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  1. 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
  2. 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
  3. 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
  4. 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
  5. 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
  6. 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
  7. 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
  8. 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
  9. Last week, the Government Accountability Office (GAO) released the public version of its decision sustaining the protest of contractor A-P-T Research, Inc. with respect to a procurement with the National Aeronautics and Space Administration (NASA) for various support services. In addition to a potential impaired objectivity organizational conflict of interest, the protest was sustained because the awardee’s proposed professional compensation was at the low end of the experience and compensation scales used for evaluation. With that, the contemporaneous record lacked a reasoned basis for finding the professional compensation and related costs to be acceptable or realistic. Because a cost-reimbursement contract’s cost is driven in significant measure by labor costs, the procuring agency is required to evaluate each offeror’s direct labor rates to ensure that they are realistic. The purpose of a review of compensation for professional employees under the provision at FAR § 52.222-46 is to determine whether offerors will obtain and keep the quality of professional services needed for adequate contract performance and to evaluate whether offerors understand the nature of the work to be performed. As the FAR provision states, the “professional compensation proposed will be considered in terms of its impact upon recruiting and retention, its realism, and its consistency with a total plan for compensation.” Further supporting information including “data, such as recognized national and regional compensation surveys and studies of professional, public, and private organizations, used in establishing the total compensation structure” are to be provided. In brief, the Agency sustained the protest because “the record contains no meaningful explanation of how [NASA] concluded that [the awardee] would be able to retain” the proposed incumbent employees at the compensation offered, which would result in significant pay decreases. Rather, the record contained only general statements that concerns regarding compensation had been addressed via discussions. Notably, the Agency did not express a view on the argument that FAR § 52.222-46 requires a direct comparison of proposed compensation and actual incumbent compensation rates. However, it is clear that under-cutting on professional salaries can be a dangerous gambit. 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 “Professional Compensation” Sinks Contract Award appeared first on Centre Law & Consulting. View the full article
  10. Trump Administration Begins Government Shutdown Preparations Negotiators are hard at work behind the scenes this week trying to reach a budget agreement that will keep government agencies open, but the Trump administration has begun preparing for a shutdown that could begin on April 29, barring any congressional action. Representatives on both sides of the aisle are hopeful about reaching an agreement that would fund all agencies through the end of the fiscal year in September, but the Trump Administration could stand firm on its funding priorities, which would make an agreement more difficult. Perhaps one of the biggest issues is “The Wall.” Trump has asked for an extra $33 billion to go toward the U.S.-Mexico border wall with increased immigration enforcement. Democrats seem to have no issue with shutting down the government if the spending bill includes this funding, and Republicans appear to not want to risk calling their bluff, indicating “they would deal with the administration’s supplemental request separately from the regular appropriations bill,” according to Government Executive. There will of course be give and take, deal-making and trading going on behind the scenes. I guess we’ll have to wait and see how things shake out on April 29. Read the full story on Government Executive. DOJ and GSA Work to Build New Government-Wide FOIA Portal Coming soon to a computer near you: a single streamlined website where you can submit Freedom of Information Act requests to any agency. Well, that’s at least what the Department of Justice (DOJ) and General Services Administration (GSA) are working to achieve as they collaborate together on a new national portal. The DOJ has actually been working towards a single portal since 2010 when it introduced FOIA.gov and began working with GSA on small improvements to the site back in 2014. This new partnership hopes to introduce a new singular portal. You are encouraged to provide input about your FOIA experiences as the agencies work through the development process. Send an email with your comments to National.FOIAPortal@usdoj.gov by April 28. Read the full story on the Nextgov website. Trump Signs EO to Bolster “Buy American” Laws President Trump signed a new Executive Order (EO) that focuses on buying American products. Under the EO, agencies must complete a full review of their procurement procedures to assess their compliance with “Buy American” laws. A report of their findings is due to the Secretary of Commerce and Office of Management and Budget (OMB) within 150 days. A final report will go to the President within 220 days along with recommendations for how to better implement Buy American laws. Read the full story on the White House website. Hard Knocks for GSA’s Transactional Data Reporting Program The General Services Administration (GSA) has been taking a lot of hits recently on their new Transactional Data Reporting (TDR) program. Harsh criticism has been coming from all directions, and government contracting consultants have strongly advised their clients not to take part in it. If you’re unfamiliar with TDR, it’s a program that allows contractors to provide data about transactions made through their Schedule contracts in exchange for not having to follow the Price Reduction Clause (PRC) and the Commercial Services Practices (CSP) provision. Contractors have been rallying for years to change the PRC. While they were happy to see GSA making changes, the concern over TDR has continued to grow since it was unveiled. You’ve got to give credit to the GSA Deputy Commissioner of the Federal Acquisition Service, Kevin Youel Page, though. Instead of staying silent and steadfast, he’s ready to hear contractors’ concerns and take action to address the issues. The TDR program management office even set up an email address where anyone can send in questions or concerns. Meanwhile, some within the industry are already debating the long-term viability of the TDR program. So far, GSA has only announced a three-year pilot and no public support has come from the Trump administration. Read the full story on Federal News Radio’s website. 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 Government Shutdown Deadline Looms While GSA Takes It on the Chin Over TDR Program appeared first on Centre Law & Consulting. View the full article
  11. In a recent GAO decision, Boise Cascade Wood Products, LLC, B-413987.2 (Apr. 3, 2017), the GAO denied a small business’ request for reimbursement of the costs of filing and pursing a bid protest where the protester argued that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest. In this matter, the protester pursued a protest against the Forest Service, which involved both a timber sale and a procurement of services. Specifically, the Forest Service issued a solicitation for a forest stewardship contract, which typically also involves the sale of timber or forest products and the performance of certain services. What gives this decision its interesting twist is that the Forest Service’s implementing regulations provide that when the value of timber removed through the contract exceeds the total value of the services, it shall be considered a contract for the sale of property. As a general matter, sales by a federal agency are not procurements of property or services and are not within the GAO’s bid protest jurisdiction. However, the GAO will consider protests concerning sales by a federal agency if that agency has agreed in writing to have protests decided by the GAO; the Forest Service has expressly agreed to this, creating a non-statutory agreement with the GAO. In this case, as the value of the timber significantly exceeded the value of the services, the agency determined to solicit the contract as a timber sale. As such, the GAO found that the cost reimbursement request was precluded by its regulations, which establish that it will not recommend the payment of protest costs in connection with non-statutory protests. 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 Costs for Filing Bid Protest Denied Even When Agency Does Not Dispute a Meritorious Protest appeared first on Centre Law & Consulting. View the full article
  12. Spring Cleaning for Your GSA Schedule

    As spring approaches, it’s the time of year when we are all busy dusting off and cleaning up around the house, but do not forget to spruce up your General Services Administration (GSA) Schedule contract as well. Below are key items to consider when spring cleaning your GSA Schedule: Authorized Negotiators/Digital Certificates: Have you reviewed the authorized negotiators on your GSA Schedule recently? If any authorized negotiators need to be removed or added, this can be completed via an administrative modification. Has it been two years since your received your digital certificate or did you get a new computer recently? It is important to check that your digital certificate is still valid and is on your current computer. Without a digital certificate, an authorized negotiator will not be able to access the eMod system. If the information on your digital certificate does not match what is listed in the authorized negotiator table in eMod, you will need to complete an administrative modification to make the updates. NOTE: Digital Certificates are only valid for two years. Administrative Contract Data: Ensure that the Contract Administrator, phone and fax number, e-mail address, website, and physical address are up-to-date on your contract. GSA will use this information to communicate with you, so you do not want to miss out on important updates. Pricing – Commercial Price List: Have you issued a new commercial price list and need to increase your prices? It is time to complete an Economic Price Adjustment (EPA) modification in accordance with 552.216-70. Pricing – Market Rates: Have your completed your annual EPA modification in accordance with I-FSS-969(b)(2)? If not, it is time to review the Bureau of Labor Statistics (BLS) website to find the market indicator applicable to your contract and request an EPA modification. Additions: Do you have new products or services that you want to add to your GSA Schedule? If you have sold these new products or services, it is time to submit an addition modification to include these new products and/or services on your Schedule. Deletions: Are there any products or services that you no longer offer? It is time to complete a deletion modification to remove these products or services from your schedule. If you have products, have you verified the Country of Origin (COO) for them lately? If the COO has changed to a non-Trade Agreement Act compliant country, you must submit a deletion modification to remove those products immediately. Terms & Conditions: Have your reviewed your terms and conditions within the last year? It is important to evaluate your Basis of Award (BOA) and Commercial Sales Practices (CSP) annually to determine if there have been any changes. Reviewing this information annually will help prepare you for your Option Renewal. If anything has changed in regards to your BOA or CSP, it’s time to complete a term and condition modification. GSA Advantage! Price List: Is your GSA Advantage! price list up-to-date? Ensure that your price list has been updated per the last modification awarded under your GSA Schedule. If you have not updated your price list in two years, you will receive a notice from GSA that will require action within 90 days or your price list will be removed from GSA Advantage. Mass Modifications: Have you checked to ensure that all mass modifications have been accepted? Click here to verify their status. If you have long outstanding mass modifications, it is possible that your PIN has expired. You will need to reach out to your Administrative Contracting Officer (ACO) to obtain a new PIN. Small Business Reports: If you are a large business, ensure that all of your subcontracting reports are submitted. Below are the reporting deadlines for both Individual Small Business Subcontracting Plans and Commercial Small Business Subcontracting Plans. Calendar Period Report Due Date Due 10/01 – 03/31 ISR (Individual Plan) 04/30 04/01 – 09/30 ISR (Individual Plan) 10/30 10/01 – 09/30 SSR (Commercial Plan) 10/30 IFF Reports: Are all of your Industrial Funding Fee (IFF) reports complete? Reports and IFF remittance must be completed within 30 calendar days following the completion of each reporting quarter. Even if you had zero sales during the reporting period, you are still required to complete your reports. Before completing any modifications to clean up your GSA Schedule, review the modifications instructions applicable to your schedule to ensure that you submit all required documentation. If you need assistance updating your contract, reach out to our GSA consulting team. Download Now 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 Spring Cleaning for Your GSA Schedule appeared first on Centre Law & Consulting. View the full article
  13. Tune in tonight, Wednesday April 19, at 8:00pm and 11:00pm to the Government Matters show on NewsChannel 8 in the Washington DC area to see a segment featuring Centre Law & Consulting. Wayne Simpson, Consultant with Centre, appears on the show for an interview about the Department of Veterans Affairs’ efforts to reduce the administrative burdens on SDVOSBs and VOSBs. Government Matters is the only television newscast focused on the business of government. Host Francis Rose recaps the top federal headlines and conducts thought-provoking interviews on tech, security, defense, workforce, and industry issues. Since its launch in August of 2013, Government Matters has hosted some of the top minds in the federal community, including guests from the White House, Congress, Fortune 500 companies, journalism, and the non-profit sector. The post Centre Law & Consulting Featured Tonight on NewsChannel 8 appeared first on Centre Law & Consulting. View the full article
  14. Centre Law & Consulting (Centre), a leading provider of training and acquisition services for government agencies, is pleased to announce the award of a contract with the Nuclear Regulatory Commission (NRC) for NRC Acquisition Workforce Training. Under the contract, Centre will develop and deliver a structured training program which standardizes the education, training, and experience requirements for NRC acquisition professionals, while improving workforce competencies and performance. The instruction provided will include all levels of COR and acquisition courses related to FAC-C & FAC-COR certifications. Courses will be conducted at the NRC’s Professional Development Center and virtually across the United States. The contract covers a base period of one year with two option years. “It is an honor to be selected by the NRC as their new training provider, and we are excited to provide our expertise in developing integrated learning solutions for acquisition and procurement personnel,” said Barbara Kinosky, Esq., Managing Partner of Centre. “We look forward to delivering innovative curriculum and content that will strengthen the NRC workforce to align with the NRC’s performance goals.” Jeffrey Keen, Director of Federal Contracts and Training at Centre Law & Consulting, will serve as Program Manager. He will be the primary point of contact with the NRC and with Hemsley Fraser, a subcontractor that will assist Centre with extensive course customization. “Our training team is committed to helping the NRC improve the operational knowledge of its staff and we are dedicated to ensuring they receive the best possible support for their training initiatives. We look forward to customizing an education program that will elevate the performance of their employees,” Keen said. Centre has a long history of working with a variety of government agencies, but this contract marks the first time it will partner with the NRC. Centre was selected based on its experience in creating custom courseware, for its history of providing DAU-approved courses, and for its day-to-day experience in advising government personnel on acquisition and procurement matters. The post Centre Law & Consulting Awarded NRC Contract for Employee Training appeared first on Centre Law & Consulting. View the full article
  15. Just when you think you have heard it all, along comes the preaward protest of Fluor Federal Solutions, LLC, B-414223, March 29, 2017. Fluor alleged that the Department of the Navy, Naval Facilities Engineering Command, solicitation was ambiguous. Fluor claimed that that offerors could not meaningfully price their proposals because of the ambiguous requirement it contained and that proposals received could not be meaningfully compared and evaluated. The interesting quirk was that Fluor was the incumbent, and they wanted to “level the playing field” so that all offerors were bidding to the same requirement and leaving no ambiguity. Fluor’s method of doing so was to have the Navy release Fluor’s proprietary data, after it waived its rights in the data. The Government Accountability Office (GAO) dismissed this ground of protest. They held that the protester failed to establish that it is an interested party to challenge the lack of data. This is legal speak for saying that Fluor cannot protest on behalf of other potential bidders. Fluor was not prejudiced by the failure of other offerors to see the Fluor proprietary data. It’s an interesting twist on a protest. 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 Incumbent Files Preaward Protest for Navy’s Failure to Release Incumbent’s Proprietary Data appeared first on Centre Law & Consulting. View the full article
  16. If you are like me and work for a small business, you have been patiently waiting for the FAR Council to implement the Small Business Administration’s final rule from June 2016 that made major changes to the way performance requirements apply to small business in set-aide contracts. For those who don’t know, this change allows for a prime small business, WOSB, SDVOSB, EDWOSB, 8A, or a HUBZone company to subcontract in service contracts to similarly situated firms and not count towards the 50% subcontracted work amount that typically cannot be exceeded. For example, if you win a WOSB set-aside contract and want to subcontract to another WOSB, the work the second firm does would not count towards the 50% subcontract amount limit. As you can imagine, this a huge boon to small businesses and provides great flexibility to compete on larger contracts. As of March 22, 2017, the Defense Acquisition Regulatory Council (DARC) agreed to draft an interim FAR rule. Remember, this change isn’t automatically included in your current contracts. Under FAR 1.108(d)(3), the Contracting Officer (CO) “may, at their discretion, include changes in any existing contract with appropriate consideration.” Therefore, if you want to get credit for your subcontractor’s work to meet your set-aside requirements, make sure you petition your CO to update your contract with the new FAR rule when it is eventually implemented. Find more information concerning this rule change in the Federal Register. 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 Small Business and Working With Similarly Situated Entities appeared first on Centre Law & Consulting. View the full article
  17. On March 31, 2017, the Government Accountability Office (GAO) released a press release concerning a bid protest decision that resolved seventeen protests, which challenged the award of contracts by the Department of Education (DOE) for student loan debt collection services. On March 27, 2017, the GAO sustained several of the protests in part, finding that DOE made several prejudicial errors in evaluating the proposals, which led it to making unreasonable source selection decisions. The GAO recommended that the DOE reevaluate proposals and make new source selection decisions. The decision itself was issued under a protective order – hence the press release – because the decision may contain proprietary or source selection sensitive information. While the decision regarding the seventeen protests discussed above is still not publicly available, on April 6, 2017, the GAO issued a decision in which it declined to reconsider the protests decision. Two intervenors who had received awards in the original procurement filed “motions to vacate” asking that the GAO reconsider and rescind its decision issued on March 27, 2017. This denial of reconsideration gives us a little bit more background into the procurement. The GAO notes in its decision that between December 19, 2016 and January 9, 2017, it received twenty-four protests relating to the DOE procurement. The GAO dismissed five for various procedural or pleading deficiencies. Of the remaining nineteen, seventeen of those were consolidated as they raised several common challenges to the agency’s evaluation of proposals and ultimate award decisions. Those seventeen were decided in the above referenced protected decision. The remaining protests were withdrawn and are currently being pursued at the Court of Federal Claims. Notice of intent to file at the Court was filed by the protestor at the Court of Federal Claims on March 24, and the GAO was notified on March 28 that the protestor was withdrawing its protest. In their request for reconsideration, the two intervenors sought to nullify the GAO’s decision sustaining the protests based on the March 24 pre-filing notice arguing that the notice had the immediate and automatic effect of divesting the GAO of jurisdiction under 4 C.F.R. § 21.11(b). In denying the request, the GAO noted that it was not actually provided notice until March 28 when the protester withdrew its protest, which was one day after it issued its decision on March 27. Furthermore, this particular protest was not among the seventeen consolidated protests that the GAO decided in the March 27 decision. Finally, the GAO noted that the mere fact that a notice of intent to file a complaint was filed does not automatically divest the GAO of jurisdiction but rather triggers the requirement for it to consider whether dismissal is required under 4 C.F.R. § 21.11(b). Specifically, (b) only requires dismissal where the GAO determines that the subject matter of the protest is before a court of competent jurisdiction. Therefore, all things considered, the GAO dismissed the requests for reconsideration. 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 One Procurement Produced 24 Protests and a Request for Reconsideration appeared first on Centre Law & Consulting. View the full article
  18. This July, several of the Centre staff were chosen from a competitive field to lead multiple breakout sessions at the 2017 World Congress in Chicago, IL. World Congress is the National Contract Management Association’s largest education event for contract management, procurement, and acquisition professionals. Individuals from government, industry, and commercial business come together for networking and training for all career levels. From pressing legal matters to the latest in GSA Schedule updates, come learn the information you’ll need to stay up-to-date in the federal contracting industry. Make sure these three breakout sessions are added to your “must-see” events on your conference schedule: MONDAY, JULY 24 (11:15am – 12:30pm) Corporate Ethics: Lead from the Top or Pay Through the Nose David Warner, Partner 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. TUESDAY, JULY 25 (11:15am – 12:30pm) Protests Happen, so Now What? Barbara S. Kinosky, Esq., Managing Partner James Phillips Jr, PMP, CFCM, Fellow, Acquisition Consultant 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. TUESDAY, JULY 25 (4:00pm – 5:15pm) Lessons Gleaned from Successful Protests at GAO Barbara S. Kinosky, Esq., Managing Partner 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. WEDNESDAY, JULY 26 (9:45am – 11:00am) SIP vs FPT, TDR/FAS Sales Reporting vs 72A, eOffer/eMod Maureen Jamieson, Executive Director of Consulting Julia Coon, Consultant eOffer/eMod is GSA’s online tool to submit GSA offers and modifications that is only accessible to authorized negotiators with digital certificates. This session will show participants how to submit a GSA offer and modifications and other electronic forms. Hear about 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 TDR/FAS Sales Reporting and Formatted Product Tool. The post Centre Staff Leading Breakout Sessions at 2017 NCMA World Congress appeared first on Centre Law & Consulting. View the full article
  19. Alas, I am not expecting my phone to start ringing off the hook. But the week of “Equal Pay Day” is as good a time as any for contractors to kick the tires on their pay practices to ensure observed pay disparities are supported by legitimate differentiators. Perhaps no employment statistic is bandied about so frequently in politics and the press than the “gender pay gap” whereby women are purported to earn only 78 cents for every dollar earned by men. With April 4 having been “Equal Pay Day,” much digital ink was getting spilled concerning female workers allegedly earning less than their male “counterparts.” Alas (again), most but not all of the click-bait tends to be hopelessly innumerate, failing to capture or account for legitimate non-discriminatory reasons for observed differences in the aggregate data from which the 78% figure is derived. Despite the political hand-wringing, the law surrounding individual pay discrimination is robust and well delineated. Indeed, in addition to pay discrimination being actionable under Title VII, since 1963 the federal Equal Pay Act (“EPA”) has required that men and women in the same workplace be given equal pay for equal work. All forms of pay are covered including salary, overtime pay, bonuses, stock options, profit sharing, life insurance, vacation and holiday pay, allowances and reimbursement for travel expenses, and benefits. The jobs need not be identical in every respect, but they must be “substantially equal.” Rather than relying upon particular job titles, a claimant must show that she and her male counterpart performed substantially equal work in terms of skill, effort, and responsibility. A job will be considered unequal, despite having the same general core responsibilities, if the more highly paid job involves additional tasks which (1) require extra effort, (2) consume a significant amount of the time, and (3) are of an economic value commensurate with the pay differential. Federal contractors subject to EO 11246 are expected to routinely evaluate their compensation systems to ensure that they are not resulting in discriminatory outcomes. The applicable regulations require that such “self-audits” assess whether race or gender-based compensation disparities exist, that the audits occur periodically, and that results be reported internally to management. While the OFCCP does not require a particular methodology, its own compliance officers are generally directed to review individual data, group data into pay grades or job groups, and conduct summary analyses. The CO is also to assess quantitative factors such as the size of any overall average pay differences based on race (minority vs. non-minority) and gender (female vs. male), the number of job groups where average pay differences exceed a certain threshold, or the number of employees negatively affected within job groups. In addition to the individualized EPA factors mentioned above, data such as particular skill or certifications; education; work experience; the position, level, or function; tenure in a position; performance ratings; and other compensation-related inputs should be considered. For smaller contractors, simple Excel “table and sort” analyses may be sufficient. For more complex employers, more sophisticated statistical analyses, such as multiple regression, may be appropriate and more valuable. If contractors are not already routinely performing these sorts of analyses (preferably in conjunction with counsel for privilege purposes), they should. Again, it’s required by EO 11246; and innumeracy around the “wage gap” notwithstanding, pay discrimination can and does occur. It is far cheaper to identify and remedy unexplained disparities without the involvement of the DOL or the courts. 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 Earning Only 78% Of What A Similarly Situated Male Employee Is Paid? Call Me! appeared first on Centre Law & Consulting. View the full article
  20. If you are in the Northern Virginia area, grab some lunch with Centre’s Managing Partner, Barbara Kinosky, on May 23 at the Tower Club in Tysons, VA. Barbara will be the featured speaker presenting on “Hot Topics for Federal Contractors: A Look at What’s In and What’s Out in 2017” at the Tower Club’s Lunch and Learn series. Attendees will get up to date on all the latest hot topics in the federal contracting industry. What will a Trump presidency continue to look like? Will there be more emphasis on defense spending? How will federal regulations be impacted? Executive orders, compliance, audits – what’s in, what’s out? Come learn about all this and more! What: Hot Topics for Federal Contractors: A Look at What’s In and What’s Out in 2017 Date: May 23, 2017 Time: 12:30pm – 1:30pm Where: Tower Club in Tysons, VA Find out more and register via the Calendar page on the Tower Club’s website. The post Barbara Kinosky to Present at Tower Club Lunch and Learn Event appeared first on Centre Law & Consulting. View the full article
  21. In a decision publicly released on Friday, March 31, in CJW-Desbuild JV, LLC, B-414219 (Mar. 17, 2017), the Government Accountability Office (GAO) denied a protest challenging the rejection of a proposal where the contractor had failed to provide a signed joint venture agreement with its proposal. In issuing the RFP, the Department of the Navy, Naval Facilities Engineering Command (NAVFAC) stated that award of the construction and repair contract would be made on a best value basis, with price and non-price factors considered. The non-price evaluation factors were construction experience, safety, and past performance. With regards to the construction experience factor, the RFP instructed Joint Venture (JV) offerors to submit relevant project experience completed by the JV entity. If none existed, the RFP instructed JV members to submit individual project experience but to also submit a signed copy of the JV agreement indicating the proposed participation of each JV member. The RFP stated that failure to submit the agreement would be considered unacceptable. CJW-Desbuild JV was subsequently rated “unacceptable” under the construction experience factor for failure to provide the signed copy of its JV agreement. CJW Desbuild argued that its failure to submit a signed copy was a “minor oversight” and that it was “unreasonable” for the agency to downgrade its proposal. CJW Desbuild further argued that NAVFAC should have used clarifications in order to permit the JV to submit its signed agreement. The GAO disagreed and found that because the requirement for a signed JV agreement was specifically linked to technical acceptability, it could not be considered an informality. The GAO also concluded that the JV’s failure to provide its signed agreement could not have been remedied through clarifications, as clarifications cannot be used to cure deficiencies or material omissions in a proposal. Furthermore, the GAO noted that even if the protestor’s failure to submit the signed agreement had been a minor clerical error, the agency is permitted, but not required, to give it the opportunity to correct it via clarifications. 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 Failure to Submit Signed JV Agreement Rendered Proposal Technically Unacceptable appeared first on Centre Law & Consulting. View the full article
  22. If you are in the Baltimore area, join David Warner at the next NCMA Greater Baltimore Chapter meeting. On May 11, David will be the featured speaker presenting the “Annual Update on Federal Contracting and Legislation” where he’ll look back at the first 100+ days of the Trump Administration and review the latest legislation on the Hill, Executive Order and FAR updates, changes in the small business rules, employment regulations, bid protests, and news on the GSA Schedules. What: NCMA Greater Baltimore Chapter meeting Date: May 11, 2017 Time: 11:30am – 1:00pm (lunch included) Where: National Electronics Museum in Linthicum, MD Find out more and register at Events page of the chapter’s website. Register before April 24 to receive early bird discounted rates. Attendees at this event earns 1 CPE/CPU to include certificate. The post David Warner to Be Featured Speaker at Next NCMA Greater Baltimore Meeting appeared first on Centre Law & Consulting. View the full article
  23. The General Services Administration (GSA) Federal Acquisition Service (FAS) is planning to refresh ALL Multiple Award Schedules (MAS). The purpose of the refresh is to incorporate provision and clause changes into MAS solicitations and contracts. Be on the lookout for updates tentatively planned for April 2017. Major changes to the Small Business Subcontracting Plan will be included in these Refreshes/Mass Mods that will impact both large and small businesses. Look for changes in the Model Subcontracting Plan that reflect additional requirements. These changes were effective November 1, 2016 when DoD, GSA, and NASA issued a final rule amending the Federal Acquisition Regulation (FAR) to implement changes made by the Small Business Administration. Key changes of the refresh and mass modifications are as follows: Small Business Subcontracting Plans: Large Business Prime Contractors Must: Make good faith efforts to utilize their small business subcontractors during the contract term to the same degree the prime contractor relied on the small business in preparing and submitting its bid or proposal Resubmit a revised subcontracting report within 30 days of receipt of a notice of report rejection Assign North American Industry Classification System (NAICS) codes to subcontracts Not prohibit discussion of payment or utilization matters between a subcontractor and the contracting officer Report order level subcontracting information if prime has a subcontracting plan on task and delivery order contracts after November 2017* Contracting Officers May: Require a subcontracting plan after a small business re-represents its size as other than small Necessitate subcontracting goal calculation in terms of total contract dollars** as well as in terms of total subcontracted dollars Updates to Non-Federal Entities Purchasing off Federal Supply Schedules (FSS): The State/Local Disaster Purchasing Program*** extends to cover disaster preparation and response as well as recovery from major disasters Access extends to certain qualifying organizations including the American National Red Cross and National Voluntary Organizations Active in Disaster Revisions to I-FSS-600 Contract Price Lists: Requirement for submission of contractor’s electronic files is updated to no later than 30 days after award Other Changes: Removal of Pathway to Success training requirement for streamlined (Successful Legacy) offers Updated Service Contract Labor Standards Act (SCLS) Wage Determinations (WDs) to be added to all schedules Contractors to ensure pricing and WD references are updated and included in SCA matrix For the latest proposed draft updates, see more on GSA Interact. * Requirement date may be extended as updates to the Electronic Subcontracting Reporting System (eSRS) are ongoing. ** Offeror may include a proportional amount of products and services that are ordinarily allocated as indirect costs. *** Disaster Purchasing Program participation is voluntary and vendors may opt in or out at any time during their contract term. About the Author: Johanna Moore Consultant Johanna 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 No April Fools Joke: GSA Refresh/Mass Mods Are Coming! appeared first on Centre Law & Consulting. View the full article
  24. Mark your calendars to join Barbara Kinosky at the upcoming Section 809 Panel meeting on April 27 at 11:30am where she will be an invited featured speaker. Section 809 Panel stakeholder meetings provide a forum for external experts in the defense acquisition community to provide input to representatives of the panel for consideration in the panel’s work. The Section 809 Panel is looking at reforming and streamlining acquisition regulations with a view toward improving the efficiency and effectiveness of the defense acquisition process and maintaining a defense technology advantage. The panel is charged with making recommendations for the amendment or repeal of such regulations that the panel considers necessary, as a result of such review, to: Establish and administer appropriate buyer and seller relationships in the procurement system Improve the functioning of the acquisition system Ensure the continuing financial and ethical integrity of defense procurement programs Protect the best interests of the Department of Defense Eliminate any regulations that are unnecessary for the purposes described All Section 809 Panel meetings are open to the general public and details are posted to the panel’s website. The post Barbara Kinosky to Be Featured Speaker at Section 809 Panel appeared first on Centre Law & Consulting. View the full article
  25. No Completed PPQs? No Contract.

    Last month, in Genesis Design and Development, Inc., B-414254 (Feb. 28, 2017), the Government Accountability Office (GAO) denied a protest challenging the rejection of a proposal where the contractor had failed to provide three past performance questionnaires (PPQs) completed by previous customers. In its proposal, Genesis provided PPQs that provided customer contact information but which did not contain substantive responses from the previous customers. The company argued that it submitted PPQs containing information identifying its past clients and that it reasonably anticipated that the agency would seek the required information directly from its clients. Genesis also suggested that it can be difficult to obtain such information from its clients because they often are too busy to respond in the absence of an inquiry directly from the acquiring activity, and the company noted that, in previous cases, agencies had sought out such information. The GAO was unmoved, holding that the RFP specifically required offerors to submit completed PPQs and that Genesis’s submission did not comply with the express requirements. Given that the RFP also provided that failure to supply required documentation – including PPQs – could result in a proposal’s elimination from consideration, the agency’s rejection of Genesis’s proposal was reasonable. While PPQs can often place offerors in the uncomfortable position of needing to rely on prior COs who are under no obligation to respond or respond in a timely manner, the Genesis decision makes clear that failure to submit completed PPQs can preclude consideration for contract award. 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 No Completed PPQs? No Contract. appeared first on Centre Law & Consulting. View the full article
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