Jump to content
The Wifcon Forums and Blogs

Centre Law & Consulting

Members
  • Content count

    136
  • Joined

  • Last visited

Community Reputation

0 Neutral

About Centre Law & Consulting

  • Rank
    Bronze Member

Contact Methods

  • Website URL
    http://www.centrelawgroup.com/

Profile Information

  • Gender
    Not Telling
  1. By Barbara Kinosky Yes, you read that right. Deep in the murky depths of the $700 billion fiscal 2018 National Defense Authorization (NDAA) bill is language that puts a chill down the spine of protesters. Companies with revenue more than $250 million will have to pay the costs for filing losing protests on DoD procurements at the GAO. Now protestors pay their own costs and attorneys’ fees with some exceptions. Section 827 of the NDAA would require DoD to launch a pilot program beginning in late 2019 and ending in late 2022 that would require those unsuccessful DoD protestors to pay DoD’s “costs incurred in processing protests.” As in pilot programs there will be the usual report (which is where the writers of reports will make out big time) on the success of the pilot program. Why you may ask if this happening? House-Senate conferees in a rare display of unity, agreed that contractor bid protests needed to be reduced to reduce the time of the procurement cycle, particularly with weapons systems. This from a Congress who hasn’t done much (my editorial note). Second editorial note from me. Most weapons systems contacts are very large. They are larger than the national debt of Venezuela, which is very large indeed. So, one would think that given the creep on cost on many weapons systems contracts one would want an even greater degree of scrutiny on those procurements. Need I mention the mid-air refueling tanker cost woes? Other questions that will hopefully be addressed in the regulations. How are costs computed? How is revenue computed? Debriefings – NDAA Section 818 New requirements: In the case of a contract award in excess of $100,000,000, a requirement for disclosure of the agency’s written source selection award determination, redacted to protect the confidential and proprietary information of other offerors for the contract award, and, in the case of a contract award in excess of $10,000,000 and not in excess of $100,000,000with a small business or nontraditional contractor, an option for the small business or nontraditional contractor to request such disclosure (2) A requirement for a written or oral debriefing for all contract awards and task or delivery orders valued at $10,000,000 or higher. (3) Provisions ensuring that both unsuccessful and winning offerors are entitled to the disclosure above and the debriefing Plus, a chance to ask follow up questions Both the winning and losing offerors would be entitled to a debriefing – which at this time, I sparkly say, are still free Other Stuff I Read So You Don’t Have to Section 802 – DoD will establish a pool of intellectual property experts to get a handle on exactly who owns what Section 803 – new regulations on using private auditors to do incurred cost audits Section 806 – The micro purchase threshold will be increased from $3,000 to $10,000. Section 808 – another committee will be formed! This one on technology threats Section 811 – increase on submission of cost and pricing data numbers and a bit of an increase on the contracting officer’s authority to get such data Section 822 – a bit of an affirmation of using LPTA for procuring expendable goods Service Contract Act. On another note, I gave four different speeches last week all on the Service Contract Act, now referred to as the Service Contract Labor Standards. That must be a record. Guinness Book of Records – is there a category for the most speeches in one week on the Service Contract Act? In any event, no one at any of the four presentations fell asleep and many even asked questions. More I cannot ask for! Happy Thanksgiving all! The post NDAA Curbs Bid Protests (Somewhat) But Adds Enhanced Debriefings appeared first on Centre Law & Consulting. View the full article
  2. Timeliness of Bid Protests

    By Tyler Freiberger Untimeliness is one of the most common reasons protests of government solicitations and awards before the Government Accountability Office (“GAO”) and The Court of Federal Claims are dismissed. The accompanying chart describes the somewhat harsh and complex rules required for filing before each body. For protests on how a solicitation is written, a contractor must protest simply before the bids are made. But other protests have strict timing demands measured from when the basis for the protest “is known or should have been known.” 4 C.F.R. 21.2. The definition of this phrase has been stretched repeatedly to include situations that would likely surprise unwary contractors. Last year, the GAO decided VMD Systems. The merits of the protest are not particularly interesting, but the decision does illustrate how liberally the GAO is willing to interpret “should have known.” In VMD Systems, the contractor was excluded from the competitive range of a NASA contract. Hoping to learn as much as possible for why the award would go to another, the contractor elected to receive a debriefing from the government agency after the award was made, rather than a debriefing only on why it was excluded. After the debriefing, VMD protested its exclusion from the process claiming it was held at a higher standard than others. No dice. The GAO ruled that because VMD could have learned the basis of their protest by electing to take the earlier debriefing option, waiting until after VMD actually knew of the basis was untimely, and therefore the protest was dismissed. More recently, the Court of Federal Claims used similar logic to that applied by the GAO in VMD Systems. In Sonoran Technology, the Court of Federal Claims considered an odd set of events where one contractor, Sonoran, won the award, faced two different protests, lost the protest and then ultimately the award to a competitor. As the original awardee, Sonoran had the right to intervene in the original protests but chose not to. When the award was eventually given to the competitor, Sonoran filed a protest of its own through a complaint to the Court of Federal Claims. The court dismissed the complaint as untimely under the same reasoning used in VMD Systems; had Sonoran exercised the right to intervene in the original protests, it would have learned the basis for the complaint to the Court of Federal Claims much earlier therefore that is the date where the timeliness clock starts. So, what can a contractor do to protect his or her rights? The accompanying chart provides a summary of important rules and procedures required to protest before the GAO and the Court of Federal Claims. But as shown here, the deciding bodies often interpret the rules to require contractors to aggressively seek out any information that could support a protest and act immediately. Forum Timeliness Performance Stay Task Order/IDIQ Filing Fees Time Frame for Decision Government Accountability Office (GAO) Protest based upon improprieties in a solicitation: Must be filed prior to the time set for submission of initial proposals. All other protests: Must be filed not later than ten days after the basis of the protest is known or should have been known. Debriefing exception: protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. In such cases, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than ten days after the date on which the debriefing is held. Pre-award protest: When the agency has received notice from the GAO of a protest, the Agency must delay the award. Post-award protest: An automatic stay applies if the protest is filed within five days of a requested and required debriefing, or, if no debriefing was requested and required, within ten days of contract award provided that the GAO notifies the agency within that time frame. The GAO only has jurisdiction over civilian agency task order awards valued over $10 million. The GAO’s jurisdictional threshold for military agency task order protests is $25 million. Department of Defense task orders issued under civilian agency Government Wide Acquisition Contracts (GWACs) are subject to the $10 million threshold applicable to civilian task order awards. There is no minimum value dollar threshold for Federal Supply Schedule (FSS) contracts. Currently none. GAO will be implementing a $350 filing fee in the future. GAO shall issue a decision on a protest within 100 days after it is filed. Forum Timeliness Performance Stay Task Order/IDIQ Filing Fees Time Frame for Decision Court of Federal Claims (COFC) Pre-award protest: No specific time limits but errors apparent on the face of the solicitation must be protested prior to the time set for submission of initial proposals. Post-award protest: No specific time limits but serious delay may impact the decision. No automatic stay applies at the COFC. Instead, the protester must seek a preliminary injunction. The COFC has jurisdiction over task order protests only where the protester alleges an increase in scope, period, or maximum value of the contract under which the order is issued or where a protest of an order valued in excess of $10 million (civilian task orders)/$25 million (military task orders). $350. No set time frame for decision but the court’s practice is to expedite protest cases to the extent practicable and to conduct hearings on motions for preliminary injunctions at the earliest practicable time. 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 Timeliness of Bid Protests appeared first on Centre Law & Consulting. View the full article
  3. By Maureen Jamieson As quoted by Norman Bates in Psycho – “She just goes a little mad sometimes. We all go a little mad sometimes. Haven’t you?” I’m not naming names, but I have worked with many clients who have gone quite mad when working to ensure compliance with their GSA Schedules. Having just celebrated Halloween, I am reminded of some frightening misconceptions surrounding GSA Schedules. Maintaining compliance with your schedule can be a grueling experience. Let’s not forget that blood-curdling stress as you prepare to meet or talk to your Industrial Operations Analyst (IOA) or that bone-chilling realization that you forgot to pay your Industrial Funding Fee (IFF) on time. Do you understand GSA’s current terms and conditions? Do you have the knowledge to ensure compliance with your GSA Schedule? Take Centre’s True or False quiz (with answer key below) beginning with our teams most frequently asked questions: The Maximum Order Threshold (MOT) established for a GSA Schedule contract serves as a limit on the dollar value of individual task orders placed under that Schedule. GSA contractors must accept the Governmentwide purchase card for orders under the micro-purchase threshold ($3,500). The 0.75% Industrial Funding Fee (IFF) is already included in the price of items on GSA Advantage!. An advantage for sellers under Federal Supply Schedule (FSS) orders is that the Government has no audit rights. Participating Dealers on a Schedule contract may bill the government directly on behalf of the Schedule holder. A digital certificate is required to report sales and pay the Industrial Funding Fee (IFF) in the new Transactional Data Reporting (TDR) FAS Sales Reporting System. GSA/VA Schedule Price Lists submitted via the Schedules Input Program (SIP) are automatically posted to GSA Advantage. Multiple modification actions such as economic price adjustments and deletion mods can be combined in one modification and submitted via the eMod system. Only authorized negotiators with signature authority and digital certificates are permitted to submit certain modifications and sign modifications in the eMod system. Digital certificates automatically renew every two years. Not maintaining compliance with the terms and conditions of your GSA Schedule can cost your company money, time and unwanted stress. If you’re feeling GSA stress or just want to learn more about GSA Schedules, consider attending our GSA Boot Camp on November 14 and 15 at Centre’s office located in Tysons, VA. See our website for details. ANSWER KEY: 1) False 2) True 3) True 4) False 5) True 6) True 7) False 8) False 9) True 10) False The post Do You See a Link Between Maintaining Your GSA Schedule and the Movie Psycho? appeared first on Centre Law & Consulting. View the full article
  4. By Wayne Simpson Prime contractors with contracts containing commercial subcontracting plans are required to file a Summary Subcontract Report (SSR) (formerly Standard Form 295), reporting the accomplishments under their respective subcontracting plans in the Electronic Subcontracting Reporting System (eSRS) for the 12-month period ending September 30, 2017, no later than October 30, 2017. eSRS is the official Governmentwide System designated for small business subcontracting program reporting. The system is web-based and is located at http://www.eSRS.gov. The eSRS website contains quick reference materials useful for reporting subcontracting accomplishments. Prime contractors with individual subcontracting plans, and higher-tier large business subcontractors, are required to file an Individual Subcontracting Report (ISR) (formerly Standard Form 294). These same contractors are required to ensure compliance by lower-tiered subcontractors, and to accept or reject reports filed by these subcontractors. ISRs are due within 30 calendar days of the following reporting periods: For non-Department of Defense (DOD), National Aeronautics and Space Administration (NASA), and General Services Administration (GSA) Contracts: 1st reporting period: October 1st through March 31st 2nd reporting period: October 1st through September 30th For contracts with DOD, NASA, and GSA Multiple Award Schedule Contracts 1st reporting period: October 1st through March 31st 2nd reporting period: October 1st through September 30th For GSA non-Multiple Award Schedule Contracts: 1st reporting period: October 1st through December 31st 2nd reporting period: October 1st through March 31st 3rd reporting period: October 1st through June 30th 4th reporting period: October 1st through September 30th It is important to note if an eSRS submission is rejected by the contracting agency, the contractor must submit a corrected report within 30 calendar days of the report’s rejection. It is important to keep a signed copy of your submission on file. If your subcontracting program is becoming more labor intense and resource consuming than you desire, Centre Law & Consulting offers turn-key subcontracting program services. These services include subcontracting plan preparation and negotiation, surveying existing subcontractors and suppliers to ascertain appropriate size status and socioeconomic procurement preference program category status for eSRS reporting purposes, preparation of justification for goaling shortfalls, and assistance with eSRS submissions. Increasingly companies are finding outsourcing these efforts is more efficient than using internal resources, using personnel who often performing these functions as a collateral responsibility. Internal resources are not always sufficiently trained and lack the expertise to ensure these efforts fully comply with Federal requirements and ensure these efforts can withstand the scrutiny of a small business program review by the U.S. Small Business Administration, the contracting agency, or the Defense Contract Audit Agency. 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 Don’t be late! eSRS Submissions Due October 30, 2017 appeared first on Centre Law & Consulting. View the full article
  5. Much has been said on the security breach that exposed up to 145 million Americans’ most sensitive information. Not only had Equifax, some say negligently, exposed half of America’s social security numbers, credit card information, and just about anything else needed to steal an identity, but the company thoroughly botched the cleanup by directing customers to a dubiously credentialed website and made a not-so-subtle attempt to induce its customers to waive any right to sue. The remarkable nature of the incident even received a 15-minute break down by HBO’s John Oliver, which is by far the most entertaining way to catch up on the breach if you have been in hiding for the last month. The IRS award of a seven million dollar contract to Equifax, made shortly after the security hack, seemed to put a cherry on top of a perfect media outrage story. And rage they did. After Politico “discovered” the “sole-source award” by the IRS to Equifax, every major media outlet from Fox News to CNN ran stories mocking the agency’s poor decision. Senators from both sides of the aisle openly scolded the IRS for handing Equifax government funds without even allowing other companies to compete for the contract. Through a grin, Mr. Oliver told his crowd of the award, made on the very same day the former CEO was being chewed up in an open Senate hearing. How could something like this happen? Simply put, because a law aimed at preventing fraud and abuse required the IRS to give Equifax the contract, without any competition. Federal contractors are well aware of what is called a “statutory stay.” When the government wants to buy goods or services, most of the time it must follow very strict and complicated rules. One such rule requires the government agency to give a debriefing to disappointed contractors when their bid was passed over in favor of another’s. For a variety of reasons, the contractor may believe the government made a mistake in its decision or perhaps something more sinister is to blame for the loss. If the contractor “protests” the decision within five days of the debriefing, the contract at issue is automatically frozen while the Government Accountability Office takes a look under 31 U.S.C. § 3553. The reason behind the law is fairly plain – i.e., to avoid a situation where a company begins performing for the government, and racking up costs, only to have that contract overturned at a much later date. So about this infamous IRS “award” to Equifax; it was made after the IRS chose a different company to perform on a contract where Equifax was the incumbent. Equifax protested, activated the automatic stay described above, and the IRS was forced to grant a short extension to Equifax’s previous contract while the protest was decided. Notably, the short extension was publicly made, because “a sole source order is required to cover the timeframe needed to resolve the protest on contract TIRNO-17-Z-00024. This is considered a critical service that cannot lapse.” The protest was quickly denied, and now a new company will take over performing services to the IRS. Notably, the IRS decision to take the contract away from Equifax was made long before the media “put pressure on the IRS,” or before both sides of the aisle joined together in decrying the purported incompetent waste of government funds. While the vagaries of government procurement procedure may not be as shocking as the story told by the major outlets, and it is certainly not nearly as funny as the John Oliver segment, it is however the real explanation to the latest chapter of the Equifax security breach. The post The Misplaced Rage Regarding Equifax’s Post Data Breach “Contract Award” appeared first on Centre Law & Consulting. View the full article
  6. Yes, you read the title correctly – a protester actually protested its own future award. In an interesting twist of fate, a company recently filed a pre-award bid protest only to find out that the agency had already evaluated the protester’s bid and intended to award the contract to the protester. Daekee Global Company, Ltd., a South Korean company, protested the terms of a solicitation issued by the Department of Navy for ship husbanding services arguing that the evaluation scheme failed to evaluate offerors’ technical capabilities or past performance. The agency subsequently requested the dismissal of the protest because Daekee had not been prejudiced by the terms of the solicitation. Specifically, the agency argued that Daekee submitted an offer that was evaluated by the agency and that the agency intended to award a contract to Daekee. In response, Daekee argued that the merits of its protest should still be addressed as, even though it would be an awardee, the issues Daekee raised would not be addressed or corrected if its protest were to be dismissed. Unsurprisingly, the GAO did not bite on Daekee’s argument. In its decision, the GAO found that Daekee was not an interested party as it did not suffer any competitive prejudice because Daekee did not suffer any competitive disadvantage or otherwise affect its ability to compete. Because the agency represents that once the protest is resolved and the stay of the award is lifted it will award a contract to Daekee, the GAO found that it does not have jurisdiction to entertain the protest. The post Protester Not Found to Be An Interested Party Where It Was The Awardee appeared first on Centre Law & Consulting. View the full article
  7. 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. View the full article
  8. In its September 18, 2017 decision, the GAO sustained McCann-Erickson USA, Inc.’s (“McCann”) protest challenging the Army’s preliminary elimination of McCann’s proposal for advertising services on an acquisition valued up to $4 billion. After receiving numerous proposals the Army performed a “compliance review” aimed at thinning the number of proposals before applying the evaluation criteria detailed in the requests for proposals. McCann’s proposal was eliminated for alleged failures in following the proposal preparation instructions. The GAO agreed McCann’s proposal did not comply with the exact format requested in the solicitation, but stated such problems were not sufficient, on their own, to exclude a proposal before taking a more substantive look at the proposal’s contents. This decision is supported by the fact that the solicitation gave no warning the Army would be taking such a harsh pass/fail look at compliance with proposal preparation instructions. It certainly did not help that at least some of the alleged deficiencies of the proposal were found, by the GAO, to really be mistakes by the Army. The GAO walks through such examples including, the Army’s inability to search for McCann’s certifications in the system for award management database, despite being provided the correct name and code. The GAO also found the Army’s refusal to evaluate McCann’s price proposal submission because it was in PDF format rather than the requested Excel format was unreasonable. While previous GAO decisions have supporting an Agency’s harsh response to such unfollowed format requests, here the Army did not put forth any reason why submission in PDF format, rather than Excel, poised any problems. This decision is not quite landmark, but does give push back to the government’s seemingly increasing use of “pre-evaluation…evaluations” in the face of an overwhelming number of proposals. 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 GAO Sustains Protest on Four Billion Dollar Solicitation Evaluation appeared first on Centre Law & Consulting. View the full article
  9. 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. View the full article
  10. In its September 18, 2017 decision, the GAO sustained a protest over a task order awarded to a contractor whom only had one of the two required services listed on their General Services Administration (“GSA”) Federal Supply Schedule (“FSS”). The United States Navy attempted to acquire 120-250 hotel rooms for civil service mariners in the Norfolk, Virginia area. The Agency invited vendors to submit offers through the GSA’s e-buy system, with instructions to only submit services on a current GSA Schedule contract. Unfortunately for the awardee, the request for quotation (“RFQ”) also required shuttles from the hotels to the work sites. While the decision takes pains to describe in detail the intricacies of GSA Schedules, the result is simple. The original awardee simply did not have transportation services included as “additional services” as required. The RFQ listed two separate tasks orders, one of which was transportation by shuttle. Despite the awardee’s ability to provide these services, the RFQ clearly emphasized the award would be made exclusively through the GSA thereby excluding companies without all required services listed on the Schedule. 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 GSA Federal Supply Schedule Description Too Limited For Contractor to Receive Award appeared first on Centre Law & Consulting. View the full article
  11. Seller Beware!

    There is an aphorism that goes “Buyer Beware”; time-honored sage advice to be sure. But perhaps a new aphorism is in order for the Federal marketplace: “Seller Beware.” Many vendors and contractors selling to the Federal Government under contracts awarded under some type of small business set-aside are frequently unaware of an important requirement tucked neatly away in set-aside clauses. This requirement is set forth as portion of the clause which normally begins with the word “Agreement.” As an example, Federal Acquisition Regulation (FAR) Clause 52.219-5, Notice of Total Small Business Set-Aside (Nov 2011), contains the following as part of the clause: “(d) Agreement. A small business concern submitting an offer in its own name shall furnish, in performing the contract, only end items manufactured or produced by small business concerns in the United States or its outlying areas. If this procurement is processed under simplified acquisition procedures and the total amount of this contract does not exceed $25,000, a small business concern may furnish the product of any domestic firm. This paragraph does not apply to construction or service contracts.” So why do set-aside clauses contain such an agreement? The answer is simple: The Small Business Administration’s (SBA) Nonmanufacturer Rule, often referred to as “NMR.” (Ref: 13 C.F.R. Section 121.406(b)). In brief, the NMR requires small businesses receiving awards under the various set-asides used in government procurements, to provide their own product, or that of another domestic small business manufacturer or processor, unless SBA has granted an individual waiver to NMR for the procurement, or the procurement is covered by a class waiver to the NMR, also issued by SBA, and the contracting officer uses the class waiver. The NMR also addresses how nonmanufacturers may qualify as a small business concern for a requirement to provide manufactured products or other supply items as a nonmanufacturer as well as for Kit Assemblers. Unfortunately, all too often companies rely on the fact the government issued and awarded the procurement using small business set-aside procedures believe they are somehow protected or immunized from the consequences of non-compliance. The agreement provision in the various set-aside clauses can only be waived by an SBA issued waiver for an individual procurement, or when the contracting officer uses an existing class waiver. Unless the procurement is covered by an SBA waiver. SBA amended its regulations in 2016 indicating the NMR does not apply to procurements between $3,500 and $150,000. However, the FAR still sets the applicability threshold for NMR at $25,000. Non-compliance with NMR can have significant consequences for a company, ranging from contract enforcement actions to potential liability under the False Claims Act (FCA). FCA looms large these days as increasingly more qui tam lawsuits are being filed under FCA by disgruntled and former employees, and even a company’s competitors, as the person bringing the qui tam lawsuit can receive a lucrative payout. Other set-aside clauses contain agreements relating to the NMR as well. Please be sure to thoroughly review the requirements of the set-aside clause(s) under which you are submitting an offer. Sellers Beware! Protect your company by ensuring absolute compliance with NMR. Centre Law and Consulting offers a comprehensive 90-minute webinar on the NMR to help small businesses mitigate vulnerabilities in this area and to fully understand the requirements of NMR and ensure their compliance. Best wishes for every continued success in the Federal Marketplace! 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 Seller Beware! appeared first on Centre Law & Consulting. View the full article
  12. Last week the House Oversight and Government Reform Committee approved the Promoting Value Based Procurement Act of 2017 on a voice vote without any dissent, meaning the bill now proceeds to the House floor. The Act, which was initially introduced in June, substantially limits the number of federal contracts that may use the lowest-priced bid as the major deciding factor – this means a severe limit on lowest price technically acceptable, or LPTA, contracts. In fact, the current text of the bill requires revision of the FAR to require that LPTA source selection criteria are only used in six specified situations. Further, the bill mandates that, to the maximum extent practicable, the use of LPTA should be avoided in a procurement that is predominately for the acquisition of (1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, or other knowledge-based professional services; (2) personal protective equipment; or (3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq. Rep. Gerry Connolly, D-Va., one of the bill’s co-sponsors, said during the markup that the use of LPTA contracts has become too rigidly applied and has “started to calcify some large chunks of contracting in the federal sphere.” He continued, “When an agency seeks the assistance of a company to help it analyze and address cybersecurity needs, for example, it might not know the extent of services that will eventually be needed,” and “quality and innovation must be considered.” 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 The Promoting Value Based Procurement Act of 2017 Approved by House Oversight Committee appeared first on Centre Law & Consulting. View the full article
  13. In a GAO decision released September 13, 2017, the GAO denied Walker Development & Trading Group, Inc.’s (“Walker”) request for reconsideration of the denial of its costs. On January 2, 2017, Walker filed a protest arguing that the Department of Veterans Affairs (“VA”) did not properly set a requirement aside for small businesses. In the VA’s report, the contracting officer stated that, after performing market research, she did not have a reasonable expectation that two or more capable small businesses would submit offers. The GAO subsequently requested additional information on two potentially capable small businesses. Before filing its supplemental report at the request of the GAO, the VA advised the GAO that it intended to take corrective action. As such, the GAO dismissed the protest as academic. Walker subsequently filed a request that it be reimbursed its costs of pursuing the protest by asserting that it was clearly meritorious and that the agency unduly delayed taking corrective action. The GAO denied Walker’s request, finding that the protest allegation was not clearly meritorious as the resolution of the protest required further record development. Walker has then requested reconsideration of the GAO’s denial of its costs. However, in order to prevail on a request for reconsideration, a party must set out the factual and legal grounds requiring reversal and the party must specify any errors of law made or information not previously considered. In its request for reconsideration, Walker argued that the decision contained a legal error as the GAO did not consider whether the VA unduly delayed in taking corrective action. However, as the GAO noted, in order to prevail in a request for reimbursement of costs, the protestor must show both that its protest was clearly meritorious and that the agency unduly delayed in taking corrective action. As Walker already failed to demonstrate that it was clearly meritorious, the GAO did not need to reach the decision as to whether the VA unduly delayed taking corrective action. 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 An Agency Taking Corrective Action Does Not Necessarily Mean You Will Receive Your Protests Costs appeared first on Centre Law & Consulting. View the full article
  14. Over a year ago, GSA published a final General Services Acquisition Regulation (GSAR) rule incorporating Transactional Data Reporting (TDR) into select product and service schedules in the Multiple Award Schedules (MAS) program. Initial participation in the TDR pilot was optional for existing contractors. However, new offerors and existing contractors with upcoming options were required to participate in the pilot. GSA is now making participation in the TDR pilot voluntary. Any vendor required to accept TDR with a new pilot offer, had a TDR option exercised, or added a TDR SIN to their contract will have an opportunity to opt out of TDR. If a vendor does not take advantage of this one-time opt out, there will be no additional opportunities to get out. You can also opt into TDR on pilot schedules but remember there will be no additional chances to withdraw once you make this election. As a caveat, any vendor who voluntarily accepted the TDR Implementation Mass Mod (A509) will be required to stay in TDR. GSA anticipates refreshing TDR schedules in mid-October. Schedules 03FAC, 51V, 58 I, 72, 73 and 75 will be refreshed to add the legacy clauses back to the solicitation and TDR SINs on Schedules 70 and the Professional Services Schedule (PSS) will reflect the removal of language pertaining to mandatory participation. Once the solicitations are refreshed and not before, vendors will receive a notification from their Contracting Officer (CO). A vendor will have 60 days to respond to their CO with their intent. If no response is received within the 60 days, a vendor will remain in the TDR pilot. What will be required if you make the decision to opt out of TDR? Provide updated Commercial Sales Practices (CSP), current pricelist, and any other information requested by the CO Re-establish a Most Favored Customer (MFC) and Basis of Award (BOA) customer Identify a price/discount relationship as required by the Price Reduction Clause Ensure that your pricing is still fair and reasonable Update your contract via a formal modification to incorporate any revised terms and conditions What are the effective dates for vendors who opt out of TDR and when will Price Reduction tracking become effective? The actual modification opting out of TDR will become effective on day 1 of the next business quarter (January 1st, April 1st, July 1st and October 1st) Price Reduction tracking will begin on day 1 of the business quarter following the date of the modification to opt out The first 72A reporting period will begin on the 1st day of the business quarter following the date of the opt out modification. Continue to remit Industrial Funding Fee (IFF) in the FAS Sales Reporting System (TDR) until that time. If you have any questions on whether you should stay or opt out of the TDR pilot, please contact a member of the GSA consulting 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 Should I stay or should I go? Transactional Data Reporting (TDR) appeared first on Centre Law & Consulting. View the full article
  15. GAO Rejects “One and Done” Line Item Evaluation

    In its August 25, 2017 decision the GAO sustained a bid protest from David Jones CPA PC (“Jones”) on the Department of Veterans Affairs’ (“VA”) refusal to establish a blanket purchase agreement following a request for quotations on Equal Employment Opportunity claims investigations. The principle issue of the decision revolved around the VA’s elimination of Jones’ proposal because of a single line item. The solicitation advised offerors that technical approach was significantly more important than past performance and that, combined, technical approach and past performance were significantly more important than price. The solicitation also warned the VA would not establish a blanket purchase agreement with any vendor if the price submission was “questionable for reasonableness.” Jones was assigned a “good” technical rating but the VA also determined Jones had submitted an unreasonable price for a single line item. Ironically, every other line item in Jones’ proposal was lower than the mean of the other offerors. Following this initial evaluation, Jones was eliminated from consideration, with no further analysis from the VA. The VA unsuccessfully argued that the solicitation supported exclusion based on a single high priced line item because the solicitation required not-to-exceed quantity for each line item. The GAO noted the premise of this argument was flawed because the solicitation did not provide any estimated quantities for the lines items. Most importantly, the GAO took issue with the VA lack of evaluation on the effect of this single item’s price on the agreement as a whole. In order to justify exclusion, the VA needed to evaluate if that single line item would have created an overall unreasonably high price, or at least created an unacceptable risk that the price would be too high on a typical government order. 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 GAO Rejects “One and Done” Line Item Evaluation appeared first on Centre Law & Consulting. View the full article
×