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When Set Asides Collide! – Kingdomware & the ‘Rule of 2’ vs. JWOD

By David Warner, “When Set Asides Collide!” Federal Circuit To Determine Precedence Of Kingdomware’s “Rule of Two” And Mandatory Procurements Under Javits-Wagner-O’Day Earlier this month, the Federal Circuit heard oral argumentin the matter of PDS Consultants, Inc. v. United States, App. No. 2017-2379, to determine whether statutory programs favoring veterans in procurements from the U.S. Department of Veterans Affairs take precedence over otherwise mandatory set asides for entities employing

Centre Law & Consulting

Centre Law & Consulting

Federal Circuit Reinforces Government Preference for Commercial Items

By Heather Mims, On September 13, 2018, the United States Court of Appeals for the Federal Circuit ruled that the Army acted arbitrarily and capriciously when it failed to buy commercially available products whenever possible or, in terms of the statute at issue, to the maximum extent practicable. This litigation began when Palantir USG, Inc. filed a pre-award bid protest in the Court of Federal Claims (although Palantir previously filed a pre-award bid protest with the GAO, which was denied).

Centre Law & Consulting

Centre Law & Consulting

New Minimum Hourly Wage Rates Announced For Federal Contractors & Subcontractors

By Wayne Simpson, CFCM, CSCM New Hourly Rates Effective January 1, 2019 The U.S. Department of Labor’s Wage and Hour Division announced the new applicable minimum wage rates for workers performing work on or in connection with Federal contracts covered by Executive Order (E.O.) 13658. The new rates, effective January 1, 2019, are $10.60 per hour for covered contracts, and $7.40 per hour for tipped employees. The announcement was published in the September 4, 2018, edition of the Federal Regis

Centre Law & Consulting

Centre Law & Consulting

DOL Releases New Opinion Letters Expanding FLSA Exemptions

By Tyler Freiberger, Following a nine-year gap, in January 2018 the Department of Labor (DOL) again began releasing voluntary opinion letters in response to common or unique questions. The initial batch of released letters only reinstated opinions from 2009 that had been withdrawn for “further consideration.” So the two letters released in April of this year, and the four released last week, are the first original works of the Trump administration’s DOL’s policies. I’ll warn you now, none of t

Centre Law & Consulting

Centre Law & Consulting

OFCCP Issues New Policy Directives

By Wayne Simpson, CFCM, CSCM On August 10, 2018, the Office of Federal Contract Compliance Programs (OFCCP) issued two directives. OFCCP directives provide guidance to OFCCP staff, Federal contractors (and subcontractors) on enforcement and compliance policy or procedures. These directives do not change the laws and regulations governing OFCCP programs and do not establish any legally enforceable rights or obligations. These directives will remain in force in anticipation of an addition to the

Dear Pentagon: $10 Billion is Plenty to Share

By Barbara Kinosky, The Pentagon is in quite the debacle with tech giant, Oracle – who filed a pre-award protest challenging the DoD’s single-award approach on the much anticipated $10 billion cloud computing contract. This massive contract called the Joint Enterprise Defense Infrastructure, cleverly abbreviated as JEDI, is causing a lot of hoopla in the technology industry. Oracle’s protest is so far in advance of pre-award it is in a new category of “protest before contractors have even subm

What Government Contractors Need to Know About the 2019 NDAA

By Heather Mims, On August 13, 2018, President Trump signed the Fiscal Year 2019 National Defense Authorization Act (2019 NDAA), which sets funding levels and outlines policy priorities for the Department of Defense (DoD). The 2019 NDAA allocated $616.9 billion for the DoD’s base budget, $69 billion for overseas contingency operations funding, $8.9 billion for mandatory defense spending, and $21.9 billion for nuclear weapons programs under the Department of Energy. The funding levels are inter

Contractors: Think Your Government Doesn’t Care? — Think Again!

By Wayne Simpson, CFCM, CSCM The government has on occasion been accused of treating offerors and contractors unfairly, if not downright poorly.  Perhaps from time to time you even perceive being treated unfairly in the conduct of a procurement.  Sadly, we hear this all the time.  But now the government is considering the potential benefits of obtaining voluntary feedback surveys from the vendor community on a regular basis. The Department of Defense (DoD), the General Services Administration

More Changes to SAM: GSA Updates SAM Log-in Process

By Maureen Jamieson, Many companies were caught by surprise when they attempted to log into the System for Award Management (SAM) on or after June 11, 2018, and read the alert: Entities registering in SAM must submit a notarized letter appointing their authorized Entity Administrator. Some companies discovered that they were no longer active in SAM due to the backlog of notarized letters awaiting approval. Effective June 29, 2018, SAM has a new log-in process. You must have a login.gov account

You Shall Not Lie: Manufacturer Pays $11.5 Million For Causing its Clients to Make False Statements

By Tyler Freiberger At Centre, we are often asked to advise on a number of compliance issues contractors face. While GSA schedule compliance, Trade Agreement Act certification, or Service Contract Act employment issues all raise eyebrows, one law rules them all – The False Claims Act (FCA).  Compliance with the FCA can be rather simple according to a recent statement by the Justice Department. “The basic legal rule in this area could be mastered by a third-grader:  Don’t lie.” – U.S. Attorney J

VETS-4212 Reporting Requirement Approaching

By Wayne Simpson, CFCM, CSCM Federal Contractor and Subcontractor Labor Reporting Requirements Under the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) VEVRAA requires Federal contractors and subcontractors covered by the Act’s affirmative action provisions to report annually to the Secretary of Labor the number of employees in their workforces, by job category and hiring location, who are qualified covered veterans.  VEVRAA also requires Federal contractors and subcontractors to re

Supreme Court Nominee Brett Kavanaugh and the Coming Political “Kabuki Theater”

By David Warner, I have been fascinated with the political theater around U.S. Supreme Court nominees ever since the contentious Clarence Thomas confirmation hearings gave rise to one of the greatest Saturday Night Live cold openings of all time. (Viewer beware, 2018 “sensitivities” might conflict with 1991 standards of humor. It’s still a classic.) Given our current President and the fact that the incoming justice will replace the “swing vote” of retiring Justice Anthony Kennedy, it is widely

Centre Staff Speaking at NCMA World Congress

Centre Law & Consulting will be at NCMA World Congress in Cleveland from July 22-24, 2018. Barbara Kinosky, Centre’s Managing Partner, has been invited to speak about federal contracting topics (see below for the topics and times). Centre will also be exhibiting at booth 208.   E08 – Lessons Learned from Successful GAO Protests Room 10, 2:00 PM – 3:15 PM Management/Business Competencies Track  What makes a protest successful? What can you do to avoid one? This session gives clear guidan

The Strange Case of Daniel Horowitz and His Three Years of Paid Leave

By Barbara Kinosky, For exactly three years Daniel Horowitz was paid his full GS-15 salary of $161,000 to do – well – exactly nothing. That delicious gravy train finally ended. We can now say that Dr. Horowitz was employed (past tense) by the Chemical Safety Board (CSB), a small independent agency that I never heard of. He had been charged with misconduct over a kerfuffle on how he handled certain leadership roles but his case went into limbo. One day Dr. Horowitz was busy doing whatever PhD GS

DOD Attempted to Drastically Shorten Bid Protest Deadline at Court of Federal Claims

By Heather Mims Currently, an unsuccessful offeror may file a protest with the Government Accountability Office (“GAO”) and, if the protest is denied, file suit at the United States Court of Federal Claims (“COFC”). However, the Department of Defense (“DOD”) sought to change that. On April 3, 2018, the DOD submitted its Fourth Package of Legislative Proposals Sent to Congress for Inclusion in the National Defense Authorization Act for Fiscal Year 2019. Of particular interest to contractors, DO

Commercial Supplier Agreement (CSA) and Order-Level Materials (OLMs) Roll-Out

By Julia Coon, The General Services Administration (GSA) started the mass modification roll-out of the Commercial Supplier Agreement (CSA) final rule into all Federal Supply Schedules this week. Mass modification roll-out for Order-Level Materials (OLMs) eligible Schedules will begin following acceptance of the CSA mass modification. Following is a summary of the steps for accepting these mass modifications. Please note that this will be a multi-step process for the OLM authorized Schedules an

The “Veterans Affairs Purchase Card Misuse Mitigation Act”

By Wayne Simpson, CFCM, CSCM House Moves to Prevent Abuse and Misuse of SmartPay Program’s Largest User On May 21, 2018, after 40 minutes of floor debate, the U.S. House of Representatives considered under the suspension of the rules, and passed H.R. 5215, the “Veterans Affairs Purchase Card Misuse Mitigation Act” by voice vote.  The bill was sent to the Senate May 22, 2018, for consideration. H.R. 5215 amends Title 38 of the United States Code to direct the Secretary of Veterans Affairs to p

One Employment Agreement Update You May Be Thankful For

By Tyler Freiberger You’ve likely noticed a flurry of notifications and emails from companies warning you of updated terms and services. The updates were made to comply with Europe’s new General Data Protection Regulations (GDPR), which has been approved since 2016 and went into effect on May 25, 2018. The relevant portion here generally makes it much harder for a website to throw a 200-page legal document at you with vague terms that allow tracking your personal information and selling to the

IT’S OFFICIAL: “Cascading” Set-Asides Are Now Authorized at the Department of Veterans Affairs (VA)

By Wayne Simpson, CFCM, CSCM   Discretionary Use by VA Contracting Officers Authorized; Must Be Approved First   In what many will see as VA’s continued assault on its Veterans First Contracting Program post-Kingdomware, VA recently implemented “Cascading” set-asides.  VA refers to these set-asides as “Tiered Evaluations,” noting they are also known as “Cascading” set-asides.   VA issued Acquisition Policy Flash (No. 18-15), transmitting Procurement Policy Memorandum (PPM) No. 2018-04, dat

GAO Will Occasionally Review Terminations for Convenience

By Heather Mims Ordinarily, the GAO will decline to review the termination of contracts for convenience because such actions are matters of contract interpretation and are more properly brought within the context of a CDA claim. However, in the recent decision of AutoFlex, Inc., B-415926 (Apr. 19, 2018), the GAO noted that it will review the propriety of a termination for convenience where the termination flows from a defect the contracting agency perceived in the award process. AutoFlex, Inc.

Communication, Consistency and … the OFCCP?

By David Warner, As most federal contractors are aware, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) is the agency responsible for ensuring that contractors and subcontractors doing business with the U.S. government comply with affirmative action and non-discrimination obligations under federal laws, executive orders, and regulations. In September 2016, the Government Accounting Office (“GAO”) issued a report recommending that OFCCP review its complian

Federal Acquisition Regulation (FAR) Update—New Rules

By Wayne Simpson, CFCM, CSCM On May 1, 2018, the General Services Administration (GSA) published FAC 2005-98 in the Federal Register, covering a number of FAR Cases with Final Rules effective May 31, 2018. The online version of the FAR (www.acquisition.gov) will not be updated until May 31, 2018. FAR Case 2017-007, Task-and-Delivery Order Protest; Final Rule, effective May 31, 2018.  This Final Rule amends FAR Part 16 and implements § 835 of the National Defense Authorization Act (NDAA) for Fi

Federal Contractor Breaches Service Contract Act: Thousands of Underpaid Workers

By Barbara Kinosky General Dynamics Information Technology (GDIT) has been accused of underpaying about 10,000 workers allegedly covered by the Service Contract Act (SCA). These workers run help hotlines for public insurance programs. Four complaints were filed Monday at the Department of Labor by the Communication Workers of America. It’s interesting that this union does not represent any of the workers.  There is no private right of action under the SCA so I am a bit perplexed over how this u

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 exa

Welcome to FOIA: Where the rules are made up and the deadline doesn’t matter

By Tyler Freiberger If you represent government contractors, or if you are one, it seems eventually you will develop a love-hate relationship with The Freedom of Information Act (FOIA). The purpose and goal of FOIA is somewhat remarkable; quick access to any government information not specifically confidential or otherwise classified. But in practice, this rarely seems to be the case. Some days you need a simple piece of information; you know the Agency wrote a report, you know nothing in it is
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