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  1. By Maureen Jamieson Call me a skeptic. I had my bets along with others that the Consolidated Schedule would not be released on October 1, 2019. I’ve lived through many disappointments over my years working on Multiple Award Schedules (MAS). I remember the promises of no more Schedules Input Program (SIP) and the advent of the Formatted Price List. Then a few years ago the release of the Formatted Product Tool (FPT) only to be told that tool was being discontinued by the General Services Administration (GSA). Any of you who have worked with SIP or tried, you will understand the excitement when we blogged that SIP was going away. Then there are other disappointments, such as the promises of faster processing of modifications, which can still take months. But now a shout out to Stephanie Shutt, the Director of the Multiple Award Schedule Program, who defied the odds and not only released the Consolidated Schedule on time but did an amazing job keeping industry updated and involved in the process. Because everyone in the MAS world has been busy making sales against their individual Schedules, we are still getting questions on the impact of the Consolidated Schedule to individual Schedule holders. Following is a review of the Consolidated Schedule Phases 1, 2, and 3 and the potential impact and actions. Phase 1 Now that Phase 1 has been completed, it’s business as usual for current Schedule holders. eMod is open and there are no changes to the modification instructions or requirements. If you wish to submit a new offer, it must now be under the Consolidated Schedule versus the individual Schedules. GSA continues to use the preponderance of work North American Industry Classification System (NAICS) as the standard to determine business size at the Schedule contract level. Phase 2 In order for your contract to automatically transition, current Schedule contractors must accept the updated terms and conditions outlined in the Mass Mod in early FY2020. With Schedule consolidation, current Schedule holders will maintain their current contract number. You will not need to apply for a new contract. GSA eLibrary will be updated automatically upon acceptance of the Mass Mod in Phase 2 and all SINs will be migrated automatically. To ensure GSA Advantage and the text file price list are up to date, contractors will need to submit an update in SIP or EDI. An important note and frequent question – When a contractor accepts the Mass Mod in Phase 2, they will NOT automatically be able to sell anything they want on their Schedule contract without formally adding the items/services via a modification and following the same modification instructions. Phase 3 Consolidation of multiple contracts into a single contract, if applicable. GSA will be publishing additional guidelines and will work with companies on an individual basis to help determine the best path for consolidation. If you are planning to submit a new offer or if you have a Schedule and need help preparing modifications, preparing for the Industrial Operations Analyst (IOA) assessment, learning the Federal Acquisition Regulations (FAR) Ordering Process, and reviewing your Commercial Sales Practices and Basis of Award compliance, please consider attending Boot Camp for GSA Schedules on November 5-6 in Tysons, VA. If you have any questions, email our Training Manager Lali Munoz at lmunoz@centrelawgroup.com If you have any questions on the Consolidated Schedule, please contact our GSA team. About the Author: Maureen Jamieson Executive Director of Consulting Maureen Jamieson has more than twenty-five years of experience managing federal contracts. Maureen is highly experienced in solving client pricing problems and implementing effective pricing strategies for placing products and services on GSA Schedule contracts. Maureen also frequently works with clients on effective selling and marketing strategies in the federal market space and is highly skilled as a federal contracts capture or proposal manager. The post Congratulations GSA! As Promised, the Consolidated Schedule was Released on October 1 appeared first on Centre Law & Consulting. View the full article
  2. By Hon. Jack Delman Under the FY 2018 NDAA, House and Senate Committee Reports called for GAO to examine the effects of Offshoring (OS) and Foreign Direct Investment (FDI) on the Defense Supplier Base. GAO reviewed the available public data and convened a panel of experts from academia, industry, and government to address the issues. It submitted a lengthy report to Congress on September 5, 2019, and we provide a brief summary below. There was no consensus on the definition of OS. Broadly defined, it refers to the shifting of domestic production to a facility abroad, the expansion of a US corporation overseas without a change to domestic production, and the overseas sourcing of products and materials. FDI, per the definition of the Department of Commerce’s “Bureau of Economic Activity,” involves an investment transaction by a foreign entity with a US business equivalent to 10% or more of voting ownership. GAO noted that the lack of comprehensive data precluded a full understanding of the extent and magnitude of OS activities on the Defense Supplier Base. Nevertheless, panelists were able to distill certain general benefits, risks, and recommended strategies. OS/FDI Benefits, Risks, Recommendations Overseas production may bring lower labor cost, which can be passed through to the government. FDI provides domestic businesses with access to additional, critical financial resources. On the risk side — OS and DFI can lead to the transfer of critical technologies to our adversaries. This includes “dual-use” technologies, i.e., those which have a present commercial use but have the potential for military application. The panelists also noted the risk of technology transfer from “defense trade offset agreements,” where a foreign country that purchases a weapon system insists that a portion of the production be performed in the purchasing country. The panelists recommended the implementation – via rulemaking–of recent legislative initiatives in the area. One such statute was the “Foreign Investment Risk Review Modernization Act of 2018” which increased the types of foreign investment transactions subject to review by the multi-agency Committee on Foreign Investment in the United States. Another statute was the “Export Control Reform Act of 2018,” which expanded the definition of the technologies that are subject to export control. The panelists also recommended the need to increase private sector awareness of technology transfer risk, and the need to work with our allies to minimize illicit technology transfers. The Global Supply Chain: Benefits, Risks, Recommendations DOD benefits when it can turn to foreign sources to obtain needed parts and materials that are unavailable domestically. However, increased reliance on these sources has reduced visibility into the supply chain. This reduced visibility has inhibited DOD’s ability to identify high-risk suppliers that can introduce counterfeit or compromised parts into the supply chain, affecting the production of secure weapon systems. Panelists recommended that supply chain risks and security be addressed in the acquisition process, i.e., in acquisition planning and source selection; that greater responsibility to secure the supply chain be shifted to contractors; and that DOD increase coordination and communication with the private sector to facilitate a better understanding of the overall risks. Growing the Capacity and Capability of the Defense Supplier Base (DSB) The panelists discussed the growing threat of a US workforce deficient in science, technology, engineering, and math (STEM) to meet the future capacity and capability demands of the DSB (the “skills gap”). Panelists suggested increasing government support of programs to incentivize students to pursue STEM careers; leveraging the STEM skills of foreign workers and students living here; and encouraging more tech-based domestic companies to do business with the government. About the Author: Hon. Jack Delman Retired Judge Jack Delman served as a judge on the Armed Services Board of Contract Appeals for 29 years and has extensive experience in the adjudication and mediation of large and complex contract disputes, including equitable adjustments, terminations and cost and pricing issues. Jack has extensive experience with claims analysis, FAR and DOD agency regulations and BCA practice and procedure. The post GAO Report: Offshoring/Foreign Direct Investment – Risks to the Defense Supplier Base? appeared first on Centre Law & Consulting. View the full article
  3. By Tyler Freiberger, Esq., More than one year ago the Federal Housing Finance Agency Special Adviser Simone Grimes testified before Congress describing a former North Carolina representative, and then FHFA Director, Mel Watt’s repeated sexual advances toward Ms. Grimes. As Grimes testified to, and the FHFA Office of Inspector General confirmed, each time Grimes expressed that she was being paid less than her male predecessor, Watt steered the conversation toward his attraction to her. In response, Centre Law & Consulting, with the Seltzer Law Firm, were proud to represent Grimes before the Court of Federal Claims and the Equal Employment Opportunity Commission, in her suit against Watt and the Agency for the repeated violations of the Equal Pay Act and Title VII of the Civil Rights Act. Now three years after Watt’s actions, the FHFA has announced an agreement with Grimes. While Grimes reports she is happy with the resolution of her claims, Watt himself faces little accountability for the actions as he retired from office last year. Still, the resolution of Grimes’ claims marks the first time a Senate-confirmed nominee was successfully challenged, marking yet another milestone for the #Metoo movement. As stated by Grimes, “…while this is a small victory there is more work to be done.” While the #Metoo movement continues to push for strict enforcement of the Equal Pay Act and sexual harassment provisions of Title VII; in general employment developments, the DoL released a final rule raising the minimum standard salary level. Currently, the Fair Labor Standards Act allows salaried employees making at least $455 a week ($23,600 a year) to be exempt from the FLSA if they perform certain job duties. The rule, implemented on January 1, 2020, raises that minimum salary to $684 per week ($35,568 a year). This rule is estimated to shift over a million American workers from the exempt status to non-exempt status, thereby requiring overtime pay for many more employees. However, some results of the new rule are employee-friendly. The test for “highly compensated employees,” another way some particularly well-paid employees would be exempt, has been raised by about 7%. This increase is far less than the previously anticipated 20% which would have again shifted many employees from exempt to non-exempt. Lastly, the rule will allow employers to count some bonuses toward these two new salary standards, a small win for the employers. About the Author: Tyler Freiberger Associate Attorney Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties’ human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia. View the full article
  4. By Edward W. Bailey, Boeing just challenged a recent ruling by the Court of Federal Claims which has wide-reaching implications for government contractors. In a May decision, the Court held that, by executing a contract with the government, Boeing had waived its right to challenge the government’s inclusion in the contract of certain mandatory FAR provisions. If the decision were to stand, it would seemingly mean that a contractor’s only recourse in such a situation would be to file a pre-award protest. Boeing has appealed this decision to the Federal Circuit on the grounds that it violates “clear, binding precedent.” Its argument appears to be well founded. In a 2008 decision, the Federal Circuit determined that when a contractor agrees to abide by mandatory regulations these terms are “non-negotiable” and therefore not “consented to.” In other words, government contractors cannot be deemed to have waived contractual rights if they had no choice in the first place to accept them. Boeing’s appeal notes the policy implications of upholding the lower court’s decision, i.e. that contractors would have to make pre-award protests to all laws and regulations that “might ever conceivably be applied by the government” – a tall task considering the thousands of regulations in the FAR alone – and something that would “drastically and needlessly increase the number of pre-award bid protests” and further burden “an already overtaxed acquisition system.” Nevertheless, while Boeing’s challenge is pending, contractors would be prudent to exercise more vigilance before executing a contract with the government or potentially risk being left holding the bag. Should you have any concerns about your execution of a contract with the government, be sure to contact us at http://centrelawgroup.com/contact/. About the Author: Edward W. Bailey Associate Attorney (Bar Membership Pending) Ed Bailey is an associate attorney (bar membership pending) whose practice focuses on government contracts law, employment law, and litigation. Ed recently graduated cum laude from George Mason University’s Antonin Scalia Law School where he was a member of the Law Review. View the full article
  5. By William Weisberg, Esq., The Service Contract Labor Standards (“SCLS”) governs how, and how much, government contractors must pay “covered” employees on “covered” contracts. Here are the Top 10 things to keep in mind regarding Service Contract Labor Standards: It used to be called the “Service Contract Act,” and many people still call it that, or SCA. It is now, however, Service Contract Labor Standards. In real life, either name will do. The contracting agency, and the Department of Labor (“DOL”) both enforce SCLS. And DOL has independent authority to debar contractors for violations. And, violations may also trigger False Claims Act liability. SCLS mandates specific minimum wages and fringe benefits for covered employees. These are minimums. The fringe benefit requirement may be met either by providing benefits or a minimum cash payment. There is no commercial contract exemption from the SCLS. “Bona fide” executive, management, or administrative employees are exempt from SCLS, even on a covered contract. SCLS applies to subcontractors and must be flowed down. The prime contractor is jointly and severally liable for violations. SCLS compliance should be part of every contractor’s formal Government Contract Compliance Program. Keep detailed records. As a practical matter, contractors will have the burden to demonstrate their compliance. DOL maintains comprehensive lists of “Wage Determinations” (on SF98). These cover job descriptions and localities. It is common for Wage Determinations to be unavailable for a particular job category and/or location, or to be provided late to a contractor, or to change or be updated during contract performance. DOL and the FAR provide detailed procedures for dealing with each of these situations. SCLS compliance is a multi-department responsibility: HR, Accounting/Finance, Program Management, and Legal all have important roles and responsibilities. DOL conducts random (and not so random) SCLS audits and site visits. Be cooperative but be prepared. About the Author: William Weisberg, Esq Of Counsel William Weisberg is a government contracts attorney with 30 years of experience. Bill received his undergraduate degree from the University of Virginia (where he was an Echols Scholar) in 1983 and his law degree from the George Washington University in 1986. Bill practiced with large international law firms for over 25 years, the last 10 of which he led his firms’ Government Contract and Grant practice groups. Bill formed his own boutique government contract firm in 2013. View the full article
  6. BREAKING NEWS FROM GSA In late July, GSA hosted a live event about upcoming changes to the new Unique Entity Identifier (UEI) requirements (used to identify companies and individuals within the federal award process). More than 770 people participated in the event. The presentation provided detailed information about how IAE is moving away from using the D-U-N-S® number to a new, non-proprietary identifier. During the program, we received numerous questions from participants. As promised, GSA has provided answers to those questions online at in the UEI information center on GSA.gov. While all of the questions-and-answers can be found there, here’s a sample of some of what was asked and answered: Will GSA automatically assign the new UEI, or does the entity have to take action to register? Existing registrants will be automatically assigned a new UEI. New registrants will be assigned a UEI as part of their SAM registration. As an existing entity, will we be notified of our automatically-assigned UEI? A notification process will be established so that entities can find their assigned UEI Do you have to be active in SAM.gov to get a UEI assigned? No, UEIs will be assigned to active and inactive entity registrations. Will the UEI be available for registering entities immediately or will they have to wait a period (like with obtaining a DUNS today) for the UEI to become active before it can be registered? UEI assignment times will be dependent on how quickly entity uniqueness and validation can be accomplished. It is the goal to make the UEI response time immediate for a large percentage of UEI assignment requests. Will the format (character length, alphanumeric, etc.) of UEI be the same as the existing DUNS? No. The format will not be the same. Please see the following Federal Register notice for the new unique entity identifier standard: https://www.federalregister.gov/documents/2019/07/10/2019-14665/unique-entity-id-standard-for-awards-management When including alphabetic characters in the UEI, will those alphabetic characters be stored / displayed as capital letters or lower-case letters? For example, A, B, C or a, b, c? Capital letters will be used in the UEI. What kind of reference data elements / underlying data will be captured for each of the UEIs? When requesting a Unique Entity Identifier, the entity will provide basic data (e.g. legal entity name, doing business as name, physical address) which will be used to validate uniqueness. During the full SAM entity registration process, the entity will provide the same comprehensive data set they do today. Will there be a hierarchy of UEI like there is for DUNS that relates “child” entities to their “parent” entities? Yes, a hierarchy of entities will continue to exist within SAM. Will the actual cutover date be in December 2020? There is going to be a lengthy transition period during which IAE will provide specific transition activities and cutover dates. By December 2020, the SAM generated UEI will be the authoritative unique entity identifier in SAM. Why can’t we use the EIN as the Unique Entity Identifier? Privacy considerations preclude the Taxpayer Identification Number (TIN) — whether it is an Employer Identification Number (EIN), or in limited circumstances, the Social Security Number (SSN) — from being used as the public facing unique entity identifier. Further, only entities which are located in the U.S. and its outlying areas, or pay U.S. taxes, have a TIN. if you have questions or need guidance, please reach out to Maureen Jamieson at mjamieson@centrelawgroup.com. View the full article
  7. By Angel N. Davis, There is an on-going buzz surrounding the upcoming GSA Multiple Award Schedule (MAS) Consolidation. If you haven’t heard (I am not sure where you’ve been), GSA is consolidating 24 schedules for products, services, and solutions, into one single platform. This initiative will have an impact on all schedule holders. This is what you need to do to be prepared for this upcoming implementation: All twenty-four individual schedules, including service and product schedules, are being consolidated! The VA Schedules will not be consolidated at this time. Current schedule holders will maintain their current contract number, and if you have multiple contracts, GSA will work with you to determine the best solution for your company. If you are in the process of submitting a new offer under an individual schedule OR are submitting a mod to add a new SIN, your offer or mod must be submitted by September 30, 2019. Otherwise, you must submit your new offer or mod to add a SIN after October 1st based on the Consolidated Schedule. GSA will not award new offers or mods to add new SINs until mid-January 2020. Legacy Schedule holders in the process of submitting a Successful Legacy/Streamlined offer should submit their offer before October 1st. If you don’t submit by October 1st, you’ll have to start a new offer based on the Consolidated solicitation. For current schedule holders, be prepared to review and accept the Consolidated Schedule Terms and Conditions Mass Modification, expected to be released in mid- January 2020. Read the latest revised draft of the GSA MAS solicitation. On October 1st, the final solicitation will be published on FedBizOpps. Additionally, for all current Schedule holders, GSA announced this week that a Mass Mod will be released in mid-September to add the below new clauses prohibiting the use of covered Telecommunications Equipment: FAR clause 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (AUG 2019) GSAR clause 552.204-70, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment (Aug 2019) You will have 60 days to accept the Mass Modification. GSA will monitor contractor acceptance of this Mass Modification and may cancel contracts that have not accepted the modification. Lastly, stay informed! Centre Law will continue to provide updates on our social media outlets and directly to our clients regarding the upcoming consolidation. If you need assistance navigating all the new requirements and would like to stay informed regarding the impact of the GSA MAS Consolidation, please contact us! About the Author: Angel Davis, CFCM Contracts Manager Angel N. Davis has over thirteen years of experience in federal contracts management. She is a Certified Federal Contracts Manager (CFCM) and is currently President of the Tysons Chapter of the National Contract Management Association (NCMA). While completing the NCMA Contract Management Leadership Development Program (CMLDP), Angel successfully pioneered the NCMA Tysons Women In Leadership Initiative. View the full article
  8. By Heather Mims, Esq. Contractors (and officials) across the country have experienced some confusion about the implementation of the recently enacted Small Business Runway Extension Act of 2018. If you’re unfamiliar with the Act, Congress has amended the Small Business Act to modify the method for prescribing size standards for business concerns – what used to be a three-year standard has now become a five-year standard. Thus, the implementation of this Act would extend the measurement period of the SBA’s calculation of average annual receipts for purposes of size standards from three years to five. When Should Businesses Start Calculating With a Five Year Average? Right off the bat, the SBA and Congress did not agree with when this Act should take effect – leaving confused contractors in their wakes. While the President signed the law on December 17, 2018, shortly thereafter, the SBA opined in an Information Notice that the amended law was not effective immediately. Specifically, the SBA’s Notice stated that “[t]he change made by the Runway Extension Act is not presently effective and is therefore not applicable to present contracts, offers, or bids until implemented through the standard rulemaking process. . . Until SBA changes its regulations, businesses still must report their receipts based on a three-year average.” The SBA has continued to assert that the Act was not presently effective stating in April 2019 that “Businesses must continue to report their annual receipts based on a 3-year average until SBA amends its regulations.” However, Congress fired back in May 2019 in a House Committee on Small Business Press Release. The Press release states: “Upon the Runway Act’s passage into law on December 17, 2018, the Small Business Administration has postponed its implementation, creating confusion and challenges for small businesses competing for federal contracts.” The GAO Steps In To the Debate On August 16, 2019, the GAO issued a bid protest decision in the matter of TechAnax, LLC; Rigil Corporation. The protesters argued that a GSA RFP did not comply with the Runway Extension Act, specifically arguing that the Act applies to all size standards issued by SBA, that the Act took effect immediately after enactment, and thus, the five-year average should be used. Although the GAO noted that its review was limited, it ultimately denied the protest, finding no basis to conclude that SBA and GSA’s actions in delaying implementation violated the Act. Specifically, the GAO noted that “[e]ven assuming the Runway Extension Act took effect on the date of its enactment, however, we conclude that the act did not automatically amend all existing size standards and SBA regulations.” What’s Next? The House Committee’s May Press Release referred to a bill titled: “Clarifying the Small Business Runway Extension Act.” That bill confirms that, contrary to the SBA’s interpretation, the “Small Business Runway Extension Act of 2018 has been effective since the date it was signed into law, on December 17, 2018.” The bill would also require the Administrator of the SBA to issue a final rule implementing the original Act no later than December 17, 2019. This bill passed in the House on July 15, 2019 and has now been referred to the Senate’s Committee on Small Business and Entrepreneurship. The SBA has again taking a dueling approach and, on June 24, 2019, promulgated a proposed rule for implementation of the Act. However, the proposed rule has no effective date and proposes only a modest implementation: “Specifically, consistent with a recent amendment to the Small Business Act, SBA proposes to change its regulations on the calculation of annual average receipts for all receipts-based SBA size standards and other agencies’ proposed size standards for service-industry firms from a 3-year averaging period to a five-year averaging period.” About the Author: Heather Mims Associate Attorney Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow. View the full article
  9. By David Warner Gone are the Halcyon days, when it looked like the Trump Administration might overturn EEO-1 wage and hour reporting requirements adopted during the prior administration, as the first batch of reports is due to be submitted by contractors on or before September 30, 2019. To make matters more confusing, technically the Trump Administration is still trying to overturn the wage reporting requirements but, unless something unexpected happens, September 30 is still the applicable deadline. For a bit of history, the Obama Administration revised the EEO-1 form to require certain employers to provide compensation data along with the gender and race information historically collected. One result of the most recent presidential election was an effort to rescind those changes, which were highly unpopular in many quarters. On April 25, 2019, the U.S. District Court for the District of Columbia entered an order directing EEOC to collect the “new” EEO-1 wage and hour data and to do so by September 30, 2019. While the Trump Administration timely appealed that order, the EEOC correctly noted on its website that “the filing of this Notice of Appeal does not stay the district court orders or alter EEO-1 filers’ obligations to submit” the required pay data. In other words, the legal fight continues, but the obligation to file the data on or before September 30, 2019, persists. So who is required to submit the compensation data? With few exceptions, employers with 100 or more employees are required to provide the compensation data to the EEOC on or before September 30, 2019. One benefit to government contractors is that this 100-employee trigger also applies to them. That is to say, while contractors with a contract of $50,000 or more are still required to file the standard EEO-1, only contractors with 100 or more employees are required to submit the additional pay data. So what is the data that’s required to be submitted? The original EEO-1 form required covered businesses to provide information regarding the race, ethnicity, and sex of its workforce in 10 categories. The revised – and hotly disputed – EEO-1 requires employers to also provide aggregate data for the reported year, across those same 10 job categories and same race, ethnicity, and sex groups, broken down into 12 broad pay bands. The aggregate data would be calculated from a single payroll period of the employer’s choice, occurring between October 1 and December 31 in the reporting year (i.e. a report in 2019 would be calculated based on data drawn from 2018). Is there an easy way to submit the data? “Easy” might be a strong word, but once you’ve cleared the not insignificant hurdle of collecting the necessary data, the EEOC has partnered with NORC at the University of Chicago to create a web-based portal where the data can be submitted electronically. Filers can use either an online form or upload data with a specifically formatted .CSV file. What if I don’t file a report? To quote the CFR, “Any employer failing or refusing to file Report EEO-1 when required to do so may be compelled to file by order of a U.S. District Court, upon application o the Commission.” What if I just fudge my numbers? Uhh, do NOT do that. Per the CFR, “The making of willfully false statements on Report EEO-1 is a violation of the United States Code, title 18, section 1001, and is punishable by fine or imprisonment.” “Help?!?” Centre Law can do that. IF you have questions regarding the applicability of the new EEO-1 reporting requirements or capturing and reporting the data, or any other matter involving doing business with the federal government, drop us a line at http://centrelawgroup.com/contact/. About the Author: David Warner Partner David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices. View the full article
  10. BREAKING NEWS FROM GSA if you have questions or need guidance, please reach out to Maureen Jamieson at mjamieson@centrelawgroup.com. This Interact post is the advance notice announcement of GSA’s intention to consolidate the current 24 Multiple Award Schedules (MAS) and release a new single Schedule for product, services, and solutions on October 1, 2019. A revised draft of the MAS solicitation is attached with applicable attachments. The solicitation has been updated based on more than 1,000 comments received to GSA’s recent requests for information. This document defines and lays out overall MAS offer evaluation criteria, requirements, and terms and conditions. It will be published in its final form on October, 1, 2019. What to Expect on October 1, 2019 On October 1, 2019, GSA will publish the new, consolidated, solicitation on FedBizOpps along with applicable attachments. The FBO package will contain; Solicitation Available Offerings Summary Document One Attachment for each Large Category Regulations Incorporate by Reference Significant Changes Document GSA will use a new ‘Available Offerings and Requirements’ page on GSA.gov to house templates and attachments that are part of the solicitation. Applicability of the templates will be noted in the solicitation documents posted on FBO and housed on GSA.gov for organizational purposes and industry’s ease of use. For reference, we have attached 4 documents that explain the details, components, and layout of the solicitation. The category attachments will include the below clause references and additional instructions or requirements that are specific to each large category, subcategory or SIN. How to Prepare for the New Schedule coming October 1, 2019 We highly encourage industry partners to read our newly updated Frequently Asked Questions (also attached) and tune in to our upcoming webinars dedicated to the new solicitation. You’ll have the opportunity to ask questions and hear directly from from GSA’s subject matter experts. First Session: Date: September 17, 2019 Time: 3:00 – 4:00 PM EDT Registration Link: https://meet.gsa.gov/eapkwzqxhyao/event/event_info.html Second Session: Date: September 19, 2019 Time: 3:00 – 4:00 PM EDT Registration Link: https://meet.gsa.gov/eoj61sws2yjs/event/event_info.html Please submit your comments on the draft consolidated solicitation directly to this Interact post or email them to us at maspmo@gsa.gov. Thank you for your continued partnership. About MAS Consolidation: MAS Consolidation is one of the four Cornerstone Initiatives of GSA’s Federal Marketplace (FMP) strategy, GSA’s plan to modernize and simplify the buying and selling experience for customers, suppliers, and acquisition professionals. GSA’s new single Schedule solicitation features a simplified format with streamlined terms and conditions, new large categories and sub-categories, and updated Special Item Numbers (SINs) that will make it easier for contractors to offer, and agency partners to buy, products, services, and solutions. Created by a cross-functional team of GSA’s acquisition experts, the new solicitation was developed iteratively and incorporates industry feedback from the more than 1,000 responses to our recent Requests for Information (RFI). *ATTACHMENTS: Draft MAS Solicitation – Defines and lays out overall MAS offer evaluation criteria, requirements, and terms and conditions. Available Offerings – The available offerings excel sheet contains three tabs; one that maps legacy SINs to the new consolidated SIN structure, a second tab that summarizes only the new structure of available offerings, and a third tab that summarizes all the large and subcategories. Clause Matrix – Identifies all the ‘required’ (applicable to all MAS) and ‘required as applicable’ (applicable to some large categories, subcategories and/or SINs under MAS). This matrix also identifies where in the solicitation the ‘required’ clauses will fall. ‘Required as Applicable’ Clause Mapping to Available Offerings – Identifies what level the ‘required as applicable’ clauses will apply. Updated Industry FAQs View the full article
  11. With GSA focused on consolidating 24 Schedules into one single Schedule, the Transactional Data Reporting (TDR) pilot has been extended through FY2020, allowing both contractors and the GSA acquisition workforce to spend their resources understanding and participating in the consolidated Schedule — the most immediate priority. TDR, a GSA Acquisition Regulation (GSAR) rule published in 2016, reduces the burden and increases transparency by requiring monthly reporting of transactional sales data from governmentwide contracts, including the Multiple Award Schedules (MAS). TDR has been implemented as an optional, three-year pilot that includes eight specific Schedules and associated Special Item Numbers (SINs). In addition to supporting the new consolidated Schedule, the extension of TDR will allow GSA to gather data about TDR in the new environment. Participating contractors will still report monthly sales in the FAS Sales Reporting Portal, and contractors whose items fall within the current TDR pilot scope can still opt into the TDR pilot. GSA will reevaluate the TDR pilot at the end of FY2020 and decide whether to continue the pilot, cancel the pilot, or to expand optional TDR pilot participation to all items on Schedule. If you have questions or need guidance, please reach out to Maureen Jamieson at mjamieson@centrelawgroup.com. View the full article
  12. By Barbara S. Kinosky, Esq. The big news from MAS PMO Director Stephanie Shutt is that the Consolidated Schedule will be out October 1, 2019. She is very definite on that date. What does that mean for existing GSA Schedule holders? We understand modifications to add the new consolidated SINs will not be accepted after September 30 until sometime in mid-January 2020 after contractors have accepted the mass modification incorporating the new consolidated Schedule terms and conditions. New offers for new Schedules that have been submitted prior to September 30 but not finalized will still be reviewed and awarded. This includes the streamlined/successful legacy offers. E-mod will remain open and will not be affected by the consolidation. GSA will transition companies with one Schedule to the new Schedule first. In early 2020, GSA will begin the process of working with companies holding multiple Schedules. Those Schedules will be consolidated into one Schedule. GSA has indicated that it will allow companies with Blanket Purchase Agreements (BPAs) off GSA Schedules to continue those schedules until the BPAs end. On other news, the GSA Small Business GWAC Division has announced the draft solicitation for the 8(a) STARS III GWAC is out. Both industry and federal agencies are able to review and provide feedback on the content of the draft solicitation up until September 6th. Review the details by visiting FedBizOpps. GSA is asking everyone to please spread the word! Centre Law’s GSA team is here to answer any of your questions on the consolidated schedule. You can contact me by email at bkinosky@centrelawgroup.com. About the Author: Barbara Kinosky Managing Partner Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has more than twenty-five years of experience in all aspects of federal government contracting. Barbara is a nationally known expert on GSA and VA Schedules and the Service Contract Act, and she has served as an expert witness for federal government contracting cases. View the full article
  13. By Maureen Jamieson, Federal Business Opportunities (FBO) is moving to beta.SAM.gov starting on November 8, 2019. What is FBO? FBO (commonly known as FedBizOpps) is how contracting organizations across the federal government post notices on proposed contract actions (valued at more than $25,000). These notices, or “procurement opportunities,” include solicitations, pre-solicitations, sole source justifications, and other notices. Anyone interested in doing business with the government can use FBO (www.fbo.gov) to learn about available opportunities. Each contract opportunity found on FBO provides the following information: The original notice date and any amendments An overview of the notice and contracting agency Any related attachments or external links Instructions on how to submit a response, offer or proposal The date on which responses are due You can search for opportunities in FBO by entering a keyword, solicitation ID, or an agency name into the search field, and use filters to narrow your results. Currently, you don’t need a user account to view contract opportunities. However, in future releases you will be able to access additional capabilities—such as saving searches, adding yourself to an opportunity’s Interested Vendors List, and signing up to receive regular updates on opportunities—when logged in. The capability to create user accounts will become available in the upcoming months. For now, FBO is your source for Federal Business Opportunities. However, once FBO has fully transitioned, you will be directed to beta.SAM.gov for all your contracting opportunities. What is beta.SAM.gov? The General Services Administration (GSA) is merging its current legacy sites into one system. GSA decided to use the term beta when naming beta.SAM.gov to distinguish it from the current legacy SAM.gov site. While parts of the site are official, others are demonstration only and continue to be supported on one of GSA’s original websites. The original websites will be gradually migrated to the beta site. When the functionality from an original site has been migrated, the site will be a candidate for retirement. The original sites will co-exist with beta.SAM.gov until they are retired. Centre Law & Consulting will continue to monitor updates to beta.SAM.gov. Please contact our Consulting team if you have any questions. About the Author: Maureen Jamieson Executive Director of Consulting Maureen Jamieson has more than twenty-five years of experience managing federal contracts. Maureen is highly experienced in solving client pricing problems and implementing effective pricing strategies for placing products and services on GSA Schedule contracts. Maureen also frequently works with clients on effective selling and marketing strategies in the federal market space and is highly skilled as a federal contracts capture or proposal manager. View the full article
  14. By Hon. Jack Delman In National Government Services, Inc. v. United States, 923 F.3d 977 (Fed. Cir. 2019) the Federal Circuit sustained a pre-award protest, holding that an agency solicitation containing an “Award Limit clause” (ALC) violated full and open competition under the Competition in Contracting Act (CICA), and the agency failed to follow the appropriate procedures that would support an exception. Background Facts The Centers for Medicare and Medicaid Services (CMS), an agency of HHS, uses contractors, known as “MACs”, to administer claims and benefits under the Medicare program. For an upcoming round of solicitations, CMS included an ALC providing that CMS would not award more than 26% of the national workload to any single contractor, or more than 40% of the national workload to any one set of affiliates. According to CMS, the purpose of this clause was twofold: (1) business continuity concerns, i.e., avoid the award of an overly large share of business to any one entity and (2) the need to maintain a dynamic competitive marketplace. After the solicitation was issued, National Government Services (NGS) filed a protest with the Federal Claims court. NGS was a MAC that already held contracts amounting to 19.8% of the national workload. Given the ALC in this solicitation, NGC would be excluded from the award of the contract, since the contract represented 13.5% of the national workload and the award would put it over the 26% workload cap. Given its automatic exclusion from the competition, NGC contended that the solicitation did not allow for full and open competition under CICA. The lower court rejected the protest, but on appeal the Federal Circuit reversed. In brief, the Court ruled that (1) that this solicitation effectively excluded certain offerors from the competition, and thus failed to provide full and open competition under CICA; (2) that the workload caps were not “procurement procedures otherwise expressly authorized by statute,” that would otherwise provide an exception to the competition requirement, see CICA section 3301(a); and (3) that CMS failed to follow the appropriate statutory/regulatory procedures to support an exception to full and open competition. The Court held that CMS’ award limitation policy was effectively an exclusion of a source under CICA, section 3303(a). Such an exclusion required a “determination and findings” from the head of the agency or designee. See FAR 6.202(b)(1). This was not done here. Lessons Learned The Court took pains to explain that it did not question the purpose or the wisdom of CMS’ award limitation policy. According to the Court, the agency’s error was that it failed to follow the appropriate procedures required by law to support NGS’ exclusion. Another reminder that the government must turn “square corners” when it comes to following the FAR and the procurement statutes it implements. About the Author: Hon. Jack Delman Retired Judge Jack Delman served as a judge on the Armed Services Board of Contract Appeals for 29 years and has extensive experience in the adjudication and mediation of large and complex contract disputes, including equitable adjustments, terminations and cost and pricing issues. Jack has extensive experience with claims analysis, FAR and DOD agency regulations and BCA practice and procedure. View the full article
  15. By Tyler Freiberger, Esq., An interesting mix of states now ban or otherwise restrict employers from requesting applicants’ prior compensation. Now, don’t run off and start rewriting your application forms just yet, the restrictions are mostly for government jobs, but there are a handful of cities and states that outright ban asking for compensation history. But this does beg the question; why is there a non-partisan move to restrict an employment question? Some employers may choose to implement the ban voluntarily if the answer to that question is compelling. (Spoiler: it’s a hard call) The Background Unlike other popular employment movements over the last decade, it’s very difficult to predict what areas of the United States are passing this type of legislation. While there is nothing particularly surprising about states passing laws on the hiring process- e.g. disability information and some criminal records, try to think of any other state-specific employment law where Alabama and California march together on the vanguard. To be safe, all employers should be sure to consult the laws of any state they operate in and even check city/county laws on the issue to see if they are operating in one of the 30+ communities with at least a partial restriction on requesting salary history. While this salary history question is still being debated, the Equal Pay Act is not. For half a century the EPA has made employers liable for certain types of pay inequity. The salary history bans aim to address this same “equal work equal pay issue.” Labor statistics still report an 18% difference (overall) between women who were full-time wage and salary workers and male full-time wage and salary workers. It’s not hard to find starkly different opinions on why this is still the case. I’ll leave you to explore those yourself in fear of stepping on a political landmine. Regardless, the logic here may be obvious now, if a person is unlawfully underpaid in previous employment, that salary can carry over to a new employer simply because it is using the past salary as a jumping-off point. Will this Work? These salary history bans are simply too recent to measure if they are having the intended effect. That makes voluntarily giving up hiring data a hard ask. But one useful note is that relying on past salary information will not serve as a defense if an employer is accused of unlawful pay disparity. All sized employers will still need to self-audit their compensation to measure any differences in pay for protected classes. A good rule of thumb is to focus on paying for skill set rather than past salary regardless if you are subject to the new restrictions. About the Author: Tyler Freiberger Associate Attorney Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia. View the full article
  16. By William Weisberg, Esq., You may have seen reports about the President’s July 15, 2019, Executive Order on the Buy American Act (“BAA”). The first two BAA Executive Orders were basically “study the BAA and maybe try not to invoke exceptions as often as you do now.” This third Order supposedly has teeth. But here is my contrarian view: this one is not that big a deal. Let’s look at what the Order does, and what it doesn’t do. In the newest Order, the President directs the FAR Council (the body that manages, and changes, the FAR, where the BAA is actually implemented), over the next six months, to consider amending the FAR in a few ways: Increase the percentage of required U.S. components from 50% to 55%, and eventually to 75% (in addition to the current requirement that products be “manufactured” in the U.S).; Increase the evaluation price preference for domestic products from 6% to 20% for large businesses, and from 12% to 30% for small businesses; and Increase the required U.S. iron and steel content to 95% for covered contracts. Sounds draconian, right? Here is why I am not getting too excited about the impact of the Executive Order: It is still an Order to consider making changes. Nothing is set in stone. (Just ask Congress how long it took the SBA to change the time period for calculating revenue on small business set aside contracts, in the face of explicit Congressional direction to do so.) All “commercial information technology” will remain exempt from the BAA, just as it is now. That means that the industry segment with the greatest exposure to (let’s face it) restrictions on Chinese components in the supply chain will be exempt from the changes under consideration. Changes to the BAA only impact contracts subject to the BAA. COTS products will remain exempt from the BAA requirement to have any U.S. components. And most importantly, the BAA only applies to a small percentage of U.S. government contract spending, because the Trade Agreements Act kicks in at a contract threshold of $180,000 for supply contracts, and $6.9 million for construction contracts. Again, the President’s changes only apply to contracts covered by the BAA. That’s right: The current BAA just doesn’t apply to many contracts. And even if the new Executive Order changes the parameters around the BAA, the BAA still won’t apply to many contracts. So, there certainly will be contracts, and contractors, impacted if the Order results in the changes to the BAA provisions in the FAR. But I think the Administration will be surprised (or perhaps not) by how few and far between they are… About the Author: William Weisberg, Esq Of Counsel William Weisberg is a government contracts attorney with 30 years of experience. Bill received his undergraduate degree from the University of Virginia (where he was an Echols Scholar) in 1983 and his law degree from the George Washington University in 1986. Bill practiced with large international law firms for over 25 years, the last 10 of which he led his firms’ Government Contract and Grant practice groups. Bill formed his own boutique government contract firm in 2013. View the full article
  17. By Julia Coon, It’s that time of the year again, and your General Services Administration (GSA) Schedule Industrial Funding Fee (IFF) payment and sales reporting are due by July 30th. In accordance with Clause 552.238-74, all Schedule contractors are required to report sales within 30 calendar days following the completion of the reporting period and remit the IFF within 30 calendar days following the end of each reporting quarter. Even if you have zero sales for the April – June quarter, you are still required to report zero sales. Be Aware: There is New Sales Reporting Portal This will be the first time most contractors are completing the reports and payments in the new sales reporting portal. The FAS Sales Reporting Portal (SRP) is GSA’s new tool that supports the collection of data required by the Multiple Award Schedules (MAS) program. Contractors reporting on a monthly basis for the Transactional Data Reporting (TDR) pilot and contractors reporting on a quarterly basis will now both be using the FAS SRP. All first-time users must register for the multi-factor authentication process. Even if you were previously accessing the FAS SRP using a digital certificate or reporting sales in the legacy 72 System, you still need to register for the multi-factor authentication process before you are able to log into the FAS SRP. Multi-factor authentication registration steps can be found on the FAS SRP website linked above. Only authorized negotiators, the Contract Administrator, and the IFF Point of Contact will be able to access the contract in the FAS SRP. It’s important to use the same email address that is listed on your contract when registering to ensure access to the contract. If your points of contact listed today need to be updated, you will need to submit a formal modification in eMod making the updates for your Contracting Officer’s approval. Don’t Delay! To ensure a timely submission of sales reports and IFF payments, DO NOT wait until the last minute. Register for the FAS SRP now so you know you can access your contract and will be able to complete the reporting requirements on time. If you need assistance or have questions regarding the reporting requirements, please contact Centre’s GSA team. About the Author: Julia Coon Consultant Julia Coon is GSA and VA Contract Consultant at Centre Law & Consulting. Julia works with the GSA/VA team in preparing new schedule proposals and post-award contract administration. She has experience in producing schedule renewal packages, various modification packages, small business subcontracting plans, and updates to GSA price lists. View the full article
  18. By Angel N. Davis, This year, the National Contract Management Association (NCMA) is hosting its 60th annual World Congress Conference in Boston, Massachusetts, and the Centre Law & Consulting team will be in attendance. Please stop by our booth to learn about our service offerings and meet some of our talented team members. Our team members will provide up to date information on GSA’s Consolidated Schedule and other hot topics. Bring your GSA stories to share with our GSA team. And, do not forget to sign up for Centre’s breakout sessions! Below are the Centre breakout session topics and dates: Hot Issues in Bid Protests! Presenter: Barbara Kinosky, Esq | Monday, July 29th | 11:15 am-12:30 pm When Not to Protest: Recent Bid Protest Trends Presenters: Heather Mims, Esq. and Tyler Freiberger, Esq. | Monday, July 29th | 2:00-3:15 pm Effective Customer Service: Creating a Customer Service Experience that Impacts your Organization Presenter: Angel N. Davis, CFCM | Tuesday, July 30th| | 9:30-10:45 am Federal Supply schedules Mini Boot Camp Presenters: Maureen Jamieson and Julia Coon | Tuesday, July 30th | 3:30 -4:45 pm For those attending the Federal Supply Schedules Mini Bootcamp, the Centre team will be handing out a coupon for $200 off Centre’s 2 day Boot Camp held in either August or November at Centre’s Tysons office. Click here to learn more about our Boot Camp for GSA Schedules training program. We look forward to meeting you in Boston! About the Author: Angel Davis, CFCM Contracts Manager Angel N. Davis has over thirteen years of experience in federal contracts management. She is a Certified Federal Contracts Manager (CFCM) and is currently President of the Tysons Chapter of the National Contract Management Association (NCMA). While completing the NCMA Contract Management Leadership Development Program (CMLDP), Angel successfully pioneered the NCMA Tysons Women In Leadership Initiative. View the full article
  19. By Heather Mims, Esq. As we get into the summer months, people are gearing up for summer vacation traveling – but be prepared to spend extra time waiting in line for security screening from the Transportation Security Administration (TSA). Oh No! Why? In a statement issued earlier this Spring, TSA predicted that this year will be the busiest summer travel season it has experienced, with a more than 4% volume increase. Specifically, TSA is planning for approximately 263 million passengers and crew to pass through security checkpoints nationwide between Memorial Day weekend through Labor Day weekend, compared to 250 million passengers last year during the same period. To put this increase in perspective, last summer’s TSA screenings included nine of the top 10 busiest weeks in TSA’s history during the summer season. To combat this increase, TSA plans to increase airport staffing levels by more than 2,000 officers, while also providing a 20% increase in overtime funds. While this will hopefully alleviate some travel woes, TSA is likely to continue to suffer from retention issues, which with further exacerbate its small workforce. Specifically, a recent report from the Homeland Security Department’s Office of the Inspector General shows that one in four TSA screeners quits within six months. To put this into monetary terms, in FY 2017, TSA reported that, on average, it spends approximately $6,300 to hire and $2,300 to train its screeners. In that same fiscal year, TSA hired more than 9,600 screeners, costing the agency approximately $75 million in hiring and training costs. A subsequent Blue Ribbon Panel indicated that low pay was likely to blame, in part, for TSA’s low retention rate. Thus, even though TSA appears to be proactively attempting to prepare for a large increase in summer travelers, if TSA screeners continue to exit at the same rate, it will be difficult to timely replace them – the OIG Report indicates that the average hiring process took 252 days from application to job offer acceptance. What About TSA PreCheck? And if you’re one of the lucky travelers that has enrolled in TSA’s PreCheck program, don’t except those short lines to last for long! TSA is soliciting a contractor to boost public enrollment in the TSA PreCheck program. The Agency is seeking to enroll approximately nine million high-frequency travelers in the system (and eventually the more than 80 million travelers for fly at least once a year and aren’t enrolled). About the Author: Heather Mims Associate Attorney Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow. View the full article
  20. By Barbara S. Kinosky, Esq. Hot News! Supreme Court Ruling from June 24, 2019 The Supreme Court just gave a victory lap to Freedom of Information Act (FOIA) submitters and a defeat to those requesting information under the Act. In Food Marketing Institute v. Argus Leader Media, the Court held that: Where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” within the meaning of 5 U. S. C. §552(b)(4), the Freedom of Information Act’s Exemption 4. https://www.supremecourt.gov/opinions/18pdf/18-481_5426.pdf What does this mean? For government contractors seeking to protect their proposal and other confidential information this definitely is in the win column. Under Food Marketing, the government must prevent public disclosure under FOIA Exemption 4 if that information is customarily and actually treated as private by its owner and provided to the government under an assurance of privacy. Want to know more? For those with an insatiable desire to know more, the case involved a FOIA request by a South Dakota newspaper, the Argus Leader, for records that would disclose data about the U.S. Department of Agriculture’s Supplemental Nutrition Assistance Program, known as SNAP. The SNAP data included information about the retail grocery stores where SNAP recipients purchased their groceries. The grocery stores objected and hence a ruling that impedes federal contractors desire to learn more about competitors information. Stay tuned to see what happens with the regulations. A good site to follow is DOJ at https://www.justice.gov/oip/oip-foia About the Author: Barbara Kinosky Managing Partner Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has more than twenty-five years of experience in all aspects of federal government contracting. Barbara is a nationally known expert on GSA and VA Schedules and the Service Contract Act, and she has served as an expert witness for federal government contracting cases. View the full article
  21. By David Warner Last month, the U.S. Supreme Court resolved a split between the federal circuit courts of appeal concerning the statute of limitations for False Claims Act (FCA) suits in which the government does not intervene. Unfortunately for contractors, the Court held that a ten-year (as opposed to six-year) limitations period can apply. As a result, contractors face the expanded prospect of defending FCA matters that are already a decade old at the time of filing. “Good luck” locating your documents and refreshing witness recollections!! The Court’s May 13, 2019 decision came in the matter of Cochise Consultancy Inc. v. U.S. ex rel. Hunt. The decision turned on the interpretation of the FCA’s statute of limitations provisions, which require that a relator file their civil lawsuit within six (6) years from when the violation occurred but also provide for an alternative three-year limitations period running from the time the government knew, or should have known of the violation. In no event can suit be filed more than ten (10) years after the alleged violation. Prior to Cochise, there was a split among the 4th, 9th, 10th and 11th circuits as to the interpretation of the 3-year “knew or should have known” standard and its applicability to matters in which the government does not intervene in the case. The Cochise suit was initially filed in 2013 by relator, Billy Joe Hunt. Suffice to say that Billy Joe is not what one would describe as a stereotypical relator. He was purportedly aware of the alleged fraudulent scheme in Cochise since 2006 but never reported it until 2010. Notably, he first reported the Cochise fraud to the FBI while being interviewed by the Bureau regarding his involvement in a different, illicit federal contracting scheme. According to the lower court’s description, Billy Joe served ten months in federal detention due to that otherwise unrelated kickback scheme and did not file his FCA lawsuit until “after his release from prison”. As one does. Given the timing, the question for the Supreme Court in Cochise was whether a relator can bring a claim in 2013 more than six years after an alleged violation in 2006 but still within three years of the government learning of that violation in 2010 despite the fact the government does not intervene in the suit. Unfortunately for the contractor community, the Court agreed with Billy Joe, holding that the three years “knew or should have known” statute of limitations provision applies regardless of whether or not the government intervenes, and his FCA suit was therefore timely. So our Billy Joe has smoothly transitioned from federal inmate to protector of the public treasury via qui tam suit in which his relator status might pay him twenty-five to thirty percent (25-30%) of the several million dollars at issue in Cochise if he’s ultimately successful. Who said, “There are no second acts in American lives”?? [Ed., F. Scott Fitzgerald.]. Oh stuff it, Editor! And “Go get’em, Billy Joe!!” About the Author: David Warner Partner David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices. View the full article
  22. By Maureen Jamieson, Great news! GSA is conducting market research and wants your input on the new solicitation format and the clauses and provisions to be used in the consolidated MAS solicitation set for release later this year. GSA’s goal for this market research is to gain input on two components of the new consolidated solicitation: The proposed format of the consolidated solicitation The updated terms and conditions that will be found in the new solicitation You can find the RFI on FBO at the following link: https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=ee29c7e9ae57ef5d599000d1bb86908b Note that responses to the RFI are due July 5, 2019, 11:59 pm Eastern time. Following is a brief GSA summary of some of the highlights of the Consolidation: What is the Consolidation? GSA is consolidating the agency’s existing 24 Multiple Award Schedules (MAS) into one single Schedule for products, services, and solutions. VA Schedules will not be consolidated at this time. What are the Phases? Phase 1 – Develop the New Schedule Create a new solicitation for the single Schedule Map duplicate Special Item Numbers (SINs) across current solicitations Review duplicate terms and conditions across Schedules Phase 2 – Mass Modifications Complete mass modifications for all existing contract holders Contractors retain current Schedule contract number Phase 3 – Multiple Contract Consolidation Consolidate multiple contracts into a single contract for contractors with multiple Schedules What is the timing and impact? Existing solicitations are still open to new offerors and will remain open until the new Schedule is released October 1, 2019. Mass Modifications are expected to be released in early FY 2020. For your contract to automatically transition, you must accept the revised terms and conditions reflected in the Mass Modification. If you have multiple Schedules, GSA will work with you to determine the best solution for your company. What is the impact to the Order Level Material (OLM) SIN? Under the consolidation, OLMs will be expanded to every contractor on Schedule. What is the impact to Transactional Data Reporting (TDR)? The TDR requirement will continue for contractors already participating in the pilot. However, the TDR pilot will not be expanded to categories that are not currently in the pilot. How will this consolidation affect Blanket Purchase Agreements (BPAs)? BPAs established and awarded prior to the completion of consolidation will continue in effect until the BPA or the Schedule contract expires, whichever occurs first. Task or delivery orders may be placed against existing BPAs until either the BPA or the Schedule expires, whichever occurs first. Additionally, GSA’s systems will be refreshed to reflect all updated processes and to align with the new categories under the Schedule. In order to help you navigate through these changes, Centre Law & Consulting will be offering future webinars on the Consolidation. Details will be provided in future blogs, marketing emails and LinkedIn. If you have specific questions on the Consolidation, please contact the Consulting team at Centre Law & Consulting – info@centrelawgroup.com or 703-288-2800 – and we will follow-up with you to see how we can help. About the Author: Maureen Jamieson Executive Director of Consulting Maureen Jamieson has more than twenty-five years of experience managing federal contracts. Maureen is highly experienced in solving client pricing problems and implementing effective pricing strategies for placing products and services on GSA Schedule contracts. Maureen also frequently works with clients on effective selling and marketing strategies in the federal market space and is highly skilled as a federal contracts capture or proposal manager. View the full article
  23. By Hon. Jack Delman In Total Home Health (THH), 2019 WL 1953001 (April 26, 2019), the GAO recently sustained a protest on the grounds that the Department of Veterans Affairs (VA) misled an offeror during pre-award price discussions. The Background The VA issued an RFP seeking proposals on multiple CLINs to provide home respiratory services and durable equipment for a VA network. Award was to be made on a “Lowest Price Technically Acceptable” basis. The VA received six proposals, including that of THH, and all proposals were deemed technically acceptable. The THH proposal, however, was the fourth lowest and was roughly 30% above the lowest offered price. The VA conducted pre-award discussions. The CO initially advised TTH that its price proposal was “relatively weak” and gave THH the opportunity to provide revised pricing. TTH, however, sought more information from the CO – it sought some additional insight into the VA’s thinking on price and/or whether there was a pricing neighborhood that VA was looking for. The CO responded to THH that the VA “anticipated lower pricing” on its CLINs 5, 11, and 14. According to the VA, it chose to emphasize these CLINs because THH had priced them more than twice the government’s IGE, but the VA did not provide this explanation to THH. Rather, the Agency’s response led THH to focus on these three CLINs, and it made price reductions solely on these items. However, THH was still nowhere near the lowest overall price. In fact, the GAO noted that had THH reduced all three CLIN prices to zero it still would not have been the lowest offeror in line for award. It was no surprise then that THH did not get the award. It was debriefed and filed this protest. The Fallout THH argued that it was misled by the VA during discussions. The GAO agreed. According to the GAO, the VA could have legally stood upon its initial response, that is, that THH’s overall pricing was “relatively weak,” i.e., too high. But by responding further and directing THH’s attention to only these three CLINs, the VA improperly suggested that it was only these three CLINs that required attention. The GAO held that this agency response caused THH to base its final revised proposal on misleading information. In addition, the GAO credited a Declaration from THH’s president to the effect that had the VA advised that its proposed price was too high in other areas, it could have submitted a more competitive price that could have resulted in the award. Therefore, the GAO concluded that THH was prejudiced by the government’s misleading information. The protest was sustained. Lessons Learned Sometimes saying less is best. The Agency’s initial, more general response about the need for lower pricing would have passed legal muster. The Agency sought to do more, but that more was harmful, not helpful. Agency communications during discussions must be carefully crafted to enhance an offeror’s proposal, increase the chances of award and make the proposal more responsive to the government’s needs. Regrettably, this did not occur here. About the Author: Hon. Jack Delman Retired Judge Jack Delman served as a judge on the Armed Services Board of Contract Appeals for 29 years and has extensive experience in the adjudication and mediation of large and complex contract disputes, including equitable adjustments, terminations and cost and pricing issues. Jack has extensive experience with claims analysis, FAR and DOD agency regulations and BCA practice and procedure. View the full article
  24. By Tyler Freiberger, After a hard fight battle over arbitration agreements, many employers are learning to be careful what they wish for. In the past decade, the U.S. Supreme Court has slowly and consistently empowered forced arbitration clauses. As of last year’s decisions in Epic Systems Corp. v. Lewis, NLRB v. Murphy Oil USA Inc. and Ernst & Young LLP v. Morris, the court has made clear that employers could not put strict arbitration agreements in their employment agreements but, if written correctly, those agreements essentially shut down any attempt of the workers to collectively sue. Arbitration isn’t Arbitrary As expected, employers have cheered and routinely implemented arbitration agreements into more and more employment agreements much to the complaint of labor advocates. The choice seemed obvious; suffer through years of expensive litigation and against a potential collection of thousands of employees, OR take a faster, cheaper route that allowed taking each employee on separately. The conventional advice for several years has been to shoot for the latter and stay away from the federal court on thorny employment claims. But now that employers have reached the finish line on arbitration, many are starting to wonder if it has been worth it. The Other Side Take Uber, a company routinely in the spotlight on employment issues given their spearhead market position of using independent contractors to perform their core service. While arbitration is inarguably cheaper on average than a lengthy court case, it also makes bringing the claim far less expensive on the employee. In addition, because arbitrators are not judges, their decisions are not given the same weight as a judicial decision. What does that mean for a company like Uber? Just because it soundly knocks down the first ten claims brought against it in arbitration, it cannot point back to those wins to deal with any new claims, even if they are identical to issues already decided. This has resulted in over 60,000 arbitration cases being brought against Uber, costing a potential $600 million to resolve. Switching Gears There is also the social perception of arbitration agreements. As much as the legal system is critiqued in our pop-culture, Americans appear to still greatly value the right to “have their day in court.” While arbitration can arguably favor the employee too, major companies have abandoned or plan to abandon, in part, their arbitration agreements due to highly publicized backlash on the issue. I may be a bit cynical, but I think these companies have discovered arbitration may not be the holy land we have all been led to believe it was but are more than willing to reap progressive points by changing course. About the Author: Tyler Freiberger Associate Attorney Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia. View the full article
  25. By Tyler Freiberger, Esq., After a hard fight battle over arbitration agreements, many employers are learning to be careful what they wish for. In the past decade, the U.S. Supreme Court has slowly and consistently empowered forced arbitration clauses. As of last year’s decisions in Epic Systems Corp. v. Lewis, NLRB v. Murphy Oil USA Inc. and Ernst & Young LLP v. Morris, the court has made clear that employers could not put strict arbitration agreements in their employment agreements but, if written correctly, those agreements essentially shut down any attempt of the workers to collectively sue. Arbitration isn’t Arbitrary As expected, employers have cheered and routinely implemented arbitration agreements into more and more employment agreements much to the complaint of labor advocates. The choice seemed obvious; suffer through years of expensive litigation and against a potential collection of thousands of employees, OR take a faster, cheaper route that allowed taking each employee on separately. The conventional advice for several years has been to shoot for the latter and stay away from the federal court on thorny employment claims. But now that employers have reached the finish line on arbitration, many are starting to wonder if it has been worth it. The Other Side Take Uber, a company routinely in the spotlight on employment issues given their spearhead market position of using independent contractors to perform their core service. While arbitration is inarguably cheaper on average than a lengthy court case, it also makes bringing the claim far less expensive on the employee. In addition, because arbitrators are not judges, their decisions are not given the same weight as a judicial decision. What does that mean for a company like Uber? Just because it soundly knocks down the first ten claims brought against it in arbitration, it cannot point back to those wins to deal with any new claims, even if they are identical to issues already decided. This has resulted in over 60,000 arbitration cases being brought against Uber, costing a potential $600 million to resolve. Switching Gears There is also the social perception of arbitration agreements. As much as the legal system is critiqued in our pop-culture, Americans appear to still greatly value the right to “have their day in court.” While arbitration can arguably favor the employee too, major companies have abandoned or plan to abandon, in part, their arbitration agreements due to highly publicized backlash on the issue. I may be a bit cynical, but I think these companies have discovered arbitration may not be the holy land we have all been led to believe it was but are more than willing to reap progressive points by changing course. About the Author: Tyler Freiberger Associate Attorney Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia. View the full article
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