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GAO Dismissed Protest Because Protester Failed to Allege Sufficient Basis for Protest

On August 29, 2016, the Air Force issued an RFP seeking base operations support services at an Air Force Base in Mississippi. The solicitation advised offerors that the agency would award the contract “to the proposal with the lowest evaluated price from among those proposals evaluated to be acceptable.” The RFP further stated that the technical evaluation team would evaluate the lowest-price offeror and then, as needed, evaluate higher priced offerors in order of price rank, to assign a rating of Acceptable or Unacceptable. The protester, PAE, was found to be technically acceptable but had the second lowest price of all offerors and, thus, award was made to the lowest offeror. PAE subsequently filed a protest arguing that the agency performed an inadequate evaluation of unbalanced pricing and failed to evaluate the realism of offeror’s pricings. In evaluating the protest, the GAO found that, absent a solicitation provision expressly or implicitly providing for a price realism evaluation, agencies are neither required nor permitted to conduct one in awarding a fixed-price contract. The GAO further found that, even though the solicitation required the agency to analyze whether the offerors’ prices were unbalanced, PAE failed to sufficiently allege that the awardee’s prices were overstated or unbalanced. In dismissing the protest, the GAO found that PAE failed to allege a sufficient basis of protest because it had not alleged that the awardee’s prices were overstated or unbalanced and, thus, even where an agency acts in error, the GAO will not sustain a protest unless the protestor can show that it was prejudiced by the error. The GAO likewise found that PAE’s additional protest grounds, including failure to conduct meaningful discussions, were not a legally sufficient basis for a protest because the evaluation scheme challenged by PAE was not the type of deficiency required to be addressed during discussions. About the Author: Heather Mims
Associate Attorney
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.   The post GAO Dismissed Protest Because Protester Failed to Allege Sufficient Basis for Protest appeared first on Centre Law & Consulting.
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GSA Order-Level Materials (OLMs) – Updates and Next Steps

By Maureen Jamieson, Executive Director of Consulting Hopefully, you have been following the breaking news regarding the final rule on Order-Level Materials (OLMs). After many years of discussion on this subject, the General Services Administration (GSA) is amending the General Services Administration Acquisition Regulation (GSAR) providing the authority to acquire OLMs when placing task or delivery orders against a Federal Supply Schedule (FSS) or FSS Blanket Purchase Agreement (BPA). And exactly what is the definition of OLMs?  OLMs are supplies and/or services acquired in direct support of an individual task or delivery order placed against an FSS Schedule or BPA when the supplies and/or services are not known at the time of schedule or BPA award. Please note that Other Direct Costs, which are known at the time of schedule award, will remain as an option. Examples of these types of Other Direct Costs can be found on the Professional Services Schedule (PSS) under the Ancillary and Other Direct Cost SIN descriptions. Key points of the OLM final rule: The total value of all OLMs cannot be greater than one-third the volume of the total order. (Note that travel is excluded from this calculation). Fair and reasonable pricing, defined as a minimum of three (3) quotes for each OLM exceeding the Simplified Acquisition Threshold, will be required. However, contractors with approved purchasing systems are exempt. Indirect Costs on OLMs are allowed. GSA training is being updated to address indirect cost application. Industrial Funding Fee (IFF) will be incorporated into pricing at the Task Order level. What are the next steps? Advanced notice of the OLM final rule will be provided this month on interact.gsa.gov. Be sure to review and provide comments back to GSA. Next month, look for OLM webinars hosted by GSA. The month of May will also kick off GSA wide internal training including training for Industrial Operations Analysts. GSA expects to issue Mass Modifications for the addition of OLMs by June or July 2018. You will have ninety (90) days to accept or decline this OLM mod. When and if you accept the forthcoming OLM Mass Modification, a new OLM SIN will be created.  This new SIN will automatically be uploaded into e-library on GSA Advantage. Centre Law & Consulting will keep you updated on OLM developments via our LinkedIn group GSA Schedule News, Updates, & Discussions. We hope to see you at Boot Camp for GSA Schedules on May 8-9. You can bring your colleague for free*! You’ll gain the necessary skills to understand and negotiate your own GSA Schedule and/or make modifications to an existing schedule, as well as keep up with the changes that affect your contract administration and compliance efforts. *Promotion expires May 1. The post GSA Order-Level Materials (OLMs) – Updates and Next Steps appeared first on Centre Law & Consulting.
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Count Your Blessings- A Thousand DOL Audit Letters Never Looked So Good

By Tyler Freiberger To much international acclaim, earlier this year Iceland introduced a new equal pay act to fight discrimination against protected classes, particularly historically underpaid women. The introduction of the Act made the cover of Time magazine and garnered wide-spread attention on the 24-hour news networks’ cycles. While the historic Act may warrant such coverage, for domestic industry insiders the celebration of Iceland’s legislative prioritization of gender equality may ring a bit hollow, as the United States’ passed the Equal Pay Act over half a century ago. And, as Centre has discussed in the past, pay discrimination has been illegal ever since. Earlier this month, the U.S. Department of Labor (“DOL”) made a related show of force on the issue through its Office of Federal Contract Compliance Programs (“OFCCP”), issuing a thousand letters to government contractors advising that it may audit contractors for compliance with non-discrimination/affirmative action obligations, including matters of pay equity. Clearly, the global march towards gender equality moves forward, but before we rush toward an “Icelandic model,” there are complicated issues to address. First, there are clear conceptual differences between Iceland’s new model and the United States’ system. The “big move” of the Icelandic law is to demand that employers prove they are not paying women less than men; in contrast, the American system places that burden on the employee attempting to prove their case. Despite that variance in burden of proof, U.S. contractors reading these audit letters from DOL are likely not celebrating an easy road to compliance. In fact, with a recent groundbreaking study out of Stanford, it is clear employers can have a very thin rope to walk when attempting to eliminate a purported “pay gap.” American anti-discrimination laws are based upon the principle that, assuming an absence of discrimination all people will be equally represented and compensated in the workforce. Therefore, if a class of people are underrepresented/under-compensated in a workforce, something is wrong in the employer’s process. Yet, the law is clear that employers cannot make employment decisions based on gender, even if that decision is directly made to further affirmative action goals – i.e., “reverse” discrimination remains illegal even in an affirmative action context. Instead, the employer is meant to study its workforce, identify inequalities, and identify what gaps exist in its process that lead to inequality. Perhaps it is where the employer is recruiting, how it qualifies candidates, who it chooses to make hiring decisions, or what criteria the employer uses to advance current employees.  The hundreds of government contractors recently receiving the OFCCP letters will be performing exactly these analyses. Imagine then, if a hard look at your workforce reflected men earning 7% more an hour than women for doing the exact same job; how do you react? It is expressly unlawful to purposely increase women’s pay 7% more an hour, so necessarily employers must identify what in their processes has caused the inequality.  For context, this is the scenario Uber finds itself in after the aforementioned Stanford study. Upon examining over a million Uber rides in the Chicago area, researchers noted a substantial pay gap between male and female drivers, while “the average of rider ratings of drivers is statistically indistinguishable between genders.” In sum, women are making less money, while performing the same job, with equal customer satisfaction, and being paid through a computer algorithm where driving X distance at Y time results in a computer-generated rate. Discrimination, right? Well, maybe not. What makes the results so interesting is that under the Uber model, riders and drivers are assigned without gender preference; and, simultaneously riders are fined if they reject the driver pre-pickup. This essentially creates a double-blind system of assigning work. Preference for a male driver over a female driver – i.e. canceling a female driver’s pickup – awards the driver and punishes the rider. And, the study shows no (or at most very little) such driver selecting preference. Rather, the data revealed that the largest cause of the pay gap to be arising from the specific (and varying) times men and women decide to drive. Other than amending its scale to pay women more per ride than men, how might we (or Iceland) assert that Uber solve this problem? And is there even a “problem” to solve? If you are an American company sweating over a similar gap in your workforce, we can offer some relief. While American employers should always be exploring these questions, and considering solutions, the “unknown” currently goes in the employer’s favor. In the United States, employees still must present evidence isolating and identifying the discrete element in the hiring or compensation processes that allegedly produces the discriminatory outcome. See EEOC v. Freeman, 961 F. Supp. 2d 783 (D. Md. 2013), aff’d in part sub nom. E.E.O.C. v. Freeman, 778 F.3d 463 (4th Cir. 2015). Still, under either the U.S. or Iceland model, you do not want to be the last to know.   About the Author: Tyler Freiberger
Associate Attorney
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.   The post Count Your Blessings- A Thousand DOL Audit Letters Never Looked So Good appeared first on Centre Law & Consulting.
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Photo Finish Bid Decision Survives Protest

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
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.
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One Procurement Produced 24 Protests and a Request for Reconsideration

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
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.
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VA to Publicly List all Disciplined or Fired Employees Plus How DHS Spent $24.2 Million on a System it Did Not Need

In a first for the federal government, Veterans Affairs Secretary David Shulkin has announced that the VA will now publicly post all major disciplinary actions taken against its employees.  This includes all terminations, demotions, and suspensions of more than fourteen days. While the adverse action report does not include employees’ names, the list does and will continue to include the employee’s component, position, specific adverse action taken, date it took effect, and the employee’s region. In explaining his decision, Shulkin stated: “Under this administration, VA is committed to becoming the most transparent organization in government.” He further added, “Together with the accountability bill the president signed into law recently, this additional step will continue to shine a light on the actions we’re taking to reform the culture at VA.” The initial adverse action report was posted on the VA website on July 3, 2017 and dates back to January 20, 2017, the day Trump took office.  The report cites 743 disciplinary cases, of which 526 were removals. Interestingly, this would put the VA on pace to only fire 1,169 employees during Trump’s first year in office while the VA fired 2,575 workers in fiscal year 2016. The adverse action report will continue to be updated weekly. In other federal government news, the Department of Homeland Security inspector general found that DHS has recently spent millions of dollars on a contract that did not meet its needs. In an OIG report released June 30, 2017, the IG found that, despite DHS spending $24.2 million as of February 2017, the performance and learning management system does not “achieve the intended benefits or address the Department’s needs.” The IG further specified that DHS spend more than $5.7 million for subscriptions to the system that either were unused or expired before the system became operational. About the Author: Heather Mims
Associate Attorney
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow. The post VA to Publicly List all Disciplined or Fired Employees Plus How DHS Spent $24.2 Million on a System it Did Not Need appeared first on Centre Law & Consulting.
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Barbara Kinosky to Present at Tower Club Lunch and Learn Event

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.
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VA Issues Fiscal Year 2017 Small Business Goals

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
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.
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Cybersecurity for Federal Contractors: You Are Ready, Aren’t You?

Dec. 31, 2017 should be an important date for Department of Defense contractors, since by that date you will be expected to be following the cybersecurity requirements of the National Institute of Standards & Technology (NIST) Special Publication 800-171, “Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations.”  Although this deadline specifically applies to the DOD, all federal contractors should be familiar with the NIST standards for Non-Federal Organizations, since every federal agency expects that its contractors will have an adequate security policy in place. The information that is covered is not classified, but might be considered sensitive.  It is the type of business information that a company would keep confidential.  The NIST requirements, outline requirements in the following areas: Access Control Awareness And Training Audit And Accountability Configuration Management Identification And Authentication Incident Response Maintenance Media Protection Personnel Security Physical Protection Risk Assessment Security Assessment System And Communications Protection System And Information Integrity The requirements are logical, and the NIST publication breaks down each of the categories into “Security Requirements” that every organization should be doing in any case.  For example, under category 2, Awareness Training, the Basic Security Requirements list the following: Ensure that managers, systems administrators, and users of organizational information systems are made aware of the security risks associated with their activities and of the applicable policies, standards, and procedures related to the security of organizational information systems. Ensure that organizational personnel are adequately trained to carry out their assigned information security-related duties and responsibilities. Provide security awareness training on recognizing and reporting potential indicators of insider threat. Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012  Safeguarding Covered Defense Information and Cyber Incident Reporting, is the source of the December 31, 2017 requirement.  While the NIST document includes incident response requirements as part of its standards, DFARS 252.204-7012 also makes explicit that security breaches (“cyber incidents”) must be rapidly reported to the Department of Defense. DOD contractors must have their systems in place to follow these requirements by year end.  But other federal contractors should be ready as well.   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. The post Cybersecurity for Federal Contractors: You Are Ready, Aren’t You? appeared first on Centre Law & Consulting.
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Remember to Timely File Comments… Or Else

In a recent decision on August 25, 2017, the GAO dismissed the protest of PennaGroup, LLC for failure to timely file comments on the agency reports. On March 17, 2017, the Department of Homeland Security (DHS) issued an RFP for the design and construction of solid concrete border wall prototypes. The RFP instructed offerors to acknowledge any issued amendments by signing the accompanying form and advised offerors that failure to acknowledge all Amendments may result in an offeror’s proposal being found non-responsive. PennaGroup timely submitted proposals but only included acknowledge of the seventh and final amendment but did not include the acknowledgement form for amendments one through six. As a result, DHS found PennaGroup non-responsive and eliminated them from further competition. Upon exclusion from competition, PennaGroup filed a protest with the GAO. Upon receipt of PennaGroup’s protest, the GAO prepared and distributed development letters to the parties, which stated that the due date for the agency to file its report was July 26th. The letter further advised that PennaGroup was required to submit written comments in response to the report and expressly stated: “[w]ritten comments must be received in our Office within 10 calendar days of your receipt of the report – otherwise, we will dismiss your protest.” DHS timely filed its agency report on July 26th, which made PennaGroup’s comments due on August 7th. However, PennaGroup neither filed comments nor a request for an extension by the close of business on August 7th. The following day, the GAO asked PennaGroup to confirm whether it had filed comments and, in an email response, PennaGroup merely stated they had no arguments to add to their original bid protest. Unsurprisingly, the DHS filed a request for dismissal of the protest. In dismissing the case, the GAO noted that that its Regulations provide that a protestor’s failure to file comments within ten calendar days shall result in dismissal of the protest unless an extension was granted. The GAO further noted that its Bid Protest Regulations do not allow for post-deadline extensions. About the Author: Heather Mims
Associate Attorney
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow. The post Remember to Timely File Comments… Or Else appeared first on Centre Law & Consulting.
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Fixed Costs for Rental Space Survives Challenge

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
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.
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No April Fools Joke: GSA Refresh/Mass Mods Are Coming!

The General Services Administration (GSA) Federal Acquisition Service (FAS) is planning to refresh ALL Multiple Award Schedules (MAS). The purpose of the refresh is to incorporate provision and clause changes into MAS solicitations and contracts. Be on the lookout for updates tentatively planned for April 2017. Major changes to the Small Business Subcontracting Plan will be included in these Refreshes/Mass Mods that will impact both large and small businesses. Look for changes in the Model Subcontracting Plan that reflect additional requirements. These changes were effective November 1, 2016 when DoD, GSA, and NASA issued a final rule amending the Federal Acquisition Regulation (FAR) to implement changes made by the Small Business Administration. Key changes of the refresh and mass modifications are as follows: Small Business Subcontracting Plans: Large Business Prime Contractors Must: Make good faith efforts to utilize their small business subcontractors during the contract term to the same degree the prime contractor relied on the small business in preparing and submitting its bid or proposal Resubmit a revised subcontracting report within 30 days of receipt of a notice of report rejection Assign North American Industry Classification System (NAICS) codes to subcontracts Not prohibit discussion of payment or utilization matters between a subcontractor and the contracting officer Report order level subcontracting information if prime has a subcontracting plan on task and delivery order contracts after November 2017* Contracting Officers May: Require a subcontracting plan after a small business re-represents its size as other than small Necessitate subcontracting goal calculation in terms of total contract dollars** as well as in terms of total subcontracted dollars Updates to Non-Federal Entities Purchasing off Federal Supply Schedules (FSS): The State/Local Disaster Purchasing Program*** extends to cover disaster preparation and response as well as recovery from major disasters Access extends to certain qualifying organizations including the American National Red Cross and National Voluntary Organizations Active in Disaster Revisions to I-FSS-600 Contract Price Lists: Requirement for submission of contractor’s electronic files is updated to no later than 30 days after award Other Changes: Removal of Pathway to Success training requirement for streamlined (Successful Legacy) offers Updated Service Contract Labor Standards Act (SCLS) Wage Determinations (WDs) to be added to all schedules Contractors to ensure pricing and WD references are updated and included in SCA matrix  
For the latest proposed draft updates, see more on GSA Interact.
  * Requirement date may be extended as updates to the Electronic Subcontracting Reporting System (eSRS) are ongoing.
** Offeror may include a proportional amount of products and services that are ordinarily allocated as indirect costs.
*** Disaster Purchasing Program participation is voluntary and vendors may opt in or out at any time during their contract term. About the Author: Johanna Moore
Consultant
Johanna Moore is a GSA and VA Contract Consultant at Centre Law & Consulting. She collaborates with the consulting team to provide proposal and contract management assistance to clients, focusing on various modification packages, market analysis, and catalog/pricing updates.   The post No April Fools Joke: GSA Refresh/Mass Mods Are Coming! appeared first on Centre Law & Consulting.
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Ninth Circuit Rules Employer Can Pay Female Employee Less Based on Prior Salary

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
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.
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Centre Staff Speaking at NCMA World Congress

Centre Law & Consulting will be at NCMA World Congress in Chicago from July 23-26, 2017. A number of Centre’s staff have been invited to speak about various federal contracting topics (see below for the topics and times). Centre will also be exhibiting at booth 417. Monday July 24 Corporate Ethics: Lead from the Top or Pay Through the Nose A07 • Managing Contracting Organizations • Room 309/311 • Intermediate David Warner, Partner, Centre Law & Consulting 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. The Acquisition Profession’s Essential Tools: Principles of Interpretation C11 · Foundational Contracting Training • Room 325 · Basic Kenneth Allen, JD, Attorney and Consultant, Semi-Retired Academic
Barbara Kinosky, Esq., Managing Partner, Centre Law and Consulting What’s in a word? Lots. Contract interpretation is one of the most important skill sets an acquisition professional can have. Attendees will explore the application of the principles of contract interpretation through real court cases and key federal exceptions. Tuesday, July 25 Protests Happen, so Now What? D12 · Foundational Contracting Training · Room 326 · Intermediate James Phillips Jr, PMP, CFCM, Fellow, Acquisition Consultant, Phillips Training and Consulting Inc.
Barbara S. Kinosky, Esq., Managing Partner, Centre Law and Consulting 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.
ACTIVITY: 8-10 short scenarios will be provided for group discussion. Lessons Gleaned from Successful Protests at GAO F05 · Business Acumen · Room 326 · Basic Barbara S. Kinosky, Esq., Managing Partner, Centre Law and Consulting 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.
ACTIVITY: Small groups will discuss protest issues related to specific examples. Wednesday, July 26 An Overview of GSA’s e-Tools – eOffer/eMod, SIP, TDR Sales Reporting G15 · Leveraging Advancing Technology · Room 306 · Basic Maureen Jamieson, Executive Director of Consulting, Centre Law and Consulting
Julia Coon, Consultant, Centre Law and Consulting This session will show participants how to submit a GSA offer, modifications and other electronic forms such as the CSP-1 and Small Business Subcontracting Plan in eOffer/eMod. Walk through 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 Transactional Data Reporting (TDR)/FAS Sales Reporting and the anticipated Formatted Product Tool (FPT). The post Centre Staff Speaking at NCMA World Congress appeared first on Centre Law & Consulting.
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“Let’s Talk About Sex[ual Harassment], Baby!”

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
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 “Let’s Talk About Sex[ual Harassment], Baby!” appeared first on Centre Law & Consulting.
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Centre Law & Consulting

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Trump DOJ Withdraws Obama Administration Memo Regarding Title VII And Gender Identity

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
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 Trump DOJ Withdraws Obama Administration Memo Regarding Title VII And Gender Identity appeared first on Centre Law & Consulting.
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Agency Found to Have Reasonably Canceled Solicitation Due to Protest

In a decision on July 10, 2017, the GAO found that an agency reasonably canceled its solicitation after a protest where the agency’s requirements were time dependent. Tien Walker, a small business, protested the cancelation of the solicitation issued by the Department of State for public opinion polling surveys to be conducted in South Asia. Specifically, the selected contractor was to conduct two public opinion surveys in Afghanistan, with the first survey to be completed before the start of the Muslim observance of Ramadan. Before the solicitation’s closing time, Tien Walker filed a protest with the GAO alleging that the solicitation was unduly restrictive and not properly set aside for small businesses. In response, the Department of State notified that GAO that it had canceled the solicitation and would not resolicit the polling survey. The GAO then dismissed Tien Walker’s protest as academic. Tien Walker has now protested the cancelation of the solicitation as improper. Specifically, Tien Walker argued that the Department of State unreasonably canceled the solicitation as a pretext to avoid the GAO’s review of its protest. In denying the protest, the GAO noted that a contracting agency has broad discretion in deciding whether to cancel a solicitation. The GAO further noted that an agency need only establish a reasonable basis to support its decision to cancel a solicitation. Where a protester argues that the agency’s rational for cancellation of a solicitation is mere pretext, the GAO will nonetheless still examine the reasonableness of the agency’s actions. The Department of State’s rationale for canceling the solicitation relied upon the required stay of contract award and performance due to Tien Walker’s initial protest. The agency further clarified that even if Tien Walker’s first protest was denied, no contractor would have been able to complete the first survey prior to Ramadan. Therefore, the GAO found that the agency’s rationale for canceling the solicitation was reasonable and was not a pretext to avoid awarding the contract on a competitive basis. As such, the GAO denied the protest.   About the Author: Heather Mims
Associate Attorney
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow. The post Agency Found to Have Reasonably Canceled Solicitation Due to Protest appeared first on Centre Law & Consulting.
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David Warner on Federal Drive with Tom Temin

On September 15, 2015, President Obama signed the Executive Order requiring federal contractors and subcontractors to provide one hour of paid sick leave for every 30 hours worked, up to at least seven days per year. It presents both a cost and an administrative burden. David Warner, partner at Centre Law and Consulting joined Federal Drive with Tom Temin to explain what this means to contractors. Hear the interview.   David Warner and Tom Temin. Photo credit: Eric White, Federal News Radio The post David Warner on Federal Drive with Tom Temin appeared first on Centre Law & Consulting.
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VA Adopts Final Rule for Veteran-Owned Small Business Verification Guidelines

Interim Final Rule Adopted as Final Rule Without Change In the July 12, 2017, edition of the Federal Register, VA published its Final Rule implementing its revisions regarding the length of the eligibility period for inclusion in the VA Vendor Information Pages Database (VIP) (www.vip.vetbiz.gov).  This Final Rule implements an Interim Final Rule published in the Federal Register on February 21, 2017, extending the length of eligibility from two years to three years.  VA invited public comments on or before April 24, 2017. VA’s Final Rule notice discusses comments received in response to its request for public comment, including comments requesting clarification as to whether currently verified SDVOSBs/VOSBs would be automatically extended.  VA indicates all verified firms in the VIP Database automatically had their eligibility term extended by one year. The Final Rule notice also reiterates information contained in the February 21, 2017, where VA sets forth its rationale for extending the eligibility period for re-verification from two to three years.  VA expresses high confidence in the robust examination process conducted by its Center for Verification and Eligibility, citing Fiscal Year 2016 data to support this conclusion.  Moreover, the change reduces the administrative burden on SDVOSBs/VOSBs participating in the Veterans First Contracting Program at VA. The post VA Adopts Final Rule for Veteran-Owned Small Business Verification Guidelines appeared first on Centre Law & Consulting.
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Removal of Fair Pay and Safe Workplaces Rule from the Federal Acquisition Regulation

By Wayne Simpson A Final Rule was published in the November 6, 2017 (corrected and republished in the November 8, 2017) edition of the Federal Register removing all regulations relating to the Fair Pay and Safe Workplaces Executive Order issued by President Barrack Obama (Executive Order No. 13673, July 31, 2014). In March 2017, using the authority of the Congressional Review Act, Congress passed House Joint Resolution 37 (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. The post Removal of Fair Pay and Safe Workplaces Rule from the Federal Acquisition Regulation appeared first on Centre Law & Consulting.
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Proposed Rule VAAR

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

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.
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The Annual List of Labor Surplus Areas are Available

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: A city of at least 25,000 population on the basis of the most recently available estimates from the Bureau of the Census; or 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 A county, except those counties which contain any type of civil jurisdictions defined in A or B above; or A “balance of county” consisting of a county less any component cities and townships identified in paragraphs A or B above; or 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: 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; 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; The Small Business Administration uses the LSA list for bid selections for small business awards in Historically Underutilized Business Zones (HUBZones); Some state and local area governments use the LSA list to allocate employment related assistance (food stamps and training); and 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
Contracts Manager
Colin Johnson is a Contracts Manager who focuses on business development and federal contracts management. His expertise is in preparing quotes and responses for both government and commercial entities for training and legal support services. The post The Annual List of Labor Surplus Areas are Available appeared first on Centre Law & Consulting.
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Section 809 Panel: Taking Action on Acquisition Reform

By Barbara Kinosky: Congress’s Section 809 Panel has made their first move on DoD acquisition system reform. The committee is made up of 18 experts in government contracts and is “charged with making recommendations that will shape DoD’s acquisition system into one that is bold, simple, and effective.” Yours truly testified before them. Section 809 Panel has the difficult job of thoroughly reviewing every DoD acquisition regulation ever written, and then conclude which regulations should remain active and which should be eliminated. After a year of study, the panel has released its first report, containing 73 recommendations for procurement reform. This first volume focuses on commercial buying, contracts audits from DCAA, small business policy, and more. One of the top recommendations is to create a “mission driven” acquisition system to replace the current “process-oriented” system. The idea proposed by the panel is to grant DoD officials the ability to choose from various contracting procedures, so they may choose one that produces the best results for their mission.   A major takeaway from the report is the segmentation of the current acquisition process. The report defines these four “lanes” of procurement: Lane 1 – “Readily Available: This lane encompasses existing products and services that require no vendor customization to meet DoD’s needs.” Lane 2 – “Minor Customization: The second lane includes products and services that are primarily sold in the private sector, and for which DoD may be one of many potential buyers.” Lane 3 – “Major Customization: This lane includes products and services for which DoD may be one of few potential buyers, and for which there may be little or no private‐sector applicability.” Lane 4 – “Defense‐Specific Development: In this lane there is no private‐sector applicability, as the products and services are developed exclusively for defense‐related use.” Major missions outlined by the report:   Commercial Buying – “Streamline and simplify DoD’s access to the commercial market.” Contract Compliance and Audit – “Improve the contract compliance and audit processes by focusing on the needs of contracting officers and acquisition team members.” Small Business – “Refocus DoD’s small business policies and programs to prioritize mission and advance warfighting capabilities and capacities.”   The report outlines various other missions as well, and is only the first volume out of three – which will all cover the panels comprehensive examination of acquisition reform.   Source: https://section809panel.org/wp-content/uploads/2018/01/Sec809Panel_Vol1-Report_Jan18_FINAL.pdf   About the Author: Barbara Kinosky
Managing Partner
Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has more than 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, and she has served as an expert witness for federal government contracting cases.       The post Section 809 Panel: Taking Action on Acquisition Reform appeared first on Centre Law & Consulting.
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Get a Receipt!

Any contractor is frustrated when they fail to win a solicitation award.  Getting edged out on price by a few percentage points, receiving a low technical rating due to a misread proposal, or dealing with confusing evaluation criteria; all legitimate complaints. But imagine if your protest was not even considered, despite clear proof you sent it on time, as instructed.  That’s exactly what happened to Ghazan Neft Gas, for its proposal on a fixed-priced supply and delivery contract of fuel to the US Embassy in Afghanistan. The solicitation instructed proposals to be sent via email, and Ghazan did just that on March 13th, well before the April 3rd deadline.  On April 8th, Ghazan inquired as to the status of its application, only to learn the Agency had not received the proposal. When Ghazan discovered the contract had been rewarded to another, it filed a protest with the GAO. Ghazan provided screenshots and declarations showing the proposal was sent to the correct email address on March 13th. The original email was also forwarded from Ghazan’s sent folder.    The Agency simply denied receiving the document and that a review of its inbox and junk folders did not find the email. The GAO sided with the Agency, stating it was Ghazan’s responsibility to ensure the Agency received the protest and also its burden to prove the delivery occurred. Given Ghazan could show they clearly did send the proposal electronically to the correct place, but still failed to meet the burden, contractors should expect that only written confirmation by the government agency would meet the test.   About the Author: Tyler Freiberger
Associate Attorney
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia. The post Get a Receipt! appeared first on Centre Law & Consulting.
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