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  1. By JW Butler Multiple Award Schedule Modification Guidance On March 6, 2020, GSA released the final MAS Modification Guidance package. The new MAS Modification Guidance package can be found here. GSA previously had different modification guidelines for the 24 different legacy Schedules, but with the release of this modification package all contractors under the new MAS will follow the same guidelines for modifications. There are still specific instructions for each type of modification, but regardless of the modification type all modification cover letters must address the following administrative information: Schedule Refreshes/MASS Modifications – Contractors will need to provide a statement that all MASS Modifications have been accepted in the MASS Modification System. Subcontracting Plans and Reporting – Contractors will need to confirm a valid Small Business Subcontracting Plan is incorporated into the contract and that all eSRS reports have been completed on time. This is not applicable for contractors who are small businesses. FAS Sales Reporting Portal (SRP) – Contractors will need to confirm all GSA sales have been reported in the FAS SRP, as well as the Industrial Funding Fee (IFF) payments have been completed in a timely manner. The MAS modification guidance package also brought some major changes to the price proposal templates and how they are to be submitted. The modification package includes two price proposal templates, one for products and one for services. Each price proposal template will require the below two tabs to be completed. Tab A – This tab will include ALL offerings currently awarded on the Schedule as well as any of the adjustments that will be made as a result of the modification. The purpose of this is to make it easier for contractors to have a database of all offerings for when an Industrial Operations Analyst (IOA) assessment happens. This will also allow GSA and contractors to more easily review what is on Schedule. Tab B – This tab will include ONLY items that are impacted by the modification. For example, if you are adding products only the products being added should be included in this tab, and if you are submitting a service/product descriptive change, only the effected items and their updated descriptions should be included. Other major takeaways from the MAS Modification Guidance: A revised GSA Advantage catalog in accordance with I-FSS-600 reflecting the modification changes highlighted in yellow is now required for almost all modification requests, other than administrative and certain technical modifications. The cover letters for modifications are now required to be much more in depth. There is now specific information that must be included in your cover letter for each modification. Contractors will need to be sure to fully read the modification checklist applicable to the specific modification they are preparing to ensure all necessary information has been included. Documentation requirements for many of the modifications have also changed. Be sure to carefully read all notes in the modification checklists to ensure all documents required for the modification are included. COVID-19 Update: Due to the concerns of COVID-19, GSA Advantage has seen an influx of orders and sent a warning on March 16 advising customers to contact the vendor(s) of products they are purchasing to ensure they have the stock/availability to fill the order. Because of the lowered availability, the General Services Administration (GSA) has received reports of companies claiming to be GSA vendors attempting to exploit concerns customers have regarding the COVID-19 pandemic and the availability of supplies. If you receive a notice that a company is a GSA vendor selling a specific product you are looking for, please verify and confirm the prices they provide you are in GSA Advantage or validate their information in GSA eLibrary. If you have concerns you can ask the company to provide their contractor information page in GSA eLibrary to view their full list of offerings to verify their information. Even if the information seems to be credible, take a moment to verify. If contractors have any additional questions in submitting a modification using the new MAS Modification Guidance, please feel free to reach out to anyone on our Consulting team and we would be happy to assist you. 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. The post Single Multiple Award Schedule (MAS) Modification Guidance Package Released and COVID-19 Update appeared first on Centre Law & Consulting. View the full article
  2. By David Warner, Last week, the National Labor Relations Board (NLRB) published its final rule setting out the standards for determining when two entities might both be considered an employer of an individual for purposes of coverage under the federal National Labor Relations Act (NLRA). Under the NLRB’s promulgated rule, entities will be considered joint employers only if “the two share or codetermine the employees’ essential terms and conditions of employment, which are exclusively defined as wages, benefits, hours of work, hiring, discharge, discipline, supervision and direction.” Joint employment status is an important concept insofar as it exposes both employing entities to obligations under federal law. For example, for purposes of the NLRA if an employee is employed by two entities, both might be subject to union organizing and bargaining activity on that individual’s behalf. Similarly, for purposes of anti-discrimination statues, an employee of two entities would have the right to pursue claims under Title VII, the Americans with Disabilities Act (ADA) and other authorities against both employers. The concept is particularly important to government contractors who often augment their own workforces with that of subcontractors and staffing firms. The NLRB’s new rule comes on the heels of similar rule making out of the U.S. Department of Labor’s Wage-Hour Division (WHD), which on January 12, 2020 announced its own joint employer standard, which is scheduled to take effect on March 16, 2020. In addition to providing several examples applying the guidance in various factual settings, the WHD’s rule: specifies that when an employee performs work for the employer that simultaneously benefits another person, that person will be considered a joint employer when that person is acting directly or indirectly in the interest of the employer in relation to the employee; provides a four-factor balancing test to determine when a person is acting directly or indirectly in the interest of an employer in relation to the employee; clarifies that an employee’s “economic dependence” on a potential joint employer does not determine whether it is a joint employer under the FLSA; and specifies that an employer’s franchisor, brand and supply, or similar business model and certain contractual agreements or business practices do not make joint employer status under the FLSA more or less likely. The referenced four-factor test is taken from an earlier decision of the U.S. Court of Appeals for the Ninth Circuit, which examine whether a given entity: (1) hires or fires the employee; (2) supervises and controls the employee’s work schedule or conditions of employment to a substantial degree; (3) determines the employee’s rate and method of payment; and (4) maintains the employee’s employment records. No single factor is dispositive in determining joint employer status; however, the WHD’s rule does state that “maintenance of employment records factor alone does not demonstrate joint employer status.” Not to be left behind, late last year the Equal Employment Opportunity Commission (EEOC) publicly indicated its intent to engage in rule making on the question of joint employment under the various anti-discrimination statutes which the agency enforces. Although the initial rule tracking data suggested that a notice of proposed rulemaking would issue in December, to date EEOC has not yet formally engaged that process. While it would of course be easier for contractors and all employers to have a single federal standard to determine joint employer status, the varying standards are necessary because of the varying definitions of who is an “employer” under the varying federal statutes at issue. Thus, an “employer” for purposes of the NLRA may not be an employer for purposes of the FLSA, Title VII, ADA, etc. That said, it does appear that the varying efforts are geared toward more narrowly defining the scope of joint employment, which is a boon to contractors who often utilize resources other than their own employees in performing government work. Proof of the “pro-employer” aspect of the recent rule-making is perhaps best reflected in a recent lawsuit filed in the U.S. District Court for the Southern District of New York filed by seventeen (17) Democratic attorney generals of sixteen states and the District of Columbia asserting that the WHD’s final rule concerning joint employment is arbitrary and capricious under the federal Administrative Procedure Act. Heavily politicized litigation over labor policy in a presidential election year? Wherever have we seen that before?? About the Author: David Warner Partner David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices. The post Trump Administration Continues To Align “Joint Employer” Standard Government-Wide appeared first on Centre Law & Consulting. View the full article
  3. By Edward W. Bailey, Section 7 of the National Labor Relations Act (“NLRA”) guarantees employees the right to organize and collectively bargain through representatives and applies to a wide range of employer conduct including the contents of employee handbooks. Until recently, the National Labor Relations Board’s (“NLRB”) standard for determining whether employee handbooks violated the NLRA was relatively employee friendly and found handbook policies to be unlawful if they could merely be “reasonably construe[d]” as prohibiting activity protected by the NLRA. However, in 2017, the NLRB’s decision in The Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017) created a new standard under which an employee handbook policy will be deemed unlawful only if “the nature and extent of the potential impact on NLRA rights” outweighs the “legitimate justifications associated with the rule.” Despite the new standard, some Administrative Law Judges (“ALJ”) have continued to find even seemingly innocuous handbook policies to infringe on employees’ rights under the NLRA. For example, a recent ALJ decision went so far as to find an employer’s handbook unlawful for including a policy that simply prohibited employees from using the employer’s email system for personal use. See Argos USA LLC d/b/a Argos Ready Mix, LLC, 369 NLRB No. 26 (Feb. 5, 2020). However, to the relief of employers across the nation, the NLRB made it clear that, pursuant to Boeing, the ALJ in Argos went too far. Thus, the NLRB overturned the ALJ’s decision on the ground that the employer was a “typical workplace” and did not prevent its employees from communicating verbally or prohibit the physical distribution of literature concerning their rights protected by the NLRA. The NLRB also applied Boeing to overturn the ALJ in two other respects: The Handbook’s Confidentiality Agreement Applying Boeing, the ALJ determined that employees would reasonably interpret the Confidentiality Agreement to cover the employees’ own wages and personal information. Alternatively, in overturning the ALJ’s decision, the NLRB found it dispositive that the agreement “clearly appl[ied]” only to the employer’s own proprietary business information. In making this determination, the NLRB focused on language in the agreement that stated that employees may not disclose “confidential company information.” Moreover, the NLRB found that nothing in the confidentiality agreement suggested it applied to employees’ wages, contact information, or other terms and conditions of employment protected by the NLRA. The Handbook’s Cell Phone Policy The ALJ had also found the employer’s cell phone policy, which prohibited its drivers from possessing cell phones while operating the employer’s commercial vehicles, to violate the NLRA because it could “potentially” interfere with their rights protected by the NLRA. Alternatively, in upholding the employer’s policy, the NLRB looked primarily to the policy’s legitimate purpose to protect its drivers and the general public. Moreover, as with the employer’s electronic communications policy, the policy was limited in scope and did not prevent employees from utilizing other modes of communication to discuss their NLRA protected rights. In sum, this recent decision from the NLRB brings much needed reassurance to employers that they will not be penalized for drafting reasonable workplace policies that are narrowly directed towards furthering their legitimate business interests such as employee safety, efficient utilization of company resources, and protection of confidential information. About the Author: Edward W. Bailey Associate Attorney Ed Bailey is an associate attorney whose practice focuses on government contracts law, employment law, and litigation. Ed recently graduated cum laude from George Mason University’s Antonin Scalia Law School where he was a member of the Law Review. . . The post Good News for Employers! NLRB Upholds Employee Handbook Policies Tailored to Legitimate Business Purposes appeared first on Centre Law & Consulting. View the full article
  4. By Hon. Jack Delman The Court of Federal Claims recently awarded an equitable adjustment (EA) to a contractor providing reimbursement of legal fees to successfully defend a False Claims Act (FCA) action. The Tolliver Group v. United States, No. 17-1763C, 1/22/20. The Facts In 2011 the Army awarded the contractor a firm fixed price level of effort contract to develop and deliver technical manuals for an Army mine clearing vehicle. The PWS required the Army to deliver government furnished property (GFP) to the contractor after award, including a technical data package (TDP) to facilitate performance of the contract. The Army never delivered the GFP but insisted that the contractor continue to perform. The contractor incurred additional costs. The Army ultimately recognized these additional costs and in 2013 issued Mod 8 to compensate the contractor. In 2014, a subcontractor employee (relator) filed a FCA suit against the contractor, contending that the contractor wrongfully certified compliance with the TDP despite never having received it. The Army was of course fully aware of these facts, and not surprisingly the United States refused to intervene in the action. The FCA suit was dismissed and affirmed on appeal. However, the FCA litigation extended over three years and the contractor incurred huge legal fees. In 2017, the contractor submitted a claim to the Army CO seeking an equitable adjustment under the Army contract for $195,889 for these legal fees. The CO denied the claim, and the contractor filed this action with the court. The Court’s Analysis In brief, the court ruled that the Army’ s defective/imperfect specification breached the implied warranty of the specifications which led to the filing of the FCA action and the legal fees for which the Army was responsible. The Court also held that the relator was not akin to a third party in accordance with those cases that forbid a contractor from recovering costs to defend against third party claims. The court held that an EA — presumably under the Changes clause of the Army contract– was the appropriate legal basis to award this relief. The court remanded the case to the parties to address the reasonableness of the amount requested. The Impact From a contractor perspective, this is a significant case that serves notice that the government will be held responsible for all the legal consequences of its contract failures — in this case the breach of its implied warranty and the contractor legal costs that flowed therefrom. From the government’s perspective, this is a significant case that exposes the government to a liability, i.e., the FCA legal fees, that arguably were not foreseeable. Will the government appeal? Stay tuned! About the Author: Hon. Jack Delman Retired Judge, Armed Services Board of Contract Appeals Jack Delman served as a judge on the Armed Services Board of Contract Appeals for 29 years and has extensive experience in the adjudication and mediation of large and complex contract disputes, including equitable adjustments, terminations and cost and pricing issues. Jack has extensive experience with claims analysis, FAR and DOD agency regulations and BCA practice and procedure. The post Court Awards Equitable Adjustment for Legal Fees to Defend Qui Tam Suit! appeared first on Centre Law & Consulting. View the full article
  5. By Tyler Freiberger, Esq., Nearly half a century after passage of the Age Discrimination in Employment Act (ADEA), the American workplace remains confused as to the line between an innocent joke and potential legal exposure. While jokes involving race at last have found their way to the “hard no” category, the debate over pop culture trends like “Ok Boomer” has made its way to the U.S. Supreme Court. Consequently, both employers and employees could benefit from a review of where the law stands on jokes in the workplace. Spoiler: a “don’t be a jerk policy” goes a long way. Actor Adam Driver recently appear on Saturday Night Live playing his Star Wars character, Kylo Ren, in yet another “Undercover Boss” spoof. The biggest laugh from the clip comes when Driver’s character is trying, unsuccessfully, to fit in with young interns. Specifically, when introducing himself to the other interns, Driver spurts out “OK BOOMER” (the joke being that the phrase is such a well-known part of internet pop culture that it has become an out of touch boss’s way to try and connect with the kids). While certainly unintentional, the clip is eerily similar to a recent hypothetical posed by Chief Justice Roberts in Babb v. Wilkie, a case considering the causation standard under the Age Discrimination in Employment Act (ADEA). At issue in Babb was whether federal employees are entitled to the same rights as employees of private companies or state governments, i.e., whether they can successfully bring an ADEA suit if they can show an adverse action would not have been taken against them “but for” the fact that they are more than 40 years old. During oral argument, Justice Roberts asked, “Let’s say in the course of the, you know, weeks-long [hiring] process, you know, [there is] one comment about age,” “the hiring person is younger, [and] says, you know, ‘OK, boomer’ … once to the applicant.” Following a pause for laughter, the employee’s counsel responded: “I think if the decision makers are sitting around the table and they say, we’ve got Candidate A who’s 35 and we’ve got Candidate B who’s 55 and is a boomer and is probably tired and, you know, doesn’t have a lot of computer skills, I think that absolutely would be actionable.” While the Court has not issued its opinion yet, counsel’s response may well be a good predictor of how the Court eventually rules, i.e., an actionable claim of age discrimination requires more than simply a joke about an employee’s generation. This makes sense, as workplace discrimination laws were never meant to be a “general civility code for the American workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). Instead, they are in place to put a check on employment actions taken specifically because of a person’s protected characteristic/status. This is an important distinction to keep in mind when discussing generational issues. While comments like “ok boomer” or “millennial snowflake” are certainly pejorative , they should not be confused with racial slurs. In the end, it’s probably not a great idea to try and bring internet meme culture into the office but rude Twitter responses won’t support a lawsuit on their own. About the Author: Tyler Freiberger Associate Attorney Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties’ human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia. The post “Ok Boomer”- Cringy But Not Discrimination (Yet) appeared first on Centre Law & Consulting. View the full article
  6. By Julia Coon, The General Services Administration (GSA) has begun issuing the mass modifications for Phase II of the Multiple Award Schedule consolidation. Current GSA contract holders will be receiving a mass modification for each contract updating the Special Item Numbers (SINs) and terms and conditions in accordance with the new consolidated Multiple Award Schedule (MAS). Your contract number, period of performance, and items on your contract will NOT change as a result of this mass modification. Contractors will have until July 31, 2020 to accept the mass modification. If you are in the process of exercising an option for your current contract, GSA recommends you consult with your Contracting Officer (CO) before accepting the mass modification. If you do not respond to the mass modification by July 31, 2020, GSA will remove your offerings from GSA eLibrary and GSA Advantage. Below is the release schedule for the Phase II mass modifications. Contractors with pending “Add SIN” or “Delete SIN” modifications in eMod will not receive the mass modification until the pending “Add SIN” or “Delete SIN” modification is accepted, rejected, or withdrawn. Phase II Mass Modification Release Date Legacy Schedules Impacted 1/31/2020 03FAC, 23V, 36, 48, 51V, 58I, 599 2/3/2020 00CORP 2/4/2020 00CORP 2/5/2020 IT70 2/6/2020 IT70 2/7/2020 71, 71 IIK, 72, 73, 56, 66, 67 2/10/2020 736, 738X, 75, 751 2/11/2020 76, 78, 81 I B, 84 BEFORE Accepting the Mass Modification: Understand the new SIN mappings and terms and conditions in the MAS solicitation Compare the North American Industry Classification System (NAICS) codes in your System for Award Management (SAM) registration against the new MAS solicitation to ensure you have the appropriate NAICS for the new SIN structure Verify if there are any exceptions taken in your current contract and determine if you intend to keep those exceptions. If so, you will need to resubmit any exceptions in this mass modification. Ensure there are no pending add or delete SIN modifications in eMod AFTER Accepting the Mass Modification: Check to confirm your contract is showing in eLibrary under the new MAS contract under the correct SINs The following legacy SINs have a mapping to more than one new SIN in the new MAS: 096 4N, 096 3N, 874 4, 096 2N, 871 1, 871 2, 871 3, 871 4, 871 211. Work with your CO to delete any new SINs that you do not need. Within 30 days, initiate a “merge” of the SINs in the Schedules Input Program (SIP) and update the textfile in accordance with I-FSS-600 and the new SIN structure. NOTE: Contractors that offer products and have legacy SINs that map to more than one new SIN may not be able to use the “merge” feature in SIP and will need to submit new SIP files. Update any marketing materials to reflect the new MAS If you have any questions on the Phase II mass modification, please contact our GSA Consulting team at info@centrelawgroup.com or call us at 703-288-2800. 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. The post Current GSA Contractors Alert – Consolidation Mass Modification Rollout Begins appeared first on Centre Law & Consulting. View the full article
  7. By William Weisberg, Esq., A dreary day in late January–too late for a “Predictions for the Coming year” blog post, and a little too early for “Emerging Trends in Procurement So Far This year.” So, a few thoughts, (or maybe predictions, anyway): The Amazon JEDI protest is going to come to a head sooner than anyone thought. DOD awarded the JEDI Cloud contract to Microsoft, “because of/in spite of” the President’s…interest. Amazon protested to the U.S. Court of Federal Claims (“COFC”). The Court was not forced to to decide whether to issue a Temporary Restraining Order (“TRO”) stopping performance, because DOD agreed to not really do anything, or have Microsoft do anything, that couldn’t be easily undone if Amazon won the protest. (This is actually pretty common in COFC protests.) That semi-standstill is over; DOD and Microsoft are moving forward, and Amazon formally requested the Judge to issue a TRO. Here is why this is a big deal: the key legal standard for a TRO is that the plaintiff (Amazon) have a “substantial likelihood of success on the merits.” That means the Judge’s decision on Amazon’s TRO motion will telegraph whether or not Amazon is likely to win the protest. (Many protesters drop their protest if their TRO motion is denied; the government often settles cases where the protester’s TRO motion is granted.) The current trend away from LPTA procurements will generate more protests. Why? For all its faults (don’t get me started), LPTA is, from a source selection standpoint, pretty… Remember how relaxed it was taking a class Pass/Fail? Sort of like that. But, the more Best Value procurements you have, the more subjective judgement calls you have, and the greater FAR and GAO case law strictures you have on how those judgement calls get made. Bottom line: the protest docket will tick up. The government will continue getting more aggressive in going after greater rights in contractor’s technical data. This is a little bit like Back to the Future; those of us old enough to have practiced in the 1980s remember how the government in general, and DOD in particular, used the ASBCA decision in Bell Helicopter Textron as a blueprint to claim unlimited rights in technical data when there was some government money involved. (FAR part 27/DFARS part 227 write all of this down.) After all these years, the government seems to be realizing that variations of government purpose license rights work just as well, particularly if the government defines “government” very broadly. GAO helped with a couple of recent protest decisions allowing solicitations with requirements for the contractors to provide the government broad rights in technical data. Momentum is building… And, finally, since we are heading into an election season, we will see the return of a perennial procurement word: “wastefraudandabuse.” In its procurement use as one big word, every candidate will discover that stopping this one word is the way to balance the budget and reinvent government. (h/t Al Gore.) (Bonus use of the word: health care costs.) 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. The post Random Procurement Musings in the Dog Days of January appeared first on Centre Law & Consulting. View the full article
  8. By Edward W. Bailey, Soon after the end of fiscal year 2019, the Department of Labor (“DOL”) reported that its Wage and Hour Division (“WHD”) had made record breaking recoveries against employers. In its year-end report, the DOL revealed that it collected a remarkable $322 million in back-wages owed to workers. WHD’s new administrator, Cheryl Stanton, stated the following in response to the news: We are delivering more back wages for workers than ever before, and we are steadfastly eliminating any unfair economic advantage employers may try to gain by skirting the rules. We are protecting those who do the right thing, pay their employees what they have legally earned, and operate in compliance. True to Ms. Stanton’s comment, the DOL’s report did not only tout its enforcement but also the guidance the agency provides to employers to help them stay in compliance. For example, in its report, the DOL noted that it hosted over 3,700 educational events for employers in fiscal year 2019 and mentioned the educational resources it provides employers via its website. These lectures and guidance materials provided by the DOL can be a great way to keep up with employer’s ever-evolving wage and hour obligations. This is particularly highlighted by recent changes to certain critical exemptions from the Fair Labor Standard Act’s (“FLSA”) overtime requirements. For example, as of January 1, 2020, the salary threshold that most salaried employees must earn to be exempt from overtime increased, for the first time since 2004, to $35,568 from $23,660. Likewise, the threshold for “highly compensated employees” rose from $100,000 to $107,000. However, while government resources can provide basic guidance on what the state of the law is, the best thing employers can do to protect themselves from the DOL’s ever-increasing enforcement activity is to conduct a self-audit. Key items to include in any such audit are: Verifying whether your workers are independent contractors or employees by closely examining how much control you have over their day-to-day tasks, where they are performing their work, and whether they are responsible for providing their own work-materials Reviewing time-keeping systems and procedures to ensure that non-exempt employees are being properly compensated. For example, a common pitfall is to automatically withhold compensation to employees for scheduled meals and breaks without confirming that that those breaks were actually taken Closely examining the roles of employees who you have found to be exempt by reviewing their job descriptions to ensure that it actually reflects the work the employee is performing. Likewise, as discussed above, ensure that the relevant salary amounts are met before exempting an employee. Finally, whenever possible, an audit should be overseen by either in-house or outside counsel in order to protect the audit’s findings under attorney-client privilege. Should you have any concerns regarding your organization’s wage and hour obligations, be sure to contact us at http://centrelawgroup.com/contact/. About the Author: Edward W. Bailey Associate Attorney Ed Bailey is an associate attorney whose practice focuses on government contracts law, employment law, and litigation. Ed recently graduated cum laude from George Mason University’s Antonin Scalia Law School where he was a member of the Law Review. The post DOL Breaks Records in Wage & Hour Enforcement: How Employers Can Protect Themselves in 2020 appeared first on Centre Law & Consulting. View the full article
  9. By Heather Mims, Esq. The Government Accountability Office (“GAO”) published a report on November 25, 2019 which recommended that the Department of Defense (“DOD”) should include an assessment of risks related to contractor ownership as part of its ongoing efforts to conduct fraud risk assessments. See Ongoing DOD Fraud Risk Assessment Efforts Should Include Contractor Ownership. In coming to this recommendation, the GAO reviewed thirty-two adjudicated cases between 2012 and 2018, including cases where contractors created the appearance of competition by operating through multiple companies owned by the same entity, contractors received contracts they were not eligible to receive, and, perhaps most egregiously, a foreign manufacturer received sensitive information and produced faulty equipment through a U.S.-based company. In one case, a contractor (which should have been deemed ineligible to contract with DOD) illegally exported sensitive military data and provided defective and nonconforming parts that led to the grounding of 47 fighter aircraft. These thirty-two contractors used shell companies to help obscure their overseas ties and the fact that some were making U.S. military equipment abroad, where military technical drawings can leak out. This problem could well be more widespread than the GAO Report lets on – the GAO Report was not intended to measure or estimate the scope of DOD contractors with opaque ownership. Indeed, DOD generally accounts for about two-thirds of federal contracting activity, awarding over $350 billion in contracts, with over 570,000 new contracts, to approximately 38,000 companies. DOD’s extensive contracting demonstrates the need for it to address contractor ownership issues. DOD isn’t the only agency in hot water. Another recent GAO Report, Agencies and OMB Need to Continue Implementing Recommendations on Acquisitions, Operations, and Cybersecurity, found that since 2010, agencies have only implemented 61% of the GAO’s 1,320 recommendations on IT acquisitions and operations and 76% of the 3,323 recommendations on cybersecurity. However, the GAO gave itself a pat on the back in its Performance and Accountability Report Fiscal Year 2019, in which it noted that the GAO saved a “record” $214.7 billion for taxpayers in fiscal year 2019 by preventing payment errors, improving the efficiency and effectiveness of federal programs, and preventing fraud. About the Author: Heather Mims Associate Attorney Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow. The post GAO Finds That DOD Faced Fraud and National Security Risks From Contracting in 2019 appeared first on Centre Law & Consulting. View the full article
  10. By David Warner, Last month, the U.S. Court of Federal Claims issued a decision underscoring the substantial risk contractors incur if they perform work not properly authorized by the appropriate government authority. The decision in Panther Brands, LLC v. United States, No. 16-1157C (Dec. 17, 2019) serves as a stark reminder that, even in the face of contrary past customer practice and verbal assurances by seemingly appropriate personnel, typically only Contracting Officers have the authority to contractually bind the government. And if you work without a valid contract in place, you very well might not get paid for your efforts. The back story of Panther Brands is a familiar one of an ongoing business relationship that ends unexpectedly (at least per the contractor’s perspective) and the subsequent dispute over work performed but not yet paid. The facts of the matter were largely undisputed. Beginning in 2008, the Army National Guard annually sponsored Panther racing teams in the IndyCar Series to advertise and market itself. In 2012, Panther entered into a new sponsorship agreement for the Guard – via an intermediary prime contractor LM&O – that would extend through the last race of the 2013 season with a one-year extension the could be exercised in writing on or before July 31, 2013. The agreement paid Panther $12.8 million in the first year and at least another $12.8 million if the extension was exercised. It was not disputed that, since their first work on behalf of the Guard in 2008, Panther would routinely begin its preparation for the next racing season before a written sponsorship agreement was in place. There was also evidence that the Guard was aware that it was the custom and practice for Panther to be orally authorized to proceed with its preparations based upon a verbal confirmation of the Guard’s exercise of a renewal option. Even the CO herself testified (in words that will chill the hearts of government contracts lawyers everywhere) that the Guard would often “make relations with vendors and let the contracting process catch up when it could.” Alas, as Panther was to learn, sometimes the contracting process does not “catch up.” Consistent with the CO’s testimony and past practice, Panther received multiple, verbal indications that the second contract year – i.e. for the 2014 racing season – was authorized. These included statements from the Contracting Officer’s Representative (COR), who testified that he specifically informed Panther in February 2013 that the “IndyCar contract … was being renewed for 2014, and that [Panther] should start preparing for the 2014 season.” Notwithstanding these communications, Panther did not sign any extension of the IndyCar sponsorship agreement, let alone do so prior to July 31 as their existing contract required. Later in 2013 and notwithstanding the earlier statements to Panther, the Guard began exploring the possibility of sponsoring a different racing team for the 2014 season. It ultimately did so, selecting Rahal Letterman Lanigan Racing (RLL); and the award to RLL survived Panther’s bid protest effort to hold on to its sponsorship work on behalf of the Guard. Following its failed protest effort, Panther sought to recover approximately $5,000,000 for the work it had performed in anticipation of supporting the Guard during the 2014 season. In the absence of an actual contract for the work (i.e., with no extension having been signed). the company asserted theories of implied-in-fact contract, estoppel and ratification via the government’s silence given its knowledge of Panther’s activities in support of 2014. None prevailed, and Panther was left holding a seven-figure bag of unrecoverable costs. Panther’s implied-in-fact argument foundered on the fact that there was no evidence that the individuals who purportedly authorized their 2014 related work actually had the authority to do so. This was particularly so with regard to the COR, who the Court noted was not “authorized to award, agree to, or sign any contract or modification thereto, or in any way obligate the payment of money by the Government.” Panther’s ratification and estoppel theories similarly failed because of a lack of evidence that the CO – i.e., the only official actually capable of authorizing the company’s work – had knowledge of the COR’s statement or that she acquiesced or agreed with his authorization for Panther to begin work in support of 2014. This was so, even though the CO testified that she was aware of and had acquiesced to previous, similar verbal authorizations when the Guard contracted directly with Panther and not through the intermediary prime contractor LM&O. The old saw that “the customer is always right” might remain generally applicable, even in the federal contracting context. But as Panther Brands makes clear, contractors need to have an exact understanding of who can speak for – and more importantly bind – their government customer. Failing to do so can result in expensive lessons in the vagaries of contract formation. About the Author: David Warner Partner David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices. The post “Cold Take” Alert: There’s A Reason It’s Called “Working At Risk” appeared first on Centre Law & Consulting. View the full article
  11. By JW Butler On October 1, 2019 The General Services Administration (GSA) released the new Multiple Award Schedule (MAS) 47QSMD20R0001. GSA has tentatively scheduled the first mass modification refresh for the MAS Solicitation 47QSMD20R0001 for January 2020. The MAS will be updated to incorporate the below changes in Refresh #1: Implement the 2nd Interim Rule 2018-017 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment The FAR 51 Deviation Authority will be removed The current contract clauses/provisions will be updated The legacy Schedule SINs will be remapped to the new MAS SINs How Does the Mass Mod Affect Me? Current Schedule Holders All terms and conditions of current Schedules will be updated to the new MAS. All currently awarded SINs will be migrated to their new SIN numbers. Contactors should review the “Available Offerings Attachment” here and familiarize themselves with the new SIN structure and how it affects their current SINs. Contract numbers will not be changing with the acceptance of this mass modification. If you have an option renewal modification that is completed, signed, and are ONLY waiting for the date of the extension, to ensure there is no disruption to your option renewal, the mass modification should be signed after the date of the new option. If you have not yet completed your option modification, the mass modification can be accepted before the extension date. The option to add/delete SIN modification will temporarily be removed from the eMod System when the mass modification is released. This is being done to ensure all modifications can be completed and accepted before the mass modification is accepted. The add/delete SIN option will be back in the eMod system in March 2020. If you have hold multiple Schedule contracts, you must sign the mass modification FOR EACH contract. Vendors with Currently Pending Offers If you currently have an offer under the new MAS solicitation pending with GSA it is recommended that you reach out to your assigned contracting specialist/contracting officer to accept the MAS Refresh #1 prior to the award of your contract. Vendors Preparing to Submit a New Offer in GSA eOffer The new MAS will remain open with no closing date in the same way the 24 Legacy Schedules did. The consolidation of the Schedules should not impact the length of time it takes a contractor to obtain a GSA Schedule. Vendors should review the new requirements under “SCP-FSS-001 Applicable to All Offerors” before submitting a new Offer to ensure they are following all guidelines of the Solicitation. The Solicitation for the new MAS can be found here. If you have any questions on the MAS Consolidated Mass Mod, please contact 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. The post GSA Multiple Award Schedule Mass Modification Impacting Pending and Current Schedule Holders – January 2020 appeared first on Centre Law & Consulting. View the full article
  12. By Hon. Jack Delman Background On November 22, 2019, the DOD, GSA and NASA jointly issued a final FAR rule, effective December 23, 2019, amending the FAR to require contractors and subcontractors to report to the “Government – Industry Data Exchange Program” (GIDEP) certain counterfeit or suspected counterfeit parts as well as certain major or critical nonconformances. This final rule implemented–and broadened — the requirements of sections 818(c)4 and (c)5 of the FY 2012 NDAA that required DOD contractors to report counterfeit or suspect counterfeit electronic parts to the GIDEP. The Need Counterfeit items are not produced to meet the higher-level quality standards required in mission critical applications and may cause failures to systems vital to our national defense and to an agency’s mission. By reporting to GIDEP, contractors will be able to share knowledge of counterfeit items and of critical and major nonconformances which will reduce the risk of such items entering the supply chain. The Coverage Generally, the new FAR rule applies to the following: (1) contracts and subcontracts of all agencies that acquire items that are subject to higher-level quality standards per FAR 52.246-11; (2) other items that the CO determines to be “critical items”; and (3) electronic parts or items containing electronic parts acquired for the DOD. The new rule does not apply to the acquisition of commercial items, including COTS items; DOD contracts and subcontracts below the simplified acquisition threshold; and to medical devices that are subject to FDA reporting requirements. The rule also exempts a contractor that is a foreign entity that does not have an office, place of business or fiscal paying agent in the U.S. The New FAR Clause The following is a brief overview of the new FAR clause, “FAR 52.246-26 Reporting Nonconforming Items (Dec 2019).” Subsection (a) provides pertinent Definitions (i.e., counterfeit item, critical item, critical nonconformance, major nonconformance, suspect counterfeit item). Subsection (b) lists the contractor’s obligations under the clause: To screen and to submit GIDEP reports; to provide written notification to the CO of counterfeit or suspect counterfeit items; and to retain the items pending disposition instructions from the CO. Subsection (c) lists the exceptions to the reporting requirement. Subsection (d) precludes the disclosure of information in violation of the Trade Secrets Act or otherwise prohibited by law. Subsection (e) provides additional guidance on the use of the GIDEP. Subsection (f) provides that a DOD contractor (only!) shall not be subject to civil liability based on its reporting, provided that the contractor made a reasonable effort to determine that the report was factual (the “safe harbor” provision). Subsection (g) provides flowdown requirements for subcontracts. For the complete contract clause and all related FAR amendments, see 84 Federal Register 64680. How Will It Work? New FAR clauses inevitably raise confusion, uncertainty and legal questions, and this one will raise more than its share. Will a contractor’s failure to submit a GIDEP report and to provide CO notification be a material violation of the contract to support a default termination? Will the submissions of nondefense contractors protect them from civil liability in a manner similar to the “safe harbor” provision for defense contractors? Will the costs of reporting outweigh the benefits, and will these costs be particularly burdensome on small business? Stay tuned! About the Author: Hon. Jack Delman Retired Judge Jack Delman served as a judge on the Armed Services Board of Contract Appeals for 29 years and has extensive experience in the adjudication and mediation of large and complex contract disputes, including equitable adjustments, terminations and cost and pricing issues. Jack has extensive experience with claims analysis, FAR and DOD agency regulations and BCA practice and procedure. The post FAR “Fake” News! FAR Amended to Require Reporting of Counterfeit Items appeared first on Centre Law & Consulting. View the full article
  13. By Tyler Freiberger, Esq., The Department of Justice recently announced the new Procurement Collusion Strike Force (“PCSF”), an inter-agency partnership that includes prosecutors from DOJ’s Antitrust Division and 13 U.S. attorneys’ offices, FBI investigators, and several agency Inspectors General offices. The stated goal of this partnership is “deterring, detecting, investigating and prosecuting antitrust crimes” in the government contracting world. The new PCSF website also streamlines and clarifies the process for agency whistleblowers. The announcement comes just a year after DOJ recovered $230 million from an anti-trust investigation of South Korean companies providing fuel to American military bases in South Korea. This was by far the largest civil recovery under Section 4A of the Clayton Act, the tool that allows the government to recover civil penalties from contractors engaged in anti-competitive practices. Innocent contractors have little reason to sound the alarm though. Anti-trust violations in the government procurement world are particularly rare. Of course, many contractors don’t trust their competitors enough to collude with them. In fact, since 1990, only five civil anti-trust cases have been brought against government contractors. The PCSF’s red flags, listed here, reflect how odd it would be to collude with a competitor by warning agencies what to look for if “the document properties of two or more electronic proposals show that the proposals were created or edited by one vendor.” Not all the PCSF’s warning signs are so obvious though. In some fields knowledge of a competitor’s prices can easily be deduced without wrongdoing. Even if you have done nothing wrong to obtain that information, to avoid unnecessary scrutiny, refrain from violating one of the listed red flags such as making “statements on the phone or by e-mail indicating advance knowledge of a competitor’s prices.” About the Author: Tyler Freiberger Associate Attorney Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties’ human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia. The post New DOJ Strike Force Aimed at Contractors is Likely Overhyped appeared first on Centre Law & Consulting. View the full article
  14. By Julia Coon, The General Services Administration (GSA) completed Phase 1 of the Multiple Award Schedule (MAS) consolidation on October 1, 2019 when the new MAS solicitation consolidating the twenty-four legacy Schedules into one single solicitation was published. Phase 2 of the MAS consolidation will begin in January 2020 when GSA issues a mass modification to all existing contract holders. The mass modification will update all terms and conditions to match the new MAS solicitation. Once the mass modification has been accepted, contract holders will be able to add Special Item Numbers (SINs) that were previously on separate Schedules. Contract holders must qualify for the SIN(s) and submit a modification to add any new SIN(s) in eMod. SIN specific qualifications can be found in the MAS solicitation on beta.sam.gov. How to Prepare for the Mass Modification: Ensure your Contract Administrator’s information is up to date so you will receive the mass modification. Review the new solicitation to understand where your current offerings will fall under the new large categories, subcategories, and SINs. GSA has provided a crosswalk of the legacy SINs to the new SINs in the Available Offerings Attachment. Attend either the Session One webinar or Session Two webinar that GSA is hosting. What to Do When You Receive the Mass Modification: Review the mass modification in its entirety. Either accept the clause or request an exception to the clause when responding to the mass modification. A written justification for each requested clause exception must be included and negotiated with your Contracting Officer. NOTE: You can review your current clause exceptions in eLibrary. You do not have to take exception to any clauses that do not apply to your contract. Contract holders with clause exceptions should reach out to their Contracting Officer before April 1, 2020 to ensure there is adequate time to negotiate the exceptions. Respond to the mass modification before the July 31, 2020 deadline. Your assigned Contracting Officer, contract number, period of performance, and product/service offerings will not change after acceptance of the mass modification. Multiple contract consolidation will be completed in Phase 3. If you do not respond to the mass modification by the deadline, your contract offerings will not be available to view on GSA’s eTools. If you have any questions on the MAS consolidation, please contact our GSA team at at info@centrelawgroup.com or call us at 703-288-2800. 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. The post Phase 2 – Multiple Award Schedules (MAS) Consolidation appeared first on Centre Law & Consulting. View the full article
  15. By William Weisberg, Esq., So, I was asking myself, what about government contracts drives me up a wall? More particularly, what is most frustrating to me, as a practicing procurement lawyer? Easy: debriefings. We (at least contractor “we”) have participated in debriefings where the government “script” was some variation on: “Your proposal was terrible. Here is [insert the absolute minimum to fill up a page or five minutes of phone time, no matter the size or complexity of the procurement]. You were lucky we didn’t laugh you out of the competitive range.” Or, a debriefing where the time spent on ground rules, and what won’t be discussed, is longer (often much longer) than the substance. I get it. I know why (even though no one says it out loud) the Government does it that way: to avoid “giving” protest grounds to the contractor. There is a pervasive feeling that if the contractor gets a comprehensive, candid debriefing (still within the FAR part 15 confines on what can be disclosed), then the contractor will magically have grounds of protest, and will use them at GAO. Whereas, if the government keeps it short and shorter, there won’t be a protest. The frustrating part, to me, is that this is almost 180 degrees wrong. It is wrong because: I (as a protest lawyer for my client) don’t need detailed proof of the agency getting it wrong to file at GAO. I only need a good faith belief by the contractor that the government violated a statute, a regulation, the terms of the solicitation, or acted unreasonably (“We can’t have been scored [fill in the blank] on [fill in the other blank] because we [fill in the blank] on the [fill in the blank—i.e. task, or contract, or proposal section, or other contract], and that the contractor was prejudiced (“but for the government’s action or inaction, we would have….”). Congress and GAO intentionally set this as a low bar. Higher than “we lost, therefore the government was wrong,” but not proof (at this stage). Proof comes later. More protests are filed out of a contractor not knowing. A bare bones debriefing is much more likely to cause the contractor to say “…they really didn’t understand our technical proposal…,” or something similar, and generate a protest to find out. (DOD is going in the right direction with their Enhanced Debriefings, but even they have room to improve.) And everything the government thinks they are keeping from the contractor by keeping the debriefing sparse will be made available to me, their outside counsel, under a GAO Protective Order during the protest, with plenty of time and opportunity to use that material in our later protest filings. Whenever I have the chance to speak with my government counterparts (or have the contractor speak with their counterparts) before the debriefing starts, I try to communicate this message: “Be as candid and complete with us as you can. I am certainly not committing that we won’t protest even if the debriefing is detailed, but I can tell you that we are more likely to protest after a sparse debriefing, because the contractor is more likely to believe you messed up, rather than we messed up. And if we do protest, I will see everything in your files anyway, so there is no tactical advantage to keeping things thin.” Sometimes they listen, sometimes they don’t. For any questions please do not hesitate to contact us at info@centrelawgroup.com or call us at 703-288-2800. 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. The post Debriefings: A Modest Proposal appeared first on Centre Law & Consulting. View the full article
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