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Friday Flash, 05.24.13

Comment of the Week

As you know, on Wednesday the General Services Administration and Coalition members came together at the Coalition’s GSA Business Roundtable.  The roundtable featured an engaging “Myth-Busters” dialogue focusing on GSA’s new mission statement and priorities:

The mission of GSA is to deliver the best value in real estate, acquisition, and technology services to government and the American people.”

GSA’s Six Priorities

  • Delivering better value and savings to customer agencies
  • Serving our partners (customer agencies and vendors)
  • Expanding opportunities for small business
  • Making a more sustainable government
  • Leading with innovation
  • Building a stronger GSA

Among key discussion points throughout the day were the future of the GSA Multiple Award Schedule (MAS) program and the impending update/modernization of the MAS pricing policy.  The discussion highlighted the challenges and costs associated with contract duplication and GSA efforts to reduce unnecessary duplication.   The roundtable also included wide ranging discussion on how GSA can deliver best value to customer agencies through its acquisition, real estate and technology programs while lowering the total cost of acquisition.   Importantly, this included a dialogue around GSA’s messaging to customer agencies; a topic area that the Coalition will continue to focus on in the coming months.

One of the highlights of the roundtable was the Myth-Busters Discussion Activity.  During this “brain-storming” session the attendees identified over 150 suggestions for meeting/addressing GSA’s six priorities.  The Coalition will be providing the list of recommendations to GSA and to our membership in the coming days.  We look forward to further dialogue around these suggestions and the six priorities.

Thank you to Acting Administrator Dan Tangherlini for addressing the roundtable on what the new mission statement and priorities mean for customer agencies, GSA, and contractors.  Thank you to Anne Rung, GSA Chief Acquisition Officer and Special Advisor to the Administrator, Tom Sharpe FAS Commissioner, and Michael Gelber PBS Deputy Commissioner for addressing the attendees and participating in the Myth-Busters dialogue.  Indeed, the Coalition thanks all of the GSA leaders from across FAS and PBS that participated in the event!  The Coalition looks forward to continuing the dialogue!

Thank you to all our members for your support of the roundtable!  A special thank you to our Keystone members:  Allsteel, Booz Allen Hamilton, CACI, Deloitte, General Dynamics Information Technology, HON, L-3, Northrop Grumman, and SAP.

Finally, Memorial Day weekend is now upon us.  Please read the message below and make sure you keep those who have made the ultimate sacrifice for our safety and freedom in your thoughts and prayers.

Originally published in the Friday Flash on May 25, 2012:

Memorial Day marks the unofficial beginning of summer (growing up in small town in Northern Maine it usually seemed that summer didn’t begin till July 4th).  As a child I remember that in days leading up to Memorial Day, members of the Veterans of Foreign Wars (VFW) would stand outside the grocery store requesting donations and handing out “Buddy Poppies.”  To me, these men were a big deal, most were World War II or Korean War Veterans.  These men were considered local heroes, highly respected for their service.  One or two were World War I veterans—I grew up in the 1960’s and 70’s and there were still many World War I veterans who were in their 60’s and 70’s.  On Memorial Day our town would hold a parade honoring those who had fallen in service to our nation.  All the local veterans would march in the parade, accepting donations and handing out Buddy Poppies.

So what is a “Buddy Poppy?”  The Buddy Poppy was inspired by the poem “In Flanders Fields,” honoring the fallen of the First World War.   The poem was written by Colonel John McCrae, a Canadian surgeon, who served in the War.  The poem is haunting:

In Flanders fields the poppies blow

Between the crosses, row on row

That mark our place; and in the sky

The larks still bravely singing, fly

Scare heard amid the guns below.

We are the dead. Short days ago

We lived, felt dawn, saw sunset glow,

Loved, and were loved, and now we lie

In Flanders fields

Take up our quarrel with the foe:

To you from failing hands we throw

The torch; be yours to hold high.

If ye break faith with us who die

We shall not sleep though poppies grow

In Flanders fields.

The red poppy flower became the “Flower of Remembrance” for those who served on the Allied side in the First World War.  In 1921, the Franco-American Children’s League sold artificial poppies in America to support orphans and those left destitute by the war in Belgium and France.  Subsequently, the Franco-American Children’s League dissolved, and in the spring of 1922 the VFW began selling poppies made in France to support the orphans and destitute.  By 1924, the VFW began selling “Buddy Poppies” made by disabled veterans.

Since that time, the VFW’s National Buddy Poppy Committee has ensured that the artificial poppies are made by veterans located in VA Hospitals and facilities throughout the country.  The proceeds from the sales of a Buddy Poppies primarily go to support local veteran services.  So when you “contribute” or buy a Buddy Poppy at your local grocery store, it will support a veteran and a neighbor!   Please, when you make your grocery list for the Memorial Day barbecue, make sure you include a “Buddy Poppy.”

This Memorial Day, please make sure you take time to honor all service men and women who have fallen in defense of freedom.   God bless them and their families.  God bless and protect all those in harm’s way.  Please also remember those contractor personnel who have fallen while supporting our troops around the world.

More information regarding the history of the Buddy Poppy campaign can be found at the VA and the VFW websites.

Roger Waldron



GSA Business Roundtable 

The Comment of the Week (above) covers many of the highlights from this week’s GSA Business Roundtable.   In addition to the Myth-buster’s dialogue about GSA’s mission with leadership from the agency, government and industry participants also discussed the pricing policies of the Multiple Award Schedules (MAS) program.  The basis for the discussion was the Coalition’s MAS Pricing Policy White Paper.  The paper was developed in response to GSA’s challenge to propose our ideas concerning the future of MAS pricing policy.  It highlights our key observations about the pricing policies as they exist today and provides recommendations to improve the efficiency of the program and reduce costs for both GSA and its business partners.  Carolyn Alston, Coalition Vice President and General Counsel, presented the highlights of the paper.  We invite members to review the recommendations outlined in the MAS Pricing Policy presentation and welcome your comments.

Ethics training was also provided during the GSA Business Roundtable.  Lennard Loewentritt, Deputy General Counsel at GSA and Jack Horan, Partner with McKenna Long & Aldridge conducted the training.  They provided attendees with insight into the rules and regulations governing interactions between public employees and industry and some of the case law in this area.

The GSA Business Roundtable wrapped up with informal breakout sessions.  These small group discussions focused on key initiatives and operational issues at GSA-strategic sourcing, services acquisition, the IT portfolio and cost savings strategies for the Federal workplace.  We appreciate our guest speakers from GSA and our members for contributing to the dialogue at the GSA Business Roundtable. We look forward to following up with GSA on many of the recommendations that were generated during the event.


Congratulations to Michael Gelber

The Coalition congratulates Michael Gelber for being named Deputy Commissioner of GSA’s Public Buildings Service (PBS).  Michael Gelber has been serving as Acting Deputy Commissioner.  He is recognized both inside and outside government for his outstanding public service within PBS and the Federal Acquisition Service (FAS).  Michael previously served as FAS Pacific Rim Commissioner, Northwest Arctic Region Commissioner and in the Great Lakes Region as the Public Buildings Service Deputy Regional Commissioner, Deputy Regional Administrator and FAS Regional Commissioner.

This week, the Coalition was honored to have Michael Gelber participate in the GSA Business Roundtable to discuss how PBS is executing GSA’s new mission, and how PBS is helping its customers reduce their real property footprint through innovative solutions.


DATA Act Reintroduced

This week, Representatives Darrell Issa (R-CA) and Elijah Cummings (D-MD) reintroduced the Digital Accountability and Transparency (DATA) Act. The legislation, (H.R. 2061) would require standardized government reporting to a website. Initially passed by the House in April of 2012, the bill has been referred to the House Oversight and Government Reform Committee. In the Senate, Senators Mark R. Warner (D-VA) and Rob Portman (R-OH) introduced a companion bill (S. 994), which has been referred to the Homeland Security and Governmental Affairs Committee.


DFARS Final Rule on Proprietary Technical Data

On Wednesday, the Department of Defense (DoD) issued a final rule on proprietary data. Specifically, the rule “implements a section of the National Defense Authorization Act for Fiscal Year 2010, which allows certain types of Government support contractors to have access to proprietary technical data belonging to prime contractors and other third parties, provided that the technical data owner may require the support contractor to execute a non-disclosure agreement having certain restrictions and remedies. A product of an interim rule adopted with minor changes, the final rule can be viewed at the link at the top of the article.


OASIS Industry Day Videos Available

On Monday, GSA posted to Interact links to view the recent OASIS Industry Day videos for both OASIS Unrestricted and OASIS Small Business. In the post, Program Director Jim Ghiloni wrote, “A big ‘thank you’ to our industry partners for attending last week’s Industry Day. It was a pleasure meeting all of you both during the sessions as well as during our one-on-one meetings.” Jim also encourages industry to share feedback either at Interact or via email at The videos can be viewed at the links above. 


Legal Corner

Should We Protest?  Recent Data from The Government Accountability Office Helps Answer the Question

By Jack Horan, Partner, McKenna Long & Aldridge LLP

Many factors go into a decision of whether to protest after a contractor finds out it was not successful in winning an order or contract:

  • Did the agency make a mistake?
  • How strong is my evidence?
  • Did the mistake affect the award decision?
  • How much will a protest cost?
  • Will a protest affect my relationship with the agency?
    • If I win the protest, what remedy will the General Accountability Office (“GAO”) recommend?

For a contractor to make a reasoned decision on whether to protest, including a schedule contractor competing for commercial items sales, the contractor has to have some measure on the likelihood of success of a protest.  Recent data and analysis provides valuable context on GAO protest decisions that will assist contractors in making this important decision.  An annual report by the GAO, GAO Bid Protest Overview, GAO-13-404SP, Feb 20, 2013, authored by Ralph White, Managing Associate General Counsel, provides useful information on the results of bid protests over the past five years.  An article written by Professor Dan Gordon, Associate Dean for Government Procurement Law Studies at The George Washington University Law School, digs a little deeper into GAO’s statistics, and looks at the number of protestors that actually win the contract after protesting.

According to GAO’s Bid Protest Overview, GAO closed 2,495 bid protest cases in 2012, issuing a decision in 570 cases, or approximately 23% of the closed cases.  Of those cases that go to a decision, GAO sustained 106 protests, or approximately 18.6% of the 570 decisions.  “Sustained” means the GAO agreed with the protestor that the government had made a material error in the procurement, and GAO recommended that the government take action to address its error.

GAO also calculated the success rate of protests, defined by GAO as when the protestor obtains “some form of relief from the agency, as reported to GAO, either as a result of voluntary agency corrective action or our Office sustaining the protest.”  By this measure, protestors achieved success in 42% of the closed protests for that year.  The 2012 success rate was representative of previous years, which ranged from 42% to 45% from 2008 to 2011.  In short, protestors have done fairly well over the past five years according to the GAO’s view of success, achieving either a sustained protest or voluntary corrective action in at least 42% of the cases.

In his article, Bid Protests: The Costs Are Real, But the Benefits Outweigh Them, which will appear in the Spring 2013 issue of the Public Contract Law Journal, Professor Gordon digs a little deeper into GAO’s statistics, analyzing, among other issues, the percentage of protestors that received award of the contested contract after the protest.  Reviewing the protests in 2010 that were sustained, Professor Gordon was able to determine the final results in 40 cases:

  • nine contracts awarded to the protester;
  • 18 contracts awarded to an offeror other than the protester;
    • one case where the GAO granted the specific relief (other than contract award) requested by protestor;
    • three procurements cancelled; and
    • nine cases where the agency did not take corrective action.

Thus, of 27 cases that ended in the award of a contract, the protestor received the contract in nine cases, or one-third of the awards.  In another case, the GAO recommended, and the government provided, the relief the protestor requested.  Thus, in 25% of the 40 known results, the protestor received the final result it sought – nine contract awards and a tenth case where the protestor received the relief it sought.  In addition, using a broader definition of “success,” protestors received award of the contract in nine of the 31 cases where the government took corrective action of some type (or 29% of the cases).

Professor Gordon did not attempt to extrapolate his findings based on known cases to the bulk of protests where results were not known.  Others have attempted an extrapolation, at least one unsuccessfully and reaching inaccurate results.  See Miller, Protests rarely result in U.S. contract reversals,study shows, Washington Post, March 11, 2013, available at (concluding that less than one percent of protests filed in 2010 resulted in award to the contractor).  A reasonable extrapolation of Professor Gordon’s analysis demonstrates that protestors have been successful even by Professor Gordon’s measure.  See Papson, Carey and Meier, FEATURE COMMENT: The Odds Of Winning A Contract After Protesting Are Higher Than You Think, The Government Contractor, Vol 55, No. 16 (April 24, 2013).  Applying the 29% success rate of award after corrective action from Professor Gordon’s data to the total number of protests in 2010, protestors won award of the contract after 12.2% of the total protests filed in 2010 (extrapolated).  In light of such factors as the strength of the protest, the level of competition for the final award, and that the government deemed another offer to be the winner in the first instance, a success rate of approximately one in eight seems reasonable.

So, what is the takeaway from all of these numbers.  By any measure, protests are successful.  If the measure of success is ensuring that all offerors had a fair chance of award (my personal view), GAO statistics demonstrate that protests resulted in corrective action – specifically intended to make sure the rules of the procurement are fair and legal – at least 42% of the time in the last five years.  By Professor Gordon’s more narrow measure – whether the protest resulted in the protestor obtaining the contract – more than 12% of protestors achieved success in 2010.  Keep in mind that both of these results are based on all of the protests filed during the respective periods – some terrible, some very strong.  With experience, or the assistance of an experienced protest lawyer, these numbers provide a useful benchmark for analyzing the likelihood of success of a specific protest evaluated on the merits.


EAGLE II Contract Awards

This week on, GSA announced that it has awarded 15 contracts to small businesses for EAGLE II Functional Category 2-Small Business Track. According to the notice, the contracts were awarded to the contractors for a “five year base ordering period with an option for an additional two year ordering period. EAGLE II is estimated to have a maximum contract value of $22 billion over the seven year period of performance.”


CLE Credits for In-House Counsel Training!

Continuing Legal Education (CLE) credits are now available for the Coalition’s General Services Administration (GSA) Schedule Contracting for In-House Counsel training scheduled for June 27, 2013.  Attendees can earn 6 CLEs for the course with the Virginia State Bar.

GSA Schedule Contracting for In-House Counsel Training

June 27, 2013 8:00 am

McKenna Long & Aldridge LLP

1900 K St NW

Washington, DC


About the course:

This GSA Schedule Contracting for In-House Counsel training will provide information and tools to help you understand the GSA/VA Schedule contracting program and provide insightful legal advice to your in-house client.

The GSA Schedule, including the delegated VA Schedules, is a $50 billion contracting program that all federal agencies use to acquire commercial services and products. These multiple year, government-wide contracts cover professional services, information technology, pharmaceuticals, medical equipment and a vast array of commercial products.

Schedule contracts offer a huge market opportunity. Thousands of companies including both Fortune 500 companies and a vast number of small businesses have GSA/VA Schedule contracts. All federal agencies, and in some instances state agencies, can place orders against the contracts.

Of particular interest to in-house counsel, Schedule contracts have a pricing methodology, and disclosure requirements that are unique in federal government contracting. The contracts provisions must be correctly understood, managed and monitored to assure that your company realizes anticipated profits. Failure to do so can result in significant monetary, administrative, civil and even criminal penalties.


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