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  1. Changes to Trade Agreements Act Thresholds

    By Wayne Simpson, CFCM, CSCM New Thresholds for 2018 and 2019 The United States Trade Representative (USTR) has determined and announced new U.S. Dollar Procurement Thresholds implementing U.S. Trade Agreement obligations, effective January 1, 2018, for calendar years 2018 and 2019. The Trade Agreements Act of 1979 (TAA) implements international trade agreements and guarantees non-discriminatory treatment in government procurement. TAA provides the President of the United States authority to waive the Buy American Act and other discriminatory provisions for countries having signed international trade agreements with the United States, and those meeting other criteria such as “Least Developed Countries.” The President delegates waiver authority to the USTR. The USTR waived the Buy American Act and other discriminatory provisions for acquisitions of eligible products covered by the World Trade Organization Government Procurement Agreement, Free Trade Agreement Acts, and the Israeli Trade Act. Offerors of eligible products receive equal consideration with domestic offers. Perhaps the most significant of the Trade Agreements is the World Trade Organization Government Procurement Agreement. Free Trade Agreement Acts (FTA) include: The North American Free Trade Agreement (NAFTA), Chile FTA, Singapore FTA, Australia FTA, Morocco FTA, Dominican Republic-Central American FTA, Bahrain FTA, Oman FTA, Peru FTA, Korea FTA, Columbia FTA, and the Panama FTA. Other Trade Agreements include least developed countries designated by the USTR, The Caribbean Basin Trade Initiative, the Israeli Trade Agreement Act, and the Agreement on Trade in Civil Aircraft. Specific thresholds for the respective Trade Agreements is found at Federal Acquisition Regulation (FAR) 25.402. Centre Law and Consulting offers webinars and classroom instruction for the Trade Agreements Act and other contract compliance and administration issues to assist your company. Centre also offers a wide array of classes taught by attorneys and acquisition professionals to assist you in the Federal Marketplace. CLICK HERE TO SEE/DOWNLOAD A CHART CONTAINING THE NEW TAA THRESHOLDS 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 Changes to Trade Agreements Act Thresholds appeared first on Centre Law & Consulting. View the full article
  2. By David Warner On September 15, 2015, President Obama signed the Executive Order requiring federal contractors and subcontractors to provide one hour of paid sick leave for every 30 hours worked, up to at least seven days per year. Both the EO and its implementing regulations, finalized on September 30, 2016, made clear that the EO only applied to “new contracts,” defined as contracts with the Federal Government that result from solicitations issued on or after January 1, 2017, or that are awarded outside the solicitation process on or after January 1, 2017. With that date a year in the rearview mirror, the “bill” is beginning to come due. As previously reported, one unexpected wrinkle with the EO’s implementation was the DOL’s establishment of an “alternate health and welfare rate” that purports to exclude the sick leave portion of the calculated health and welfare rate. Specifically, as of August 1, 2017, the H&W rate for contracts subject to the sick leave EO is $4.13 per hour – $.28 lower than the $4.41 H&W rate applicable to contracts that do not require paid sick leave. While the higher H&W rate will effectively be phased out as contracts expire and are replaced with “new contracts,” for the next several years contractors will be required to closely monitor their contracts to ensure the correct H&W rate is applied. In addition, a common question contractors pose as more and more contracts require paid sick leave is whether they can combine sick and vacation entitlements into a single paid time off or “PTO” bucket. Per the DOL’s sick leave FAQ, “Sure, why not?” But while the “single bucket of leave” structure may seem simpler to administer, there are several hidden compliance challenges, particularly for contracts subject to the Service Contract Labor Standards (“SCLS”). First, under the SCLS vacation does not accrue over time but instead “cliff vests” in a single lump on a given employee’s anniversary date. Thus, an immediate challenge is coordinating the vesting of the two types of leave within the bucket – i.e., sick leave accruing annually over a calendar year while vacation cliff vesting on a single date. In addition, SCLS has actual cash value for the employee – i.e., once vested the employee must either take or be paid for the leave at the earliest of his or her next anniversary date, the end of their employment or the end of the contract. In contrast, sick leave has no cash value – i.e., it is only paid if taken. Finally, per the above, SCLS vacation cannot be carried forward from year to year. In contrast, EO sick leave must be permitted to be carried forward from year to year (though the carry-over can be capped at fifty-six (56) hours. So, while the combined PTO structure remains a theoretical possibility, it is not at all clear that it can be administered compliantly, or at least done so as efficiently as administering sick and vacation leave separately. 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 Mandatory Sick Leave Giving Service Contractors A Headache appeared first on Centre Law & Consulting. View the full article
  3. By Wayne Simpson, CFCM, CSCM SBA Issues Proposed Rule –Comments due by March 30, 2018 The U.S. Small Business Administration (SBA) published its proposed rule for Ownership and Control of Service-Disabled Veteran-Owned Small Business Concerns in the Monday, January 29, 2018, edition of the Federal Register. The proposed rule, part of a joint effort by VA and SBA to reduce the regulatory burden on the Veteran Business Community, will amend SBA’s regulations to implement the provisions in Section 1832 of the National Defense Authorization Act of 2017 (NDAA 2017), Public Law 114-328. Section 1832 amends Section 3(q) of the Small Business Act and Section 8127 of 38 United States Code, to standardize definitions of Veteran-Owned Small Businesses (VOSBs) and Service-Disabled Veteran-Owned Small Businesses (SDVOSBs). The proposed rule will consolidate ownership and control requirements in one regulation eliminating duplicative functions. This single rule will streamline the verification and certification processes saving business owners time and money according to SBA. NDAA 2017 mandates there be a single definition of ownership and control for VOSBs and VOSBs, which will apply to VA’s verification and Veterans First Contracting Program procurements, and all other government acquisitions which require self-certification. Under certain circumstances, NDAA provides a firm may qualify as a VOSB or SDVOSB where there is a surviving spouse or an employee stock ownership plan. Also, NDAA 2017 places responsibility for issuing regulations relating to ownership and control for the U.S. Department of Veterans Affairs (VA) verification of VOSBs and SDVOSBs with SBA. It also requires the Secretary of Veterans Affairs to use the regulations established by SBA for establishing ownership and control of VOSBs and SDVOSBs. The Secretary of Veterans Affairs will continue to determine whether individuals are Veterans or Service-Disabled Veterans and be responsible for verification of applicant firms. However, under the proposed new rule, challenges to the status of VOSBs and SDVOSBs based upon issues of ownership and control will be decided by the administrative judges at SBA’s Office Hearings and Appeals (OHA). According to the proposed rule, SBA consulted with VA so as to “properly understand VA’s positions and implement the statutory requirements in a way consistent with both SBA’s and VA’s interpretations.” VA issued its proposed rule in the January 29, 2018, edition of the Federal Register, to update VA’s regulations to codify the changes required under Section 1832 of NDAA 2017. The public comment period for VA’s proposed rule closes on March 12, 2018. Click Here to Comment on VA’s Proposed Rule SDVOSBs and VOSBs are strongly encouraged to review the Section-by-Section Analysis for me detailed information on the proposed rule. Below is a synopsis of the more significant parts SBA’s proposed rule. Some of the language in the proposed rule was adopted from SBA’s Section 8(a) Business Development Regulations, as SBA has always used, and will continue to use its 8(a) Program regulations for guidance on eligibility issues for SDVOSBs. SBA proposes to: Define surviving spouse and requirements for a surviving spouse-owned SDVOSB to maintain program eligibility. Add definitions for “Daily Business Operations,” “Negative Control,” “Participant,” “Unconditional Ownership,” and “Employee Stock Ownership Plan.” Add a new definition for Service-Disabled Veteran with a permanent and severe disability. Add a definition for small business concerns which requires a firm be organized for profit with a place of business in the United States or which operates primarily in the United States, or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor. Add a definition for “Extraordinary Circumstances” under which a Service-Disabled Veteran owner would not have full control over a firm’s decision-making process, but would not render the firm ineligible as a SDVOSB. The new definition will allow minority equity holders to have negative control under five circumstances proposed by SBA and be used by SBA to identify discrete circumstances SBA views as rare. SBA will propose five circumstances for the definition’s use and would be exclusive; SBA would not recognize any other facts or circumstances allowing negative control by individuals who are not service-disabled. Change the requirement for SDVOSB ownership of a partnership from the current requirement of 51% of each type of partnership interest whereby if a partnership had general partners and limited partners, SBA required the SDVOSB be both a general and limited partner. SBA proposes to change this requirement so SDVOSBs will need to own at least 51% of the aggregate voting interest in the partnership. Decide ownership issues without regard to community property laws, similar to SBA’s Women-Owned Small Business Regulations. Adopt language which allows SDVOSB firms owned by surviving spouses of Service-Disabled Veterans to remain eligible for the program, and provides guidelines for continued eligibility. Proposes new language which describes how to determine if a Service-Disabled Veteran controls the Board of Directors of the SDVOSB entity. Adds rebuttable presumptions that a person not working for a firm regularly during normal working hours does not control the firm. SBA notes this is not a full-time devotion requirement. Click Here to Comment on SBA’s Proposed Rule 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 Ownership & Control of Service-Disabled Veteran-Owned Small Businesses appeared first on Centre Law & Consulting. View the full article
  4. Looking Back at GAO Bid Protest Trends from 2017

    By Heather Mims GAO recently released its bid protest statistics for fiscal year 2017. The number of bid protests filed saw a slight decrease from 2016 but, overall, the effectiveness rate remained fairly even. Specifically, 2,596 cases were filed at the GAO in fiscal year 2017, which is down 7% compared to the 2,789 cases that were filed in fiscal year 2016. However, the GAO’s “effectiveness rate,” which includes voluntary agency corrective active and sustained protests, remained virtually unchanged at 47% in fiscal year 2017, compared to 46% in fiscal year 2016. In its statistics, the GAO also noted its most prevalent grounds for sustaining protests in the past year. For 2017, these grounds were: (1) unreasonable technical evaluation; (2) unreasonable past performance evaluation; (3) unreasonable cost or price evaluation; (4) inadequate documentation of the record; and (5) flawed selection decision. An example of a protest where the GAO ruled that the agency had inadequate documentation is Threat Management Group, LLC. Threat Management Group protested the issuance of a task order as outside of the scope of the underlying ID/IQ contract and thus the agency should have competed the requirement. In examining the record, the GAO noted that there was no documentation of the specific services the awardee was requested to perform under the task order. The GAO twice requested additional documentation from the agency, which it was unable to provide. In sustaining the protest, the GAO found that the record was so limited that it could not conclude that a task order was within the scope of the underlying contract and the agency had not produced any relevant documents to demonstrate otherwise. In its report each year, the GAO includes a chart showing the statistical changes for the past five fiscal years. Among other things, this chart indicates that the success rate for ADR was the highest this past year (at an astounding 90%) out of the prior five years. Additional information can be found in the below chart: 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 Looking Back at GAO Bid Protest Trends from 2017 appeared first on Centre Law & Consulting. View the full article
  5. Annual Review Speaker Lineup

    ANNUAL REVIEW 2018: Hot Issues in Federal Contracting | Speaker Lineup Threase Baker – Panel Discussion: Types of Contract Vehicles Ms. Threase Baker is the President at ABBTECH Professional Resources, Inc. She joined ABBTECH in 2001 and has more than twenty-five years’ of experience in all areas of the staffing industry with particular emphasis on corporate recruiting, executive placement and staff augmentation. Her customer focus includes both the government and private sector. Prior to her current role at ABBTECH, Threase worked as a Customer Relationship Management (CRM) System project manager which provided vital perspectives on the Information Technology (IT) industry and process. Keith Nakasone – Panel Discussion: Types of Contract Vehicles Mr. Keith Nakasone is the new Deputy Assistant Commissioner, Acquisition Management, within the Office of Information Technology Category (ITC) in GSA’s Federal Acquisition Service (FAS). The Federal Acquisition Service provides buying platforms and acquisition services to Federal, State and Local governments for a broad range of items from office supplies to motor vehicles to information technology and telecommunications products and services. William McCabe – Panel Discussion: Types of Contract Vehicles Mr. William McCabe is the Chief Financial Officer and Director, Financial Management and Procurement Portfolio for the Program Support Center (PSC), a component of the U.S. Department of Health and Human Services. He brings a wealth of experience and expertise that helps to strengthen PSC’s efforts to provide services more efficiently and effectively. Prior to joining PSC, Mr. McCabe served as the Chief Financial Officer of the Nuclear Regulatory Commission. Joanne Woytek – Panel Discussion: Types of Contract Vehicles Ms. Joanne Woytek is the Program Manager for the NASA SEWP Program, a premier Government-Wide Acquisition Contract (GWAC) providing Federal Agencies access to the latest in Information & Communication Technology product solutions. From SEWP’s inception, twenty-five years ago, through to the present, Ms. Woytek continues to be the key figure in the continuing evolution of the program, and in the management of strategic direction, day-to-day operations, and planning of the SEWP program. Ms. Woytek is a 40-year veteran to Goddard Space Flight Center (GSFC) in Greenbelt Maryland and is in her eighteenth year as Program Manager. The post Annual Review Speaker Lineup appeared first on Centre Law & Consulting. View the full article
  6. Government Shutdown Showdown – Season 3

    By Barbara Kinosky Action, cameras, déjà vu of 1995 and 2013, with the same story line except this time the President and both Houses of Congress are all Republican. However, it is a divided Republican party which is not putting Paul Ryan in much of a party mood. (And yes, I did steal “Shutdown Showdown” from CNN’s Chris Cillizza. It will now be a race to the Patent & Trademark Office to get all rights for the new t-shirt line.) This Friday night is the deadline for either the passage of a real budget, a continuing resolution or a shutdown. Here is the quick read summary on the issues: Dems want a DACA solution and Affordable Care Act funding and some Reps are concerned about the debt ceiling. Government Contract Likely Impact: Federal employees received back pay for the last shutdown in 2013. Most government contractors were not that lucky. I suspect more of same. Talk to your contracting officer about your options. Wikipedia, the source of all my knowledge has a list of the agencies that closed in 2013. It can probably be used as a guide for what is considered essential and nonessential. If your contracting officer advises you in writing (even if written on a beer-stained napkin which is better than nothing) that the service you perform is essential then keep working. Call me if you don’t get paid (as cribbed from the show Better Call Saul). As of the time this article was posted, House Republicans have proposed a stop gap one-month funding resolution but it is not clear whether this will pass. Bid Protests In other news, here is a quick read on the difference between the Court of Federal Claims and the GAO on bid protest decisions. Since I was quoted in it I must include it! And for those of you who think you still want to continue with federal government contracting despite the shutdown showdown (thank you again Chris) come to Centre’s Annual Review of Federal Contracting. We have a full line up of the movers and shakers in DC and all the news you need to know to stay current in the never dull world of federal contracting. I hope to see you on March 6 at the MGM. About the Author: Barbara Kinosky Managing Partner Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has more than twenty-five years of experience in all aspects of federal government contracting. Barbara is a nationally known expert on GSA and VA Schedules and the Service Contract Act, and she has served as an expert witness for federal government contracting cases. The post Government Shutdown Showdown – Season 3 appeared first on Centre Law & Consulting. View the full article
  7. SIP – As Easy As 1-2-3

    By Julia Coon GSA Advantage!® is the General Services Administration (GSA)’s online shopping and ordering system that provides access to products and services offered under the GSA Schedule program. Once a new schedule contract or modification is awarded, contractors have 30 days from the effective date to upload their pricelist to GSA Advantage!® The pricelist can be uploaded to GSA Advantage!® through the Schedules Input Program (SIP). GSA’s SIP software is free to Schedule contractors and allows you to provide product descriptions, web-links, photos, pricing and discounts to Federal customers. Pricelists submitted via the SIP program are reviewed by GSA and compared against your awarded contract or modification. Approved files are then posted to GSA Advantage!® within 24-48 hours. If GSA finds errors in your SIP upload, the files will be rejected and sent back to you for corrections. If you do not already have the SIP software on your computer, you can download SIP and the SIP instruction from the Vendor Support Center here. Since the SIP upload is separate from the eOffer/eMod upload, it can be tricky. Below are some tips and tricks to help you navigate the SIP software. GSA eLibrary, eBuy, and SIP: The contractor name and address showing in GSA eLibrary is pulled directly from SAM. Updating the name or address in SIP will not change GSA eLibrary. The email address and phone number showing in eLibrary pulls from the contract administrator information listed on the Contract tab in SIP. Don’t let your pricelist go beyond 2 years without updates. GSA will remove your pricelist and access to eBuy. If nothing has changed within the last 2 years, contractors can select “Verify Catalog Information” from the Tools dropdown menu in SIP to avoid contract suspension status. The SIP password is assigned by GSA and is the same as your eBuy password. Before new contractors will have access to eBuy, you must upload a pricelist to GSA Advantage!® and it must then be approved by GSA. General SIP Tips & Tricks: SIP information is computer specific, so it is important to always backup your information and save a copy. The modification number and effective date listed on the Contract tab in SIP should match the awarded modification covering the changes in the pricelist upload. For new Schedule contracts, a modification number is not a required field, but the effective date should match the SF1449. When adding new Special Item Numbers (SINs) to your contract, do not forget to add the new SINs to the SIP program. Under the contract tab, click on the icon below and it will open the screen to add SINs. Before sending off your SIP files, ensure you have two files shown that will be sent to your GSA Contracting Officer for review. One file is the textfile and the other is the product file. This is the reason you receive two notices from GSA when the SIP upload is approved or rejected. Don’t forget to process your response files after the SIP upload has been approved or rejected by GSA. Click on the Check Response File Status under the message center. This will clear out your queue for the next upload. ­­­ SIP Tips & Tricks for Products: Product photos must be in either jpg or gif format that is no larger than 1MB. The file ­­­­name must be 30 characters or less with no special characters in the file name. Product vendors can upload a temporary price reduction at any time without a modification. You can enter a temporary price, the start date, and the stop date in the IPRICE excel file. Put your updated IPRICE excel file in the Update folder within your SIP folder on your C drive. Go to SIP and click the price update button at the bottom left and follow the prompts. Your temporary prices will post to GSA Advantage!® within 24-48 hours. If you are using the SIP import function, the products in the IPROD and IPRICE excel files must be in the same order. The Quantity per unit is required when the unit of issue is a box, case, pack, etc. It is used to provide quantity within the box, case, pack, etc. Do not use dollar signs or commas in the prices listed in IPRICE as you will get errors during the import process. Certain special item numbers require UPC codes and photos. The current language is one per SIN so if one product has the UPC or photo you are covered. To check your SIN requirements, go to the Vendor Support Center. GSA is in the process of launching the Formatted Product Tool (FPT) which may be the end of SIP. It is still in the early pilot program phase so until FPT is fully released, SIP is the option to upload your GSA Advantage!® pricelist. If you have any questions regarding SIP, please reach out to any of our GSA consultants. 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 pricelists. The post SIP – As Easy As 1-2-3 appeared first on Centre Law & Consulting. View the full article
  8. By Wayne Simpson Comments must be submitted by March 12, 2018 In the Wednesday, January 10, 2018, edition of the Federal Register, the U.S. Department of Veterans Affairs (VA) issued a proposed rule with request for public comment to amend VA’s regulations governing its Veteran-Owned Small Business Verification Program. Public comments on the proposed rule must be submitted on or before March 12, 2018 (see below on how to submit comments). The proposed rule implements §1832 of Public Law 114-840, the National Defense Authorization Act (NDAA) for Fiscal Year 2017, which placed responsibility for issuing regulations relating to ownership and control for the verification of Veteran-Owned Small Businesses (VOSBs) with the U.S. Small Business Administration (SBA). VA’s proposed regulation will remove all references to ownership and control and seeks to add and clarify certain terms and references that are currently part of the VA’s verification process. NDAA also provides, in certain circumstances, a firm may qualify as a VOSB or Service-Disabled Veteran-Owned Small Business (SDVOSB) when there is a surviving spouse or an employee stock ownership plan (ESOP). Click here to read the specific proposed changes to VA’s Regulations at 38 C.F.R. Part 74 Comments on the proposed rule may be submitted by clicking here. The post VA Issues Proposed Rule Governing its Veteran-Owned Small Business Verification Program appeared first on Centre Law & Consulting. View the full article
  9. By Tyler Freiberger In 2016 alone, the federal government spent $58.8 billion with minority or woman owned small businesses and another $16.3 billion with businesses run by disabled veterans. The vast majority of these prime contract awards were specifically not the result of open market, merit based competition. Rather, it was the result of the government openly steering more government dollars toward groups otherwise disadvantaged in society. While there is some debate over the effectiveness of some of these programs, it clearly gives billions of reasons for the disadvantaged to start a small business and get a leg up on work with the government. A great gig if you can get it, right? So great, non-qualifying persons and companies are willing to defraud the government to take advantage of these programs. The methods for this crime can be very simple; some programs allow contractors to self-certify as disadvantaged small business with no third-party review. Contractors can simply falsely certify disadvantaged status and move ahead. In contrast, some schemes require greater complexity; winning the award with a company owned by a qualifying person but then funneling the money and the work through a series of other non-qualifying entities. A recent string of high-profile arrests and seizures shows this may be a surprisingly large portion of the awards set aside for disadvantaged or veteran owned business. In October of 2017, four men plead guilty to participating in such a scheme to obtain construction contracts in South Carolina. According to the DOJ, for over a dozen years “the defendants hid the fact that construction companies were not controlled by minorities, veterans, women or the disabled in order to receive the lucrative contracts.” While the contracted work was performed properly, the scam took in over $350 million intended for minority or woman groups. A similar action is developing in Milwaukee, where the government has begun seizing the assets of a contractor they suspect has won almost $300 million in construction contracts meant for minorities and military veterans. The fact these frauds were ever discovered is almost as shocking as the amounts. Both examples involved minorities, women, or disabled veterans falsely claiming they owned a business in order to receive the government’s favor. However, the businesses were instead run by a spouse or friend that took the lion’s share of the profits. Without an insider blowing the whistle on this type of intimate activity, it is difficult to imagine how the government could ever detect it. In the above examples, one contractor is facing two years in jail, while the other has had his home and cars seized pending criminal charges. All this despite government agreement that the contracts were performed well, even some with honors. Regardless, this post-harm punishment seems to be the government’s only option for deterrence and is therefore justifiably harsh. The Small Business Administration works with the Justice Department to detect such abuse, but still primarily relies on reporting by whistle blowers or competitors. Until a more robust system of detection is organized, we will likely never truly know how big of a problem this fraud is. 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 $650 Million in Small Business Awards Given to Fraudulent Companies appeared first on Centre Law & Consulting. View the full article
  10. “Let’s Talk About Sex[ual Harassment], Baby!”

    By David Warner I had intended to write about the Supreme Court’s recent decision denying certiorari in the 11th Circuit’s decision in Evans v. Georgia Regional Hospital, thereby declining to resolve the existing circuit split concerning whether sexual orientation is a protected characteristic under Title VII. But then yet another story dropped with high profile allegations of sexual harassment, and the siren call of timely “click-bait” won out over the finer points of Supreme Court jurisprudence. And, wait, here’s yet another story that dropped literally as I was typing this paragraph. As it appears the nation could use a refresher course, let’s review, shall we? Sexual harassment – it’s illegal and has been since 1964. Interestingly, there have been relatively few developments in the substantive law around sexual harassment since the Faragher and Ellerth decisions in 1998. Despite subsequent years of HR professionals and management-side employment lawyers beating the drum regarding the necessity of robust anti-harassment policies, training, and proactive response to internal complaints, sexual harassment claims continue to be alarmingly prevalent. In FY 2016 alone the EEOC received almost 7,000 administrative complaints of sexual harassment. In July 2016, the EEOC issued a report from its Select Task Force on the Study of Harassment in the Workplace. The report merits review in its entirety, but certain of its conclusions concerning “risk factors” are eerily prescient of the current Zeitgeist. For example, the Task Force noted that workplaces with “High Value” employees and those with “Significant Power Disparities” are particularly prone for harassment issues – i.e., where rules of behavior are viewed as not applying equally to all levels of an organization or to certain “untouchable” employees. While it is easy to pile-on to movie producers, directors, on-air talent, more on-air talent, celebrity chefs, and the like, employers should recognize that significant power disparities exist in literally every working environment. And, per Faragher and Ellerth, it is incumbent upon employers to take steps to ensure that their workplaces are free from conduct that might give rise to claims and potential liability. The steps remain clear. First, promulgate a clear and strong anti-harassment policy with multiple avenues of complaint, absolute prohibitions against retaliation for good faith complaints, and clear commitment that the policy applies to all levels of the organization. Second, senior management must own and drive a “speak up” culture – you do it for False Claims Act and other compliance issues, right? Third, train your employees on the policy and expectations. For organizations of any size, often separate training for executives/managers and line employees permits for freer discussion and proactive identification of problem areas. Finally, promptly investigate and respond to complaints as they are brought forward, including implementation of harsh discipline where appropriate. While the law of harassment may not have changed, the cultural environment definitely has. If the headlines have revealed anything, it is that no employee – no matter how senior or “important” – is untouchable now. The human condition being what it is, sexual harassment will likely always be an unfortunate reality in the workplace. The culture’s tolerance for those that abet it, however, appears to be at an end. 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 “Let’s Talk About Sex[ual Harassment], Baby!” appeared first on Centre Law & Consulting. View the full article
  11. By Colin Johnson A Final Rule published in the Federal Register July 14, 2016, effective November 1, 2016, amended the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the U.S. Small Business Administration (SBA) , which provide for a Governmentwide policy on small business subcontracting. One of the changed requirements effects subcontracting reports submitted after November 30, 2017. Specifically, the language at FAR 19.704(a)(10)(iii), 52.219-9(d)(10)(iii), and 52.219-9 Alternate IV (d)(10)(iii)—was revised to require order-level reporting on single-award, indefinite-delivery, indefinite-quantity contracts intended for use by multiple agencies in addition to multiple-award contracts in use by multiple agencies and to clarify that the order-level reporting would be required after November 30, 2017, which is when the Electronic Subcontracting Reporting System (eSRS) will be ready to accommodate this requirement. This rule is implementing the regulatory changes made by the SBA and will allow for the facilitation of allocating subcontracting credits to funding agencies. This allocation will help ensure that funding agencies are recognized and incentivized to promote small business subcontracting on orders. It is important to keep in mind that these reporting requirements apply to all orders on a single-award IDIQ contract intended for use by multiple agencies regardless of dollar value. These changes will apply to solicitations issued on or after the effective date or at the contracting officer’s discretion in accordance with FAR 1.108(d). FAR Clause 52.219-9, Subcontracting Plan Requirements (JAN 2017), the most recent update of the clause, contains the revised language The post Changes to Subcontracting Reporting Requirements—Effective November 30, 2017 appeared first on Centre Law & Consulting. View the full article
  12. By Wayne Simpson A Final Rule was published in the November 6, 2017 (corrected and republished in the November 8, 2017) edition of the Federal Register removing all regulations relating to the Fair Pay and Safe Workplaces Executive Order issued by President Barrack Obama (Executive Order No. 13673, July 31, 2014). In March 2017, using the authority of the Congressional Review Act, Congress passed House Joint Resolution 37, which disapproved the final rule submitted by the U.S. Department of Defense, the U.S. General Services Administration, and the National Aeronautics and Space Administration and published in the August 25, 2016, edition of the Federal Register. In the Joint Resolution, Congress resolved that the final rule “shall have no force or effect.” On March 27, 2017, President Trump signed House Joint Resolution 37 into law which became Public Law 115-11. Under the Congressional Review Act, a rule shall not take effect or continue if Congress enacts a joint resolution of disapproval. Any rule taking effect which is later made of no force or effect by enactment of a joint resolution shall be treated as though such rule had never taken effect. The Final Rule implementing Fair Pay and Safe Workplaces in the Federal Acquisition Regulation was effective for solicitations issued and contracts awarded before, on, or after October 25, 2016. Contracting officers have been directed to modify, “to the maximum extent practicable,” existing contracts to remove any solicitation provisions and contract clauses related to the Fair Pay and Safe Workplaces Rule because they are unenforceable by law. The Final Rule implementing Public Law 115-11 is effective November 6, 2017. The entire rule, including amendments published on December 16, 2016, in the Federal Register, is removed as a result of the Final Rule. The 115th Congress has been busy using the authority of the Congressional Review Act. As of November 2, 2017, of the eighty-two (82) pieces of legislation signed into law by President Trump, sixteen (16) are enacting joint resolutions to disapprove of rules issued by the Obama Administration. It is often said, “Live by the executive order, die by the executive order.” Fair Pay and Safe Workplaces is no more. The post Removal of Fair Pay and Safe Workplaces Rule from the Federal Acquisition Regulation appeared first on Centre Law & Consulting. View the full article
  13. By Wayne Simpson A Final Rule was published in the November 6, 2017 (corrected and republished in the November 8, 2017) edition of the Federal Register removing all regulations relating to the Fair Pay and Safe Workplaces Executive Order issued by President Barrack Obama (Executive Order No. 13673, July 31, 2014). In March 2017, using the authority of the Congressional Review Act, Congress passed House Joint Resolution 37 (Public Law 115-11), which disapproved the final rule submitted by the U.S. Department of Defense, the U.S. General Services Administration, and the National Aeronautics and Space Administration, and published in the August 25, 2016, edition of the Federal Register. Congress resolved the final rule “shall have no force or effect.” On March 27, 2017, President Trump signed House Joint Resolution 37 into law which became Public Law 115-11. Under the Congressional Review Act, a rule shall not take effect or continue if the Congress enacts a joint resolution of disapproval. Any rule taking effect and later is made of no force or effect by enactment of a joint resolution sall be treated as though such rule had never taken effect. The Final Rule implementing Fair Pay and Safe Workplaces in the Federal Acquisition Regulation was effective for solicitations issued and contracts awarded before, on, or after October 25, 2016. Contracting officers have been directed to modify, “to the maximum extent practicable,” existing contracts to remove any solicitation provisions and contract clauses related to the Fair Pay and Safe Workplaces Rule because they are unenforceable by law. The Final Rule implementing Public Law 115-11 is effective November 6, 2017. The entire rule, including amendments published on December 16, 2016, in the Federal Register, is removed as a result of the Final Rule. The 115th Congress has been busy using the authority of the Congressional Review Act. As of November 2, 2017, of the 82 pieces of legislation signed into law by President Trump, 16 of them are enacting joint resolutions to disapprove of rules issued by the Obama Administration. It is often said, “Live by the executive order, die by the executive order.” Fair Pay and Safe Workplaces is no more. The post Removal of Fair Pay and Safe Workplaces Rule from the Federal Acquisition Regulation appeared first on Centre Law & Consulting. View the full article
  14. By Wayne Simpson A Final Rule published in the Federal Register July 14, 2016, effective November 1, 2016, amended the Federal Acquisition Regulation (FAR) to implement regulatory changes made by the U.S. Small Business Administration (SBA) , which provide for a Governmentwide policy on small business subcontracting. One of the changed requirements effects subcontracting reports submitted after November 30, 2017. Specifically, the language at FAR 19.704(a)(10)(iii), 52.219-9(d)(10)(iii), and 52.219-9 Alternate IV (d)(10)(iii)—was revised to require order-level reporting on single-award, indefinite-delivery, indefinite-quantity contracts intended for use by multiple agencies in addition to multiple-award contracts in use by multiple agencies and to clarify that the order-level reporting would be required after November 30, 2017, which is when the Electronic Subcontracting Reporting System (eSRS) will be ready to accommodate this requirement. FAR Clause 52.219-9, Subcontracting Plan Requirements (JAN 2017), the most recent update of the clause, contains the revised language. The post Reminder: Changes to Subcontracting Reporting Requirements—Effective November 30, 2017 appeared first on Centre Law & Consulting. View the full article
  15. By Barbara Kinosky Yes, you read that right. Deep in the murky depths of the $700 billion fiscal 2018 National Defense Authorization (NDAA) bill is language that puts a chill down the spine of protesters. Companies with revenue more than $250 million will have to pay the costs for filing losing protests on DoD procurements at the GAO. Now protestors pay their own costs and attorneys’ fees with some exceptions. Section 827 of the NDAA would require DoD to launch a pilot program beginning in late 2019 and ending in late 2022 that would require those unsuccessful DoD protestors to pay DoD’s “costs incurred in processing protests.” As in pilot programs there will be the usual report (which is where the writers of reports will make out big time) on the success of the pilot program. Why you may ask if this happening? House-Senate conferees in a rare display of unity, agreed that contractor bid protests needed to be reduced to reduce the time of the procurement cycle, particularly with weapons systems. This from a Congress who hasn’t done much (my editorial note). Second editorial note from me. Most weapons systems contacts are very large. They are larger than the national debt of Venezuela, which is very large indeed. So, one would think that given the creep on cost on many weapons systems contracts one would want an even greater degree of scrutiny on those procurements. Need I mention the mid-air refueling tanker cost woes? Other questions that will hopefully be addressed in the regulations. How are costs computed? How is revenue computed? Debriefings – NDAA Section 818 New requirements: In the case of a contract award in excess of $100,000,000, a requirement for disclosure of the agency’s written source selection award determination, redacted to protect the confidential and proprietary information of other offerors for the contract award, and, in the case of a contract award in excess of $10,000,000 and not in excess of $100,000,000with a small business or nontraditional contractor, an option for the small business or nontraditional contractor to request such disclosure (2) A requirement for a written or oral debriefing for all contract awards and task or delivery orders valued at $10,000,000 or higher. (3) Provisions ensuring that both unsuccessful and winning offerors are entitled to the disclosure above and the debriefing Plus, a chance to ask follow up questions Both the winning and losing offerors would be entitled to a debriefing – which at this time, I sparkly say, are still free Other Stuff I Read So You Don’t Have to Section 802 – DoD will establish a pool of intellectual property experts to get a handle on exactly who owns what Section 803 – new regulations on using private auditors to do incurred cost audits Section 806 – The micro purchase threshold will be increased from $3,000 to $10,000. Section 808 – another committee will be formed! This one on technology threats Section 811 – increase on submission of cost and pricing data numbers and a bit of an increase on the contracting officer’s authority to get such data Section 822 – a bit of an affirmation of using LPTA for procuring expendable goods Service Contract Act. On another note, I gave four different speeches last week all on the Service Contract Act, now referred to as the Service Contract Labor Standards. That must be a record. Guinness Book of Records – is there a category for the most speeches in one week on the Service Contract Act? In any event, no one at any of the four presentations fell asleep and many even asked questions. More I cannot ask for! Happy Thanksgiving all! The post NDAA Curbs Bid Protests (Somewhat) But Adds Enhanced Debriefings appeared first on Centre Law & Consulting. View the full article
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