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  1. Interim Final Rule Adopted as Final Rule Without Change In the July 12, 2017, edition of the Federal Register, VA published its Final Rule implementing its revisions regarding the length of the eligibility period for inclusion in the VA Vendor Information Pages Database (VIP) (www.vip.vetbiz.gov). This Final Rule implements an Interim Final Rule published in the Federal Register on February 21, 2017, extending the length of eligibility from two years to three years. VA invited public comments on or before April 24, 2017. VA’s Final Rule notice discusses comments received in response to its request for public comment, including comments requesting clarification as to whether currently verified SDVOSBs/VOSBs would be automatically extended. VA indicates all verified firms in the VIP Database automatically had their eligibility term extended by one year. The Final Rule notice also reiterates information contained in the February 21, 2017, where VA sets forth its rationale for extending the eligibility period for re-verification from two to three years. VA expresses high confidence in the robust examination process conducted by its Center for Verification and Eligibility, citing Fiscal Year 2016 data to support this conclusion. Moreover, the change reduces the administrative burden on SDVOSBs/VOSBs participating in the Veterans First Contracting Program at VA. The post VA Adopts Final Rule for Veteran-Owned Small Business Verification Guidelines appeared first on Centre Law & Consulting. View the full article
  2. In a decision on July 10, 2017, the GAO found that an agency reasonably canceled its solicitation after a protest where the agency’s requirements were time dependent. Tien Walker, a small business, protested the cancelation of the solicitation issued by the Department of State for public opinion polling surveys to be conducted in South Asia. Specifically, the selected contractor was to conduct two public opinion surveys in Afghanistan, with the first survey to be completed before the start of the Muslim observance of Ramadan. Before the solicitation’s closing time, Tien Walker filed a protest with the GAO alleging that the solicitation was unduly restrictive and not properly set aside for small businesses. In response, the Department of State notified that GAO that it had canceled the solicitation and would not resolicit the polling survey. The GAO then dismissed Tien Walker’s protest as academic. Tien Walker has now protested the cancelation of the solicitation as improper. Specifically, Tien Walker argued that the Department of State unreasonably canceled the solicitation as a pretext to avoid the GAO’s review of its protest. In denying the protest, the GAO noted that a contracting agency has broad discretion in deciding whether to cancel a solicitation. The GAO further noted that an agency need only establish a reasonable basis to support its decision to cancel a solicitation. Where a protester argues that the agency’s rational for cancellation of a solicitation is mere pretext, the GAO will nonetheless still examine the reasonableness of the agency’s actions. The Department of State’s rationale for canceling the solicitation relied upon the required stay of contract award and performance due to Tien Walker’s initial protest. The agency further clarified that even if Tien Walker’s first protest was denied, no contractor would have been able to complete the first survey prior to Ramadan. Therefore, the GAO found that the agency’s rationale for canceling the solicitation was reasonable and was not a pretext to avoid awarding the contract on a competitive basis. As such, the GAO denied the protest. 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 Agency Found to Have Reasonably Canceled Solicitation Due to Protest appeared first on Centre Law & Consulting. View the full article
  3. Centre Staff Speaking at NCMA World Congress

    Centre Law & Consulting will be at NCMA World Congress in Chicago from July 23-26, 2017. A number of Centre’s staff have been invited to speak about various federal contracting topics (see below for the topics and times). Centre will also be exhibiting at booth 417. Monday July 24 Corporate Ethics: Lead from the Top or Pay Through the Nose A07 • Managing Contracting Organizations • Room 309/311 • Intermediate David Warner, Partner, Centre Law & Consulting This session will review recent enforcement actions—including whistleblower, qui tam, and debarment processes— with respect to federal contractors. Hear about the current state of the law concerning “hidden” ethical traps for import/export, ITAR/EAR, and TAA, in addition to the more common traps of the False Claims Act and Foreign Corrupt Practices. Corporate ethics are expected to remain a significant concern for contractors even under the new administration. Leave with guidance to understand the current legal landscape and to identify and mitigate such risk. The Acquisition Profession’s Essential Tools: Principles of Interpretation C11 · Foundational Contracting Training • Room 325 · Basic Kenneth Allen, JD, Attorney and Consultant, Semi-Retired Academic Barbara Kinosky, Esq., Managing Partner, Centre Law and Consulting What’s in a word? Lots. Contract interpretation is one of the most important skill sets an acquisition professional can have. Attendees will explore the application of the principles of contract interpretation through real court cases and key federal exceptions. Tuesday, July 25 Protests Happen, so Now What? D12 · Foundational Contracting Training · Room 326 · Intermediate James Phillips Jr, PMP, CFCM, Fellow, Acquisition Consultant, Phillips Training and Consulting Inc. Barbara S. Kinosky, Esq., Managing Partner, Centre Law and Consulting When the word protest is used often, both buyer and seller bristle. This presenter speculates on the thinking that the government buyer goes through that ultimately results in a decision that is sustained. Hear key decision points of actual sustained protests. ACTIVITY: 8-10 short scenarios will be provided for group discussion. Lessons Gleaned from Successful Protests at GAO F05 · Business Acumen · Room 326 · Basic Barbara S. Kinosky, Esq., Managing Partner, Centre Law and Consulting What makes a protest successful and what can you do to avoid stalling your acquisition due to a protest? With the number of protests increasing, this session gives attendees clear guidance on practices to avoid that will lead to protest. ACTIVITY: Small groups will discuss protest issues related to specific examples. Wednesday, July 26 An Overview of GSA’s e-Tools – eOffer/eMod, SIP, TDR Sales Reporting G15 · Leveraging Advancing Technology · Room 306 · Basic Maureen Jamieson, Executive Director of Consulting, Centre Law and Consulting Julia Coon, Consultant, Centre Law and Consulting This session will show participants how to submit a GSA offer, modifications and other electronic forms such as the CSP-1 and Small Business Subcontracting Plan in eOffer/eMod. Walk through the SIP program and step-by-step instructions for the import/upload process for both products and services. Discussion will focus on GSA’s new Transactional Data Reporting (TDR)/FAS Sales Reporting and the anticipated Formatted Product Tool (FPT). The post Centre Staff Speaking at NCMA World Congress appeared first on Centre Law & Consulting. View the full article
  4. In a first for the federal government, Veterans Affairs Secretary David Shulkin has announced that the VA will now publicly post all major disciplinary actions taken against its employees. This includes all terminations, demotions, and suspensions of more than fourteen days. While the adverse action report does not include employees’ names, the list does and will continue to include the employee’s component, position, specific adverse action taken, date it took effect, and the employee’s region. In explaining his decision, Shulkin stated: “Under this administration, VA is committed to becoming the most transparent organization in government.” He further added, “Together with the accountability bill the president signed into law recently, this additional step will continue to shine a light on the actions we’re taking to reform the culture at VA.” The initial adverse action report was posted on the VA website on July 3, 2017 and dates back to January 20, 2017, the day Trump took office. The report cites 743 disciplinary cases, of which 526 were removals. Interestingly, this would put the VA on pace to only fire 1,169 employees during Trump’s first year in office while the VA fired 2,575 workers in fiscal year 2016. The adverse action report will continue to be updated weekly. In other federal government news, the Department of Homeland Security inspector general found that DHS has recently spent millions of dollars on a contract that did not meet its needs. In an OIG report released June 30, 2017, the IG found that, despite DHS spending $24.2 million as of February 2017, the performance and learning management system does not “achieve the intended benefits or address the Department’s needs.” The IG further specified that DHS spend more than $5.7 million for subscriptions to the system that either were unused or expired before the system became operational. 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 VA to Publicly List all Disciplined or Fired Employees Plus How DHS Spent $24.2 Million on a System it Did Not Need appeared first on Centre Law & Consulting. View the full article
  5. In September of 2016, Aurotech Inc. won an award for a blanket purchase agreement with Health and Human Services, FDA. Discover Tech made a persuasive protest of that award, resulting in the FDA taking corrective action, and to reevaluate Aurotech’s and Discover Tech’s quotations. After the FDA revised its initial award, now choosing Discover Tech in the award determination, Aurotech filed an unsuccessful protest. Aurotech challenged the Agency’s evaluation of how Discover Tech’s reductions to its quoted price would affect the technical and management approaches, and therefore its ratings. It also alleged Discover Tech did not explain in full how it had reduced its price from the first award determination. The GAO found the agency had reasonably evaluated the vendor’s explanation for the price reduction. Specifically, that Discovery Tech’s new understanding of initial deadlines for the contract, allowed them to reduce labor costs without hurt quality. Which brings us to the more interesting bid protest topic; when does a clarification become a discussion? Aurotech next alleged that the FDA held unequal exchanges with the two vendors. Similar to Aurotech’s accusation Discovery Tech failed to explain its price reduction, the Agency was also curious of the price drop during its evaluation. The Agency contract specialist contacted Discovery Tech asking how the reduction in staffing could happen, without adjusting the technical quotation/management approach. Discover Tech explained its initial mistake evaluating deadlines which had caused the previous higher staff prediction. The GAO considered this a clarification, or limited exchange used to resolve clerical mistakes. Aurotech obviously disagreed, calling this exchange an opportunity for Discovery Tech to cure a crucial failure in its proposal. The GAO was most persuaded by the fact no change to the proposal occurred. Had the vender been allowed to modify its technical and management approach, the GAO would have considered this a discussion, requiring both parties to be involved. Given Aurotech was also asked for a clarification on a different subject, the GAO denied the bid on the ground the FDA treated the vendors unequally. 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 GAO Threads The Needle With Clarifications Versus Discussions appeared first on Centre Law & Consulting. View the full article
  6. Bill Seeks to Limit Improper LPTA Use Although Lowest-Price, Technically Acceptable (LPTA) procurements are conducted as part of the “best value” continuum, nothing seems to get the ire of industry up more than LPTA procurements, and the government’s seemingly ever-increasing use of the LPTA method. Help may be on the way to curb the use of improper LPTA procurements in civilian departments. The National Defense Authorization Act of 2017 already placed restrictions on use of LPTA procurements by the Department of Defense for procuring knowledge-based services. Representative Mark Meadows introduced the “Promoting Value Based Procurement Act of 2017,” June 22, 2017. The Bill, H.R. 3019, currently has three co-sponsors, all representatives from the Federal contractor-saturated Congressional Districts in Northern Virginia. H.R. 3019 would amend the Federal Acquisition Regulation (FAR) requiring Federal civilian departments and agencies to take additional steps when conducting LPTA procurements. If enacted, H.R. 3019 will require Federal civilian departments and agencies, when it comes to an LPTA procurement, civilian agencies must: Describe the agency’s minimum requirements in terms of performance objectives, measures and standards to determine acceptability of LPTA offers. Articulate in solicitations there is no value in offering items/services which will exceed the technical and performance requirements. Require solicitation language stating technical approaches will require no subjective judgment by the source selection authority for one LPTA proposal over another. Require source selection authorities reviewing technical proposals have high confidence offers other than the lowest-priced offer would not result in the identifying factors which provide value or benefit to the contracting agency. Contracting officers must also document the contract file with a justification for use of the LPTA evaluation methodology. Determine use of LPTA reflects full life-cycle costs, to include costs for operation and support. H.R. 3019 restricts use of LPTA for IT services, cybersecurity services, advanced electronic testing, systems engineering and technical assistance services, and other similar “knowledge-based” professional services. Restrictions also apply to the use of LPTA procurement strategies for acquiring personal protective equipment, and knowledge-based training or logistics services in support of overseas contingency operations. H.R. 3019 was referred to the Committee on Oversight and Government Reform. There is no related bill in the Senate at this time. By Wayne Simpson The post Lowest-Price, Technically Acceptable (LPTA) Reform Legislation Introduced appeared first on Centre Law & Consulting. View the full article
  7. The System for Award Management (SAM) is a system in which contractors must register in order to do business with the federal government. SAM was created to consolidate and eliminate some of the legacy systems. SAM’s goal is to consolidate a majority of the federal procurement systems into one user friendly system. The next phase for SAM modernization is due to be released in September 2017. The new beta.SAM.gov being released is the Office of the Integrated Award Environment’s (IAE) effort to consolidate the following ten IAE systems, listed here by functionality: Entity Information: System for Award Management (SAM.gov) – Registrations and Exclusions Contract Opportunities: Federal Business Opportunities (fbo.gov) Contract Data: Federal Procurement Data System (fpds.gov) Sub-Award Data: Electronic Subcontracting Reporting System (eSRS.gov), Federal Funding Accountability and Transparency Act Subaward Reporting System (fsrs.gov) Wage Determinations: Wage Determinations OnLine (wdol.gov) Past Performance: Contractor Performance Assessment Reporting System (cpars.gov), Past Performance Information Retrieval System (ppirs.gov), Federal Awardee Performance and Integrity Information System (fapiis.gov) Assistance Listings: Catalog of Federal Domestic Assistance (cfda.gov) IAE’s ultimate goal is to bring together the personnel who award, receive, and manage federal awards and assistance under one web site. The enhanced beta.SAM.gov will reduce reporting burdens, increase accountability and transparency in the award process, and improve data quality for both government and industry personnel. The new beta.SAM.gov will feature a Google-like search tool able to query data simultaneously from all ten combined systems or by filtering by the seven functionalities listed above. The new site will also feature a help desk as well as a cross mapping of the ten legacy systems to their new beta.SAM.gov functional area to better direct transitioning users to the information they need. Migration of the ten systems to beta.SAM.gov will be incremental to allow incorporation of user feedback. The new beta.SAM.gov will run in parallel with the ten legacy systems, which will remain the authoritative sources, until testing is fully complete and the previous systems are decommissioned. Beta.SAM.gov will eventually inherit the SAM.gov domain. The following timeline presented by IAE reflects completion in late Fiscal Year 2020: There can be multiple accounts affiliated with an entity in the new beta.SAM.gov. Users will need to create a new account and migrate their roles which will control privileges on the new site. Entities will be able to assign one or more administrators to manage site users’ associations with their entity and delegate roles on the new site. Over 200 users, many of which are federal employees, are currently testing the alpha version of the new SAM.gov which began in December 2016. Focus groups will be held in July and August to provide input on the new beta.SAM.gov. If you are interested in participating in the focus groups, sign up information can be found on the Integrated Award Environment (IAE) Industry Community on GSA Interact at https://interact.gsa.gov/group/integrated-award-environment-iae-industry-community. About the Author: J. Moore Consultant J. Moore is a GSA and VA Contract Consultant at Centre Law & Consulting. She collaborates with the consulting team to provide proposal and contract management assistance to clients, focusing on various modification packages, market analysis, and catalog/pricing updates. The post System for Award Management (SAM) Roll Out to Consolidate Ten Affiliated Sites appeared first on Centre Law & Consulting. View the full article
  8. The FAR Now Available in the Kindle Bookstore

    Just in time for the consummate workaholic acquisition professional to read while lying on the beach this summer, and for those who never want to get too far away from the Federal Acquisition Regulation (FAR), the General Services Administration (GSA) Office of Government-wide Policy, in conjunction with the FAR Council announced June 20, 2017, the release of the FAR in the Kindle Bookstore. The FAR is now available in eBook format for free in the Amazon Kindle bookstore. Users can highlight text, bookmark sections, even send quotes via e-mail. According to Acquisition.Gov, the eBook format is proving very popular with procurement professionals with thousands of downloads in the Apple iBooks Store. Information on how to download the FAR on Amazon Kindle and Apple iBooks is available at: https://www.acquisition.gov/mobileaccess. The post The FAR Now Available in the Kindle Bookstore appeared first on Centre Law & Consulting. View the full article
  9. New Federal Contractor Legislation

    Yes, Congress is doing more than learning “nyet” and other basic Russian. The House of Representatives passed the Modernizing Government Technology Act of 2017 (the “MGT Act”) in record time. The legislation is now in the Senate. If enacted into law it would create funds for agencies to invest in new, innovative information technology solutions and replace aging legacy systems. The bill establishes a $500 million central fund to support rapid IT modernization across 24 agencies. Better yet, this innovative legislation moves agencies away from the “spend it or lose it” budget mentality and actually rewards savers with leftover cash to spend in future years. This is great legislation would create dependable funding for agencies to be able to prioritize IT modernization and move into the cloud and away from the previous century. The legislation was introduced by Reps. Will Hurd (R-Texas), Gerry Connolly (D-Va.) and Robin Kelly (D-Ill.) in the House, and Sens. Tom Udall (D-N.M.), Jerry Moran (R-Kan.) and Mark Warner (D-Va.) in the Senate. https://www.congress.gov/bill/115th-congress/house-bill/2227/related-bills From the Washington Post. Proposed legislation to allow the Veterans Administration (VA) to more easily terminate VA employees could be a sign of things to come at all federal agencies. The Accountability and Whistleblower Protection Act, may be signed into law soon. https://www.washingtonpost.com/news/powerpost/wp/2017/06/21/new-va-law-sets-stage-for-government-wide-cut-in-civil-service-protections/?utm_term=.74988474fdf4 Tell your Congressman/woman to support HR 3019 – Promoting Value Based Procurement Act of 2017. It prevents the use of lowest price technically acceptable contract awards (LPTA) for the acquisition of certain services in civilian agencies. It’s a giant step in the right direction. The bill is jointly sponsored by Rep Meadows (R NC) and Rep Beyer (D VA). You can track it on the link below. https://www.congress.gov/bill/115th-congress/house-bill/3019 About the Author Barbara Kinosky Managing Partner Barbara Kinosky has more than twenty-five years of experience in all aspects of federal government contracting and is a nationally known expert on GSA and VA Schedules and the Service Contract Act. She has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012, and 2015. The post New Federal Contractor Legislation appeared first on Centre Law & Consulting. View the full article
  10. On Thursday, June 29, 2017, Wayne Simpson will be testifying on behalf of the National Veterans Small Business Coalition (NVSBC), before the U.S. House of Representatives Committee on Veterans Affairs’, Subcommittee on Oversight and Investigations. The subcommittee is holding a legislative hearing on four bills related to strengthening acquisitions at the Department of Veterans Affairs (VA). These bills include H.R. 2006, H.R. 2749, H.R. 2781, and another unnumbered bill currently in draft. The hearing is scheduled for 10:00 AM Eastern Time in Room 334 of the Cannon House Office Building. FedBizAssist, L.L.C., is a supporting member of NVSBC. NVSBC is the largest not-for-profit organization of its kind representing America’s Veteran-owned small businesses to the Federal government, giving a collective voice to these businesses on legislative, regulatory, and policy issues affecting Federal procurement. NVSBC seeks to enhance procurement opportunities for veteran small business entrepreneurs engaged in, or seeking to enter the Federal Marketplace. Please support America’s Service-Disabled Veteran-Owned Small Businesses and Veteran-Owned Small Businesses and legislation which enhances Federal procurement opportunities for these firms. Consider joining NVSBC and supporting its Communications Campaign. The post Wayne Simpson Testifying Before the U.S. House of Representatives Committee on Veterans Affairs appeared first on Centre Law & Consulting. View the full article
  11. On August 29, 2016, the Air Force issued an RFP seeking base operations support services at an Air Force Base in Mississippi. The solicitation advised offerors that the agency would award the contract “to the proposal with the lowest evaluated price from among those proposals evaluated to be acceptable.” The RFP further stated that the technical evaluation team would evaluate the lowest-price offeror and then, as needed, evaluate higher priced offerors in order of price rank, to assign a rating of Acceptable or Unacceptable. The protester, PAE, was found to be technically acceptable but had the second lowest price of all offerors and, thus, award was made to the lowest offeror. PAE subsequently filed a protest arguing that the agency performed an inadequate evaluation of unbalanced pricing and failed to evaluate the realism of offeror’s pricings. In evaluating the protest, the GAO found that, absent a solicitation provision expressly or implicitly providing for a price realism evaluation, agencies are neither required nor permitted to conduct one in awarding a fixed-price contract. The GAO further found that, even though the solicitation required the agency to analyze whether the offerors’ prices were unbalanced, PAE failed to sufficiently allege that the awardee’s prices were overstated or unbalanced. In dismissing the protest, the GAO found that PAE failed to allege a sufficient basis of protest because it had not alleged that the awardee’s prices were overstated or unbalanced and, thus, even where an agency acts in error, the GAO will not sustain a protest unless the protestor can show that it was prejudiced by the error. The GAO likewise found that PAE’s additional protest grounds, including failure to conduct meaningful discussions, were not a legally sufficient basis for a protest because the evaluation scheme challenged by PAE was not the type of deficiency required to be addressed during discussions. About the Author: Heather Mims Associate Attorney Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow. The post GAO Dismissed Protest Because Protester Failed to Allege Sufficient Basis for Protest appeared first on Centre Law & Consulting. View the full article
  12. In a decision publicly released on May 30, 2017, Alphaport Inc. – Reconsideration, B-414086.3 (May 23, 2017), the GAO denied a request for reconsideration regarding a nearly $25 million contract. The GAO originally denied Alphaport, Inc.’s bid protest challenging the National Aeronautics and Space Administration’s (NASA) award of a contract to Banner Quality Management, Inc. for technical support services. The solicitation was awarded as a single cost-plus-fixed-fee contract based on best value, focusing on three evaluation factors: technical capability, cost/price, and relevant experience and past performance. Regarding the cost factor, the solicitation stated that evidence of an approved accounting system would be required for award of the contract. Evidence of the approved accounting system would be shown by submitting four specific documents. Alphaport initially challenged the award to Banner by alleging that the solicitation contained a material requirement to submit certain documentation to demonstrate the acceptability of the offeror’s accounting system. Despite NASA finding Banner’s accounting system acceptable, Banner only submitted three of the four required documents. Alphaport sought reconsideration after the GAO determined that the agency’s evaluation and selection decision were reasonable and consistent with the terms of the solicitation. Specifically, Alphaport argued that the GAO erroneously concluded that the agency’s evaluation was reasonable because the adequacy of an accounting system is generally a matter of responsibility. In denying the request for reconsideration, the GAO reminded Alphaport that its decision already addressed its allegation that the agency waived a material requirement of the solicitation when it concluded that the solicitation’s material requirement was for an acceptable accounting system rather than specific documentation. Indeed, the GAO noted that Alphaport did not actually challenge the adequacy of Banner’s accounting system but only that the agency did not comply with a material RFP requirement. The GAO found no error of law and instead found that Alphaport merely disagreed with its determination. About the Author: Heather Mims Associate Attorney Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow. The post GAO Won’t Reconsider its Decision Upholding NASA’s Award of a $24.6 Million Contract appeared first on Centre Law & Consulting. View the full article
  13. Proposed Rule VAAR

    On May 17, 2017, the Department of Veterans Affairs (VA) published a proposed rule in the Federal Register to revise and streamline the VA Acquisition Regulation (VAAR). Public comments are invited and must be submitted no later than July 17, 2017, to be considered in formulating the Final Rule. Codified acquisition regulations may only be amended and revised through formal rulemaking under the Office of Federal Procurement Policy Act. For ease of reference, information on how to submit comments appears at the end of this post. Summary VA is proposing to revise, streamline, and update its acquisition regulation, whereby all parts of the VAAR will be reviewed in phased increments to revise or remove any policy superseded by changes in the Federal Acquisition Regulation (FAR), to remove any procedural guidance internal to VA, and to incorporate any new regulations or policies. According to VA, the proposed rule will correct inconsistencies, remove redundant and duplicative material covered by the FAR, deleted outdated material and information, and appropriately renumber VAAR text, clauses and provisions where required, to comport with the FAR format numbering and arrangement. The Proposed Rule is intended to streamline the VAAR to implement and supplement the FAR only when required, and remove internal agency guidance in keeping with the FAR principles concerning agency acquisition regulations. A VAAR Section-by-Section Synopsis of Changes Covered by the Proposed Rule is attached. How to Submit Written Comments: Written comments may be submitted through www.Regulations.gov; by mail or hand-delivery to Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AP50—Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-V001—parts 801, 802, 803, 812, 814, 822, and 852).” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. This is not a toll-free number. In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov. VAAR Section-by-Section Synopsis of Changes Covered by the Proposed Rule: VAAR Part 801 – Department of Veterans Affairs Acquisition Regulation System Removes an information collection burden previously included in the VAAR based on an outdated practice of providing bid envelopes. VAAR Part 802 – Definition of Words and Terms Adds two new definitions to define key terms used within the revised VAAR Part 803, Improper Business Practices and Personal Conflicts of Interest, dealing with debarment and suspensions which will be applicable when referenced in the future in other VAAR Parts: Debarment and Suspension Committee; and Suspension and Debarring Official. VAAR Part 803 – Improper Business Practices and Personal Conflicts of Interest Proposes clarifying language regarding the prohibition of contracts from making reference in their commercial advertising regarding VA contracts to avoid implying the government approves or endorses the contractor’s products, services, or commercial line of endeavor. Proposes removal and reserves for future use, VAAR Subpart 803.1, Safeguards, and VAAR Section 803.101, Standards of Conduct, since it contains procedural guidance and a delegation of authority internal to VA and will be in the VA Acquisition Manual (VAAM). The Proposed Rule removes Section 803.101-3, Department Regulations, since it contains information on standards of conduct and financial disclosure for VA employees and is internal procedural guidance internal to VA and will be in the VAAM. VA’s Proposed Rule will remove Section 803.104, Procurement Integrity, and Section 803.104-7, Violations or possible violations, since they contain procedural guidance and a delegation of authority is internal to VA and will be in the VAAM. In Subpart 803.2, Contractor Gratuities to Government Personnel, VA proposes to update its policy governing improper business practices and personal conflicts of interests to make VA’s policies clear, to provide notice of due process rights and to establish who in VA determines whether or not a violation of the Gratuities clause has occurred and what procedures are followed when the Suspension and Debarring Official (SDO) makes that decision. In Section 803.204, VA’s Proposed Rule removes portions of Section 803.204, Treatment of violations, which contain procedural guidance and a delegation of authority internal to VA and will be moved to the VAAM. To ensure VA contractors are apprised of their rights, VA proposes to revise Section 803.204 to add the responsibility of the SDO for determining whether or not a violation of the Gratuities clauses has occurred and what action will be taken, as well as a paragraph stating that when the SDO determines a violation has occurred and debarment is being considered, the SDO shall follow the requirements at VAAR 809.406-3. In Subpart 803.3, Reports of Suspected Antitrust Violations, VA proposes to remove Section 803.303, Reporting suspected antitrust violations, since it contains guidance to VA employees internal to VA and will be moved to the VAAM. In Subpart 803.4, Contingent Fees, VA’s Proposed Rule removes and reserves the entire subpart and to remove the underlying Section 803.405, Misrepresentations or Violations of the Covenant Against Contingent Fees, since it contains guidance to VA employees internal to VA and will be moved to the VAAM. In Subpart 803.5, Other Improper Business Practices, VA proposes to remove Section 803.502, Subcontractor Kickbacks, since it provides direction to VA employees and is internal VA and will be moved to the VAAM. In Section 803.570, Commercial advertising, VA’s Proposed Rule revises the language of Subsection 803.570-1, Policy, to clarify the intent to prohibit advertising which implies a Government endorsement of the contractor’s products or services. In Subpart 803.6, Contracts with Government Employees or Organizations Owned or Controlled by Them, VA is proposing to remove and reserve the entire subpart and to remove the underlying Section 803.602, Exceptions, since it delegates authority to authorize an exception to the policy in FAR 3.601. This delegation will be moved to the VAAM. In Subpart 803.7, Voiding and Rescinding Contracts, VA proposes to remove and reserve the entire subpart and to remove the underlying sections. VA further proposes to remove Section 803.703, Authority, since it is a delegation of authority, internal to VA, moving the delegation to the VAAM. VA also proposes to remove Section 803.705, Procedures, as it duplicates FAR 3.705. A short paragraph directing VA Heads of Contracting Activities to follow the procedures of FAR 3.705 was added to the VAAM. In Subpart 803.8, Limitation on the Payment of Funds to Influence Federal Transactions, VA’s Proposed Rule removes and reserves the entire subpart and to remove the underlying sections. VA also propose to remove Section 803.804, Policy, and Section 803.806, Processing Suspected Violations, all internal VA procedural guidance being moved to the VAAM. VA further proposes to add Subpart 803.11, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions. This implements part of FAR Clause 52.203-16, Preventing Personal Conflicts of Interest, by requiring the signing of a Non-Disclosure Agreement by certain contractor covered employees performing acquisition functions closely associated with inherently governmental functions in order to prohibit disclosure of non-public information accessed through performance on a Government contract. This will also each contractor and subcontractor at any tier whose employees perform acquisition functions closely associated with inherently governmental functions to obtain the signed non-disclosure forms from each covered employee. The Proposed Rule also removes and reserves subpart 803.70, Contractor Responsibility to Avoid Improper Business Practices, and to remove its underlying Section 803.7000, Display of the VA Hotline Poster and its prescription at section 803.7001, Contract clause, because it is unnecessary and duplicates FAR coverage. FAR 52.203-14, Display of Hotline Poster(s), as prescribed at FAR 3.1004(b), which provides adequate coverage for VA. VA internal procedures regarding fill-in information for the clause will be covered in the VAAM. VAAR Part 812 – Acquisition of Commercial Items VAAR Section 812.301, paragraph (b)(13), VA proposes to change the name of provision at VAAR 852.214-74 to Marking of Bid Samples to better reflect the requirement of the provision. VAAR Part 814 – Sealed Bidding VA proposes to delete VAAR Subpart 814.1, Sealed Bidding, in its entirety. The Proposed Rule also deletes Sections 814.104, Types of Contracts, and Section 814.104-70, Fixed-Price Contracts with Escalation, as unnecessary since both simply require compliance with FAR 16.303-1 through 16.203-4. Ergo, no additional VAAR text is required. VA also proposes to revise Section 814.201(a)-(f) by removing paragraphs (a)-(b) since they deal with numbering of Invitations for Bids (IFBs) and consist of internal agency procedures more properly covered in Subpart 804-16 of the VAAM. The Proposed Rule adds a new Subsection, 814.201-2, Part I—The Schedule, to explain how award will be made on summary bids and bids on groups of items to ensure this is clear to the public. In Subsection 814.201-6, Solicitation Provisions, VA proposes to remove as unnecessary paragraph (a), which addresses bid envelopes, since labeling of bids is a customary and usual commercial practice, and the use of the Optional Form (OF) 17, which is optional, and is no longer a standard practice. The Proposed Rule proposes to redesignate paragraph (b) as (a) and to revise item (1) to prescribe new Provision 852.214-71, Restrictions on Alternate Item(s); item (2) to clarify the conditions for including the VAAR Provision 852.214-72, Alternate Items; and item (3) to prescribe the VAAR Provision 852.214-73, Alternate Packaging and Packing, when bids will be allowed based on different packaging and packing. VA also proposes to redesignate paragraph (c) as (b) and to add a prescription for VAAR Provision 852.214-74, Marking of Bid Samples. The Proposed Rule adds Section 814.202, General rules for solicitation of bids and Subsection 814.202-4, Bid samples, requiring samples to be from the manufacturer providing supplies or services under the contract. This ensures the products that are actually proposed and would be delivered under the contract, if awarded, are the products submitted for evaluation. Paragraph (g), requires bid samples be retained for the period of contract performance or until settlement of any claim the Government may have against the contractor. Retention is intended for inspection purposes under FAR 14.202-4(g)(4). The Proposed Rule deletes Section 814.203, Methods of Soliciting Bids, and Subsection 814.203-1, Transmittal to Prospective Bidders, as the practice specified of furnishing a bid envelope or sealed bid label is out of date with existing practices. VA proposes to delete Section 814.204, Records of Invitations for Bids and Records of Bids, as it contains instructions internal to VA and will be moved to the VAAM. The Proposed Rule also deletes Section 814.208, Amendment of Invitation for Bids as out-of-date with existing practices regarding sending amendments. In Subpart 814.3, Submission of Bids, VA proposes to delete Section 814.301, Responsiveness of Bids, since there is no authority to refer the question of timeliness to the U.S. Government Accountability Office (GAO) except in the context of a protest. The Proposed Rule also deletes Section 814.302, Bid submission, as duplicative of FAR 14.302(a) and therefore unnecessary. VA proposes to revise Section 814.304, Submission, Modification, and Withdrawal of Bids, to delete internal procedures, to stipulate a limited time period for a late bidder to submit evidence of timeliness, and to renumber this paragraph (f) accordingly to comport with FAR and VAAR numbering conventions. In subpart 814.4, Opening of Bids and Award of Contract, VA proposes to delete the entire subpart because the information is either redundant to the FAR and is adequately covered there or it is comprised of agency internal procedures to be incorporated into the VAAM, as noted specifically below. VA proposes to delete Section 814.401, Receipt and Safeguarding of Bids, because coverage in the VAAR is unnecessary as the FAR adequately covers. The Proposed Rule also deletes Sections 814.402, Opening of Bids; 814.403, Recording of Bids; 814.404, Rejection of Bids; 814.404-1, Cancellation of Invitations After Opening; 814.404-2, Rejection of Individual Bids; 814.407, Mistakes in Bids; 814.407-3, Other Mistakes Disclosed Before Award; and, 814.407-4, Mistakes After Award, as these are VA internal procedures and will be incorporated into the VAAM. VA also proposes to delete Section 814.404-70, Questions Involving the Responsiveness of a Bid, as there is no authority to refer questions of bid responsiveness to the GAO other than in the context of a protest, and, the overall responsibility for this determination rests with the contracting officer. Coverage in FAR 14.301, Responsiveness of Bids, is adequate and no further VAAR coverage is required. The Proposed Rule deletes Sections 814.408, Award, and 814.408-70, Award When Only One Bid is Received, because coverage in the VAAR is unnecessary as it is adequately covered by FAR 14.408-1(b). VA proposes to delete Section 814.408-71, Recommendation for Award (Construction) as these procedures are no longer in use within VA’s Office of Construction and Facilities Management. VA’s Proposed Rule also deletes Section 814.409, Information to Bidders, as unnecessary since the requirement not to disclose is contained in FAR part 3 and need not be duplicated in the VAAR. VAAR Part 822 – Application of Labor Laws to Government Acquisitions In Subpart 822.3, Contract Work Hours and Safety Standards Act, VA proposes revisions to Section 822.304, Variations, Tolerances, and Exemptions, to use plain language to state the conditions which must be met to permit use of the variation to Contract Work Hours and Safety Standards (the statute) (historically known as the Contract Work Hours and Safety Standards Act), granted by the Secretary of Labor regarding the payment of overtime under contracts for nursing home care for Veterans. VA also proposes revisions to Section 822.305, Contract Clause, to change the title of the Cause at VAAR 852.222-70 to Contract Work Hours and Safety Standards—Nursing Home Care for Veterans, in order to reflect the way the FAR refers to the historical titles based on the Positive Law codification. In Subpart 822.4, Labor Standards for Contracts Involving Construction, VA’s proposed revisions will remove and reserve Subpart 822.4, Labor Standards for Contracts Involving Construction, since this subpart contains procedural guidance on the types of labor standards involved in construction contracting, internal to VA and more appropriate for inclusion in the VAAM. The Proposed Rule also removes the underlying Section 822.406, Administration and Enforcement and Subsection 822.406-11, Contract Terminations, which falls under this subpart since it contains procedural guidance and will be moved to the VAAM. VAAR Part 852 – Solicitation Provisions and Contract Clauses VA’s Proposed Rule revises VAAR Clause 852.203-70, Commercial Advertising, to use plain language, remove gender-specific wording, and to clarify the intent to prohibit advertising which implies a Government endorsement of the contractor’s products or services. The Proposed Rule removes VAAR Clause 852.203-71, Display of Department of Veterans Affairs Hotline Poster, because VA will instead use FAR Clause 52.203-14, Display of Hotline Poster(s), as prescribed at FAR 3.1004. The FAR clause permits insertion of fill-in language to identify an agency’s hotline poster and VA will include language in its internal agency procedures detailing the requirement to insert the information regarding its agency specific hotline poster. The Proposed Rule also removes VAAR Provision 852.214-70, Caution to Bidders—Bid Envelopes, because the practices described within the provision are obsolete with the advent of posting on the Government-wide point of entry (GPE) via the Federal Business Opportunities (govor FBO.gov) Web page or via a linked interface off of FBO.gov. VA no longer issues Bid Envelopes or OF 17, Sealed Bid Label, described in the provision, when electronically posting IFBs, thus making the provision obsolete and unnecessary. VA’s Proposed Rule also revises the individual prescription references for the following clauses based on the restructuring of 814.201-6: 214-71, Restrictions on Alternate Item(s); 852.214-72, Alternate Item(s); and 852.214-73, Alternate Packaging and Packing. The Proposed Rule further revises the title, text and prescription language of VAAR Provision 852.214-74 which now reads, Bid Samples, to Marking of Bid Samples to describe better what the provision is about and to distinguish it from a FAR provision called “Bid Samples.” VA uses plain language to describe the principal purpose, which is to ensure bidder’s packages including bid samples are clearly marked and identified with the words Bid Samples, as well as complete lettering/numbering and description of the related bid item(s), the number of the IFB, and the name of the bidder submitting the bid samples. VA’s Proposed Rule also removes language stating the preparation and transportation of the bid sample must be prepaid by the bidder as this language is unnecessary because FAR Clause 52.214-20, Bid Samples, already contains language covering the bidder’s responsibilities in this regard. Further, the prescription language for VAAR Provision at 814.201-6(b) which was renumbered to comport with FAR and VAAR numbering and arrangement will also be revised. Lastly, VA’s Proposed Rule revises VAAR Clause 852.222-70, Contract Work-Hours and Safety Standards Act—Nursing Home Care Contract Supplement, to change the title to Contract Work Hours and Safety Standards—Nursing Home Care for Veterans, to better reflect the substance and coverage of the clause and to align the name of the clause with the revised current reference in lieu of the historical title of the act. This revision will also clarify the clause has flow-down requirements and applies to subcontractors at any tier when the stated conditions in the VAAR clause are met. The Proposed Rule may be viewed in its entirety in the Federal Register by clicking here. About the Author: Wayne Simpson Consultant Wayne Simpson is a seasoned former Federal executive and acquisition professional who is also a highly-motivated and demonstrative small business advocate, with nearly 38 years of Federal Civilian Service with the U.S. Department of Veterans Affairs (VA), and its predecessor organization, the Veterans Administration. The post Proposed Rule VAAR appeared first on Centre Law & Consulting. View the full article
  14. “NAICS 2017” Revisions

    On April 18, 2017, the U.S. Small Business Administration (SBA) published a proposed rule in the Federal Register to amend its regulations to adopt and incorporate the U.S Office of Management and Budget’s (OMB) North American Industry Classification System (NAICS) revisions for 2017, identified as “NAICS 2017.” SBA proposes to adopt the updated table of size standards effective October 1, 2017, to coincide with beginning of the government’s next fiscal year. NAICS 2017 creates 21 new industries by reclassifying, combining or splitting 29 existing industries under changes made in “NAICS 2012.” SBA’s proposed size standards for the 21 new industries have resulted in an increase in size standards for six NAICS 2012 industries and part of one, a decrease to size standards for two, a change in the size standards measure from average gross annual receipts to average number of employees for one industry. There are no changes for 20 industries and part of one. SBA included six tables in its proposed rule showing the changes, which occur in the following NAICS Sectors: 21, Mining; 33, Manufacturing; 45, Retail Trade; 51, Information; 53, Real Estate and Rental Leasing; 54, Professional, Scientific, and Technical Services; and 72, Accommodation and Food Services. We recommend consulting these tables if your business is engaged in one of these NAICS Sectors to determine if your business is impacted by the changes. A note to large business prime contractors with Small Business Subcontracting Plans: These changes could also impact the size status of your suppliers and subcontractors which may impact your ability to meet your Small Business Subcontracting Goals. Why are NAICS Codes Important to Federal Contractors? NAICS classifies business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. economy. NAICS Industry Codes define establishments based on the activities in which they are primarily engaged. NAICS Codes are important in the conduct of U.S. Government procurements, as a NAICS Code is assigned to each procurement by the procuring contracting officer. NAICS Codes have a size standard assigned by SBA which will determine whether a business is small or other than small (large) business in response to a government procurement. Companies may be a small business under one NAICS Code, and other than small (large) business under another. Click here to view SBA’s Size Standards Table, updated February 26, 2016. The corresponding size standard to a NAICS Code assigned by the contracting officer to a government procurement is especially important when the procurement is conducted using a set-aside for small business, as it will determine a company’s eligibility to participate under a small business set-aside. More Information on NAICS Codes Visit the U.S Census Bureau’s North American Industry Classification System website where you can use their useful tool to search NAICS by key word, sector, or NAICS Code: https://www.census.gov/eos/www/naics/ About the Author: Wayne Simpson Consultant Wayne Simpson is a seasoned former Federal executive and acquisition professional who is also a highly-motivated and demonstrative small business advocate, with nearly 38 years of Federal Civilian Service with the U.S. Department of Veterans Affairs (VA), and its predecessor organization, the Veterans Administration. The post “NAICS 2017” Revisions appeared first on Centre Law & Consulting. View the full article
  15. VA Issues Fiscal Year 2017 Small Business Goals

    Small Business Contracting Goals for “Manageable Spend” On May 25, 2017, with only 128 days remaining in Fiscal Year 2017, the Secretary of Veterans Affairs issued VA’s Fiscal Year 2017 small business goals. This is actually an improvement over when the Fiscal Year 2014 goals were issued with only 38 days remaining in the fiscal year. Fiscal Year 2014 was the last time the Secretary of Veterans Affairs issued a Small Business Goaling Memorandum. In response to a May 24, 2017, Freedom of Information Act request for VA’s Fiscal Year 2015, 2016, and 2017 Secretary of Veterans Affairs Goaling Memorandums, VA provided a copy of the Fiscal Year 2017 Secretary’s Goaling Memorandum, along with a no responsive records response for copies of the Fiscal Year 2015 and Fiscal Year 2016 Secretary’s Small Business Goaling Memorandums. A no responsive records response can only mean the VA Secretary did not issue the annual goaling memorandum for those years. VA’s Office of Small and Disadvantaged Business Utilization, an organizational element of the Office of the Secretary, is responsible for preparing and coordinating the Secretary’s annual small business goaling memorandum. It appears this was not done for Fiscal Years 2015 and 2016. The VA Secretary’s Fiscal Year 2017 Small Business Goaling Memorandum makes it official: VA’s department-wide goals for Service-Disabled Veteran-Owned Small Business (SDVOSB) and Veteran-Owned Small Business (VOSB) remain at 10% and 12%, respectively. These goals have been flatlined since Fiscal Year 2010, despite VA substantially exceeding the goals each year. Interestingly, the VA Secretary’s Fiscal Year 2017 Small Business Goaling discusses a Fiscal Year 2016 piloted effort to concentrate on spend areas where active goals management is most likely to produce results. VA identified “manageable spend” areas based on VA-funded contract actions, but excluded major health care contracts, large-dollar major construction actions, and mandatory domestic delivery service contracts under the Federal Strategic Sourcing Initiative. Since no goaling memorandum was issued by the Secretary in Fiscal Year 2016, it is unlikely many people outside VA would have known of this change. VA’s Fiscal Year 2017 Small Business Goals are established at the statutory level for Women-Owned Small Business (5%), Small Disadvantaged Business (5%), and HUBZone Small Business (3%). VA’s Small Business goal was reduced from 32% last fiscal year, to 28.5% for Fiscal Year 2017. The Secretary’s memorandum also establishes VA’s Fiscal 2017 subcontracting goals. VA decreased its small business subcontracting goal from 17.5% to 17.0%, while increasing the goals for Service-Disabled Veteran-Owned Small Business and Veteran-Owned Small Business by 2%, from 5% and 3%, respectively, to 7% and 5% respectively. About the Author: Wayne Simpson Consultant Wayne Simpson is a seasoned former Federal executive and acquisition professional who is also a highly-motivated and demonstrative small business advocate, with nearly 38 years of Federal Civilian Service with the U.S. Department of Veterans Affairs (VA), and its predecessor organization, the Veterans Administration. The post VA Issues Fiscal Year 2017 Small Business Goals appeared first on Centre Law & Consulting. View the full article
  16. Employees are expensive. It’s little surprise market forces incentivize companies to search for a way to get the same work out of people without paying for holidays, accommodating disabilities, and paying overtime, among countless other requirements. Imagine if you could save all this money within the law and avoid the risk of employment discrimination lawsuits. With all these savings your company could lower the price of your services/goods and edge out the competition. Figure out how to replace the lion’s share of your workforce as independent contractors and you could be living the dream, right? Well, if your current company is currently staffed entirely by “independent contractors,” then madam/sir I am happy to meet with you to discuss both your unique staffing model and your likely immediate need for outside legal services. Very rare is the government contractor that truly has “no employees” (though we’ve seen a few try). That said, statistics show that there are currently an estimated 40 million independent contractors in America. Clearly not everyone who takes money from you in exchange for a service should be called your employee. But where is the line between my contracting with a freelance plumber and a commercial company drawing billions in revenue from hundreds of thousands of its drivers? As we’ve discussed in prior blog posts, the government contracts industry is rife with the use (and abuse) of independent contractor status; and federal regulators have been tightening the screws on the use of the status. This past year, arguably more than ever, the courts and legislators across the country are wrestling with the employee/independent contractor distinction with messy results. Federal courts have increasingly grown skeptical of massive independent contractor agreements but don’t seem sure how to address it given the long precedent defining the relationship. One way is to decrease the incentives of an independent contractor relationship like the 1st Circuit recently did in Oliveira v. New Prime, Inc., restricting the use of mandatory arbitration agreements on independent contractors. In California, the court forced an extra $15 million out of Lyft in a settlement agreement designed to avoid the costly test of their independent contractor classification. Coast to coast, states are trying to get a handle on independent contractors too. New York’s recent “Freelance Isn’t Free Act” requires that all entities that engage a freelance worker for $800 or more in services execute a written agreement. Where Nevada is attempting to tackle the problem industry by industry rather than with general rules. Not everyone wants to put breaks on the independent contractor train though. Alaska and Florida have more clearly defined boundaries in favor independent contracting status, though it may just add problems for employers still wrestling with federal regulations on the same issues. Perhaps the most hopeful part of the confused situation, is this wide variation in responses. There will certainly continue to be growing pains as the legal standards develop, but the unique effects of these policies may offer a chance to evaluate which can keep independent contractor status alive and appropriately limited. 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 America’s Continuing Independent Contractor Conundrum appeared first on Centre Law & Consulting. View the full article
  17. Fixed Costs for Rental Space Survives Challenge

    Recently, in the matter of SK Hart Properties LLC, the unsuccessful incumbent contractor for the General Services Administration’s office in Salt Lake City protested the Agency’s decision to use a “fixed tenant improvement allowance.” At its heart, the contractor submitted it does not need the full amount listed for improvements in the solicitation for the contract because its space is relatively prepared for the Agency to use as is. Because the incumbent contractor would not charge the Agency the full amount allowed to alter the space, assuming they will increased their bid price above the competitor, who had a lower base rate of rent but arguably needs closer to the full amount to meet the Agency’s needs. The incumbent failed to win either the award or the protest, despite arguing the procurement artificially increased their bid price by requiring it to claim expenses they would not incur. The GAO sided with the Agency who agreed the funds may not actually be spent, but that not including a fixed allowance would unjustly allow the incumbent to rely on improvements to their space previously paid for by the government. No mandate required the Agency to eliminate advantages held by the incumbent, but their decision to do so is permitted. This form of pricing also allowed the Agency to focus on the rental rate, without worrying if proposed improvement costs were correct. The decision offers a unique example of the GAO attempting to foster competition under the Competition in Contracting Act, even if it results in increased costs to the government. 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 Fixed Costs for Rental Space Survives Challenge appeared first on Centre Law & Consulting. View the full article
  18. You are still at risk of Government oversight/review even if you fall below the threshold for the Contractor Purchasing System Review (CPSR).1 While, CPSR is a total business system review, there is a series of other Government activities that will look into your procurement business processes. Some of these other activities include; proposal analysis, interim payment reviews, incurred cost submissions, and compliance reviews with DFARS business system clauses. Proposal analysis by the Government can include subcontracted effort, especially when cost analysis is performed. Your procurement procedures on solicitation, cost/price analysis, competition, flow down requirements, procurement file organization and others will form the basis for developing and documenting the information the Government will want to review. Does your current documented process produce adequate analysis and documentation to support your proposals? Interim payment reviews start in with your Accounting Department’s invoice, but can quickly move to the Procurement Department for backup on subcontract billing terms, invoice review and approval, evidence of adequate funding, basis for indirect billing rates and subcontractor hours and timesheets. What do your post-award administration procedures say about administration of payments to subcontractors, and do your records support your due diligence when approving subcontractor invoices? The annual incurred cost submission (ICS pronounced “ICE”) seems like a cost accounting exercise, but the Government auditors will find their way into procurement records! In addition to the due diligence of invoice review in the preceding paragraph, be prepared to provide closeout documentation that supports; successful completion of subcontracted work, proper subcontract final billing/payment, and deobligation of excess funds. Do you procurement procedures cover when and how these steps will be taken? Do you know where the documentation is located? The DFARS clause 252.244-2001, Contractor Purchasing System Administration, isn’t just for the big guys. The DFARS clause will be included in all defense contracts containing FAR 52.244-2, Subcontracts. This FAR clause can be found in cost-reimbursement contracts and most other contracts exceeding the simplified acquisition threshold, currently $150,000. The one break you may get is DFARS 252.242-7005, Contractor Business Systems, (this is the one that requires withholds for “significant deficiencies”) only goes in your contract if you are subject to Cost Accounting Standards.2 The DFARS 252.244-2001 clause lists 24 system criteria, covering what Defense Contract Management Agency sees as 29 major purchasing areas. These areas cover everything from make or buyer decisions, funding authorization, solicitation, competition, cost/price analysis, small business, and all other points up through and including closeout!3 Are your company policies, procedures and records up to the task of proving you meet the requirements of this business system clause? As you can see, just because you fall below the radar for a formal CPSR, you are not off the hook! You are still vulnerable for withholds, delayed payments, cost disallowance, and poor performance ratings effecting new awards. The best protection against these vulnerabilities is good procedures that adequately cover requirements, and a well trained staff that documents compliance with your procedures. 1 On October 7, 2016, DCMA executed a Class Deviation raising the CPSR threshold to $50M effective through December 31, 2017. The rationale is the current $25M threshold has not changed since 1996. 2 However, the Contracting Officer can still take measures to protect the Government’s interest if problems are thought to exist within your procurement system. 3 See DCMA CPSR Guidebook About the Author Jack Holt Jack R. Hott has more than four decades of experience as a contracts professional in Government and the private sector. The post Too Small For Contractor Purchasing System Review? You’re Still at Risk! appeared first on Centre Law & Consulting. View the full article
  19. SBA Adopting the 2017 NAICS Size Standards

    The U.S. Small Business Administration (SBA) is amending its small business size regulations to incorporate the NAICS revision for 2017. The proposed rule was issued by the SBA on April 18th and is currently open for comments until June 19th. The NAICS changes for 2017 include the creation of 21 new industries. These new NAICS codes were created from combining, reclassifying, or splitting 29 existing industries. The new NAICS codes have resulted in an increase to the size standards for six NAICS industries and a part of one industry, a decrease to size standards for two, and a change in the size standards from average annual receipts to number of employees for one. When determining these size standards changes for NAICS codes, the SBA uses the following process: If the new NAICS code is comprised of a single NAICS 2012 industry, the same size standard is used. If a new NAICS code is a combination of two or more NAICS 2012 industries or parts of those industries and: The industries all have the same size standard, the new NAICS will have the same size standard. The industries all have the same size measure, but not the same size standard, the new NAICS will use the same size standard for the NAICS 2012 that most closely matches the economic activity or the highest size standard. The industries have different size measures, SBA will use the NAICS 2012 industry that most closely matches the economic activity or the highest size standard amount NAICS 2012 industries. In this situation, the SBA coverts all size standards to single measure such as receipts or employees. A few of the industries effected by this change include crude petroleum extraction, natural gas extraction, mining, major household appliance manufacturing, department stores, electronic shopping, and others. You can find the full list located at the Federal Register. These changes are proposed to be adopted effective 10/1/17 or at the beginning of the fiscal year. Get your comments in while you can! About the Author Colin Johnson Contracts Manager Colin Johnson is a Contracts Manager who focuses on business development and federal contracts management. His expertise is in preparing quotes and responses for both government and commercial entities for training and legal support services. The post SBA Adopting the 2017 NAICS Size Standards appeared first on Centre Law & Consulting. View the full article
  20. A single weak link in a contractor’s proposal resulted in its highly praised proposal losing to one with fewer evaluated strengths. Seeking mission support services in its work to counter improvised threats, such as IEDs and other homemade explosives, the Joint Improvised-Threat Defense Organization (JIDO) recently issued a task order for subject matter expertise. Its award drew a protest from Sev1Tech, Inc. challenging JIDO’s choice of Amyx, Inc. for the task order. When evaluating the contractors’ proposals, JIDO stressed it was seeking a coherent discussion of how the offeror proposes to meet its requirements rather than a restatement of the requirements or a listing of what it proposes to do. The protesting contractor received heaps of praise for most of its methodologies, with the final evaluation resulting in Sev1Tech having nine strengths compared to Amyx’s six strengths. However, the lack of detail on just one technical requirement snowballed into a worry that the hypothetical flaw would negate all of Sev1Tech’s noted strengths. JIDO decided Sev1Tech had only provided general statements regarding what it was proposing to do to satisfy a specific technical requirement. As a result, the agency found that it was unclear how the protester would satisfy the requirements of the solicitation and assigned a “significant weakness” to the element in its evaluation. Even with this weakness, Sev1Tech still retained more strengths in its proposal, but the agency feared the risk of a flaw in this single section would compromise the entire task order. The protester insisted its technical rating was evaluated too low, given the numerous positive comments found in the evaluation, and that the awarded contractor’s evaluation was too high due to missing programs in its proposal. The General Accountability Office denied the protest after finding JIDO’s demand for details formed a reasonable basis to assign the technical rating. It also ruled the missing programs were not required in the solicitation and, therefore, could not be considered a material term. In sum, the decision should serve as a cautionary tale for providing not just what a contractor can perform, but exactly how it plans to do so. 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 Protest Denial Stresses Need of Detail in Proposal Methodologies appeared first on Centre Law & Consulting. View the full article
  21. Say what one will about our still-new President (and I will), there appear to be very few among the chattering class who hold a “neutral” view about him. A little over 100 days into his administration and certain corners are already routinely beating the drum of impeachment. And the ink spilled over the Comey firing and recent reports concerning what was either a benign discussion of known intelligence information (from one perspective) or the revealing of “highly classified information” to his Russian puppet masters (from another) suggest that the fever pitch of commentary is not going to be lowering in volume any time soon. And yet, if one sets both ends of the partisan hyperbole aside, a funny thing appears to be happening on the way to the dumpster fire which is purportedly the Trump Administration – governance. For example, while conservatives may be chafed by having to accept Alexander Acosta in lieu of the more ideologue burger exec Andrew Puzder at the head of the Department of Labor, the much maligned “Fair Pay and Safe Workplaces Executive Order” is already history. Many expect that the even more maligned, revised and expanded EEO-1 form (requiring reporting of pay data) is likely to end up in the dust bin this summer. Similarly, the legislative wrangling around the Affordable Care Act continues apace as well. On judicial appointments, seen by many as one of the signature issues of the campaign, Trump is also widely perceived as delivering on his promises. With the judicial filibuster having been “nuked” to clear the path for Neil Gorsuch to join the U.S. Supreme Court, Trump has been active in identifying slates of candidates for lower court benches. Last week, the White House announced Trump’s “third wave” of judicial appointments (following Gorsuch and the nomination of Judge Amul R. Thapar of Kentucky to serve as a Circuit Judge on the U.S. Court of Appeals for the Sixth Circuit). Notably, two of the ten nominees – Professor Amy Coney Barrett of Notre Dame University Law School and Justice Joan Larsen of the Michigan Supreme Court – are former law clerks of the late-Justice Antonin Scalia, and another – David Stras of the Minnesota Supreme Court – was a clerk for Justice Clarence Thomas. Of course, not everyone is pleased with the selections, but we do seem to have come a long way from thoughts of nominating his sister to the high court. While I’m not one to believe that Trump (or his predecessor for that matter) is a master of three-dimensional political chess, which the rest of us rubes simply can’t comprehend, sometimes the allegedly oncoming dumpster fire or ill-conceived tweet looks an awful lot like “stray voltage.” Or, rather, business as usual in Washington, D.C. 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 Dumpster Fire, Constitutional Crisis, or Perhaps Just Business as Usual appeared first on Centre Law & Consulting. View the full article
  22. Photo Finish Bid Decision Survives Protest

    In its May decision, the Government Accountability Office (GAO) denied a bid protest despite agreement that the contract award was all but a tossup. After a three year phased acquisition competition between two contractors for the design of radio detection software used in the U.S. Air Force Special Operations Command aircraft, neither contractor had pulled far ahead of the other. The lack of distinction came even with a complicated and detailed evaluation. From the two factors considered, the Agency assigned ratings for the five different elements of two different sub-factors. All of this just to finish with identical ratings. Both contractors drew “moderate” concern for some of the incomplete portions of the designs, but ultimately the Source Selection Advisory Council (SSAC) leaned toward Northrop Grumman over BAE. In preparing their recommendation, the SSAC admitted, “We do recognize that a different body of stakeholders with similar experience and knowledge could reach an entirely different recommendation based on the same data.” As predicted, a different body did reach another conclusion. The Source Selection Authority (SSA) rejected the recommendation. While the SSA agreed the Northrop Grumman design was likely more advanced and impressive, it “does the warfighter no good until it can be integrated onto their aircraft.” The SSA cited less risk with completion of the BAE design and the small savings in cost for its decision to instead award BAE. The GAO ruled the SSA’s preference, for one in the hand over two in the bush, was a justifiable reason to reject the SSAC’s recommendation. Northrop Grumman focused a large portion of its protest explaining the perceived risks were very short term and therefore not a justifiable reason to discredit the benefits of their design acknowledged by the SSA and SSAC. The GAO refused to decide how the risk should have been evaluated, instead stating the SSA’s concern was not unreasonable and therefore the protest must be denied. 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 Photo Finish Bid Decision Survives Protest appeared first on Centre Law & Consulting. View the full article
  23. The Ninth Circuit recently ruled in Rizo v. Yovino that a female’s prior salary can be a “factor other than sex,” thus justifying a pay disparity between comparable male and female employees for purposes of the Equal Pay Act. The plaintiff was an employee of the public schools in Fresno County, California. Upon discovering that the County paid her less than her male counterparts for the same work, she brought an action against the County under the Equal Pay Act. The County conceded that it paid the plaintiff less than male employees but argued that the pay differential was based on the plaintiff’s prior salary. Under the Equal Pay Act, there are four exceptions that permit a wage disparity; one of those exceptions is “a differential based on any other factor other than sex.” In determining that prior salary alone can never qualify as a factor other than sex, the district court reasoned that “a pay structure based exclusively on prior wages is so inherently fraught with the risk…that it will perpetuate a discriminatory wage disparity between men and women that it cannot stand, even if motivated by a legitimate non-discriminatory business purpose.” In vacating the district court’s order, the Ninth Circuit held that an employer may base its pay differential on prior salary so long as its use effectuated some business policy and the employer reasonably used it in light of its stated purpose and other practices. The Ninth Circuit remanded the matter back to the district court to evaluate the employer’s business reasons in setting the salaries. Therefore, in essence, the Ninth Circuit has held that an employer may perpetuate existing pay disparities so long as it is part of a company’s business policy. However, this case has the potential to go to the U.S. Supreme Court as other appeals courts have decided this issue differently. 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 Ninth Circuit Rules Employer Can Pay Female Employee Less Based on Prior Salary appeared first on Centre Law & Consulting. View the full article
  24. In a recent ruling, the Federal Circuit in Dellew Corporation v. United States reversed a legal fees award to a contractor because the agency had taken corrective action on the bid protest before it was decided in court on the merits. In initially awarding the fees and costs, the Court of Federal Claims found that comments it made during the hearing and prior to the Government taking corrective action materially altered the position of the parties so that the contractor qualified as a “prevailing party” under the Equal Access to Justice Act (EAJA), a requirement under the statute for the Court to award fees and costs. Specifically, the Court of Federal Claims focused on certain comments it made during the parties’ oral arguments. The Court stated that it provided “hints” about its views favorable to the contractor on the merits and told the parties that it had drafted an opinion. The Court of Federal Claims also repeatedly expressed its belief that corrective action would be appropriate. As a result, the Government agreed to take corrective action and the bid protest was dismissed as moot. The contractor subsequently sought attorney fees and costs under the EAJA. In awarding nearly $80,000 in fees and costs, the Court of Federal Claims held that it, in making substantive comments during the oral argument regarding the merits of the case, the Court materially altered the relationship between the parties such that the contractor qualified as a prevailing party under the EAJA. However, in reversing the fee award, the Federal Circuit held that the contractor was not a prevailing party as required by the EAJA because the Government voluntarily took the corrective action and the Court’s comments about the merits of the case made during the hearing did not constitute sufficient grounds to convey prevailing party status. Therefore, the Federal Circuit reversed the fee award of nearly $80,000. 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 Reverses $80,000 Fee Award in Bid Protest appeared first on Centre Law & Consulting. View the full article
  25. The Department of Veterans Affairs (VA) has come under intense scrutiny from Congress, Veterans, and taxpayers in recent years in large part due to its patient wait time scandal. The first bills to pass the U.S. House of Representatives in the current 115th Congress included The Ensuring VA Employee Accountability Act. The Congress.gov website has numerous current bills pending pertaining to VA accountability, and there was no shortage of proposed accountability legislation in the 114th Congress. Now the President has weighed in as well. On April 27, 2017, President Trump traveled across Lafayette Park from the White House to the VA Central Office to sign Executive Order (EO) 13793, “Improving Accountability and Whistleblower Protection at the Department of Veterans Affairs.” The intent of the EO is to improve accountability and whistleblower protection at VA. It directs the Secretary of Veterans Affairs to establish an Office of Accountability and Whistleblower Protection and to appoint a special assistant to serve as the office’s Executive Director. This new office must be established within 45 days of the EO (therefore, by June 11, 2017), and VA must provide funding and administrative support “consistent with applicable law and subject to the availability of appropriations.” The VA Office of Accountability and Whistleblower Protection shall advise and assist the Secretary in using, as appropriate, all available authorities to discipline or terminate a VA manager or employee who has violated the public’s trust and failed to carry out his or her duties on behalf Veterans and to recruit, reward, and retain high-performing employees. In addition, the office will identify statutory barriers to the Secretary’s authority to discipline or terminate any employee who has jeopardized the health, safety, or well-being of a Veteran, reporting such barriers to the Secretary for consideration as to the need for legislative changes. Finally, the VA Office of Accountability and Whistleblower Protection is charged with the responsibility to work closely with VA components to ensure swift and effective resolution of Veterans complaints of wrongdoing at VA, ensure adequate investigation and correction of wrongdoing at VA, and protect employees who lawfully disclose wrongdoing from retaliation. The EO does provide the Secretary with some flexibility in establishing the VA Office of Accountability and Whistleblower Protection. The Secretary may consider whether some or all of the functions are currently performed by an existing VA office, component, or program and to determine if certain administrative capabilities necessary to operate the office are redundant. Additionally, the Secretary may consider whether combining VA’s Office of Accountability and Whistleblower Protection with another VA office, component, or program may improve VA’s efficiency, effectiveness, or accountability. A copy of EO 13793 was published in the Tuesday, May 2, 2017, edition of the Federal Register. About the Author: Wayne Simpson Consultant Wayne Simpson is a seasoned former Federal executive and acquisition professional who is also a highly-motivated and demonstrative small business advocate, with nearly 38 years of Federal Civilian Service with the U.S. Department of Veterans Affairs (VA), and its predecessor organization, the Veterans Administration. The post Executive Order for More Accountability at Department of Veterans Affairs appeared first on Centre Law & Consulting. View the full article
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