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Part B of Section 889 Legislation Goes Into Effect on August 13, 2020

By JW Butler Section 889 legislation initially introduced as a part of the Fiscal Year (FY) 2019 National Defense Authorization Act (NDAA) has now been released in Part A and Part B. Both parts have been incorporated into the Federal Acquisition Regulation (FAR) as FAR subpart 4.21 to combat national security and intellectual property threats against the United States. This legislation will impact any company doing business that uses equipment or services in their day-to-day operations from fiv

Part B of Section 889 Legislation Goes Into Effect on August 13, 2020

By JW Butler Section 889 legislation initially introduced as a part of the Fiscal Year (FY) 2019 National Defense Authorization Act (NDAA) has now been released in Part A and Part B. Both parts have been incorporated into the Federal Acquisition Regulation (FAR) as FAR subpart 4.21 to combat national security and intellectual property threats against the United States. This legislation will impact any company doing business that uses equipment or services in their day-to-day operations from fiv

Offeror Fails To Timely Disclose Denial Of Security Clearance – Protest Granted!

By Hon. Jack Delman In M.C. Dean, Inc., B-418553 (6/15/2020), the GAO recently granted a post award protest on the grounds that an offeror/awardee had actual knowledge, prior to award, that its proposed program manager had been denied a security clearance necessary for performance, but failed to timely notify the agency. The Solicitation The National Security Agency (NSA) issued an RFP to provide maintenance, installation and distribution services for the agency’s physical security system.  T

Offeror Fails To Timely Disclose Denial Of Security Clearance – Protest Granted!

By Hon. Jack Delman In M.C. Dean, Inc., B-418553 (6/15/2020), the GAO recently granted a post award protest on the grounds that an offeror/awardee had actual knowledge, prior to award, that its proposed program manager had been denied a security clearance necessary for performance, but failed to timely notify the agency. The Solicitation The National Security Agency (NSA) issued an RFP to provide maintenance, installation and distribution services for the agency’s physical security system.  T

If You See Something, Say Something: COAFC Expands Restrictions on Post-Award Protests

By Edward W. Bailey, A recent decision by the United States Court of Appeals for the Federal Circuit has expanded restrictions on government contractors’ ability to conduct post-award protests. In Inserso Corp. v. U.S., the United States Defense Information Systems Agency (“DISA”) posted a solicitation, titled Encore III, for the opportunity to sell information technology services to various federal government agencies. Encore III was split into a “full and open” competition and a competition r

If You See Something, Say Something: COAFC Expands Restrictions on Post-Award Protests

By Edward W. Bailey, A recent decision by the United States Court of Appeals for the Federal Circuit has expanded restrictions on government contractors’ ability to conduct post-award protests. In Inserso Corp. v. U.S., the United States Defense Information Systems Agency (“DISA”) posted a solicitation, titled Encore III, for the opportunity to sell information technology services to various federal government agencies. Encore III was split into a “full and open” competition and a competition r

DOJ Continues to Increase False Claims Act Penalties

By Heather Mims, Esq. The False Claims Act (FCA) generally provides that any person who knowingly submits a false claim to the government is liable for triple the government’s damages plus a penalty for each violation. Over recent years, the Department of Justice (DOJ) has gradually increased the penalty for each violation of the FCA, apparently owing to inflation. As the penalty accrues for each violation of the Act, penalties can run into the millions of dollars, as each improper invoice or c

COVID-19 and Employee Accommodations: Current State of EEOC Guidance

By David Warner, Last week, the Equal Employment Opportunity Commission (EEOC) issued updated technical assistance questions and answers entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” It was the second update to the guidance this month. If history is our guide, the science and guidance may be different by the end of next month; but the EEOC’s Q&A currently represents the most up to date direction for employers as they eye reopening of

General Services Administration’s eTools – Tools for Contract Management

By JW Butler The General Services Administration’s (GSA) Multiple Award Schedule (MAS) has several electronic contract management tools, referred to as “eTools”, to help contractors manage their MAS. A list of the GSA eTools can be found here. Below are the eTools that are most commonly used by contractors, as well as some additional eTools not covered on GSA’s website. Every contractor will have to register their contract for GSA’s eTools once their contract has been awarded prior to uploadin

Contractor’s Claim Against U.S. Stays Out of COFC

By Tyler Freiberger, Esq., A federal contractor has used a rare exception to keep its case for monetary damages against the Government out of the Court of Federal Claims (“COFC”). In J-Way Southern Inc. v. U.S., the United States District Court for the District of  Massachusetts has denied the Government’s request to remove the case despite the long standing that the COFC has exclusive jurisdiction over contract claims against the U.S. in excess of $10,000. There are distinct advantages if con

Paycheck Protection Program Becomes More Flexible

By Heather Mims, Esq. An aptly titled bill, President Trump signed the Paycheck Protection Flexibility Act into law on June 5, 2020. The Act would ease several restrictions on companies that borrow money under the Paycheck Protection Program (PPP). You can read more about the Paycheck Protection Program here and here. Generally, the new Act gives businesses more time and flexibility to make qualifying expenditures on loan forgiveness as well as allowing businesses with forgiven loans to defer p

Square Pegs and Round Holes – OSHA Reporting Requirements A Difficult Fit for COVID-19

By Tyler Freiberger, Esq., As pandemic restrictions are beginning to ease, employers are increasingly challenged with knowing and meeting their obligations concerning COVID-19 prevention in the workplace. The confusion and shifting nature of these goal posts is best exemplified by the Department of Labor’s recent revised memorandum advising that employers are responsible for recording cases of COVID-19 occurring in the workplace. On first read, the new requirements can seem overwhelming, and th

Upcoming Multiple Award Schedule (MAS) Solicitation Refresh

By Julia Coon, The General Services Administration (GSA) will be releasing refresh #2 to the Multiple Award Schedule (MAS) solicitation in June 2020. All current MAS contractors will receive a PIN to accept the mass modification and will have 90 days to accept the mass modification.  The upcoming refresh will include the following changes. Photo Requirements for Product Vendors: Clause SCP-FSS-001 Instructions Applicable to All Offerors will be updated to provide contractors with better guida

Contractor Claims in a COVID-19 World

By Hon. Jack Delman Our new COVID-19 (COVID) world brings special risks and unanticipated cost in the performance of federal contracts, particularly for those contractors holding fixed price contracts. Below we suggest various ways through which a contractor can mitigate some of these challenges. YOUR RIGHTS UNDER YOUR CONTRACT AND THE LAW If COVID impacts the timeliness of your performance, you should be entitled to additional time to perform your contract. It is likely that COVID will be co

A Lesson from the CBCA on Recovering COVID-19 Related Costs on Your Government Contract

By Edward W. Bailey, A recent decision from the Civilian Board of Contract Appeals (“CBCA”) serves as a warning to government contractors as they incur increased expenses stemming from the ongoing COVID-19 crisis. However, it also reveals what contractors can do to protect themselves. In Pernix Serka Joint Venture, CBCA 5683 (Apr. 22, 2020), a government contractor, Pernix Serka Joint Venture (“Pernix”), had a firm fixed price contract with the State Department to construct a rainwater capture

COVID-19 Funding Brings Enforcement Risks

By Heather Mims, Esq. In these unprecedented times, when the Government is handing out literally trillions of dollars of cash, a certain amount of unscrupulous behavior is almost certainly to follow. While the economic stimulus plan will provide desperately needed help to plenty of worthy small businesses, it will also surely be rife with fraud – and the Government will be on the lookout for deceitful contractors. The Government is acting quickly to hand out payments to those in need but ambig

Reckoning (and a May 7 “Mulligan”) On The Horizon For Paycheck Protection Program Abusers

By David Warner, One of the key provisions of the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) is the Paycheck Protection Program (PPP). As explained in a prior Centre Blog Post the cornerstone of the PPP is a loan program under which small businesses can borrow the equivalent of two months’ worth of payroll costs. Most importantly, the PPP loan will be forgiven if used for appropriate purposes – i.e., 75% used for payroll costs and 25% available to pay rent and utilit

MAS Updates to Industrial Funding Fee (IFF) Payments and Sales Reporting Due April 30

By JW Butler With the General Services Administration’s (GSA) release of the Multiple Award Schedule (MAS), there have been many changes to GSA’s systems, and the Federal Acquisition Service (FAS) Sales Reporting Portal (SRP) is no exception. While there are some minor changes to the system, there have been NO changes to the sales reporting and Industrial Funding Fee (IFF) payment requirements. This means now that Quarter Two of Fiscal Year (FY) 2020 has ended, all contractors must complete the

SDV Not In “Control” – Court Affirms Overturn of Set Aside Award!

By Hon. Jack Delman   In XOTECH, LLC v. UNITED STATES, 950 F.3d 1376 (Fed. Cir. 2020) (XO), the Federal Circuit recently affirmed the overturn of an award to a service-disabled-veteran-owned (SDVO) LLC small business on the grounds that the LLC failed to show that its decisions were controlled by the SDV as required by law. THE BACKGROUND In 2017, the Army issued an RFP –set aside for SDVO small business –to provide logistical support for certain Army Reserve facilities.  XO submitted a prop

Free Money? Are The Payroll Loans Too Good to Be True?

By Tyler Freiberger, Esq., By now, you’ve heard about the CARES Act and the $350 billion put aside for small businesses. I’m assuming the word is out, given Bank of America alone received 10,000 applications in just the first hour it opened it’s online portal to accept the applications. If you haven’t, the short story is that private lenders are beings tasked to provide loans to small businesses that cover 100% of eight weeks’ payroll, nicknamed the “PPP loans.” The best part, these loans will

Spring Cleaning: It’s Time to Spruce Up Your Multiple Award Schedule

By Julia Coon, As you are completing your annual spring cleaning, do not forget to spruce up your Multiple Award Schedule (MAS) contract. It is important to regularly review and update your MAS contract to ensure your company is in compliance with your contract requirements. Some of the key areas to review when sprucing up your MAS contract are highlighted below. Digital Certificates & Authorized Negotiators: All contractors should ensure their digital certificates are active and the inf

Single Multiple Award Schedule (MAS) Modification Guidance Package Released and COVID-19 Update

By JW Butler Multiple Award Schedule Modification Guidance On March 6, 2020, GSA released the final MAS Modification Guidance package. The new MAS Modification Guidance package can be found here. GSA previously had different modification guidelines for the 24 different legacy Schedules, but with the release of this modification package all contractors under the new MAS will follow the same guidelines for modifications. There are still specific instructions for each type of modification, but r

Trump Administration Continues To Align “Joint Employer” Standard Government-Wide

By David Warner, Last week, the National Labor Relations Board (NLRB) published its final rule setting out the standards for determining when two entities might both be considered an employer of an individual for purposes of coverage under the federal National Labor Relations Act (NLRA). Under the NLRB’s promulgated rule, entities will be considered joint employers only if “the two share or codetermine the employees’ essential terms and conditions of employment, which are exclusively defined as

Good News for Employers! NLRB Upholds Employee Handbook Policies Tailored to Legitimate Business Purposes

By Edward W. Bailey,   Section 7 of the National Labor Relations Act (“NLRA”) guarantees employees the right to organize and collectively bargain through representatives and applies to a wide range of employer conduct including the contents of employee handbooks. Until recently, the National Labor Relations Board’s (“NLRB”) standard for determining whether employee handbooks violated the NLRA was relatively employee friendly and found handbook policies to be unlawful if they could merely be “

Centre Law & Consulting

Centre Law & Consulting

Court Awards Equitable Adjustment for Legal Fees to Defend Qui Tam Suit!

By Hon. Jack Delman The Court of Federal Claims recently awarded an equitable adjustment (EA) to a contractor providing reimbursement of legal fees to successfully defend a False Claims Act (FCA) action. The Tolliver Group v. United States, No. 17-1763C, 1/22/20. The Facts In 2011 the Army awarded the contractor a firm fixed price level of effort contract to develop and deliver technical manuals for an Army mine clearing vehicle.  The PWS required the Army to deliver government furnished prop

Centre Law & Consulting

Centre Law & Consulting

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