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  1. By William Weisberg, Esq., The Service Contract Labor Standards (“SCLS”) governs how, and how much, government contractors must pay “covered” employees on “covered” contracts. Here are the Top 10 things to keep in mind regarding Service Contract Labor Standards: It used to be called the “Service Contract Act,” and many people still call it that, or SCA. It is now, however, Service Contract Labor Standards. In real life, either name will do. The contracting agency, and the Department of Labor (“DOL”) both enforce SCLS. And DOL has independent authority to debar contractors for violations. And, violations may also trigger False Claims Act liability. SCLS mandates specific minimum wages and fringe benefits for covered employees. These are minimums. The fringe benefit requirement may be met either by providing benefits or a minimum cash payment. There is no commercial contract exemption from the SCLS. “Bona fide” executive, management, or administrative employees are exempt from SCLS, even on a covered contract. SCLS applies to subcontractors and must be flowed down. The prime contractor is jointly and severally liable for violations. SCLS compliance should be part of every contractor’s formal Government Contract Compliance Program. Keep detailed records. As a practical matter, contractors will have the burden to demonstrate their compliance. DOL maintains comprehensive lists of “Wage Determinations” (on SF98). These cover job descriptions and localities. It is common for Wage Determinations to be unavailable for a particular job category and/or location, or to be provided late to a contractor, or to change or be updated during contract performance. DOL and the FAR provide detailed procedures for dealing with each of these situations. SCLS compliance is a multi-department responsibility: HR, Accounting/Finance, Program Management, and Legal all have important roles and responsibilities. DOL conducts random (and not so random) SCLS audits and site visits. Be cooperative but be prepared. About the Author: William Weisberg, Esq Of Counsel William Weisberg is a government contracts attorney with 30 years of experience. Bill received his undergraduate degree from the University of Virginia (where he was an Echols Scholar) in 1983 and his law degree from the George Washington University in 1986. Bill practiced with large international law firms for over 25 years, the last 10 of which he led his firms’ Government Contract and Grant practice groups. Bill formed his own boutique government contract firm in 2013. View the full article
  2. BREAKING NEWS FROM GSA In late July, GSA hosted a live event about upcoming changes to the new Unique Entity Identifier (UEI) requirements (used to identify companies and individuals within the federal award process). More than 770 people participated in the event. The presentation provided detailed information about how IAE is moving away from using the D-U-N-S® number to a new, non-proprietary identifier. During the program, we received numerous questions from participants. As promised, GSA has provided answers to those questions online at in the UEI information center on GSA.gov. While all of the questions-and-answers can be found there, here’s a sample of some of what was asked and answered: Will GSA automatically assign the new UEI, or does the entity have to take action to register? Existing registrants will be automatically assigned a new UEI. New registrants will be assigned a UEI as part of their SAM registration. As an existing entity, will we be notified of our automatically-assigned UEI? A notification process will be established so that entities can find their assigned UEI Do you have to be active in SAM.gov to get a UEI assigned? No, UEIs will be assigned to active and inactive entity registrations. Will the UEI be available for registering entities immediately or will they have to wait a period (like with obtaining a DUNS today) for the UEI to become active before it can be registered? UEI assignment times will be dependent on how quickly entity uniqueness and validation can be accomplished. It is the goal to make the UEI response time immediate for a large percentage of UEI assignment requests. Will the format (character length, alphanumeric, etc.) of UEI be the same as the existing DUNS? No. The format will not be the same. Please see the following Federal Register notice for the new unique entity identifier standard: https://www.federalregister.gov/documents/2019/07/10/2019-14665/unique-entity-id-standard-for-awards-management When including alphabetic characters in the UEI, will those alphabetic characters be stored / displayed as capital letters or lower-case letters? For example, A, B, C or a, b, c? Capital letters will be used in the UEI. What kind of reference data elements / underlying data will be captured for each of the UEIs? When requesting a Unique Entity Identifier, the entity will provide basic data (e.g. legal entity name, doing business as name, physical address) which will be used to validate uniqueness. During the full SAM entity registration process, the entity will provide the same comprehensive data set they do today. Will there be a hierarchy of UEI like there is for DUNS that relates “child” entities to their “parent” entities? Yes, a hierarchy of entities will continue to exist within SAM. Will the actual cutover date be in December 2020? There is going to be a lengthy transition period during which IAE will provide specific transition activities and cutover dates. By December 2020, the SAM generated UEI will be the authoritative unique entity identifier in SAM. Why can’t we use the EIN as the Unique Entity Identifier? Privacy considerations preclude the Taxpayer Identification Number (TIN) — whether it is an Employer Identification Number (EIN), or in limited circumstances, the Social Security Number (SSN) — from being used as the public facing unique entity identifier. Further, only entities which are located in the U.S. and its outlying areas, or pay U.S. taxes, have a TIN. if you have questions or need guidance, please reach out to Maureen Jamieson at mjamieson@centrelawgroup.com. View the full article
  3. By Angel N. Davis, There is an on-going buzz surrounding the upcoming GSA Multiple Award Schedule (MAS) Consolidation. If you haven’t heard (I am not sure where you’ve been), GSA is consolidating 24 schedules for products, services, and solutions, into one single platform. This initiative will have an impact on all schedule holders. This is what you need to do to be prepared for this upcoming implementation: All twenty-four individual schedules, including service and product schedules, are being consolidated! The VA Schedules will not be consolidated at this time. Current schedule holders will maintain their current contract number, and if you have multiple contracts, GSA will work with you to determine the best solution for your company. If you are in the process of submitting a new offer under an individual schedule OR are submitting a mod to add a new SIN, your offer or mod must be submitted by September 30, 2019. Otherwise, you must submit your new offer or mod to add a SIN after October 1st based on the Consolidated Schedule. GSA will not award new offers or mods to add new SINs until mid-January 2020. Legacy Schedule holders in the process of submitting a Successful Legacy/Streamlined offer should submit their offer before October 1st. If you don’t submit by October 1st, you’ll have to start a new offer based on the Consolidated solicitation. For current schedule holders, be prepared to review and accept the Consolidated Schedule Terms and Conditions Mass Modification, expected to be released in mid- January 2020. Read the latest revised draft of the GSA MAS solicitation. On October 1st, the final solicitation will be published on FedBizOpps. Additionally, for all current Schedule holders, GSA announced this week that a Mass Mod will be released in mid-September to add the below new clauses prohibiting the use of covered Telecommunications Equipment: FAR clause 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (AUG 2019) GSAR clause 552.204-70, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment (Aug 2019) You will have 60 days to accept the Mass Modification. GSA will monitor contractor acceptance of this Mass Modification and may cancel contracts that have not accepted the modification. Lastly, stay informed! Centre Law will continue to provide updates on our social media outlets and directly to our clients regarding the upcoming consolidation. If you need assistance navigating all the new requirements and would like to stay informed regarding the impact of the GSA MAS Consolidation, please contact us! About the Author: Angel Davis, CFCM Contracts Manager Angel N. Davis has over thirteen years of experience in federal contracts management. She is a Certified Federal Contracts Manager (CFCM) and is currently President of the Tysons Chapter of the National Contract Management Association (NCMA). While completing the NCMA Contract Management Leadership Development Program (CMLDP), Angel successfully pioneered the NCMA Tysons Women In Leadership Initiative. View the full article
  4. By Heather Mims, Esq. Contractors (and officials) across the country have experienced some confusion about the implementation of the recently enacted Small Business Runway Extension Act of 2018. If you’re unfamiliar with the Act, Congress has amended the Small Business Act to modify the method for prescribing size standards for business concerns – what used to be a three-year standard has now become a five-year standard. Thus, the implementation of this Act would extend the measurement period of the SBA’s calculation of average annual receipts for purposes of size standards from three years to five. When Should Businesses Start Calculating With a Five Year Average? Right off the bat, the SBA and Congress did not agree with when this Act should take effect – leaving confused contractors in their wakes. While the President signed the law on December 17, 2018, shortly thereafter, the SBA opined in an Information Notice that the amended law was not effective immediately. Specifically, the SBA’s Notice stated that “[t]he change made by the Runway Extension Act is not presently effective and is therefore not applicable to present contracts, offers, or bids until implemented through the standard rulemaking process. . . Until SBA changes its regulations, businesses still must report their receipts based on a three-year average.” The SBA has continued to assert that the Act was not presently effective stating in April 2019 that “Businesses must continue to report their annual receipts based on a 3-year average until SBA amends its regulations.” However, Congress fired back in May 2019 in a House Committee on Small Business Press Release. The Press release states: “Upon the Runway Act’s passage into law on December 17, 2018, the Small Business Administration has postponed its implementation, creating confusion and challenges for small businesses competing for federal contracts.” The GAO Steps In To the Debate On August 16, 2019, the GAO issued a bid protest decision in the matter of TechAnax, LLC; Rigil Corporation. The protesters argued that a GSA RFP did not comply with the Runway Extension Act, specifically arguing that the Act applies to all size standards issued by SBA, that the Act took effect immediately after enactment, and thus, the five-year average should be used. Although the GAO noted that its review was limited, it ultimately denied the protest, finding no basis to conclude that SBA and GSA’s actions in delaying implementation violated the Act. Specifically, the GAO noted that “[e]ven assuming the Runway Extension Act took effect on the date of its enactment, however, we conclude that the act did not automatically amend all existing size standards and SBA regulations.” What’s Next? The House Committee’s May Press Release referred to a bill titled: “Clarifying the Small Business Runway Extension Act.” That bill confirms that, contrary to the SBA’s interpretation, the “Small Business Runway Extension Act of 2018 has been effective since the date it was signed into law, on December 17, 2018.” The bill would also require the Administrator of the SBA to issue a final rule implementing the original Act no later than December 17, 2019. This bill passed in the House on July 15, 2019 and has now been referred to the Senate’s Committee on Small Business and Entrepreneurship. The SBA has again taking a dueling approach and, on June 24, 2019, promulgated a proposed rule for implementation of the Act. However, the proposed rule has no effective date and proposes only a modest implementation: “Specifically, consistent with a recent amendment to the Small Business Act, SBA proposes to change its regulations on the calculation of annual average receipts for all receipts-based SBA size standards and other agencies’ proposed size standards for service-industry firms from a 3-year averaging period to a five-year averaging period.” About the Author: Heather Mims Associate Attorney Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow. View the full article
  5. By David Warner Gone are the Halcyon days, when it looked like the Trump Administration might overturn EEO-1 wage and hour reporting requirements adopted during the prior administration, as the first batch of reports is due to be submitted by contractors on or before September 30, 2019. To make matters more confusing, technically the Trump Administration is still trying to overturn the wage reporting requirements but, unless something unexpected happens, September 30 is still the applicable deadline. For a bit of history, the Obama Administration revised the EEO-1 form to require certain employers to provide compensation data along with the gender and race information historically collected. One result of the most recent presidential election was an effort to rescind those changes, which were highly unpopular in many quarters. On April 25, 2019, the U.S. District Court for the District of Columbia entered an order directing EEOC to collect the “new” EEO-1 wage and hour data and to do so by September 30, 2019. While the Trump Administration timely appealed that order, the EEOC correctly noted on its website that “the filing of this Notice of Appeal does not stay the district court orders or alter EEO-1 filers’ obligations to submit” the required pay data. In other words, the legal fight continues, but the obligation to file the data on or before September 30, 2019, persists. So who is required to submit the compensation data? With few exceptions, employers with 100 or more employees are required to provide the compensation data to the EEOC on or before September 30, 2019. One benefit to government contractors is that this 100-employee trigger also applies to them. That is to say, while contractors with a contract of $50,000 or more are still required to file the standard EEO-1, only contractors with 100 or more employees are required to submit the additional pay data. So what is the data that’s required to be submitted? The original EEO-1 form required covered businesses to provide information regarding the race, ethnicity, and sex of its workforce in 10 categories. The revised – and hotly disputed – EEO-1 requires employers to also provide aggregate data for the reported year, across those same 10 job categories and same race, ethnicity, and sex groups, broken down into 12 broad pay bands. The aggregate data would be calculated from a single payroll period of the employer’s choice, occurring between October 1 and December 31 in the reporting year (i.e. a report in 2019 would be calculated based on data drawn from 2018). Is there an easy way to submit the data? “Easy” might be a strong word, but once you’ve cleared the not insignificant hurdle of collecting the necessary data, the EEOC has partnered with NORC at the University of Chicago to create a web-based portal where the data can be submitted electronically. Filers can use either an online form or upload data with a specifically formatted .CSV file. What if I don’t file a report? To quote the CFR, “Any employer failing or refusing to file Report EEO-1 when required to do so may be compelled to file by order of a U.S. District Court, upon application o the Commission.” What if I just fudge my numbers? Uhh, do NOT do that. Per the CFR, “The making of willfully false statements on Report EEO-1 is a violation of the United States Code, title 18, section 1001, and is punishable by fine or imprisonment.” “Help?!?” Centre Law can do that. IF you have questions regarding the applicability of the new EEO-1 reporting requirements or capturing and reporting the data, or any other matter involving doing business with the federal government, drop us a line at http://centrelawgroup.com/contact/. About the Author: David Warner Partner David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices. View the full article
  6. BREAKING NEWS FROM GSA if you have questions or need guidance, please reach out to Maureen Jamieson at mjamieson@centrelawgroup.com. This Interact post is the advance notice announcement of GSA’s intention to consolidate the current 24 Multiple Award Schedules (MAS) and release a new single Schedule for product, services, and solutions on October 1, 2019. A revised draft of the MAS solicitation is attached with applicable attachments. The solicitation has been updated based on more than 1,000 comments received to GSA’s recent requests for information. This document defines and lays out overall MAS offer evaluation criteria, requirements, and terms and conditions. It will be published in its final form on October, 1, 2019. What to Expect on October 1, 2019 On October 1, 2019, GSA will publish the new, consolidated, solicitation on FedBizOpps along with applicable attachments. The FBO package will contain; Solicitation Available Offerings Summary Document One Attachment for each Large Category Regulations Incorporate by Reference Significant Changes Document GSA will use a new ‘Available Offerings and Requirements’ page on GSA.gov to house templates and attachments that are part of the solicitation. Applicability of the templates will be noted in the solicitation documents posted on FBO and housed on GSA.gov for organizational purposes and industry’s ease of use. For reference, we have attached 4 documents that explain the details, components, and layout of the solicitation. The category attachments will include the below clause references and additional instructions or requirements that are specific to each large category, subcategory or SIN. How to Prepare for the New Schedule coming October 1, 2019 We highly encourage industry partners to read our newly updated Frequently Asked Questions (also attached) and tune in to our upcoming webinars dedicated to the new solicitation. You’ll have the opportunity to ask questions and hear directly from from GSA’s subject matter experts. First Session: Date: September 17, 2019 Time: 3:00 – 4:00 PM EDT Registration Link: https://meet.gsa.gov/eapkwzqxhyao/event/event_info.html Second Session: Date: September 19, 2019 Time: 3:00 – 4:00 PM EDT Registration Link: https://meet.gsa.gov/eoj61sws2yjs/event/event_info.html Please submit your comments on the draft consolidated solicitation directly to this Interact post or email them to us at maspmo@gsa.gov. Thank you for your continued partnership. About MAS Consolidation: MAS Consolidation is one of the four Cornerstone Initiatives of GSA’s Federal Marketplace (FMP) strategy, GSA’s plan to modernize and simplify the buying and selling experience for customers, suppliers, and acquisition professionals. GSA’s new single Schedule solicitation features a simplified format with streamlined terms and conditions, new large categories and sub-categories, and updated Special Item Numbers (SINs) that will make it easier for contractors to offer, and agency partners to buy, products, services, and solutions. Created by a cross-functional team of GSA’s acquisition experts, the new solicitation was developed iteratively and incorporates industry feedback from the more than 1,000 responses to our recent Requests for Information (RFI). *ATTACHMENTS: Draft MAS Solicitation – Defines and lays out overall MAS offer evaluation criteria, requirements, and terms and conditions. Available Offerings – The available offerings excel sheet contains three tabs; one that maps legacy SINs to the new consolidated SIN structure, a second tab that summarizes only the new structure of available offerings, and a third tab that summarizes all the large and subcategories. Clause Matrix – Identifies all the ‘required’ (applicable to all MAS) and ‘required as applicable’ (applicable to some large categories, subcategories and/or SINs under MAS). This matrix also identifies where in the solicitation the ‘required’ clauses will fall. ‘Required as Applicable’ Clause Mapping to Available Offerings – Identifies what level the ‘required as applicable’ clauses will apply. Updated Industry FAQs View the full article
  7. With GSA focused on consolidating 24 Schedules into one single Schedule, the Transactional Data Reporting (TDR) pilot has been extended through FY2020, allowing both contractors and the GSA acquisition workforce to spend their resources understanding and participating in the consolidated Schedule — the most immediate priority. TDR, a GSA Acquisition Regulation (GSAR) rule published in 2016, reduces the burden and increases transparency by requiring monthly reporting of transactional sales data from governmentwide contracts, including the Multiple Award Schedules (MAS). TDR has been implemented as an optional, three-year pilot that includes eight specific Schedules and associated Special Item Numbers (SINs). In addition to supporting the new consolidated Schedule, the extension of TDR will allow GSA to gather data about TDR in the new environment. Participating contractors will still report monthly sales in the FAS Sales Reporting Portal, and contractors whose items fall within the current TDR pilot scope can still opt into the TDR pilot. GSA will reevaluate the TDR pilot at the end of FY2020 and decide whether to continue the pilot, cancel the pilot, or to expand optional TDR pilot participation to all items on Schedule. If you have questions or need guidance, please reach out to Maureen Jamieson at mjamieson@centrelawgroup.com. View the full article
  8. By Barbara S. Kinosky, Esq. The big news from MAS PMO Director Stephanie Shutt is that the Consolidated Schedule will be out October 1, 2019. She is very definite on that date. What does that mean for existing GSA Schedule holders? We understand modifications to add the new consolidated SINs will not be accepted after September 30 until sometime in mid-January 2020 after contractors have accepted the mass modification incorporating the new consolidated Schedule terms and conditions. New offers for new Schedules that have been submitted prior to September 30 but not finalized will still be reviewed and awarded. This includes the streamlined/successful legacy offers. E-mod will remain open and will not be affected by the consolidation. GSA will transition companies with one Schedule to the new Schedule first. In early 2020, GSA will begin the process of working with companies holding multiple Schedules. Those Schedules will be consolidated into one Schedule. GSA has indicated that it will allow companies with Blanket Purchase Agreements (BPAs) off GSA Schedules to continue those schedules until the BPAs end. On other news, the GSA Small Business GWAC Division has announced the draft solicitation for the 8(a) STARS III GWAC is out. Both industry and federal agencies are able to review and provide feedback on the content of the draft solicitation up until September 6th. Review the details by visiting FedBizOpps. GSA is asking everyone to please spread the word! Centre Law’s GSA team is here to answer any of your questions on the consolidated schedule. You can contact me by email at bkinosky@centrelawgroup.com. About the Author: Barbara Kinosky Managing Partner Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has more than twenty-five years of experience in all aspects of federal government contracting. Barbara is a nationally known expert on GSA and VA Schedules and the Service Contract Act, and she has served as an expert witness for federal government contracting cases. View the full article
  9. By Maureen Jamieson, Federal Business Opportunities (FBO) is moving to beta.SAM.gov starting on November 8, 2019. What is FBO? FBO (commonly known as FedBizOpps) is how contracting organizations across the federal government post notices on proposed contract actions (valued at more than $25,000). These notices, or “procurement opportunities,” include solicitations, pre-solicitations, sole source justifications, and other notices. Anyone interested in doing business with the government can use FBO (www.fbo.gov) to learn about available opportunities. Each contract opportunity found on FBO provides the following information: The original notice date and any amendments An overview of the notice and contracting agency Any related attachments or external links Instructions on how to submit a response, offer or proposal The date on which responses are due You can search for opportunities in FBO by entering a keyword, solicitation ID, or an agency name into the search field, and use filters to narrow your results. Currently, you don’t need a user account to view contract opportunities. However, in future releases you will be able to access additional capabilities—such as saving searches, adding yourself to an opportunity’s Interested Vendors List, and signing up to receive regular updates on opportunities—when logged in. The capability to create user accounts will become available in the upcoming months. For now, FBO is your source for Federal Business Opportunities. However, once FBO has fully transitioned, you will be directed to beta.SAM.gov for all your contracting opportunities. What is beta.SAM.gov? The General Services Administration (GSA) is merging its current legacy sites into one system. GSA decided to use the term beta when naming beta.SAM.gov to distinguish it from the current legacy SAM.gov site. While parts of the site are official, others are demonstration only and continue to be supported on one of GSA’s original websites. The original websites will be gradually migrated to the beta site. When the functionality from an original site has been migrated, the site will be a candidate for retirement. The original sites will co-exist with beta.SAM.gov until they are retired. Centre Law & Consulting will continue to monitor updates to beta.SAM.gov. Please contact our Consulting team if you have any questions. 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
  10. By Hon. Jack Delman In National Government Services, Inc. v. United States, 923 F.3d 977 (Fed. Cir. 2019) the Federal Circuit sustained a pre-award protest, holding that an agency solicitation containing an “Award Limit clause” (ALC) violated full and open competition under the Competition in Contracting Act (CICA), and the agency failed to follow the appropriate procedures that would support an exception. Background Facts The Centers for Medicare and Medicaid Services (CMS), an agency of HHS, uses contractors, known as “MACs”, to administer claims and benefits under the Medicare program. For an upcoming round of solicitations, CMS included an ALC providing that CMS would not award more than 26% of the national workload to any single contractor, or more than 40% of the national workload to any one set of affiliates. According to CMS, the purpose of this clause was twofold: (1) business continuity concerns, i.e., avoid the award of an overly large share of business to any one entity and (2) the need to maintain a dynamic competitive marketplace. After the solicitation was issued, National Government Services (NGS) filed a protest with the Federal Claims court. NGS was a MAC that already held contracts amounting to 19.8% of the national workload. Given the ALC in this solicitation, NGC would be excluded from the award of the contract, since the contract represented 13.5% of the national workload and the award would put it over the 26% workload cap. Given its automatic exclusion from the competition, NGC contended that the solicitation did not allow for full and open competition under CICA. The lower court rejected the protest, but on appeal the Federal Circuit reversed. In brief, the Court ruled that (1) that this solicitation effectively excluded certain offerors from the competition, and thus failed to provide full and open competition under CICA; (2) that the workload caps were not “procurement procedures otherwise expressly authorized by statute,” that would otherwise provide an exception to the competition requirement, see CICA section 3301(a); and (3) that CMS failed to follow the appropriate statutory/regulatory procedures to support an exception to full and open competition. The Court held that CMS’ award limitation policy was effectively an exclusion of a source under CICA, section 3303(a). Such an exclusion required a “determination and findings” from the head of the agency or designee. See FAR 6.202(b)(1). This was not done here. Lessons Learned The Court took pains to explain that it did not question the purpose or the wisdom of CMS’ award limitation policy. According to the Court, the agency’s error was that it failed to follow the appropriate procedures required by law to support NGS’ exclusion. Another reminder that the government must turn “square corners” when it comes to following the FAR and the procurement statutes it implements. 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
  11. By Tyler Freiberger, Esq., An interesting mix of states now ban or otherwise restrict employers from requesting applicants’ prior compensation. Now, don’t run off and start rewriting your application forms just yet, the restrictions are mostly for government jobs, but there are a handful of cities and states that outright ban asking for compensation history. But this does beg the question; why is there a non-partisan move to restrict an employment question? Some employers may choose to implement the ban voluntarily if the answer to that question is compelling. (Spoiler: it’s a hard call) The Background Unlike other popular employment movements over the last decade, it’s very difficult to predict what areas of the United States are passing this type of legislation. While there is nothing particularly surprising about states passing laws on the hiring process- e.g. disability information and some criminal records, try to think of any other state-specific employment law where Alabama and California march together on the vanguard. To be safe, all employers should be sure to consult the laws of any state they operate in and even check city/county laws on the issue to see if they are operating in one of the 30+ communities with at least a partial restriction on requesting salary history. While this salary history question is still being debated, the Equal Pay Act is not. For half a century the EPA has made employers liable for certain types of pay inequity. The salary history bans aim to address this same “equal work equal pay issue.” Labor statistics still report an 18% difference (overall) between women who were full-time wage and salary workers and male full-time wage and salary workers. It’s not hard to find starkly different opinions on why this is still the case. I’ll leave you to explore those yourself in fear of stepping on a political landmine. Regardless, the logic here may be obvious now, if a person is unlawfully underpaid in previous employment, that salary can carry over to a new employer simply because it is using the past salary as a jumping-off point. Will this Work? These salary history bans are simply too recent to measure if they are having the intended effect. That makes voluntarily giving up hiring data a hard ask. But one useful note is that relying on past salary information will not serve as a defense if an employer is accused of unlawful pay disparity. All sized employers will still need to self-audit their compensation to measure any differences in pay for protected classes. A good rule of thumb is to focus on paying for skill set rather than past salary regardless if you are subject to the new restrictions. 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
  12. By William Weisberg, Esq., You may have seen reports about the President’s July 15, 2019, Executive Order on the Buy American Act (“BAA”). The first two BAA Executive Orders were basically “study the BAA and maybe try not to invoke exceptions as often as you do now.” This third Order supposedly has teeth. But here is my contrarian view: this one is not that big a deal. Let’s look at what the Order does, and what it doesn’t do. In the newest Order, the President directs the FAR Council (the body that manages, and changes, the FAR, where the BAA is actually implemented), over the next six months, to consider amending the FAR in a few ways: Increase the percentage of required U.S. components from 50% to 55%, and eventually to 75% (in addition to the current requirement that products be “manufactured” in the U.S).; Increase the evaluation price preference for domestic products from 6% to 20% for large businesses, and from 12% to 30% for small businesses; and Increase the required U.S. iron and steel content to 95% for covered contracts. Sounds draconian, right? Here is why I am not getting too excited about the impact of the Executive Order: It is still an Order to consider making changes. Nothing is set in stone. (Just ask Congress how long it took the SBA to change the time period for calculating revenue on small business set aside contracts, in the face of explicit Congressional direction to do so.) All “commercial information technology” will remain exempt from the BAA, just as it is now. That means that the industry segment with the greatest exposure to (let’s face it) restrictions on Chinese components in the supply chain will be exempt from the changes under consideration. Changes to the BAA only impact contracts subject to the BAA. COTS products will remain exempt from the BAA requirement to have any U.S. components. And most importantly, the BAA only applies to a small percentage of U.S. government contract spending, because the Trade Agreements Act kicks in at a contract threshold of $180,000 for supply contracts, and $6.9 million for construction contracts. Again, the President’s changes only apply to contracts covered by the BAA. That’s right: The current BAA just doesn’t apply to many contracts. And even if the new Executive Order changes the parameters around the BAA, the BAA still won’t apply to many contracts. So, there certainly will be contracts, and contractors, impacted if the Order results in the changes to the BAA provisions in the FAR. But I think the Administration will be surprised (or perhaps not) by how few and far between they are… 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
  13. By Julia Coon, It’s that time of the year again, and your General Services Administration (GSA) Schedule Industrial Funding Fee (IFF) payment and sales reporting are due by July 30th. In accordance with Clause 552.238-74, all Schedule contractors are required to report sales within 30 calendar days following the completion of the reporting period and remit the IFF within 30 calendar days following the end of each reporting quarter. Even if you have zero sales for the April – June quarter, you are still required to report zero sales. Be Aware: There is New Sales Reporting Portal This will be the first time most contractors are completing the reports and payments in the new sales reporting portal. The FAS Sales Reporting Portal (SRP) is GSA’s new tool that supports the collection of data required by the Multiple Award Schedules (MAS) program. Contractors reporting on a monthly basis for the Transactional Data Reporting (TDR) pilot and contractors reporting on a quarterly basis will now both be using the FAS SRP. All first-time users must register for the multi-factor authentication process. Even if you were previously accessing the FAS SRP using a digital certificate or reporting sales in the legacy 72 System, you still need to register for the multi-factor authentication process before you are able to log into the FAS SRP. Multi-factor authentication registration steps can be found on the FAS SRP website linked above. Only authorized negotiators, the Contract Administrator, and the IFF Point of Contact will be able to access the contract in the FAS SRP. It’s important to use the same email address that is listed on your contract when registering to ensure access to the contract. If your points of contact listed today need to be updated, you will need to submit a formal modification in eMod making the updates for your Contracting Officer’s approval. Don’t Delay! To ensure a timely submission of sales reports and IFF payments, DO NOT wait until the last minute. Register for the FAS SRP now so you know you can access your contract and will be able to complete the reporting requirements on time. If you need assistance or have questions regarding the reporting requirements, please contact Centre’s GSA 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
  14. By Angel N. Davis, This year, the National Contract Management Association (NCMA) is hosting its 60th annual World Congress Conference in Boston, Massachusetts, and the Centre Law & Consulting team will be in attendance. Please stop by our booth to learn about our service offerings and meet some of our talented team members. Our team members will provide up to date information on GSA’s Consolidated Schedule and other hot topics. Bring your GSA stories to share with our GSA team. And, do not forget to sign up for Centre’s breakout sessions! Below are the Centre breakout session topics and dates: Hot Issues in Bid Protests! Presenter: Barbara Kinosky, Esq | Monday, July 29th | 11:15 am-12:30 pm When Not to Protest: Recent Bid Protest Trends Presenters: Heather Mims, Esq. and Tyler Freiberger, Esq. | Monday, July 29th | 2:00-3:15 pm Effective Customer Service: Creating a Customer Service Experience that Impacts your Organization Presenter: Angel N. Davis, CFCM | Tuesday, July 30th| | 9:30-10:45 am Federal Supply schedules Mini Boot Camp Presenters: Maureen Jamieson and Julia Coon | Tuesday, July 30th | 3:30 -4:45 pm For those attending the Federal Supply Schedules Mini Bootcamp, the Centre team will be handing out a coupon for $200 off Centre’s 2 day Boot Camp held in either August or November at Centre’s Tysons office. Click here to learn more about our Boot Camp for GSA Schedules training program. We look forward to meeting you in Boston! 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
  15. By Heather Mims, Esq. As we get into the summer months, people are gearing up for summer vacation traveling – but be prepared to spend extra time waiting in line for security screening from the Transportation Security Administration (TSA). Oh No! Why? In a statement issued earlier this Spring, TSA predicted that this year will be the busiest summer travel season it has experienced, with a more than 4% volume increase. Specifically, TSA is planning for approximately 263 million passengers and crew to pass through security checkpoints nationwide between Memorial Day weekend through Labor Day weekend, compared to 250 million passengers last year during the same period. To put this increase in perspective, last summer’s TSA screenings included nine of the top 10 busiest weeks in TSA’s history during the summer season. To combat this increase, TSA plans to increase airport staffing levels by more than 2,000 officers, while also providing a 20% increase in overtime funds. While this will hopefully alleviate some travel woes, TSA is likely to continue to suffer from retention issues, which with further exacerbate its small workforce. Specifically, a recent report from the Homeland Security Department’s Office of the Inspector General shows that one in four TSA screeners quits within six months. To put this into monetary terms, in FY 2017, TSA reported that, on average, it spends approximately $6,300 to hire and $2,300 to train its screeners. In that same fiscal year, TSA hired more than 9,600 screeners, costing the agency approximately $75 million in hiring and training costs. A subsequent Blue Ribbon Panel indicated that low pay was likely to blame, in part, for TSA’s low retention rate. Thus, even though TSA appears to be proactively attempting to prepare for a large increase in summer travelers, if TSA screeners continue to exit at the same rate, it will be difficult to timely replace them – the OIG Report indicates that the average hiring process took 252 days from application to job offer acceptance. What About TSA PreCheck? And if you’re one of the lucky travelers that has enrolled in TSA’s PreCheck program, don’t except those short lines to last for long! TSA is soliciting a contractor to boost public enrollment in the TSA PreCheck program. The Agency is seeking to enroll approximately nine million high-frequency travelers in the system (and eventually the more than 80 million travelers for fly at least once a year and aren’t enrolled). 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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