums will add costs to your overhead, but, like every other type of insurance you are buying peace of mind with the hope that you will never need to use it.

One final note for federal contractors: there are a few formal hoops that you must just through, as defined by the National Institute of Standards and Technology (NIST).  Read more on that subject here.

 

About the Author

Theodore Banks concentrates his practice on antitrust, compliance, food law, and other corporate matters. Mr. Banks has extensive experience with corporate litigation, including responsibility for contested mergers, environmental contamination, advertising, insurance coverage, products liability, employment law, consumer protection, and packaging and recycling. He has a national reputation for work in corporate compliance and antitrust, and was an early proponent of corporate opt-out suits as plaintiff in antitrust litigation, such as Vitamin, Carbon Dioxide, Corrugated Container, Folding Carton, and Citric Acid Antitrust Litigation, recovering more than $100 million. Through his experience in all aspects of the food industry, Mr. Banks has deep familiarity with the regulatory frameworks and state and federal laws governing food manufacture, distribution, sales, and safety.

 

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The Department of Labor has published its annual list of Labor Surplus Areas (LSA) for Fiscal Year 2018.  What is a LSA you ask?   A LSA is a civil jurisdiction that has a civilian average annual unemployment rate during the previous two calendar years 20 percent above the average annual civilian unemployment rates for all states & Puerto Rico during the same period.  Civil jurisdictions are defined as follows:

  1. A city of at least 25,000 population on the basis of the most recently available estimates from the Bureau of the Census; or
  2. A town or township in the States of Michigan, New Jersey, New York, or Pennsylvania of 25,000 or more population and which possess powers and functions similar to those of cities; or
  3. A county, except those counties which contain any type of civil jurisdictions defined in A or B above; or
  4. A “balance of county” consisting of a county less any component cities and townships identified in paragraphs A or B above; or
  5. A county equivalent which is a town in the States of Connecticut, Massachusetts, and Rhode Island, or a municipio in the Commonwealth of Puerto Rico.

The national unemployment rate during the past two years was 5.12 percent, so the areas included on the Department of Labor’s list have an unemployment rate of 6.1453 percent or higher. Being a LSA matters for the following reasons:

  1. The Administrator for Federal Procurement Policy uses the LSA list to identify where procurement set asides should be emphasized in order to strengthen our Nation’s economy;
  2. General Service Administration (GSA) Online Representations and Certifications Application (ORCA) system uses the LSA list as a tool to determine if a business qualifies as a Labor Surplus Area concern;
  3. The Small Business Administration uses the LSA list for bid selections for small business awards in Historically Underutilized Business Zones (HUBZones);
  4. Some state and local area governments use the LSA list to allocate employment related assistance (food stamps and training); and
  5. Private industry has used the LSA list for strategic planning and potential areas of human capita

 

The list of LSA’s can be found here: https://www.doleta.gov/programs/lsa.cfm

About the Author

Colin Johnson | Centre Law & Consulting in Tysons VA Colin Johnson
Contracts Manager

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

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The U.S. Government Accountability Office (GAO) recently released a report recommending several changes to the Department of Defense’s (DoD) deployable biometrics programs. Deployable biometric capabilities like fingerprint scanners, voice recognition hardware, and iris scanning devices are used as intelligence collection platforms by the DoD. According to the report, these programs are responsible for DoD capturing or killing 1,700 individuals and preventing 92,000 more from accessing DoD bases over the past decade.

While the GAO acknowledged several successful components of DoD’s biometric capabilities, it also made six recommendations to enhance biometric strategic planning. Further, GAO warned that DoD “may have missed an opportunity to leverage existing, viable, and less costly alternatives.”

A critical recommendation was GAO’s final one: DoD should stop determining which contract support to use based on the lowest price. Too often, DoD relies on lowest cost, technically-acceptable solicitations (i.e. choosing the lowest priced bid by a contractor that meets the minimum requirements.) According to the report, this absolute preference for low bidding has resulted in staffing shortages in contractor provided services. While the GAO still supports use of the lowest price solicitation structure for low skilled services, GAO expressed concern of its usefulness for highly technical/skilled tasks, such as information technology security and latent fingerprint examination. GAO recommends using tradeoff selection criteria in determining contract support; this approach could enhance the quality of contract offers and improve contractor hiring and retention through better compensation.

The advantages of using a best value solicitation for these more advanced DoD services are clear. The Department would have greater discretion to determine if a price discount is worth a reduction in quality, and what effect that sacrifice could have on the end goal – for example, quickly and properly processing a potentially hostile individual’s DNA. With the passing of the National Defense Authorization Act for Fiscal Year 2017, DOD will almost certainly follow GAO’s recommendation for a solicitation method. The Act directs the DoD to avoid using lowest price solicitations for information technology contracts, to the maximum extent practicable. (Pub. L. No. 114-328, div. A, title VIII, subtitle C, § 813(c) (Dec. 23, 2016)). Further, DoD reviewed a draft of the GAO report, and concurred with all six recommendations. DoD also cited actions it plans to take to address the recommendations. GAO believes that if DoD completes these actions, it will adequately address the concerns outlined.

About the Author:

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

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

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If you are in the Baltimore area, join David Warner at the next NCMA Greater Baltimore Chapter meeting.

On May 11, David will be the featured speaker presenting the “Annual Update on Federal Contracting and Legislation” where he’ll look back at the first 100+ days of the Trump Administration and review the latest legislation on the Hill, Executive Order and FAR updates, changes in the small business rules, employment regulations, bid protests, and news on the GSA Schedules.

What:   NCMA Greater Baltimore Chapter meeting
Date:    May 11, 2017
Time:    11:30am – 1:00pm (lunch included)
Where: National Electronics Museum in Linthicum, MD

Find out more and register at Events page of the chapter’s website. Register before April 24 to receive early bird discounted rates.

Attendees at this event earns 1 CPE/CPU to include certificate.

NCMA Greater Baltimore Chapter logo
 

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On April 18, 2017, the U.S. Small Business Administration (SBA) published a proposed rule in the Federal Register to amend its regulations to adopt and incorporate the U.S Office of Management and Budget’s (OMB) North American Industry Classification System (NAICS) revisions for 2017, identified as “NAICS 2017.”  SBA proposes to adopt the updated table of size standards effective October 1, 2017, to coincide with beginning of the government’s next fiscal year.

NAICS 2017 creates 21 new industries by reclassifying, combining or splitting 29 existing industries under changes made in “NAICS 2012.”

SBA’s proposed size standards for the 21 new industries have resulted in an increase in size standards for six NAICS 2012 industries and part of one, a decrease to size standards for two, a change in the size standards measure from average gross annual receipts to average number of employees for one industry.  There are no changes for 20 industries and part of one.

SBA included six tables in its proposed rule showing the changes, which occur in the following NAICS Sectors:  21, Mining; 33, Manufacturing; 45, Retail Trade; 51, Information; 53, Real Estate and Rental Leasing; 54, Professional, Scientific, and Technical Services; and 72, Accommodation and Food Services.  We recommend consulting these tables if your business is engaged in one of these NAICS Sectors to determine if your business is impacted by the changes.

A note to large business prime contractors with Small Business Subcontracting Plans:  These changes could also impact the size status of your suppliers and subcontractors which may impact your ability to meet your Small Business Subcontracting Goals.

Why are NAICS Codes Important to Federal Contractors?

NAICS classifies business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. economy.  NAICS Industry Codes define establishments based on the activities in which they are primarily engaged.

NAICS Codes are important in the conduct of U.S. Government procurements, as a NAICS Code is assigned to each procurement by the procuring contracting officer.  NAICS Codes have a size standard assigned by SBA which will determine whether a business is small or other than small (large) business in response to a government procurement.  Companies may be a small business under one NAICS Code, and other than small (large) business under another.  Click here to view SBA’s Size Standards Table, updated February 26, 2016.

The corresponding size standard to a NAICS Code assigned by the contracting officer to a government procurement is especially important when the procurement is conducted using a set-aside for small business, as it will determine a company’s eligibility to participate under a small business set-aside.

More Information on NAICS Codes

Visit the U.S Census Bureau’s North American Industry Classification System website where you can use their useful tool to search NAICS by key word, sector, or NAICS Code:

https://www.census.gov/eos/www/naics/

 

About the Author:

Wayne Simpson | Centre Law & Consulting Wayne Simpson
Consultant

Wayne Simpson is a seasoned former Federal executive and acquisition professional who is also a highly-motivated and demonstrative small business advocate, with nearly 38 years of Federal Civilian Service with the U.S. Department of Veterans Affairs (VA), and its predecessor organization, the Veterans Administration.

 

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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.

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Last week, Attorney General Jeff Sessions issued an agency-wide memorandum entitled “Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964.” The memorandum expressly withdraws a December 15, 2014 memorandum in which then-current Attorney General Eric Holder opined that Title VII “encompasses discrimination based on gender identity, including transgender status.”

While the new memo is undoubtedly a reversal of the Obama DOJ’s policy (ed., “Elections  have consequences.”), the Sessions’ memo is consistent with the weight of federal case authority that has held that gender identity (as well as sexual orientation) is not covered by the plain language of Title VII. Thus, in many ways, the current policy prescription is less a “reversal” than a return to the status quo ante, circa 2014.

That said, since 2012 the EEOC has consistently taken the position that Title VII does encompass discrimination on the basis of gender identity. The Sessions memo creates clear tension, if not outright conflict, between the respective agencies’ policy positions. And, given that the U.S. Supreme Court has never ruled specifically on the question, the issue will likely not be resolved until the Justices speak on the same. Of course, were it inclined to do so, Congress could resolve the matter by amending Title VII, though such an outcome is unlikely at best.

With respect to federal contractors, it should be understood that the revisions to E.O. 11246, which amended federal EEO requirements to include sexual orientation and gender identity, are not affected by the Sessions memo. That is, even if Congress did not intend to include those criteria within the statutory concept of “sex” – the executive branch has (to date) concluded that companies choosing to do business with the federal government will continue to treat sexual orientation and gender identity as protected characteristics.

 

About the Author:

David Warner | Centre Law & Consulting David Warner
Partner

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

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Mark your calendars to join Barbara Kinosky at the upcoming Section 809 Panel meeting on April 27 at 11:30am where she will be an invited featured speaker.

Section 809 Panel stakeholder meetings provide a forum for external experts in the defense acquisition community to provide input to representatives of the panel for consideration in the panel’s work. The Section 809 Panel is looking at reforming and streamlining acquisition regulations with a view toward improving the efficiency and effectiveness of the defense acquisition process and maintaining a defense technology advantage. The panel is charged with making recommendations for the amendment or repeal of such regulations that the panel considers necessary, as a result of such review, to:

  • Establish and administer appropriate buyer and seller relationships in the procurement system
  • Improve the functioning of the acquisition system
  • Ensure the continuing financial and ethical integrity of defense procurement programs
  • Protect the best interests of the Department of Defense
  • Eliminate any regulations that are unnecessary for the purposes described

All Section 809 Panel meetings are open to the general public and details are posted to the panel’s website.
 
Section 809 Panel logo
 

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By Wayne Simpson

A Final Rule was published in the November 6, 2017 (corrected and republished in the November 8, 2017) edition of the Federal Register removing all regulations relating to the Fair Pay and Safe Workplaces Executive Order issued by President Barrack Obama (Executive Order No. 13673, July 31, 2014).

In March 2017, using the authority of the Congressional Review Act, Congress passed House Joint Resolution 37, which disapproved the final rule submitted by the U.S. Department of Defense, the U.S. General Services Administration, and the National Aeronautics and Space Administration and published in the August 25, 2016, edition of the Federal Register. In the Joint Resolution, Congress resolved that the final rule “shall have no force or effect.”

On March 27, 2017, President Trump signed House Joint Resolution 37 into law which became Public Law 115-11.  Under the Congressional Review Act, a rule shall not take effect or continue if Congress enacts a joint resolution of disapproval.  Any rule taking effect which is later made of no force or effect by enactment of a joint resolution shall be treated as though such rule had never taken effect.

The Final Rule implementing Fair Pay and Safe Workplaces in the Federal Acquisition Regulation was effective for solicitations issued and contracts awarded before, on, or after October 25, 2016.  Contracting officers have been directed to modify, “to the maximum extent practicable,” existing contracts to remove any solicitation provisions and contract clauses related to the Fair Pay and Safe Workplaces Rule because they are unenforceable by law.

The Final Rule implementing Public Law 115-11 is effective November 6, 2017.  The entire rule, including amendments published on December 16, 2016, in the Federal Register, is removed as a result of the Final Rule.

The 115th Congress has been busy using the authority of the Congressional Review Act.  As of November 2, 2017, of the eighty-two (82) pieces of legislation signed into law by President Trump, sixteen (16) are enacting joint resolutions to disapprove of rules issued by the Obama Administration.

It is often said, “Live by the executive order, die by the executive order.”  Fair Pay and Safe Workplaces is no more.

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By Wayne Simpson

A Final Rule was published in the November 6, 2017 (corrected and republished in the November 8, 2017) edition of the Federal Register removing all regulations relating to the Fair Pay and Safe Workplaces Executive Order issued by President Barrack Obama (Executive Order No. 13673, July 31, 2014).

In March 2017, using the authority of the Congressional Review Act, Congress passed House Joint Resolution 37 (Public Law 115-11), which disapproved the final rule submitted by the U.S. Department of Defense, the U.S. General Services Administration, and the National Aeronautics and Space Administration, and published in the August 25, 2016, edition of the Federal Register. Congress resolved the final rule “shall have no force or effect.”

On March 27, 2017, President Trump signed House Joint Resolution 37 into law which became Public Law 115-11.  Under the Congressional Review Act, a rule shall not take effect or continue if the Congress enacts a joint resolution of disapproval.  Any rule taking effect and later is made of no force or effect by enactment of a joint resolution sall be treated as though such rule had never taken effect.

The Final Rule implementing Fair Pay and Safe Workplaces in the Federal Acquisition Regulation was effective for solicitations issued and contracts awarded before, on, or after October 25, 2016.  Contracting officers have been directed to modify, “to the maximum extent practicable,” existing contracts to remove any solicitation provisions and contract clauses related to the Fair Pay and Safe Workplaces Rule because they are unenforceable by law.

The Final Rule implementing Public Law 115-11 is effective November 6, 2017.  The entire rule, including amendments published on December 16, 2016, in the Federal Register, is removed as a result of the Final Rule.

The 115th Congress has been busy using the authority of the Congressional Review Act.  As of November 2, 2017, of the 82 pieces of legislation signed into law by President Trump, 16 of them are enacting joint resolutions to disapprove of rules issued by the Obama Administration.

It is often said, “Live by the executive order, die by the executive order.”  Fair Pay and Safe Workplaces is no more.

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By Colin Johnson

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

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

This rule is implementing the regulatory changes made by the SBA and will allow for the facilitation of allocating subcontracting credits to funding agencies. This allocation will help ensure that funding agencies are recognized and incentivized to promote small business subcontracting on orders.  It is important to keep in mind that these reporting requirements apply to all orders on a single-award IDIQ contract intended for use by multiple agencies regardless of dollar value. These changes will apply to solicitations issued on or after the effective date or at the contracting officer’s discretion in accordance with FAR 1.108(d).

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

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By David Warner

I had intended to write about the Supreme Court’s recent decision denying certiorari in the 11th Circuit’s decision in Evans v. Georgia Regional Hospital, thereby declining to resolve the existing circuit split concerning whether sexual orientation is a protected characteristic under Title VII. But then yet another story dropped with high profile allegations of sexual harassment, and the siren call of timely “click-bait” won out over the finer points of Supreme Court jurisprudence. And, wait, here’s yet another story that dropped literally as I was typing this paragraph.

As it appears the nation could use a refresher course, let’s review, shall we?

Sexual harassment – it’s illegal and has been since 1964. Interestingly, there have been relatively few developments in the substantive law around sexual harassment since the Faragher and Ellerth decisions in 1998. Despite subsequent years of HR professionals and management-side employment lawyers beating the drum regarding the necessity of robust anti-harassment policies, training, and proactive response to internal complaints, sexual harassment claims continue to be alarmingly prevalent. In FY 2016 alone the EEOC received almost 7,000 administrative complaints of sexual harassment.

In July 2016, the EEOC issued a report from its Select Task Force on the Study of Harassment in the Workplace. The report merits review in its entirety, but certain of its conclusions concerning “risk factors” are eerily prescient of the current Zeitgeist.

For example, the Task Force noted that workplaces with “High Value” employees and those with “Significant Power Disparities” are particularly prone for harassment issues – i.e., where rules of behavior are viewed as not applying equally to all levels of an organization or to certain “untouchable” employees. While it is easy to pile-on to movie producers, directors, on-air talent, more on-air talent, celebrity chefs, and the like, employers should recognize that significant power disparities exist in literally every working environment. And, per Faragher and Ellerth, it is incumbent upon employers to take steps to ensure that their workplaces are free from conduct that might give rise to claims and potential liability.

The steps remain clear. First, promulgate a clear and strong anti-harassment policy with multiple avenues of complaint, absolute prohibitions against retaliation for good faith complaints, and clear commitment that the policy applies to all levels of the organization. Second, senior management must own and drive a “speak up” culture – you do it for False Claims Act and other compliance issues, right? Third, train your employees on the policy and expectations. For organizations of any size, often separate training for executives/managers and line employees permits for freer discussion and proactive identification of problem areas. Finally, promptly investigate and respond to complaints as they are brought forward, including implementation of harsh discipline where appropriate.

While the law of harassment may not have changed, the cultural environment definitely has. If the headlines have revealed anything, it is that no employee – no matter how senior or “important” – is untouchable now. The human condition being what it is, sexual harassment will likely always be an unfortunate reality in the workplace. The culture’s tolerance for those that abet it, however, appears to be at an end.

 

About the Author:

David Warner | Centre Law & Consulting David Warner
Partner

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

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