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  1. By Heather Mims, Esq. Under Executive Order 13495, the policy of the Federal Government was that all Service Contract Act covered contracts over the simplified acquisition threshold were to include a contract clause requiring contractors to make good-faith offers of employment to predecessor SCA-covered employees. However, on October 31, 2019, President Trump issued an “Executive Order on Improving Federal Contractor Operations by Revoking Executive Order 13495” which requires the “Secretary of Labor (Secretary), the Federal Acquisition Regulatory Council, and heads of executive departments and agencies . . . , consistent with law, [to] promptly move to rescind any orders, rules, regulations, guidelines, programs, or policies implementing or enforcing Executive Order 13495.” While the Department of Labor’s guidance with respect to Executive Order 13495 appears to have been removed from its website, it will likely be some time before the effects of President Trump’s actions are fully realized. For example, FAR § 52.222-17 – Nondisplacement of Qualified Workers will need to be formally rescinded – and will remain in the Federal Acquisition Regulations until that time. Therefore, during this transition period, contractors should carefully review all new solicitations and contracts to ensure that the agency has not included Executive Order 13495 or its implementing FAR regulations and, if an agency has included those in a newly issued solicitation, the contractor should take exception to those requirements. 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 President Trump Revokes Executive Order Providing for Nondisplacement of Qualified Workers appeared first on Centre Law & Consulting. View the full article
  2. By David Warner, Actually “40,569,816 reasons,” to be exact. Last week the Office of Federal Contract Compliance Programs (OFCCP) issued a press release lauding its performance in fiscal year 2019 in which it obtained a record-setting $40,569,816 in monetary settlements from federal contractors. The results reflect a more than sixty-five percent (65%) increase over the agency’s prior record that was set in FY 2017. Indeed, the agency’s three-year total recovery between FY 2017-2019 is greater than the total amount recovered in the seven-year period between FY2010 and 2016. OFCCP enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. These authorities preclude federal contractors and subcontractors from discriminating in employment because of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or veteran status. They also require federal contractors to take affirmative steps to ensure equal employment opportunity in their employment processes. Contractors also are prohibited from discriminating against applicants or employees because they inquire about, discuss, or disclose their compensation or that of others, subject to certain limitations. Unlike its EEOC counterpart, the OFCCP has broad proactive audit authority. In March of this year, the agency issued its Corporate Scheduling Announcement List identifying 3,500 worksites for potential compliance audit. By way of comparison, during the first three quarters of FY 2019, the agency only conducted seventy (70) complaint investigations. (See “Complaint Investigation Outcomes” link). So why the massive uptick in money recovered? Per the OFCCP itself, the agency credits its implementation of the “Early Resolution Procedures” (ERP) program in FY 2019, which led to a number of corporate-wide settlements early in the review process. The ERP is designed to help contractors and OFCCP achieve the mutual goal of equal employment opportunity in federal contracting and reduce the length of compliance evaluations. Importantly, ERP acknowledges that many multi-establishment contractors have centralized human resource systems and corporate-wide policies and that issues OFCCP finds at one contractor establishment may exist at others. In other words, for larger contractors with multiple worksites, audits are now far more likely to cascade beyond their initial scope and seek to redress systemic issues on a company-wide basis. 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 Forty Million More Reasons To Care About Workplace Equity appeared first on Centre Law & Consulting. View the full article
  3. By Edward W. Bailey, All too often, federal contractors let their guard down when it comes to their ethical duties under the Federal Acquisition Regulations (FAR). This is largely because the FAR’s provisions concerning ethical conduct do not provide much specific guidance. For example, FAR § 52.203-13 requires contractors to have a “written code of ethics”, exercise “due diligence to prevent and detect criminal conduct”, and otherwise “promote and encourage” ethical conduct and compliance with the law. Since violations of your ethical responsibilities can result in suspension, debarment, fines, and even imprisonment, such broad language does not exactly inspire confidence that the regulations will be applied in a consistent and understandable fashion. Not to worry though. While the regulations themselves are broad, adhering to the following three principles will greatly help to reassure the government that your organization is compliant: (1) approach your ethical obligations systematically; (2) create and maintain records; and, most importantly, (3) stay vigilant. Taking a systematic approach to ethical compliance means creating specific internal processes for preventing and responding to suspicious conduct and designating specific management personnel with clearly defined roles. In that regard, you should task a specific individual in management with handling reports of unethical behavior, ensure your employees know who this person is, and specify how such reports are to be moved up the chain of command. Such clearly defined roles and processes are critical because a key aspect of a contractor’s ethical obligations under the FAR is to “timely” report violations to the government. You should create and maintain records of all actions taken to further ethical compliance. This is because, as far as any potential government investigator is concerned, steps taken to comply with your ethical obligations carry little weight unless there is a record of them for the investigator to review. For example, if your organization has a meeting or hosts a lecture regarding ethical compliance, designate someone to take the minutes and record who is present. Moreover, when it comes to distributing your code of ethics, make sure to obtain written acknowledgements from all your organization’s employees to verify that they have read and understand its content. Finally, and most importantly, stay vigilant! Many contractors believe that once they’ve created a code of ethics, distributed it, and hosted a training session or two, their ethical responsibilities have been met. Unfortunately, as stated above, the task of ethical compliance under the FAR is never over and the more vigilance your organization demonstrates, the less likely the government is to investigate. Therefore, always continue to draft guidance materials and schedule periodic training and information sessions to make sure your employees stay informed regarding their ethical obligations and are on top of current practices and trends. Moreover, establish recurring meetings among management to verify company business practices, procedures, and internal controls for compliance. Should you have any concerns regarding your organization’s ethical obligations under the Federal Acquisition Regulations, be sure to contact us at http://centrelawgroup.com/contact/. About the Author: Edward W. Bailey Associate Attorney Ed Bailey is an associate attorney whose practice focuses on government contracts law, employment law, and litigation. Ed recently graduated cum laude from George Mason University’s Antonin Scalia Law School where he was a member of the Law Review. The post Staying Vigilant – Why the Task of Ethical Compliance Under the FAR is Never Complete appeared first on Centre Law & Consulting. View the full article
  4. By Maureen Jamieson Call me a skeptic. I had my bets along with others that the Consolidated Schedule would not be released on October 1, 2019. I’ve lived through many disappointments over my years working on Multiple Award Schedules (MAS). I remember the promises of no more Schedules Input Program (SIP) and the advent of the Formatted Price List. Then a few years ago the release of the Formatted Product Tool (FPT) only to be told that tool was being discontinued by the General Services Administration (GSA). Any of you who have worked with SIP or tried, you will understand the excitement when we blogged that SIP was going away. Then there are other disappointments, such as the promises of faster processing of modifications, which can still take months. But now a shout out to Stephanie Shutt, the Director of the Multiple Award Schedule Program, who defied the odds and not only released the Consolidated Schedule on time but did an amazing job keeping industry updated and involved in the process. Because everyone in the MAS world has been busy making sales against their individual Schedules, we are still getting questions on the impact of the Consolidated Schedule to individual Schedule holders. Following is a review of the Consolidated Schedule Phases 1, 2, and 3 and the potential impact and actions. Phase 1 Now that Phase 1 has been completed, it’s business as usual for current Schedule holders. eMod is open and there are no changes to the modification instructions or requirements. If you wish to submit a new offer, it must now be under the Consolidated Schedule versus the individual Schedules. GSA continues to use the preponderance of work North American Industry Classification System (NAICS) as the standard to determine business size at the Schedule contract level. Phase 2 In order for your contract to automatically transition, current Schedule contractors must accept the updated terms and conditions outlined in the Mass Mod in early FY2020. With Schedule consolidation, current Schedule holders will maintain their current contract number. You will not need to apply for a new contract. GSA eLibrary will be updated automatically upon acceptance of the Mass Mod in Phase 2 and all SINs will be migrated automatically. To ensure GSA Advantage and the text file price list are up to date, contractors will need to submit an update in SIP or EDI. An important note and frequent question – When a contractor accepts the Mass Mod in Phase 2, they will NOT automatically be able to sell anything they want on their Schedule contract without formally adding the items/services via a modification and following the same modification instructions. Phase 3 Consolidation of multiple contracts into a single contract, if applicable. GSA will be publishing additional guidelines and will work with companies on an individual basis to help determine the best path for consolidation. If you are planning to submit a new offer or if you have a Schedule and need help preparing modifications, preparing for the Industrial Operations Analyst (IOA) assessment, learning the Federal Acquisition Regulations (FAR) Ordering Process, and reviewing your Commercial Sales Practices and Basis of Award compliance, please consider attending Boot Camp for GSA Schedules on November 5-6 in Tysons, VA. If you have any questions, email our Training Manager Lali Munoz at lmunoz@centrelawgroup.com If you have any questions on the Consolidated Schedule, please contact our GSA team. About the Author: Maureen Jamieson Executive Director of Consulting Maureen Jamieson has more than twenty-five years of experience managing federal contracts. Maureen is highly experienced in solving client pricing problems and implementing effective pricing strategies for placing products and services on GSA Schedule contracts. Maureen also frequently works with clients on effective selling and marketing strategies in the federal market space and is highly skilled as a federal contracts capture or proposal manager. The post Congratulations GSA! As Promised, the Consolidated Schedule was Released on October 1 appeared first on Centre Law & Consulting. View the full article
  5. By Hon. Jack Delman Under the FY 2018 NDAA, House and Senate Committee Reports called for GAO to examine the effects of Offshoring (OS) and Foreign Direct Investment (FDI) on the Defense Supplier Base. GAO reviewed the available public data and convened a panel of experts from academia, industry, and government to address the issues. It submitted a lengthy report to Congress on September 5, 2019, and we provide a brief summary below. There was no consensus on the definition of OS. Broadly defined, it refers to the shifting of domestic production to a facility abroad, the expansion of a US corporation overseas without a change to domestic production, and the overseas sourcing of products and materials. FDI, per the definition of the Department of Commerce’s “Bureau of Economic Activity,” involves an investment transaction by a foreign entity with a US business equivalent to 10% or more of voting ownership. GAO noted that the lack of comprehensive data precluded a full understanding of the extent and magnitude of OS activities on the Defense Supplier Base. Nevertheless, panelists were able to distill certain general benefits, risks, and recommended strategies. OS/FDI Benefits, Risks, Recommendations Overseas production may bring lower labor cost, which can be passed through to the government. FDI provides domestic businesses with access to additional, critical financial resources. On the risk side — OS and DFI can lead to the transfer of critical technologies to our adversaries. This includes “dual-use” technologies, i.e., those which have a present commercial use but have the potential for military application. The panelists also noted the risk of technology transfer from “defense trade offset agreements,” where a foreign country that purchases a weapon system insists that a portion of the production be performed in the purchasing country. The panelists recommended the implementation – via rulemaking–of recent legislative initiatives in the area. One such statute was the “Foreign Investment Risk Review Modernization Act of 2018” which increased the types of foreign investment transactions subject to review by the multi-agency Committee on Foreign Investment in the United States. Another statute was the “Export Control Reform Act of 2018,” which expanded the definition of the technologies that are subject to export control. The panelists also recommended the need to increase private sector awareness of technology transfer risk, and the need to work with our allies to minimize illicit technology transfers. The Global Supply Chain: Benefits, Risks, Recommendations DOD benefits when it can turn to foreign sources to obtain needed parts and materials that are unavailable domestically. However, increased reliance on these sources has reduced visibility into the supply chain. This reduced visibility has inhibited DOD’s ability to identify high-risk suppliers that can introduce counterfeit or compromised parts into the supply chain, affecting the production of secure weapon systems. Panelists recommended that supply chain risks and security be addressed in the acquisition process, i.e., in acquisition planning and source selection; that greater responsibility to secure the supply chain be shifted to contractors; and that DOD increase coordination and communication with the private sector to facilitate a better understanding of the overall risks. Growing the Capacity and Capability of the Defense Supplier Base (DSB) The panelists discussed the growing threat of a US workforce deficient in science, technology, engineering, and math (STEM) to meet the future capacity and capability demands of the DSB (the “skills gap”). Panelists suggested increasing government support of programs to incentivize students to pursue STEM careers; leveraging the STEM skills of foreign workers and students living here; and encouraging more tech-based domestic companies to do business with the government. About the Author: Hon. Jack Delman Retired Judge Jack Delman served as a judge on the Armed Services Board of Contract Appeals for 29 years and has extensive experience in the adjudication and mediation of large and complex contract disputes, including equitable adjustments, terminations and cost and pricing issues. Jack has extensive experience with claims analysis, FAR and DOD agency regulations and BCA practice and procedure. The post GAO Report: Offshoring/Foreign Direct Investment – Risks to the Defense Supplier Base? appeared first on Centre Law & Consulting. View the full article
  6. By Tyler Freiberger, Esq., More than one year ago the Federal Housing Finance Agency Special Adviser Simone Grimes testified before Congress describing a former North Carolina representative, and then FHFA Director, Mel Watt’s repeated sexual advances toward Ms. Grimes. As Grimes testified to, and the FHFA Office of Inspector General confirmed, each time Grimes expressed that she was being paid less than her male predecessor, Watt steered the conversation toward his attraction to her. In response, Centre Law & Consulting, with the Seltzer Law Firm, were proud to represent Grimes before the Court of Federal Claims and the Equal Employment Opportunity Commission, in her suit against Watt and the Agency for the repeated violations of the Equal Pay Act and Title VII of the Civil Rights Act. Now three years after Watt’s actions, the FHFA has announced an agreement with Grimes. While Grimes reports she is happy with the resolution of her claims, Watt himself faces little accountability for the actions as he retired from office last year. Still, the resolution of Grimes’ claims marks the first time a Senate-confirmed nominee was successfully challenged, marking yet another milestone for the #Metoo movement. As stated by Grimes, “…while this is a small victory there is more work to be done.” While the #Metoo movement continues to push for strict enforcement of the Equal Pay Act and sexual harassment provisions of Title VII; in general employment developments, the DoL released a final rule raising the minimum standard salary level. Currently, the Fair Labor Standards Act allows salaried employees making at least $455 a week ($23,600 a year) to be exempt from the FLSA if they perform certain job duties. The rule, implemented on January 1, 2020, raises that minimum salary to $684 per week ($35,568 a year). This rule is estimated to shift over a million American workers from the exempt status to non-exempt status, thereby requiring overtime pay for many more employees. However, some results of the new rule are employee-friendly. The test for “highly compensated employees,” another way some particularly well-paid employees would be exempt, has been raised by about 7%. This increase is far less than the previously anticipated 20% which would have again shifted many employees from exempt to non-exempt. Lastly, the rule will allow employers to count some bonuses toward these two new salary standards, a small win for the employers. 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. View the full article
  7. By Edward W. Bailey, Boeing just challenged a recent ruling by the Court of Federal Claims which has wide-reaching implications for government contractors. In a May decision, the Court held that, by executing a contract with the government, Boeing had waived its right to challenge the government’s inclusion in the contract of certain mandatory FAR provisions. If the decision were to stand, it would seemingly mean that a contractor’s only recourse in such a situation would be to file a pre-award protest. Boeing has appealed this decision to the Federal Circuit on the grounds that it violates “clear, binding precedent.” Its argument appears to be well founded. In a 2008 decision, the Federal Circuit determined that when a contractor agrees to abide by mandatory regulations these terms are “non-negotiable” and therefore not “consented to.” In other words, government contractors cannot be deemed to have waived contractual rights if they had no choice in the first place to accept them. Boeing’s appeal notes the policy implications of upholding the lower court’s decision, i.e. that contractors would have to make pre-award protests to all laws and regulations that “might ever conceivably be applied by the government” – a tall task considering the thousands of regulations in the FAR alone – and something that would “drastically and needlessly increase the number of pre-award bid protests” and further burden “an already overtaxed acquisition system.” Nevertheless, while Boeing’s challenge is pending, contractors would be prudent to exercise more vigilance before executing a contract with the government or potentially risk being left holding the bag. Should you have any concerns about your execution of a contract with the government, be sure to contact us at http://centrelawgroup.com/contact/. About the Author: Edward W. Bailey Associate Attorney (Bar Membership Pending) Ed Bailey is an associate attorney (bar membership pending) whose practice focuses on government contracts law, employment law, and litigation. Ed recently graduated cum laude from George Mason University’s Antonin Scalia Law School where he was a member of the Law Review. View the full article
  8. By William Weisberg, Esq., The Service Contract Labor Standards (“SCLS”) governs how, and how much, government contractors must pay “covered” employees on “covered” contracts. Here are the Top 10 things to keep in mind regarding Service Contract Labor Standards: It used to be called the “Service Contract Act,” and many people still call it that, or SCA. It is now, however, Service Contract Labor Standards. In real life, either name will do. The contracting agency, and the Department of Labor (“DOL”) both enforce SCLS. And DOL has independent authority to debar contractors for violations. And, violations may also trigger False Claims Act liability. SCLS mandates specific minimum wages and fringe benefits for covered employees. These are minimums. The fringe benefit requirement may be met either by providing benefits or a minimum cash payment. There is no commercial contract exemption from the SCLS. “Bona fide” executive, management, or administrative employees are exempt from SCLS, even on a covered contract. SCLS applies to subcontractors and must be flowed down. The prime contractor is jointly and severally liable for violations. SCLS compliance should be part of every contractor’s formal Government Contract Compliance Program. Keep detailed records. As a practical matter, contractors will have the burden to demonstrate their compliance. DOL maintains comprehensive lists of “Wage Determinations” (on SF98). These cover job descriptions and localities. It is common for Wage Determinations to be unavailable for a particular job category and/or location, or to be provided late to a contractor, or to change or be updated during contract performance. DOL and the FAR provide detailed procedures for dealing with each of these situations. SCLS compliance is a multi-department responsibility: HR, Accounting/Finance, Program Management, and Legal all have important roles and responsibilities. DOL conducts random (and not so random) SCLS audits and site visits. Be cooperative but be prepared. About the Author: William Weisberg, Esq Of Counsel William Weisberg is a government contracts attorney with 30 years of experience. Bill received his undergraduate degree from the University of Virginia (where he was an Echols Scholar) in 1983 and his law degree from the George Washington University in 1986. Bill practiced with large international law firms for over 25 years, the last 10 of which he led his firms’ Government Contract and Grant practice groups. Bill formed his own boutique government contract firm in 2013. View the full article
  9. BREAKING NEWS FROM GSA In late July, GSA hosted a live event about upcoming changes to the new Unique Entity Identifier (UEI) requirements (used to identify companies and individuals within the federal award process). More than 770 people participated in the event. The presentation provided detailed information about how IAE is moving away from using the D-U-N-S® number to a new, non-proprietary identifier. During the program, we received numerous questions from participants. As promised, GSA has provided answers to those questions online at in the UEI information center on GSA.gov. While all of the questions-and-answers can be found there, here’s a sample of some of what was asked and answered: Will GSA automatically assign the new UEI, or does the entity have to take action to register? Existing registrants will be automatically assigned a new UEI. New registrants will be assigned a UEI as part of their SAM registration. As an existing entity, will we be notified of our automatically-assigned UEI? A notification process will be established so that entities can find their assigned UEI Do you have to be active in SAM.gov to get a UEI assigned? No, UEIs will be assigned to active and inactive entity registrations. Will the UEI be available for registering entities immediately or will they have to wait a period (like with obtaining a DUNS today) for the UEI to become active before it can be registered? UEI assignment times will be dependent on how quickly entity uniqueness and validation can be accomplished. It is the goal to make the UEI response time immediate for a large percentage of UEI assignment requests. Will the format (character length, alphanumeric, etc.) of UEI be the same as the existing DUNS? No. The format will not be the same. Please see the following Federal Register notice for the new unique entity identifier standard: https://www.federalregister.gov/documents/2019/07/10/2019-14665/unique-entity-id-standard-for-awards-management When including alphabetic characters in the UEI, will those alphabetic characters be stored / displayed as capital letters or lower-case letters? For example, A, B, C or a, b, c? Capital letters will be used in the UEI. What kind of reference data elements / underlying data will be captured for each of the UEIs? When requesting a Unique Entity Identifier, the entity will provide basic data (e.g. legal entity name, doing business as name, physical address) which will be used to validate uniqueness. During the full SAM entity registration process, the entity will provide the same comprehensive data set they do today. Will there be a hierarchy of UEI like there is for DUNS that relates “child” entities to their “parent” entities? Yes, a hierarchy of entities will continue to exist within SAM. Will the actual cutover date be in December 2020? There is going to be a lengthy transition period during which IAE will provide specific transition activities and cutover dates. By December 2020, the SAM generated UEI will be the authoritative unique entity identifier in SAM. Why can’t we use the EIN as the Unique Entity Identifier? Privacy considerations preclude the Taxpayer Identification Number (TIN) — whether it is an Employer Identification Number (EIN), or in limited circumstances, the Social Security Number (SSN) — from being used as the public facing unique entity identifier. Further, only entities which are located in the U.S. and its outlying areas, or pay U.S. taxes, have a TIN. if you have questions or need guidance, please reach out to Maureen Jamieson at mjamieson@centrelawgroup.com. View the full article
  10. By Angel N. Davis, There is an on-going buzz surrounding the upcoming GSA Multiple Award Schedule (MAS) Consolidation. If you haven’t heard (I am not sure where you’ve been), GSA is consolidating 24 schedules for products, services, and solutions, into one single platform. This initiative will have an impact on all schedule holders. This is what you need to do to be prepared for this upcoming implementation: All twenty-four individual schedules, including service and product schedules, are being consolidated! The VA Schedules will not be consolidated at this time. Current schedule holders will maintain their current contract number, and if you have multiple contracts, GSA will work with you to determine the best solution for your company. If you are in the process of submitting a new offer under an individual schedule OR are submitting a mod to add a new SIN, your offer or mod must be submitted by September 30, 2019. Otherwise, you must submit your new offer or mod to add a SIN after October 1st based on the Consolidated Schedule. GSA will not award new offers or mods to add new SINs until mid-January 2020. Legacy Schedule holders in the process of submitting a Successful Legacy/Streamlined offer should submit their offer before October 1st. If you don’t submit by October 1st, you’ll have to start a new offer based on the Consolidated solicitation. For current schedule holders, be prepared to review and accept the Consolidated Schedule Terms and Conditions Mass Modification, expected to be released in mid- January 2020. Read the latest revised draft of the GSA MAS solicitation. On October 1st, the final solicitation will be published on FedBizOpps. Additionally, for all current Schedule holders, GSA announced this week that a Mass Mod will be released in mid-September to add the below new clauses prohibiting the use of covered Telecommunications Equipment: FAR clause 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (AUG 2019) GSAR clause 552.204-70, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment (Aug 2019) You will have 60 days to accept the Mass Modification. GSA will monitor contractor acceptance of this Mass Modification and may cancel contracts that have not accepted the modification. Lastly, stay informed! Centre Law will continue to provide updates on our social media outlets and directly to our clients regarding the upcoming consolidation. If you need assistance navigating all the new requirements and would like to stay informed regarding the impact of the GSA MAS Consolidation, please contact us! About the Author: Angel Davis, CFCM Contracts Manager Angel N. Davis has over thirteen years of experience in federal contracts management. She is a Certified Federal Contracts Manager (CFCM) and is currently President of the Tysons Chapter of the National Contract Management Association (NCMA). While completing the NCMA Contract Management Leadership Development Program (CMLDP), Angel successfully pioneered the NCMA Tysons Women In Leadership Initiative. View the full article
  11. By Heather Mims, Esq. Contractors (and officials) across the country have experienced some confusion about the implementation of the recently enacted Small Business Runway Extension Act of 2018. If you’re unfamiliar with the Act, Congress has amended the Small Business Act to modify the method for prescribing size standards for business concerns – what used to be a three-year standard has now become a five-year standard. Thus, the implementation of this Act would extend the measurement period of the SBA’s calculation of average annual receipts for purposes of size standards from three years to five. When Should Businesses Start Calculating With a Five Year Average? Right off the bat, the SBA and Congress did not agree with when this Act should take effect – leaving confused contractors in their wakes. While the President signed the law on December 17, 2018, shortly thereafter, the SBA opined in an Information Notice that the amended law was not effective immediately. Specifically, the SBA’s Notice stated that “[t]he change made by the Runway Extension Act is not presently effective and is therefore not applicable to present contracts, offers, or bids until implemented through the standard rulemaking process. . . Until SBA changes its regulations, businesses still must report their receipts based on a three-year average.” The SBA has continued to assert that the Act was not presently effective stating in April 2019 that “Businesses must continue to report their annual receipts based on a 3-year average until SBA amends its regulations.” However, Congress fired back in May 2019 in a House Committee on Small Business Press Release. The Press release states: “Upon the Runway Act’s passage into law on December 17, 2018, the Small Business Administration has postponed its implementation, creating confusion and challenges for small businesses competing for federal contracts.” The GAO Steps In To the Debate On August 16, 2019, the GAO issued a bid protest decision in the matter of TechAnax, LLC; Rigil Corporation. The protesters argued that a GSA RFP did not comply with the Runway Extension Act, specifically arguing that the Act applies to all size standards issued by SBA, that the Act took effect immediately after enactment, and thus, the five-year average should be used. Although the GAO noted that its review was limited, it ultimately denied the protest, finding no basis to conclude that SBA and GSA’s actions in delaying implementation violated the Act. Specifically, the GAO noted that “[e]ven assuming the Runway Extension Act took effect on the date of its enactment, however, we conclude that the act did not automatically amend all existing size standards and SBA regulations.” What’s Next? The House Committee’s May Press Release referred to a bill titled: “Clarifying the Small Business Runway Extension Act.” That bill confirms that, contrary to the SBA’s interpretation, the “Small Business Runway Extension Act of 2018 has been effective since the date it was signed into law, on December 17, 2018.” The bill would also require the Administrator of the SBA to issue a final rule implementing the original Act no later than December 17, 2019. This bill passed in the House on July 15, 2019 and has now been referred to the Senate’s Committee on Small Business and Entrepreneurship. The SBA has again taking a dueling approach and, on June 24, 2019, promulgated a proposed rule for implementation of the Act. However, the proposed rule has no effective date and proposes only a modest implementation: “Specifically, consistent with a recent amendment to the Small Business Act, SBA proposes to change its regulations on the calculation of annual average receipts for all receipts-based SBA size standards and other agencies’ proposed size standards for service-industry firms from a 3-year averaging period to a five-year averaging period.” 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. View the full article
  12. By David Warner Gone are the Halcyon days, when it looked like the Trump Administration might overturn EEO-1 wage and hour reporting requirements adopted during the prior administration, as the first batch of reports is due to be submitted by contractors on or before September 30, 2019. To make matters more confusing, technically the Trump Administration is still trying to overturn the wage reporting requirements but, unless something unexpected happens, September 30 is still the applicable deadline. For a bit of history, the Obama Administration revised the EEO-1 form to require certain employers to provide compensation data along with the gender and race information historically collected. One result of the most recent presidential election was an effort to rescind those changes, which were highly unpopular in many quarters. On April 25, 2019, the U.S. District Court for the District of Columbia entered an order directing EEOC to collect the “new” EEO-1 wage and hour data and to do so by September 30, 2019. While the Trump Administration timely appealed that order, the EEOC correctly noted on its website that “the filing of this Notice of Appeal does not stay the district court orders or alter EEO-1 filers’ obligations to submit” the required pay data. In other words, the legal fight continues, but the obligation to file the data on or before September 30, 2019, persists. So who is required to submit the compensation data? With few exceptions, employers with 100 or more employees are required to provide the compensation data to the EEOC on or before September 30, 2019. One benefit to government contractors is that this 100-employee trigger also applies to them. That is to say, while contractors with a contract of $50,000 or more are still required to file the standard EEO-1, only contractors with 100 or more employees are required to submit the additional pay data. So what is the data that’s required to be submitted? The original EEO-1 form required covered businesses to provide information regarding the race, ethnicity, and sex of its workforce in 10 categories. The revised – and hotly disputed – EEO-1 requires employers to also provide aggregate data for the reported year, across those same 10 job categories and same race, ethnicity, and sex groups, broken down into 12 broad pay bands. The aggregate data would be calculated from a single payroll period of the employer’s choice, occurring between October 1 and December 31 in the reporting year (i.e. a report in 2019 would be calculated based on data drawn from 2018). Is there an easy way to submit the data? “Easy” might be a strong word, but once you’ve cleared the not insignificant hurdle of collecting the necessary data, the EEOC has partnered with NORC at the University of Chicago to create a web-based portal where the data can be submitted electronically. Filers can use either an online form or upload data with a specifically formatted .CSV file. What if I don’t file a report? To quote the CFR, “Any employer failing or refusing to file Report EEO-1 when required to do so may be compelled to file by order of a U.S. District Court, upon application o the Commission.” What if I just fudge my numbers? Uhh, do NOT do that. Per the CFR, “The making of willfully false statements on Report EEO-1 is a violation of the United States Code, title 18, section 1001, and is punishable by fine or imprisonment.” “Help?!?” Centre Law can do that. IF you have questions regarding the applicability of the new EEO-1 reporting requirements or capturing and reporting the data, or any other matter involving doing business with the federal government, drop us a line at http://centrelawgroup.com/contact/. 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. View the full article
  13. BREAKING NEWS FROM GSA if you have questions or need guidance, please reach out to Maureen Jamieson at mjamieson@centrelawgroup.com. This Interact post is the advance notice announcement of GSA’s intention to consolidate the current 24 Multiple Award Schedules (MAS) and release a new single Schedule for product, services, and solutions on October 1, 2019. A revised draft of the MAS solicitation is attached with applicable attachments. The solicitation has been updated based on more than 1,000 comments received to GSA’s recent requests for information. This document defines and lays out overall MAS offer evaluation criteria, requirements, and terms and conditions. It will be published in its final form on October, 1, 2019. What to Expect on October 1, 2019 On October 1, 2019, GSA will publish the new, consolidated, solicitation on FedBizOpps along with applicable attachments. The FBO package will contain; Solicitation Available Offerings Summary Document One Attachment for each Large Category Regulations Incorporate by Reference Significant Changes Document GSA will use a new ‘Available Offerings and Requirements’ page on GSA.gov to house templates and attachments that are part of the solicitation. Applicability of the templates will be noted in the solicitation documents posted on FBO and housed on GSA.gov for organizational purposes and industry’s ease of use. For reference, we have attached 4 documents that explain the details, components, and layout of the solicitation. The category attachments will include the below clause references and additional instructions or requirements that are specific to each large category, subcategory or SIN. How to Prepare for the New Schedule coming October 1, 2019 We highly encourage industry partners to read our newly updated Frequently Asked Questions (also attached) and tune in to our upcoming webinars dedicated to the new solicitation. You’ll have the opportunity to ask questions and hear directly from from GSA’s subject matter experts. First Session: Date: September 17, 2019 Time: 3:00 – 4:00 PM EDT Registration Link: https://meet.gsa.gov/eapkwzqxhyao/event/event_info.html Second Session: Date: September 19, 2019 Time: 3:00 – 4:00 PM EDT Registration Link: https://meet.gsa.gov/eoj61sws2yjs/event/event_info.html Please submit your comments on the draft consolidated solicitation directly to this Interact post or email them to us at maspmo@gsa.gov. Thank you for your continued partnership. About MAS Consolidation: MAS Consolidation is one of the four Cornerstone Initiatives of GSA’s Federal Marketplace (FMP) strategy, GSA’s plan to modernize and simplify the buying and selling experience for customers, suppliers, and acquisition professionals. GSA’s new single Schedule solicitation features a simplified format with streamlined terms and conditions, new large categories and sub-categories, and updated Special Item Numbers (SINs) that will make it easier for contractors to offer, and agency partners to buy, products, services, and solutions. Created by a cross-functional team of GSA’s acquisition experts, the new solicitation was developed iteratively and incorporates industry feedback from the more than 1,000 responses to our recent Requests for Information (RFI). *ATTACHMENTS: Draft MAS Solicitation – Defines and lays out overall MAS offer evaluation criteria, requirements, and terms and conditions. Available Offerings – The available offerings excel sheet contains three tabs; one that maps legacy SINs to the new consolidated SIN structure, a second tab that summarizes only the new structure of available offerings, and a third tab that summarizes all the large and subcategories. Clause Matrix – Identifies all the ‘required’ (applicable to all MAS) and ‘required as applicable’ (applicable to some large categories, subcategories and/or SINs under MAS). This matrix also identifies where in the solicitation the ‘required’ clauses will fall. ‘Required as Applicable’ Clause Mapping to Available Offerings – Identifies what level the ‘required as applicable’ clauses will apply. Updated Industry FAQs View the full article
  14. With GSA focused on consolidating 24 Schedules into one single Schedule, the Transactional Data Reporting (TDR) pilot has been extended through FY2020, allowing both contractors and the GSA acquisition workforce to spend their resources understanding and participating in the consolidated Schedule — the most immediate priority. TDR, a GSA Acquisition Regulation (GSAR) rule published in 2016, reduces the burden and increases transparency by requiring monthly reporting of transactional sales data from governmentwide contracts, including the Multiple Award Schedules (MAS). TDR has been implemented as an optional, three-year pilot that includes eight specific Schedules and associated Special Item Numbers (SINs). In addition to supporting the new consolidated Schedule, the extension of TDR will allow GSA to gather data about TDR in the new environment. Participating contractors will still report monthly sales in the FAS Sales Reporting Portal, and contractors whose items fall within the current TDR pilot scope can still opt into the TDR pilot. GSA will reevaluate the TDR pilot at the end of FY2020 and decide whether to continue the pilot, cancel the pilot, or to expand optional TDR pilot participation to all items on Schedule. If you have questions or need guidance, please reach out to Maureen Jamieson at mjamieson@centrelawgroup.com. View the full article
  15. By Barbara S. Kinosky, Esq. The big news from MAS PMO Director Stephanie Shutt is that the Consolidated Schedule will be out October 1, 2019. She is very definite on that date. What does that mean for existing GSA Schedule holders? We understand modifications to add the new consolidated SINs will not be accepted after September 30 until sometime in mid-January 2020 after contractors have accepted the mass modification incorporating the new consolidated Schedule terms and conditions. New offers for new Schedules that have been submitted prior to September 30 but not finalized will still be reviewed and awarded. This includes the streamlined/successful legacy offers. E-mod will remain open and will not be affected by the consolidation. GSA will transition companies with one Schedule to the new Schedule first. In early 2020, GSA will begin the process of working with companies holding multiple Schedules. Those Schedules will be consolidated into one Schedule. GSA has indicated that it will allow companies with Blanket Purchase Agreements (BPAs) off GSA Schedules to continue those schedules until the BPAs end. On other news, the GSA Small Business GWAC Division has announced the draft solicitation for the 8(a) STARS III GWAC is out. Both industry and federal agencies are able to review and provide feedback on the content of the draft solicitation up until September 6th. Review the details by visiting FedBizOpps. GSA is asking everyone to please spread the word! Centre Law’s GSA team is here to answer any of your questions on the consolidated schedule. You can contact me by email at bkinosky@centrelawgroup.com. 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. View the full article
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