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  1. By William Weisberg, Esq., Everyone “knows” that past performance is a critical part of both Best Value and LPTA competitive procurements. Everyone “knows” that CPARS ratings are the gold standard for demonstrating past performance. And everyone “knows” that once a CPARS rating is in the system, contractors are stuck with that rating: good, bad, or indifferent. Sure, contractors can try and persuade the contracting officer to change their CPARS rating. FAR part 42.1503(d) provides a procedure to try and refute a negative past performance rating. Most of the time, in practice, trying to disprove a negative CPARS rating is like trying to push back the tides, the moon, or some other immovable force. In Theory Up until now, contractors had a theoretical possibility of formally appealing the contracting officer’s CPARS decision through the disputes process (i.e., to the appropriate Board of Contract Appeals or the U.S. Court of Federal Claims). But there were enough open questions regarding jurisdictional and substantive issues that the prospect didn’t seem very real. Enter the Armed Services Board of Contract Appeals (ASBCA) and the recent case of Cameron Bell Corporation d/b/a Government Solutions Group, ASBCA No. 61856 (May 1, 2019). In Cameron Bell, the ASBCA squarely addressed the negative CPARS rating issue (and a contractor’s appeal to the contracting officer of that negative rating). The case shed light on which jurisdiction the ASBCA had to deal with concerning a negative CPARS rating, and what remedies were available under that jurisdiction. Usually, matters that turn on jurisdictional issues have pages and pages of “inside baseball” legal analysis that lawyers, if no one else, find fascinating. Decisions, Decisions The Cameron Bell decision was short and to the point. The ASBCA (and presumably the Civilian Agency Board of Contract Appeals and the Court of Federal Claims): Has jurisdiction to review the contracting officer’s CPARS ratings Can determine whether the contracting officer’s ratings were reasonable or arbitrary and capricious Cannot, itself, assign a particular CPARS rating, but can continue to send unreasonable (i.e., wrong) ratings back to the contracting officer until the rating is reasonable (i.e., correct) Potentially also award monetary damages for the impact of the incorrect past performance ratings Now You “Know” Of course, being able to appeal a negative CPARS rating doesn’t mean that rating will automatically get changed. Many times, a negative past performance rating is negative for a good reason, and contractors should not expect the government to roll over and change it just because of an appeal. But the Boards of Contract Appeals and Court of Federal Claims will give CPARS appeals a thorough, and fair review. Now, everyone “knows” something can be done to correct erroneous past performance ratings that would otherwise make winning future contracts a dicey proposition. 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
  2. By Julia Coon, The General Services Administration (GSA) has been in the process of shutting down the legacy 72A Reporting System and transitioning all Multiple Award Schedule (MAS) contracts to the new FAS Sales Reporting Portal (SRP). The transition is expected to be completed by the end of this calendar year. Several contractors completed their final report in the 72A Reporting System last month. To help prepare for your first report in the new system, we answered some of the most frequently asked questions we have received regarding the transition. When is my first report in the FAS SRP? You should have received an email from GSA stating the effective date for reporting in the new system. If you cannot find the email or are unsure of the effective date, you can look up your contract using the lookup tool on the Vendor Support Center to confirm. I received a delinquency notice on May 1, 2019, but I completed my sales report in the 72A Reporting System, is that correct? You can disregard any delinquency notices you received on the morning of May 1, 2019. GSA’s system experienced an unexpected issue resulting in the issuance of the delinquency notice. No action is required on your part if you completed your sales report correctly. What do I need to do to prepare for the transition? You will need to verify that the authorized negotiators, contract administrator, and Industrial Funding Fee (IFF) point of contact are up to date and ensure the individual(s) responsible for completing the sales reports and IFF payments are listed on your contract. If changes need to be made, submit a modification to your Contracting Officer in eMod. Am I required to submit Transactional Data Reporting (TDR) monthly reports? Only the location to report sales and remit the IFF payment is changing, and there are no changes to the terms and conditions of your contract. If you have NOT accepted TDR, you will continue to report sales at the Special Item Number (SIN) level every quarter. If you HAVE accepted TDR, you will continue to submit monthly TDR sales reports. Is a digital certificate required to access the new system? NO! Effective May 1, 2019, digital certificates are no longer required to access the FAS SRP. GSA implemented a multi-factor authentication process. All users (new and existing) will need to register for the FAS SRP. Once registered, you will be able to log in and access your contract. Who will be able to access the contract in the FAS SRP? Only individuals listed as an authorized negotiator, contract administrator or IFF point of contact will be able to access the contract in the FAS SRP. If you have multiple contracts and are listed on each contract as one of the points of contact mentioned previously, all contracts will be displayed once you log in. Plan for the transition, so you are prepared to complete the sales reports and IFF payments in the new system on time. If you have any questions, please reach out to our GSA consulting team. About the Author: Julia Coon Consultant Julia Coon is GSA and VA Contract Consultant at Centre Law & Consulting. Julia works with the GSA/VA team in preparing new schedule proposals and post-award contract administration. She has experience in producing schedule renewal packages, various modification packages, small business subcontracting plans, and updates to GSA price lists. View the full article
  3. By Angel N. Davis, As a government contractor, you should understand that the Contractor Performance Assessment Report (CPAR) may very well be a predictor of how your organization might fair with future business opportunities. But don’t panic; having a better understanding of the ratings and the value of the CPAR will help you to develop a strategy for the best possible outcome. Understand the Ratings Before reviewing your CPAR, it is essential that you understand what each rating means as well as the evaluation factors. The ratings may appear to be self-explanatory; however, a satisfactory rating may be perceived as a “low rating.” The CPAR ratings, as well as the evaluation factors, are defined in Federal Acquisition Regulations (FAR) Part 42.1503 – Procedures. If you are not satisfied with your evaluation, you can request to meet with the Assessing Official and request that the rating is changed. A meeting may be requested, in writing, no later than seven days following your receipt of the CPAR notification. Be prepared to provide substantial evidence to support the justification of a higher performance rating. If you are unsuccessful in negotiating a changed rating, you should enter a non-concurrence along with your grounds for a higher rating. The initial assessment will be re-reviewed, and a final determination will be made as to whether the rating should be changed. You have fourteen (14) calendar days following the Assessing Official signature date to submit comments before the evaluation is made available in the View Performance Records section of CPARS. You have a total of sixty (60) calendar days to submit comments. Understand the Value Your future customers need to know how you’ve performed. The CPAR provides past performance references that enable government agencies to identify organizations that have satisfactorily performed capabilities needed to support future requirements. The demonstration of strong past performance provides the government with the necessary trust and confidence to select the best-qualified contractor. The government VALUES, past performance. Develop a Strategy Yes, you need a #CPARStrategy. Believe it or not, you have the opportunity to influence your CPAR! Open and honest communication with your customer will help you prepare for whatever rating you receive. You must develop a communication plan that ensures your customer is aware of any issues that occur during the performance of your contract that might have a significant impact on the scope, deliverables and budget. Engage early and throughout the performance of the contract. The relationship you establish and maintain with your customer will allow for a mutual understanding of how you are performing on the contract and will allow you to remedy any disparities. If you’d like assistance in developing your #CPARStrategy, 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
  4. By Wayne Simpson, CFCM, CSCM In the Monday, May 6, 2019, edition of the Federal Register, the Department of Defense (DoD), the U.S. General Services Administration (GSA) and the National Aeronautics and Space Administration (NASA) issued Federal Acquisition Circular (FAC) 2019-02, which covers several final rules implementing two Federal Acquisition Regulation (FAR) cases, and a final rule implementing technical amendments, all of which modify the FAR. FAC 2019-02 contains the final rule implementing FAR Case 2017-009, Special Emergency Procurement Authority, which implements Sections 816 and 1641 of the National Defense Authorization Act (NDAA) for the Fiscal Year 2017 (Public Law 114-328). These sections of the Fiscal Year 2017 NDAA allow for higher micro-purchase threshold (MPT) and simplified acquisition threshold (SAT) for acquisitions of supplies or services which support international disaster assistance, response to an emergency or major disaster, or defense against or recovery from a cyber attack. The final rule may be viewed in its entirety at 84 FR 19835. This final rule is effective on June 5, 2019. The new Special Emergency Procurement Authority micro-purchase and simplified acquisition thresholds under the final rule are as follows: The MPT under this authority is increased to $20,000 for purchases and contracts to be awarded and performed inside the United States; $30,000 for purchase and contracts to be awarded and performed outside the United States, except for the acquisition of construction subject to the Wage Requirements Statute. The FAR Part 13 SAT was previously raised from $150,000 to $750,000 for any contract to be awarded and performed, or purchase made inside the United States; $1.5 Million for any contract awarded and performed, or purchase to be made outside of the United States, for procurements using the Special Emergency Procurement Authority. A government may use a higher threshold of $13 Million (in lieu of $7 Million) for the used for the acquisition of commercial items, including acquisitions treated as acquisitions of commercial items to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack (lets hope this authority is never needed or used). The previously increased authorities remain unchanged. FAC 2019-02 also contains the final rule implementing FAR Case 2018-015, Governmentwide and Other Interagency Contracts, which implements Section 875 of the John S. McCain NDAA for Fiscal Year 2019. Section 875 removes the requirement for Federal agencies to make a determination that the use of an interagency acquisition represents the best procurement approach. The final rule only removes a requirement for Federal agencies to make a specific determination prior to using a certain contracting method. The removal of this requirement only affects the internal operating procedures of the government and has no impact on contractors. The final rule may be viewed in its entirety at 84 FR 19837 and is effective June 5, 2019. Lastly, FAC 2019-02 includes a final rule covering technical amendments In order to update certain elements in the FAR. The affected FAR parts are 1-9, 11, 16-19, 22, 26, 30, 31, 45, 50, 52, and 53. The entire final rule containing the technical amendments may be viewed in its entirety at 84 FR 19839. This final rule is effective on May 6, 2019. About the Author: Wayne Simpson Consultant Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official. View the full article
  5. By Heather Mims, Esq. On April 15, 2019, the Government Accountability Office (GAO) publicly published a report regarding the Women-Owned Small Business Program (WOSB) at the request of Congress. The report identified several oversight deficiencies with the WOSB program. Overall, despite an increase of more than two million women-owned firms between 2007 and 2012, agencies have routinely not been meeting the prime contracting goal of awarding five percent of all prime contracting dollars to WOSBs. In fact, between the years of 2013 through 2017, this goal was only met in the fiscal year 2015. What’s the Deal? The WOSB program was authorized by Congress in 2000, which permitted contracting officers to set aside procurements to women-owned small businesses in industries in which they are substantially underrepresented. To be an eligible WOSB in the program, firms had the option to either self-certify or be certified by a third party. However, the 2015 NDDA authorized the Small Business Administration (SBA) to eliminate the self-certification option and implement a new certification process. The GAO found that, as of February 2019, the SBA had not removed the option for program participants to self-certify but that the SBA expected to implement a new certification process by January 2020. Despite the lack of a new certification process, the GAO also found that the SBA does not and has no plans to monitor the third-party certifiers, which are private entities. The Bigger Picture As part of its findings, the GAO also found that, while federal contract obligations to all WOSB and WOSB program set-asides have increased since 2012, the set-asides remain a small percentage of this figure. For example, in 2012, WOSB program contract obligations were only 0.5 percent of contract obligations to all WOSB business; in 2017, this figure only had only grown to about 3.8 percent. Both numbers are woefully under the five percent prime contracting goal. What’s Next? Despite federal agencies’ inability to meet its WOSB program goals and a lack of oversight into the certification process, the SBA has continued to enforce stringent requirements for meeting the WOSB eligibility criteria. For example, the SBA’s Office of Hearing and Appeals (OHA) issued a recent decision In the Matter of C & E Industrial Services, Inc., SBA No. WOSB-112 (Apr. 8, 2019), determining that an offeror was not an eligible WOSB entity for the subject solicitation. Specifically, the OHA found that the woman owners lacked the “management and technical expertise” to run the firm under 13 C.F.R. § 127.202(b), which requires the woman owner to have “managerial experience of the extent and complexity to run the concern.” In contrast, the OHA found that the purported women-owners’ husbands likely oversaw the day to day management of the firm based on their experience in the type of required services. The SBA has continued to stringently enforce its requirements for eligibility under the WOSB program despite federal agencies’ shortage of contract awards to WOSB programs. The GAO also noted in its report several instances where contracts using a WOSB set-aside were awarded for ineligible goods or services (approximately 3.5 percent from April 2011 through June 2018). Thus, despite the numerous issues identified with the program overall, the GAO issued one recommendation that the SBA develop a process to review the extent that awards under the WOSB program set-asides are awarded for ineligible goods or services and provide the appropriate outreach or training to agencies to prevent such ineligible awards. 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
  6. TYSONS, Va., — Centre Law & Consulting, a law firm specializing in the unique needs of federal government contractors, is pleased to welcome Jonathan S. Spaeth as a partner and Chief Operating Officer. Jon brings Centre not only outstanding litigation skills but also an extraordinary understanding of business strategy from his unique blend of law firm and in-house general counsel experience. Jon was a partner for many years at the Washington, D.C. office of Akin, Gump, Strauss, Hauer & Feld, LLP, where he conducted high-profile litigation for Fortune 100 and other large corporate clients. He then held a variety of senior in-house positions in the defense industry, including at Raytheon. Jon also served as general counsel to the largest division of Zebra Technologies Corporation, a publicly traded commercial technology company. In his career, Jon has litigated numerous cases on behalf of government contractors, conducted internal investigations, managed legal and business operations, and negotiated a wide variety of government and commercial contracts, including a large hardware and software transaction with the National Football League. Jon received his law degree from the University of Virginia and his undergraduate degree from the University of Michigan. He is an in-demand speaker for both bar and contractor events. Jon is the person that fills so many roles at Centre. Not only is Jon a seasoned litigator but he has that rare management experience combined with sound judgment that can be so hard to find. – Barbara Kinosky, Managing Partner, Centre Law & Consulting About Centre Law Centre Law & Consulting clients turn to us for our deep expertise in federal government contracts and litigation along with our ability to craft cost-effective solutions. Our experienced attorneys and GSA consultants provide solutions to both government and industry clients on the unique challenges in a heavily regulated industry, Visit www.centrelawgroup.com to learn more. CONTACT: Barbara Kinosky, Managing Partner, Company: Centre Law & Consulting, Email: bkinosky@centrelawgroup.com. View the full article
  7. By David Warner Almost exactly four years ago, Centre issued a blog post regarding the status of the Obama Administration’s effort to revise the standards for determining whether an employee may be “exempt” for purposes of entitlement to overtime under the Fair Labor Standards Act (FLSA). Ultimately, the Obama DOL issued regulations that would have more than doubled the FLSA’s minimum salary requirement from $23,660 to $47,476 per year – affecting the status of an estimated 4.2 million workers. While it potentially would’ve impacted all employers, the particular import for government contractors is that FLSA exempt status also defines the contours of which workers are “service employees” for purposes of coverage under the Service Contract Labor Standards. That is, under the previously proposed regs, any employee working on a federal service contract and earning less than $46,476 would have been a “service employee” and entitled to be slotted within a wage determination and receive applicable vacation and fringe benefits. Of course, those who remember our blog post of December 2016 will recall that ultimately the regulations were blocked by a federal court injunction. Early in the Trump Administration, the DOL indicated that it would not dispute the Court’s injunction but that the agency would revisit the issue of exempt status at a later time. And, it appears that later time is now as, on March 22, 2019, the DOL issued its Notice of Proposed Rule Making to revise the regulations concerning exempt status. The public comment period for the same will close on May 21, 2019. While the changes proposed are not as considerable great as the prior administration’s, they are significant. For example, the proposed minimum salary threshold is $35,308 – nearly a 50% increase over the current standard. Similarly, the threshold for exemption for highly compensated individuals is proposed to increase from the current standard of $100,000 to $147,414. Perhaps most importantly, unlike the enjoined regulations, the new regs do not include an automatic “update” provision, that would have ratcheted the salary level up without the need of further agency action in the future. In addition, the new regs also do not propose any modification to the existing “duties test” to determine workers’ exempt status. Say what one will about the current occupant of The White House, the Trump Administration is certainly an “interesting one.” Despite some early fireworks around the possibility of Andrew Puzder taking the reins at DOL, the agency’s direction under the leadership of Alexander Acosta has generally been middle of the road, and the recent FLSA proposal is consistent with that theme. It’s anticipated that the current proposal will move far more quickly than its predecessor and, once finalized, will likely not face the same level of court challenge. Contractors should continue to monitor the progress of the regulations as it appears that change is on the way again. And this time, it is probably here to stay. 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
  8. By Maureen Jamieson, On March 18, 2019, the U.S. General Services Administration (GSA) announced that Ernst and Young LLP (EY) was awarded a one-year base and four option period, $41.8 million contract for entity validation services for the federal award process. Entity validation services are critical because the federal government must validate the identity of each entity (company, individual or organization) wanting to do business with the government. Dun & Bradstreet, who established the Data Universal Numbering System, or DUNS, had held the contract for twenty (20) years. The DUNS number has been an established and unique identifier for entities doing business with the government. With the new EY contract award, the DUNS number will be replaced. Dun & Bradstreet has agreed to continue to work with GSA and EY during the transition. Out with the Old, in with the New GSA continues to work on reducing duplication across the government, and now entity validation will be serviced by SAM.gov. GSA will use a government-owned unique identifier called the System for Award Management Managed Identifier, or SAMMI, number. “Securing this five-year contract means that the federal government will have a safe, secure, and unified method for validating entities, while also simplifying the process for those who seek awards,” said GSA Office of Systems Management Assistant Commissioner Judith Zawatsky. “This award greatly improves the government’s ability to manage data and is an important step forward to competitively procuring entity validation services on behalf of the entire government award community.” Updates and future notices will be posted on GSA’s Interact.gsa.gov site. Centre Law & Consulting will continue to monitor the changes. Check our blogs or reach out to our Consulting team for more information. 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. View the full article
  9. By Hon. Jack Delman In Apogee Engineering, LLC, 2019 CPD 85, 2019 WL 927366 (February 21, 2019), the GAO recently sustained a protest, due to, among other things, the agency’s failure to show that it performed an adequate price realism evaluation as required by the RFP. The Department of Transportation, Office of the Secretary of Transportation (agency), issued the RFP as a competitive set aside under the SBA’s 8(a) program. The RFP contemplated the award of a labor hour contract with fixed-price labor rates to provide staffing for the agency’s crisis management center. Per the RFP, price proposals were to be evaluated to determine price reasonableness, “realism” and “probable cost.” According to the RFP, the purpose of the realism evaluation was to determine if the offerors’ proposed prices reflected an understanding of the RFP’s requirements. Apogee, the incumbent contractor, and CASE the eventual awardee were both rated exceptional in all technical factors, but CASE’s price was significantly lower. The SSA concluded that CASE’s proposal represented the best value to the agency and awarded the contract to CASE. This protest followed. In the protest, Apogee raised numerous issues, but we focus on the price realism issue here. Apogee contended that the agency failed to show that it performed a reasonable price realism evaluation as required by the RFP. Specifically, Apogee argued that the agency failed to consider whether CASE’s price was “too low” given its proposed technical approach. The GAO agreed. First, the GAO noted that where a solicitation anticipates the award of a labor hour contract with fixed-price labor rates, there is no general legal requirement that the agency perform a price realism evaluation. However, the RFP here included such a requirement, and therefore the evaluation was required. GAO found that the record failed to show that the agency meaningfully performed such an evaluation. Citing authority, the GAO stated that it was insufficient for the agency to show price realism based upon a comparison of CASE’s price to the prices of other offerors. Rather, the agency was required to assess CASE’s price against its own proposed technical approach. The record did not support the agency’s assertion that it performed this evaluation. The protest was sustained for this reason, and on other grounds not pertinent here. Lessons Learned From the agency’s perspective — it is essential to document the record to demonstrate that all required proposal evaluations were performed and how they were performed. Purely conclusory statements, i.e., that a particular evaluation “was performed” will not pass muster; the GAO has shown that it is prepared to look behind such general statements to determine that the evaluation was performed in a reasonable and meaningful way. From the offeror’s perspective — Apogee teaches us, once again, that an inadequately documented record remains fertile ground for protest. 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. View the full article
  10. By Tyler Freiberger, One of the most common frustrations in preparing bid protests for government contractors is the feeling that protests centered on stark price differences are dead on arrival due to the vague nature of “price reasonableness evaluations” and the seemingly infinite deference a federal agency has on that determination. However, as shown in a recent Government Accountability Office (“GAO”) decision, there is hope as the GAO increasingly pushes back on agencies’ unspecified or conclusory price determinations. The challenged task award was offered to the 28 holders of the indefinite-delivery, indefinite-quantity (IDIQ) Transformation Twenty-One Total Technology Next Generation (T4NG) VA contract. The protesting firm, Cognosante, LLC, submitted a bid with an almost 800 million price tag, landing in the middle of other offerors. The awardee, Booz Allen Hamilton, was the highest bidder at just under an even billion. While a twenty-five percent increase in price is common among bids, we can all agree it’s a good idea for agencies to take a hard look at an extra 200 million dollars. The protestor raised this ground of protest by challenging the reasonableness of the high price, which the GAO sustained. While there was a significant gap in the proposed prices, this had very little to do with the GAO’s determination. Instead, the GAO ruled the VA had merely failed to determine whether any offerors’ prices were fair and reasonable. The VA only offered evidence that the bids were “received under adequate price competition in accordance with FAR Part 15.403-1(c)(1)(i)” and therefore price reasonableness was assumed. The GAO explained how flawed this reasoning was given, “the plain language of FAR § 15.404-1(b)(2)(i) indicates, a price reasonableness determination relying upon this technique requires a ‘[c]omparison of proposed prices received in response to the solicitation.’” In short, if an agency is going to assume prices are reasonable because of competition, it needs a method to compare the prices actually received. Failing to do so resulted in the GAO recommending the bids be re-evaluated and for the protester to receive any attorney and filing fees associated with bringing the protest. The GAO’s Cognosante decision is far from groundbreaking, but it does provide a much-needed example for future protests challenging a required determination so often brushed over. 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
  11. By Angel N. Davis, Once upon a time, most Government Contracting firms were small. As we all know, growing a business is no small achievement and requires a tremendous amount of perseverance, hard work and a dedicated team focused on delivering exceptional products and services to your customers. Building It Government Contracting businesses have the potential for substantial growth margins. So, when launching your first-class contracting business, you’ll first want to develop a business plan that captures the following elements: Vision Establishment of Policies and Procedures Implementation of Adequate Systems Well defined Roles and Responsibilities Be A Visionary The vision must be clear, concise, and communicated effectively. It’s essential to understand how your vision will help drive the success and the growth of the business. The Fun Stuff We all need Policies and Procedures! The purpose of Policies and Procedures are to guide and support effective contract management and administration. We rely on the expertise of our Contract Managers to mitigate risk, effectively negotiate contractual terms and conditions, interpret regulations and advise the internal customers on the best course of action related to the contract requirements. Your policies and procedures should include guidance on how to conduct business on behalf of the organization as it relates to every aspect of the Contract Management lifecycle: Pre-Award, Post- Award, and Close-out. Well written policies and procedures must be implemented so that the contracts organization can maintain a consistent standard of providing exceptional service and support to internal and external customers. It’s All About the System It’s necessary to identify Adequate Systems and Tools to assist with the administration and management of all contracts. When deciding on which systems or tools to use, you should consider your approved accounting systems, the number of current and future potential contracts, the end users and your required compliance standards. These systems should allow you to track the contract funding/ceiling value, manage contract awards, modifications, deliverables and Federal Regulations. A Little R&R Your contracts organization must understand their roles and responsibilities as a part of their job function. Well defined roles and responsibilities provide clarity and support the vision and the goals of the organization. There is a high value placed on the support and knowledge of your Contracts Manager. Your Contracts Manager is a business partner and should be relied upon to make decisions that protect your organization from risk and issues, support business growth and interface with the customer on behalf of the organization. As your business grows, roles and responsibilities will evolve, and to maintain your success, everyone must always understand the expectations of the organization. We’re confident that these Best Practices will help you establish a first-class contracts organization. If you’d like information on how to implement these best practices, 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
  12. By JW Butler The General Services Administration (GSA) will occasionally refresh the terms and conditions across all of the GSA Schedule solicitations. When a Schedule solicitation refreshes, it can be for several reasons such as adding, deleting, or amending Federal Acquisition Regulation (FAR) or General Services Administration Acquisition Regulation (GSAR) clauses or adding or revising the Special Item Numbers (SINs). Occasionally, the refresh contains simple formatting or spelling changes. When changes are made to the Schedule solicitations, GSA issues a Mass Modification to all contract holders under the applicable Schedule. These changes must be accepted on each of your contracts to keep your contract up to date with the latest solicitation terms and conditions. Vendors can request an exception to specific terms and conditions in a Mass Modification; however, these exceptions can be difficult to get approved. If a vendor has any outstanding Mass Modifications, they will not be able to modify their contract until the Mass Modifications are accepted. If a vendor has more than one contract under the same Schedule, such as two IT70 Schedules, the Mass Modification must be accepted for BOTH Schedules. GSA will send an email to the contract administrator listed on contract in GSA’s System with a subject line similar to the following: “Modification to Schedule PSS Refresh 33 <Contract GS10F0040S> (A723)”. This email will contain the PIN necessary to accept the Mass Modification. Because this email is only sent to your contract administrator, it is important to ensure the contract administrator information for your contract is always current. This will help to avoid missing any Mass Modifications. If a Mass Modification is missed or the PIN has expired, you can request a new PIN be sent by contacting your Administrative Contracting Officer (ACO). If you do not know your ACO’s name or contact information, it can be found here. Mass Modifications must be accepted in the order of when they were released. If you fail to accept a Mass Modification, you will not be sent a PIN for the next Mass Modification until the previous Mass Modification is accepted. Steps to accept Mass Modifications Go to the Mass Modification System Enter your contract number, with no spaces, in the search bar Select the open Mass Modification for which you received the PIN Enter the PIN GSA provided via email Select an email address from the drop-down menu for a one-time security code. NOTE: The list of emails in the drop-down menu are the authorized negotiators with signature authority on your contract Enter the one-time security code you received Review the summary of the changes applicable to the Mass Modification and click “Continue” through these pages. Click the “Select All Remaining Clauses” option when prompted to accept the changes in the Mass Modification, then click on “Accept Selected” Enter your contact information at the end of the acceptance process Re-enter the PIN provided by GSA Exit the webpage. You will receive an email following acceptance with a link to download the final SF30 Spring forward Be on the lookout for an upcoming Mass Modification email as GSA recently announced that all Schedule Solicitations are expected to refresh sometime this spring. If you have any questions or require assistance in accepting you Mass Modifications feel free to contact anyone on our GSA Consulting Team. About the Author: JW Butler Consultant JW Butler is GSA/VA Contract Consultant at Centre Law & Consulting. JW supports the consulting team in preparing various contract modifications, market analysis for products/services, and GSA Advantage catalog updates for Schedule contracts. JW also assists in the preparation of both new Schedule and successful legacy proposals, as well as uses the Schedule Input Program (SIP) to upload catalogs to GSA eLibrary and GSA Advantage. View the full article
  13. By David Warner Last month, a divided U.S. Court of Appeals for the First Circuit ruled that a plaintiff adequately alleges “protected activity” under the False Claims Act’s whistleblower protection provision. This provision is where individuals report concerns related to conduct, that could reasonably lead to a viable FCA action. The First Circuit reversed the lower court’s prior dismissal of the action, which was based in part on the absence of any allegations of a false claim. The plaintiff in Guilfoile v. Shields was the former executive of a specialty pharmacy service provider Shields Health Solutions. He alleged that he was fired from his job in retaliation for accusing his employer of violating the Anti-Kickback Statute and making false representations in customer contracts. See 31 U.S.C. § 3730(h); 42 U.S.C. § 1320a-7b(b). After successfully leading the growth of the company over two years, in the fall of 2015, Guilfoile became concerned that the company was violating the law. The concerns explicitly related to a contract providing for a $35,000 per quarter “referral fee” to a consulting firm for referring two hospitals to Shields Health Solutions and whether those fees had “improperly induced [the consultant] to steer the hospital contracts to” the defendant. The plaintiff raised concerns that the fees violated the federal Anti-Kickback Statute insofar as the contracts would result in the company making claims for payment to federal insurance programs. He also raised concerns with contractual representations that the company purportedly operated a 24/7 call center when it did not do so. Shortly after raising these concerns, Guilfoile was terminated without explanation. The U.S. District Court for the District of Massachusetts dismissed Guilfoile’s FCA retaliation claim on the basis that he had failed to adequately plead that he had engaged in protected conduct, the first element of such a claim under the statute. On appeal, the First Circuit distinguished the pleading standards for qui tam actions from retaliation claims. Specifically, the court noted that while a qui tam suit required facts supporting the existence of an actual false claim, a retaliation suit need only show “conduct that reasonably could lead to a viable FCA action.” The court reasoned that the broader standard was consistent with the legislative intent that “protected activity for purposes of an FCA retaliation claim should … be interpreted broadly.” Thus, FCA retaliation protection extends beyond actual submission of false claims. Per Guilfoile, even if no false claim has actually been submitted, an employee’s concerns over conduct that could lead to such a violation in the future might still trigger whistleblower protections. 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
  14. By Barbara S. Kinosky, Esq. There’s a revived focus on the topic and implementation of Information Technology modernization within the federal government in 2019. IT drives innovation and innovation is the most direct route to business success. Innovation in government contracting has the same impact that steam had on the industrial revolution. In fact, it’s hard to imagine any organization that has not benefited from the digital revolution. As we begin 2019, several government agencies have begun implementing the process of applying digital transformation in the way they deliver value to the people they serve. Technologies like digitized service platforms, cloud services, DevOps, AI for data analysis, and more are being used to foster efficiency and help government agencies scale their processes to serve the public better and maintain a competitive advantage. The goal is to catch up to the private sector in the way they serve people to meet the demands of an evolving American public better. However, like anything else, there are always budget and talent constraints that can hinder the process and force government agencies to prioritize certain aspects of evolution above others. A few trends that seem to be emerging in 2019 include a transition from “cloud first” to “cloud smart.” The government is using cloud services more than ever, which means it’s important to consider issues like integrating cloud security, workforce strategies, and procurement. Another trend is using the Internet of Things to help process data in a way that is “smart” instead of brushing off IoT as just another new technology. Governments in the public sector using IoT are creating new opportunities in cities and making life better for the people that live there. There are also ways that the use of AI can help government agencies boost their efficiency and reduce their costs in areas like border services, health services, social services, social security, and more. AI may help governments uncover new ways of sharing, analyzing, and integrating massive amounts of data to help create better programs and services for citizens. DevOps is continuing to bring benefits like increased productivity using automation, cost savings within departments, and other tangible benefits to help improve collaboration between different departments. As a federal government contractor, it’s best to invest in a better understanding and solutions of modernization that’s happening in the federal IT space. Organizations should begin making substantial progress in their steps to modernize their infrastructures and technology systems if they want to meet rising demands from the public and maintain a competitive edge. “Every once in a while, a new technology, an old problem, and a big idea turn into an innovation.”- Dean Kamen 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
  15. By Heather Mims, Esq. In general, the Buy American Act (“BAA”) requires the United States government to give a preference to American-made products. When applied to a specific procurement, a contractor must provide an end-product that was manufactured in the United States and must also certify that more than fifty percent of the cost of all the parts were manufactured in the United States. Executive Orders Since its implementation in 1933, numerous exceptions and interpretations have developed. During his term, President Trump has issued multiple Executive Orders aimed at the BAA. He issued his first one, the “Buy American and Hire American” Executive Order in April 2017 shortly after being sworn in. It required, in part, the heads of agencies and the Secretary of Commerce to assess agencies’ compliance with the BAA and submit findings and recommendations to the President. Order Up President Trump recently issued another Executive Order on January 31, 2019, aimed at the BAA. The “Executive Order on Strengthening Buy-American Preferences for Infrastructure Projects,” continues to seek to maximize the use of American-made goods, products, and materials in Federal procurements. This EO requires that the head of each agency report any “tools, techniques, terms, or conditions that have been used or could be used” to maximize the use of American-made goods – and they must do so within 120 days. This applies to any “contracts, subcontracts, purchase orders, or sub-awards that are chargeable against Federal financial assistance awards for infrastructure projects.” It’s important to note, that “infrastructure projects” now include cybersecurity projects, in addition to the typical roadways, bridges, railroads, and other means of transit. This recent EO also requires the head of each agency to “encourage” recipients of federal financial assistance to use, “to the greatest extent practicable, iron and aluminum as well as steel, cement, and other manufactured products produced in the United States.” What next? When a company is asked to certify that it meets the BAA requirements, it should give serious consideration of the requirements of the Act (and the Trade Agreements Act and Buy America Act, if applicable). Providing a false certification may come with serious penalties – including debarment and criminal or civil False Claims Act claims. If you need assistance navigating the BAA, contact us today. 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
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