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  1. At the end of each fiscal year, the GAO submits its Bid Protest Annual Report to Congress. This report details the number of cases received by GAO (which includes protests, cost claims, and requests for reconsideration) and a summary of the overall outcomes of the cases. In FY2018, 2,607 cases were filed at the GAO, of those 2,474 were bid protests (the remaining approximately 130 cases being cost claims and requests for reconsideration). Only 622 of those cases reached a decision on the merits, with only 92 of those cases being sustained (a mere 15% of cases). The effectiveness rate which includes a protester obtaining some form of relief from the agency, including corrective action or the GAO sustaining the protest, was slightly down from FY2017 at 44%. While the sustain rate is slightly down from the 47% in FY2017 (which only amounted to a decrease in seven cases), the statistics are relatively similar to that of the preceding year. However, the more important takeaway this year may be the GAO’s most prevalent grounds for sustaining protests. The GAO’s annual bid protest reports have been including this information since the implementation of the FY2013 NDAA, which required the GAO to include in its annual report to Congress a summary of the most common grounds for sustaining protests during the year. For FY2018, the most prevalent reasons for sustaining protests according to the GAO were: Unreasonable technical evaluation Unreasonable cost or price evaluation Flawed selection decision Of note is the difference between the FY2018 most prevalent grounds and the FY2017 most prevalent grounds. While unreasonable technical evaluation remains the most prevalent reason for sustaining a protest for the third year in a row, flawed selection decision was bumped up to third most prevalent ground from fifth in FY2017. Also noteworthy is the absence of unreasonable past performance evaluation form this list. Unreasonable past performance evaluation has been the second most prevalent ground for sustaining a protest for the most past three fiscal years (FY2015, FY2016, and FY2017). Thus, while it remains to be seen if the absence of sustained protests on the ground of unreasonable past performance evaluation will continue into FY2019, it remains a protester’s best bet to allege an unreasonable technical evaluation to get relief from the GAO, even if the chances of a sustain remain low overall. 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
  2. Last week the United States Supreme Court issued its decision in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service regarding an agency determination that certain lands were a “critical habitat” for the endangered dusky gopher frog and could not be developed. While some contemporaneous accounts of the oral arguments anticipated a likely split along ideological lines, the Court’s eventual decision was a unanimous one that overturned the lower courts’ affirmation of the agency’s actions. While those of us who parse language and logic for a living may have fist-pumped at the Court’s holding that one cannot designate an area a “critical habitat” without first determining the area to be “habitat,” the larger import of the decision is found in its discussion of the scope of judicial review under the federal Administrative Procedures Act (APA). In this regard, the Court noted that the APA creates a “basic presumption of judicial review [for] one ‘suffering legal wrong because of agency action,’” which may be rebutted only if the relevant statute precludes review or if the action is “committed to agency discretion by law.” Below, the Fish and Wildlife Service contended, and the lower courts agreed, that the Endangered Species Act (ESA) commits to the agency’s Secretary’s discretion the decision not to exclude an area from the critical habitat designation. The Court noted the “tension” between the prohibition of judicial review for actions “committed to agency discretion” and the APA’s contrary command that courts set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Reviewing the relevant text of the ESA, the Court noted that the decision was not “wholly discretionary and therefore unreviewable.” Rather, the statute cabined the agency’s discretion and required that the agency consider economic and other impacts when making its decision. Thus, the Court described Weyerhaeuser’s claim as a “familiar one” in administrative law – i.e., that the agency purportedly did not appropriately consider all of the relevant factors that the statute sets forth to guide the agency in the exercise of its discretion. As a result, the lower courts had erred in simply deferring to the agency’s exclusion decision and failing to substantively review the contention that the agency had “ignored some costs and conflated the benefits” in rendering its decision. The ultimate import of Weyerhaeuser will only be known in time, which has not stopped partisans on either side from hailing the decision as either the beginning of the end of the “Administrative State” or the end of wildlife as we know it. While it is likely neither of the above, the decision does put agencies on notice that the scope of federal judicial review is quite broad, and that few “discretionary” actions will be insulated from challenge under the APA moving forward. 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
  3. By Maureen Jamieson On November 27, 2018, GSA announced they will be consolidating their 24 Multiple Award Schedules (MAS) into one single Schedule for both products and services. The consolidated schedule will come with one set of terms and conditions. According to GSA, the reason for the consolidation is to make it easier and more efficient to do business with federal, state and local governments. When will the consolidation take place? According to Multiple Award Schedules Program Management Office Director Stephanie Shutt, GSA plans to finalize the new schedule and begin awarding contracts under the vehicle by fiscal year 2020. She also explained that GSA will help current Schedule holders migrate to the one schedule as their current schedules begin to expire. The transformation is expected to take approximately two years. According to Federal Acquisition Service Commissioner, Alan Thomas, “A single schedule for products and services will make it easier for customers to find and purchase the solutions they need to meet their respective missions.” He is also quoted as saying, “It will also provide a single-entry point to MAS with consistent practices applied across the program and save vendors from the burden of managing contracts on multiple schedules.” The good news for future and current GSA Schedule holders is that it should be easier to submit an offer and modifications after this consolidation. Currently, there is no consistency in how schedules are awarded or managed across the 24 Schedules. A single set of terms and conditions will ensure consistency and assist in making compliance with Schedule terms and conditions easier to follow. Centre Law & Consulting will continue to monitor and report updates on the consolidation of the MAS Schedules via our blog and emails to our clients. 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
  4. By Wayne Simpson, CFCM, CSCM In 2017 when the new administration entered office, and with both houses of Congress controlled by the same party in the 115th Congress, the Congressional Review Act of 1996 was used dozens of times in the first session of the 115th Congress to rescind Executive Orders, regulations, rules and policies issued by the previous administration. As of June 2018, 17 public laws were enacted using this authority. Fast forward to the 116th Congress convening at Noon Eastern Time January 3, 2019. With both houses of Congress being controlled by different parties in the new Congress, and the Senate controlled by the same party as the Executive Branch, will the newly elected Congress seek to use the Congressional Review Act to attempt to undo changes made during the first two years of President Trump’s Administration? More importantly, will they be successful? Probably not, but it will be interesting to watch. Any attempts will certainly show the opposition’s displeasure with targeted Executive Orders and regulations. Since this law took effect long after many of us had completed seventh grade Civics Class, here’s a quick primer. The Congressional Review Act of 1996 was passed as part of the Small Business Regulatory Enforcement Fairness Act (SBREFA), signed by President Clinton on March 12, 1996. SBREFA provides additional avenues for small businesses to participate in and have access to the Federal regulatory arena. SBREFA gives small businesses more influence over the development of regulations; additional compliance assistance for Federal rules; and new mechanisms for addressing enforcement actions by agencies. The Congressional Review Act is an oversight tool used by Congress to overturn rules issued by an executive agency or executive orders issued by the President. It is most commonly used to address actions of a previous administration. Federal agencies must submit a report to each house of Congress and the Government Accountability Office (GAO) containing a copy of rules issued. The submission to Congress and GAO must include a concise statement of the rule, whether the rule is a “Major Rule” and the rule’s proposed effective date. Members of Congress then have specified time periods to submit/take corrective action using a joint resolution of disapproval. The joint resolution must be approved by both houses of Congress. The joint resolution is then sent to the President for signature. If the President vetoes the joint resolution, Congress can override the President’s veto. If signed by the President, the Congressional Review Act states the “Rule shall not take effect or continue.” The rule may not be reissued in “substantially the same form” as the disapproved rule. Also, provisions that had become effective would be retroactively negated. The Congressional Review Act also prohibits judicial review of any “determination, finding, action or omission” thereunder. The act does not define what would constitute a rule that is “substantially the same” as the nullified rule. But one very recent and excellent example of the Act’s effect on government procurement is the case of E.O. 13673 “Fair Pay and Safe Workplaces” which is no more. Perhaps this is why it is often said “Live by the Executive Order/Die by the Executive Order—Here today/gone tomorrow.” It may also be why the late German author Otto von Bismarck once said: Laws are like sausages, it is better not to see them being made. President Kennedy later communicated this to Americans as well. America has survived 115 Congresses—it will undoubtedly survive the next. About the Author: Wayne Simpson Consultant Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official. View the full article
  5. By Tyler Freiberger, While attitudes about Marijuana and state laws controlling the drug continue to shift toward recreational use, the common advice has been that most employers may still terminate employees for even medical use of the drug unless restricted in particular states. In fact, typically the rule has been that if you are a government contractor, you are required to prohibit its use by your employees. While many states have moved toward protecting medical, or even recreational use of marijuana during employees’ off-time, no state prohibits employers for terminating employees to comply with federal requirements. But what that means is becoming murky. Regardless of the state laws controlling, most federal contractors are subject to the rather toothless Drug-free Workplace Act, which remains unchanged in recent years. While the penalties for violating the act could end in disbarment, it is particularly easy to comply with; write a section in your employment handbook saying not to do drugs and threaten to penalize people that do. But the loose requirements of the Act are now causing quite the employment lawyer’s headache. Does the Act actually require contractors to prohibit off the job drug use? At least one Federal Court says no. Connecticut is one of several states that not only allows registered users to obtain medical marijuana, but it actively prohibits discrimination against medical use “ nless required by federal law or required to obtain funding…” When one Nursing home refused to hire an employee whom tested positive for the drug, the employer argued it was subject to the Drug-Free Workplace Act and thus was required to terminate drug users and in this case, refuse to hire one. The court held federal law does not preempt PUMA’s prohibition on employers’ firing or refusing to hire qualified medical marijuana patients, even if they test positive on an employment-related drug test because the act does not require drug testing and does not regulate employees who use illegal drugs outside of work while off-duty. This Connecticut case is currently on appeal. While in my humble opinion may be reversed as it requires a very narrow reading of the Federal Drug Act, and a very broad reading of discrimination (typically saying I don’t want to hire employees that break the federal law is seem as a darn good non-discriminatory reason to fire someone), contractors should certainly have their attention on this issue as it unravels. 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
  6. By Jack Delman We promised to keep you updated on the Federal Circuit’s disposition of a case addressing the collide between the Veterans Benefits, Health Care and Information Technology Act of 2006 (VBA) and the Javits-Wagner-O’Day Act (JWOD) in procurements at the Department of Veterans Affairs (VA). Each statute provides valuable award preferences to different disadvantaged small businesses, but which statute has priority? In Kingdomware Technologies., Inc. v. United States, 136 S. Ct. 1969 (2016), the Supreme Court held that except when the VA used its statutorily prescribed noncompetitive and sole-source contracting procedures, it was obligated under section 8127(d) of the VBA to use the “Rule of Two” analysis before awarding a contract to another supplier. The “Rule of Two” requires the award of VA contracts based upon a competition restricted to small businesses owned and controlled by veterans if the contracting officer has a reasonable expectation that 2 or more such businesses will submit offers and an award can be made at a fair and reasonable price that offers best value to the government. Kingdomware did not address the interaction between the VBA and the JWOD. This was decided in the case below. In PDS Consultants, Inc. v. United States, 132 Fed. Cl. 117 (2017), plaintiff, a service-disabled veteran-owned small business, filed a protest with the Court of Federal Claims. The plaintiff, who was engaged in the sale of vision-related products, sought declaratory and injunctive relief requiring the VA to perform the “Rule of Two” analysis under the VBA– for the benefit of veteran-owned small businesses providing these products — prior to awarding any such contracts under the JWOD/AbilityOne List. The court sided with the plaintiff. In brief, the court held that the VA had a legal obligation under the VBA to perform the “Rule of Two” analysis for the relevant procurement of eyewear where such an analysis had not been performed. It enjoined the VA from entering into future contracts with JWOD contractors without first performing this analysis. The defendants appealed to the Federal Circuit. The Federal Circuit affirmed the lower court. PDS Consultants, Inc. v. United States, 2018 WL 5019735 (10/17/2018). In brief, the Court held that the requirements of the more specific – and later enacted –VBA took precedence over the more general and earlier-enacted JWOD statute. The Court concluded that even if a product/service is on the List and ordinarily would result in a JWOD award, the VBA requires that priority be given to veteran-owned small business. As applied to the facts of this case, this required the VA to undertake the “Rule of Two” analysis before procuring the eyewear from any other source, including the JWOD/AbilityOne List. Is it “game over”? Perhaps not. The defendants may seek further court review. And of course, Congress may weigh in again. But for now, chalk this one up for veteran-owned small business! About the Author: Jack Delman, Esq. Counsel 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
  7. By William Weisberg, Every year, the swallows return to Capistrano, the leaves change (at least here in Northern Virginia), and something comes along to revolutionize federal procurement. LPTA procurements. Data rights clauses. FAR part 13. Fixed-price development contracts (if you are old enough to remember those pre-FAR days). And now…” Other Transaction Authority” (“OTA”). Avoid all of those pesky statutes and regulations and move FAST! Sounds good? Sure. What does it mean? Read on. Here is the good news: Congress gave OTA authority to several designated federal agencies (DOD, DOT, HHS, DOE, and DHS). The lucky program offices (or whatever each agency is calling them) have authority to enter into agreements that are not subject to normal procurement regulations. Goodbye FAR, so long CICA. (Whether they have actual funding is another issue entirely.) Even better (or not, depending on your perspective), DOD OTAs are designed for non-traditional defense contractors: basically, contractors not covered by the Cost Accounting Standards within the last year. Even traditional defense contractors can get in on the action if they team with non-traditional contractors performing a “significant” share of the work. The rules differ for other agencies, but you get the idea. Now, the bad news (again, depending on your perspective): OTAs are designed for R&D and for “rapid prototyping” of new technology. They are not designed to replace standard supply or services contracts. How do we know? Because GAO, in a bid protest filed by Oracle, told us so. Oracle America, Inc., B-416061 (May 31, 2018). In Oracle, GAO laid down some important markers. First, GAO has jurisdiction over the issue of whether an OTA or a traditional contract is the appropriate vehicle for a procurement. Second, while OTAs are good vehicles for R&D and similar programs, they are not appropriate for purchasing already developed items, and particularly commercial items already in production. Third, if the OTA is drafted properly and includes follow-on production of an item developed or prototyped in the OTA, then the OTA can support what is, in effect, a sole source contract. And what contractor doesn’t love a sole source contract? So, what should an interested contractor (or other entity) do? Here are a few suggestions: Keep an eye on FedBizOpps.gov…potential OTAs are listed, although the OTA language is often buried in the RFI or other early notice boilerplate. And just because something is listed as a potential OTA doesn’t mean that your commercial item is not appropriate for the procurement. (Which would likely revert to a standard contract.) Figure out early if your organization is eligible for an OTA “as is,” or whether you need to either prepare to team with another firm, or create a special purpose entity (carefully, with assistance of counsel and accounting professionals), or look in the nooks and crannies of the OTA-enabled agencies, which often described specific parameters for eligibility. And the major takeaway: May you pro-actively sell R&D or prototyping to an OTA-enabled agency? Sure you may. But can you sell it? That is the topic for another post. 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 OTAs Are Totally, Completely, Amazingly, Revolutionizing Government Procurement. (Not) appeared first on Centre Law & Consulting. View the full article
  8. By JW Butler, An email with the subject line “GSA Advantage Catalog/Pricelist Removal Notice” followed by your contract number may cause many to panic, but not to worry, the solution is a simple one. The General Services Administration (GSA) requires that all GSA Schedule contract catalogs/pricelists be updated to ensure the accuracy of prices and catalog terms and conditions. If a catalog/pricelist has not been updated within two years, you will receive an email with the above subject line. Contractors have ninety (90) days to verify the information in their catalog/pricelist or it will be removed from GSA Advantage, and your contract will be suspended in eBuy. To avoid the removal of your catalog/pricelist, you must do one of the following: If you have made changes to your schedule’s catalog/pricelist through formal modifications since your last SIP upload, you will need to submit an updated catalog/pricelist and perform an upload using the Schedules Input Program (SIP) to create a replacement file, which is as easy as 1-2-3. If your catalog/pricelist is not current and there are changes that need to be made to your schedule, you will first need to complete a formal modification through the eMod system. Once the modification has been approved by your Contracting Officer, you can update your catalog/pricelist and complete the SIP upload. If you have not made changes to your catalog/pricelist, and your catalog/pricelist is up to date, you can complete the Verification Process in SIP to ensure your catalog/pricelist is not removed from GSA Advantage and your contract is not suspended in eBuy. When you are verifying a catalog/pricelist in SIP you are confirming there have been no changes to the current catalog on GSA Advantage. However, you should still check everything in your SIP program to ensure it matches the currently approved terms and conditions of the contract. Recently GSA required all vendors to reset their eBuy passwords. This password is also used in SIP so be sure you have your current eBuy password in SIP in the “Contractor Information” window before completing the verification. If you are performing a SIP verification you cannot change any information in SIP other than your password. All changes approved by a formal modification will need to be submitted as a replacement file in SIP. To complete the verification in SIP, click on the “Tools” drop-down bar and select “Verify Catalog Information”. If you have multiple schedules the SIP program will prompt you to select the schedule you wish to verify. After confirming verification, the SIP program will send a file to GSA to verify your catalog information. If your catalog/pricelist was removed from GSA Advantage/eLibrary because you failed to verify your catalog before the 90-day window closed, your catalog/pricelist should be back online within 24-48 hours of completing the verification process. Once the catalog/pricelist is displayed on GSA Advantage/eLibrary again, your access to eBuy will be restored. If you have any questions regarding the SIP program, please feel free to contact anyone on our GSA consulting team for assistance. 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 Help! My GSA Contract is Suspended in eBuy and my Catalog/Pricelist has Disappeared appeared first on Centre Law & Consulting. View the full article
  9. By Stephanie Fine, Esq. Good news for Federal contractors. The recently enacted National Defense Authorization Act (NDAA) will expand limitations on the use of the much-criticized Lowest Price Technically Acceptable (LPTA) source selection that was previously imposed on the Department of Defense to now include civilian agencies. The LPTA procurement process requires source selection officials to choose the lowest price proposal that satisfies the minimum technical requirements without regard to whether it offers the agency the best value. For decades government contractors have been critical of LPTA because of impact on reducing agency discretion, decreasing contractor motivation, reducing competition and encouraging contractors to sacrifice quality for lower pricing. Finally, Congress has jumped on the bandwagon and realized that LPTA has significant limitations and should only be used in certain situations. The new NDAA states that “it shall be the policy of the United States Government to avoid using lowest price technically acceptable source selection criteria in circumstances that would deny the Government the benefits of cost and technical tradeoffs in the source selection process.” Going forward, the use of LPTA will only be permitted when all six of the following criteria are satisfied: An executive agency is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers; The executive agency would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal; The proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror’s proposal versus a competing proposal; The executive agency has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to the executive agency; The contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file; and The executive agency has determined that the lowest price reflects full life-cycle costs, including for operations and support. Source: https://www.pillsburylaw.com/en/news-and-insights/ndaa-limitations-lpta-procurements.html The Statute also prohibits the use of LPTA procedures for three categories of acquisitions which include: (1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, healthcare services and records, telecommunications devices and services, or other knowledge-based professional services; (2) personal protective equipment; or (3) knowledge-based training or logistics services in contingency operations or other operations outside the United States…” This highly anticipated change to the Federal Acquisition Regulation (FAR) will be effective in December 2018 and sure to be a huge game changer for the Federal procurement process. This change will most notably encourage federal contractors to return to focusing on their solutions’ value propositions as opposed to offering bids based solely based on price. In the end, the contracting process will be much improved and will lead to a more competitive procurement process. About the Author: Stephanie Fine, Esq. Proposal Writer Stephanie Fine is a Proposal Writer for Federal Contracts and Training. She is responsible for managing the proposal processing including preparing proposal responses and acquiring new business opportunities, and the development of the pipeline used for solicitation tracking and proposal development. She is experienced in business development and proposal management and also worked as a practicing attorney in commercial litigation and insurance defense. The post A Potential End to the Hate-Hate Relationship with LPTA appeared first on Centre Law & Consulting. View the full article
  10. Centre Law & Consulting

    Is the Federal Marketplace Ready for Amazon?

    By Wayne Simpson, CFCM, CSCM Once again Amazon, the world’s largest online retailer, is a headliner in the news. On Monday, October 1st, Amazon announced beginning November 1stit is raising the minimum wage for all of its employees to $15 per hour, more than double the U.S. Federal Minimum Wage of $7.25 per hour. When managers at its fulfillment centers explained the raise to Amazon employees on Tuesday, many were angry, because as reported by Money on Thursday, October 4th, Amazon was eliminating the monthly bonuses and stock awards for warehouse workers and other hourly employees. Many employees saw this as a pay cut. Amazon has also been in the news and defended itself over the last year from the President’s criticism of its use of the U.S. Postal Service. The President claims Amazon is subsidized by and takes advantage of the U.S. Postal Service. Whether you are an Amazon Prime Member, taking advantage of free shipping, video streaming, and other products, or a non-member, chances are good you have either ordered from Amazon or received something from someone that was ordered through Amazon. No doubt about it, Amazon has revolutionized the way Americans shop with access to over 100 million products. Amazon is now poised to take on, or takeover, depending on your perspective, the Federal Marketplace. But what will really be Amazon’s impact on the Federal Marketplace? Section 846 of the National Defense Authorization Act, Public Law 115-91, signed by President Trump on December 12, 2017, contains what some sardonically refer to as “The Amazon Amendment.” Section 846 seeks to align government buying to commercial practices and technologies. The law directs the Administrator of the General Services Administration (GSA) to establish a program, in partnership with the Office of Management and Budget (OMB) to procure commercial-off-the-shelf (COTS) items through commercial e-commerce portals. Initial research in developing the government’s implementation plan indicates the current environment for purchasing COTS items is “overly burdensome” on the government’s acquisition workforce and imparts high administrative costs on product suppliers. The benefits of using Amazon are currently available through Amazon Business. But Section 846 will take this to an entirely new level. It is difficult not to contemplate government use of commercial e-commerce portals without thinking of the biggest player in this area—Amazon. No doubt this company, with a nearly Trillion dollar valuation, will be a commercial e-commerce portal for Uncle Sam when all is said and done. But what would be the impact of an Amazon commercial e-commerce portal for buying COTS items? What will be the impact on the Federal Supply Schedule? Small business? These are just a couple of the many valid concerns and questions current and potential government suppliers have about this law. Some even go as far as to opine the long-term impact of this law will be to create a monopoly for Amazon in the Federal Marketplace. Amazon’s entry into State and Local Government procurements has been met with mixed reaction. On October 23rd, Centre Law and Consulting will host a webinar presenting Mr. Robert Bohn, Head of Federal at Amazon Business, who will introduce and provide an overview of Amazon Business’ Platform for webinar participants. Mr. Bohn will share his insight into Amazon Business operations and the webinar will provide an opportunity to ask what he sees will be Amazon’s role in the Federal Marketplace as Section 846 is fully implemented, and as time goes on. Please join us for this highly-informative webinar and insight into commercial e-commerce portals in the Federal Marketplace. The time is now to consider how to prepare and position a company for this inevitability. About the Author: Wayne Simpson Consultant Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official. The post Is the Federal Marketplace Ready for Amazon? appeared first on Centre Law & Consulting. View the full article
  11. Centre Law & Consulting will be participating on several panels at the inaugural Javits-Wagner-O’Day Legal Symposium this October! We are excited to be part of this vital event that covers the legal complexities, challenges, and future of the AbilityOne Program. Stop by our table during the luncheon. Melwood, alongside several other nonprofits in the AbilityOne Program, areorganizing the2018 Javits-Wagner-O’Day Legal Symposium, hosted by The George Washington University Law School. This Legal Symposium is a chance to participate in cutting-edge conversations and learn from lawyers, contract administrators, AbilityOne nonprofit executives, advocates, policymakers, and government clients. Please join Melwood, Didlake, Chimes, ServiceSource, Inc., and many other SourceAmerica and NIB nonprofits to explore the law governing the AbilityOne Program to create opportunities to: Heighten awareness and knowledge about the Program Learn to resolve different legal matters inherent to the Program Network with attorneys, nonprofit representatives and government contracting experts knowledgeable about the Program Explore new topics of legal research and scholarship related to this unique field of law Strengthen ties and partnerships among nonprofits, federal customers and rule makers REGISTR NOW The post Centre Sponsoring and Speaking at Javits-Wagner-O’Day Legal Symposium appeared first on Centre Law & Consulting. View the full article
  12. By David Warner, “When Set Asides Collide!” Federal Circuit To Determine Precedence Of Kingdomware’s “Rule of Two” And Mandatory Procurements Under Javits-Wagner-O’Day Earlier this month, the Federal Circuit heard oral argumentin the matter of PDS Consultants, Inc. v. United States, App. No. 2017-2379, to determine whether statutory programs favoring veterans in procurements from the U.S. Department of Veterans Affairs take precedence over otherwise mandatory set asides for entities employing individuals with disabilities. While the dispute may have the whiff of uber-technical, government contracts “insider baseball,” the practical impact of the decision could be enormous and, depending on whose ox is gored, program altering. By way of background, on June 16, 2016, the U.S. Supreme Court unanimously held in Kingdomware Tech., Inc. v. United States, No. 14-916, (U.S. 2016), that contracting officers within the Department of Veterans Affairs were required to abide by the “Rule of Two” – a set-aside provision of the Veterans Benefits, Health Care and Information Technology Act of 2006. In brief, the “Rule of Two” requires the award of VA contracts to veteran-owned small businesses if at least two such businesses will submit offers and an award can be made at a fair and reasonable price. Given that the VA contracted for roughly $26 billion in FY 2017, Kingdomwarewas a definite game-changer. Enter Javits-Wagner-O’Day (“JWOD”). Or, perhaps more accurately, enter consideration of JWOD given that it predates the “Rule of Two” by more than 75-years. JWOD was first passed in 1938 to provide employment opportunities for the blind. In 1971, the act was amended to include individuals with severe disabilities and to allow the program to provide services (as well as goods) to Federal customers. The JWOD program is administered by the AbilityOne Commissionand three central nonprofit agencies – National Industries for the Blind (NIB), SourceAmericaand The American Foundation for the Blind (AFB)– which oversee more than five hundred nonprofit agencies qualified to do business under JWOD. Central to the JWOD (now called the “AbilityOne Program”) is its priority – i.e., once a product or specific service has been brought under the AbilityOne umbrella, the government is presumptively required to purchase the product or service through the program unless there is no nonprofit agency to provide the product or service. Per Bloomberg Government’s Federal Contracts Report, in FY 2017 the VA awarded nearly $82 million in contracts to thirty-six (36) different entities participating in the AbilityOne Program. Which brings us to the central conflict in PDS Consultants – i.e., which statutory requirement will take priority over the other? In brief, PDS Consultants is a veteran-owned small business that provides prescription eyewear; the company protested the award of a VA contract to an AbilityOne nonprofit in which the contracting officer did not perform a “Rule of Two” analysis. In essence, the Court will determine which of two “shalls” will control. Centre Law & Consulting will be attending and sponsoring the inaugural Javits-Wagner-O’Day Legal Symposium this October! We are excited to be part of this vital event that covers the legal complexities, challenges, and future of the AbilityOne Program. Myself and Centre’s Managing Partner, Barbara Kinosky, will be participating on panels at the event. REGISTER NOW! Stop by our table during the luncheon! 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 When Set Asides Collide! – Kingdomware & the ‘Rule of 2’ vs. JWOD appeared first on Centre Law & Consulting. View the full article
  13. By Heather Mims, On September 13, 2018, the United States Court of Appeals for the Federal Circuit ruled that the Army acted arbitrarily and capriciously when it failed to buy commercially available products whenever possible or, in terms of the statute at issue, to the maximum extent practicable. This litigation began when Palantir USG, Inc. filed a pre-award bid protest in the Court of Federal Claims (although Palantir previously filed a pre-award bid protest with the GAO, which was denied). Palantir’s protest challenged the Army’s solicitation to develop and integrate the Army’s Distributed Common Ground System (DCGS-A2), which is the Army’s primary system for processing and disseminating multi-sensor intelligence and weather information. Palantir argued that the Army violated a federal statute (the Federal Acquisition Streamlining Act or “FASA”) by failing to determine whether its needs could be met by commercial items before issuing the solicitation. Generally, FASA ” requires that federal agencies, to the maximum extent practicable, procure commercially available technology to meet their needs. Specifically, Palantir argued that its flagship software product could satisfy the Army’s requirements. In finding that the Army failed to determine whether its needs could be met by a commercially available product, the Court found that the Army was, or should have been, aware of Palantir’s data management platform. Thus, the Court found, the Army acted arbitrarily and capriciously in failing to fully evaluate commercial options. As such, prior to issuing the solicitation at issue, the Army’s conclusion to exclude commercial items from consideration was not rational and was not in accordance with the applicable law, which required an agency to use its market research to determine whether there are available commercial items that: (A) meet the agency’s requirements; (B) could be modified to meet the agency’s requirements; or (C) could meet the agency’s requirements if those requirements were modified to a reasonable extent. While this was a pre-award protest, the Court did not go so far as to recommend that the Army choose Palantir as the awardee. Rather, the Court simply required the Army to satisfy the requirements of FASA and determine whether its needs could rationally be met by a commercially available product, which it has thus far failed to do. 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 Federal Circuit Reinforces Government Preference for Commercial Items appeared first on Centre Law & Consulting. View the full article
  14. By Wayne Simpson, CFCM, CSCM New Hourly Rates Effective January 1, 2019 The U.S. Department of Labor’s Wage and Hour Division announced the new applicable minimum wage rates for workers performing work on or in connection with Federal contracts covered by Executive Order (E.O.) 13658. The new rates, effective January 1, 2019, are $10.60 per hour for covered contracts, and $7.40 per hour for tipped employees. The announcement was published in the September 4, 2018, edition of the Federal Register. E.O. 13568, signed February 12, 2014, raised the hourly minimum wage rate for workers performing work in connection with Federal contracts covered by the Service Contract Labor Standards to $10.10 per hour, beginning January 1, 2015. The E.O. requires annual adjustments thereafter, as determined by the U.S. Secretary of Labor. The Secretary’s determination also affects the minimum hourly cash wage for tipped employees performing work on or in connection with covered contracts. The Secretary is required to provide notice to the public of the new minimum wage rates at least 90 days before the rates take effect. E.O. 13568 is codified in Federal Acquisition Regulation (FAR) Subpart 22.19, Establishing a Minimum Wage for Contractors, and implemented in FAR Clause 52.222-55—Minimum Wages Under Executive Order 13658 (Dec 2015). Federal contractors should note FAR Clause 52.222-55 has a flow-down requirement for subcontracts (including purchase orders issued by the contractor) regardless of the dollar value of the subcontract or purchase order. FedBizAssist, a Centre Subcontractor, has flow-down clause subscriptions available for Federal prime and subcontractors seeking to increase their compliance and reduce risks associated with flow-down requirements. Centre Clients and blog readers receive a 20% discount. Please enter promo code “CENTRE” at checkout to receive the discount. These one-year subscriptions are available at https://fedbizassist.com/shop Best wishes for every continued success in the Federal Marketplace! About the Author: Wayne Simpson Consultant Wayne Simpson is retired from the U.S. Department of Veterans Affairs (VA) after 38 years of federal service. He served as the Executive Assistant to VA’s Deputy Assistant Secretary for Acquisition and Logistics where he was the primary staff advisor to the Deputy Assistant Secretary, who serves concurrently as VA’s Senior Procurement Executive and Debarring Official. The post New Minimum Hourly Wage Rates Announced For Federal Contractors & Subcontractors appeared first on Centre Law & Consulting. View the full article
  15. By Tyler Freiberger, Following a nine-year gap, in January 2018 the Department of Labor (DOL) again began releasing voluntary opinion letters in response to common or unique questions. The initial batch of released letters only reinstated opinions from 2009 that had been withdrawn for “further consideration.” So the two letters released in April of this year, and the four released last week, are the first original works of the Trump administration’s DOL’s policies. I’ll warn you now, none of the opinion letters are exactly shocking, but they do give some indication of which way the wind is blowing. In general, the recent letters clarify some lesser used exemptions to the Fair Labor Standards Act (FLSA) and favor employers. Of the six opinions issued since April five clarify that an employee would be exempt from the FLSA or not compensated for an activity. The fact patterns these letters respond to are very limited. Still, each letter leaves breadcrumbs employers may follow in the future. The only letter arguably in favor of employees really just tries to put travel for non-traditional work schedules into context. No surprise in DOL assertion that travel time during the normal workday, for work, is compensable. Interestingly, the agency drew from an opinion letter half a century old to state “the employer and employee (or the employee’s representatives) may negotiate and agree to a reasonable amount of time or timeframe in which travel outside of employees’ home communities is compensable.” Citing WHD Opinion Letter (March 17, 1964). While this is only in the context of employees permanently working on the road, it is still an important win for employers, whom ideally could simply contract out exactly what hours are compensable and those that are not. The other letters are less far reaching, but in the aggregate show a trend toward chipping away at employer obligations. First, hourly employees choosing to participate in voluntary health screenings, fairs, or other wellness activities, during or outside working hours, are not entitled to pay if the employer receives no direct financial benefit. Next, employees taking frequent breaks for medical reasons under the Family and Medical Leave Act (FMLA) are only entitled to the same amount of paid breaks as their co-workers. The DOL also clarified two uncommon overtime exceptions apply to some modern businesses, mobile credit card reader salespersons, and food servers at high-end movie theaters. Lastly, the agency clarified the line between a volunteer and an employee. While the letters do not have legal authority in a civil claim, they do indicate what activity the DOL will be hunting for in audits or investigations. 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 DOL Releases New Opinion Letters Expanding FLSA Exemptions appeared first on Centre Law & Consulting. View the full article