FAR and Beyond Blog
Utilization of small business concerns is a top priority of the current administration. A plethora of new laws, policies, and changing strategies impact this important aspect of federal contracting. The Coalition is fortunate to have a membership that includes innovative businesses of all sizes. Important objectives of the Coalition include being an information conduit regarding matters affecting small business policies and providing a voice for our vibrant small business members. Two years ago the Coalition launched a Small Business Committee that serves as an open forum for members to discuss acquisition policy and compliance issues, as well as Federal contracting opportunities that are unique to small businesses. The committee creates opportunities for members to have access to federal and industry experts and to work together to understand and succeed in the federal market. We have also sought to provide opportunities for small and large businesses to jointly leverage their capabilities to foster success in the federal market.
Continuing these important objectives, on July 23, 2014 the Coalition will host a Small Business Forum—Hot Topics Impacting Small Businesses and their Large Business Partners. Presenters include outstanding representatives from the Hill, government agencies, and industry. The Keynote speaker is Emily Murphy, Senior Counsel, House Committee on Small Business. The forum will feature a panel on Contractor Teaming Arrangements and Joint Ventures.These tools are important to all businesses, but particularly allow small businesses to develop new strategies for tackling the federal market. Despite the potential, there are many questions about the risks and rewards of these new strategies. From formation to payment, the Small Business Forum will provide a venue to have your questions answered by an outstanding panel with real world experience. The panelists include:
- Kenneth Dodds, Director, SBA
- Joseph Hornyak, Partner, Holland and Knight, LLP
- Mark Lee, Deputy Director, GSA, Office of Government-wide Policy
- Marian Morley, Vice President Government Sales and Operations, Allsteel
Chairmen of the Coalition’s Small Business Committee will moderate this session.
- Jim Connal, Vice President, Contracts and Compliance, Red River Computing
- Tom Walker, Government Manager, Nucraft, Furniture
The Small Business Forum will also be a great opportunity to:
- Catch up on initiatives such as strategic sourcing, and find out what to expect next for small businesses in the federal acquisition arena, and
- Network with companies that offer opportunities for teaming and subcontracting relationships. Companies already registered include some of the most successful contractors on the professional services, furniture GSA IT schedules and GWACs.
We hope that you will be able to join us for this engaging small business discussion. For additional information, click here.
Correction: Last week’s Flash stated that Vicksburg surrendered to the Army of the Potomac. Actually, Vicksburg surrendered to the Army of the Tennessee. Thanks to all those who pointed this out to me.
Roger Waldron
President
Join 18F Leadership Team at IT/Services: July 15
Interested in hearing more about GSA’s latest digital services team, 18F? Attend the IT/Services Committee next Tuesday, July 15 to hear from the 18F leadership about the program. GSA guest speakers will be:
- Kathy Conrad, Acting Associate Administrator of the Office of Citizen Services and Innovative Technologies
- Lena Trudeau, Associate Commissioner for Strategic Innovations
- Greg Godbout, Presidential Innovation Fellow and 18F Co-Founder
The member meeting will be on July 15 at 10am at Northrop Grumman (7575 Colshire Drive, McLean, VA). For more details and to register to attend, please contact Roy Dicharry at rdicharry@thecgp.org. RSVPS required for admittance.
GSA Seeks to Modernize Schedule 70 with Cloud Services SIN
As Federal agencies increasingly move to cloud computing services, GSA is seeking to highlight the availability of these services for government agencies on Schedule 70. This week GSA released a Request for Information (RFI) seeking industry feedback on a proposed change to add a Cloud Computing Special Item Number (SIN) to IT Schedule 70. According to the RFI on FedbizOpps.gov, GSA would like to improve the way it offers cloud computing services through Schedule 70, increase visibility of and access to cloud computing services to customer agencies, and provide industry partners the opportunity to differentiate their cloud computing services from other IT products and services.
GSA notes that while commercial cloud computing services are currently sold on IT Schedule 70, the market is sufficiently mature to offer differentiated and vetted cloud computing services through a single SIN. In response to the RFI, GSA is interested in hearing the following from industry:
- Gain feedback from industry and any other relevant stakeholders on a proposed new Cloud Computing Services SIN.
- Better understand how industry partners are selling cloud computing services today on IT Schedule 70, to support a decision to create a Cloud Computing Services SIN.
For more on the specific questions that GSA is seeking industry feedback on, click here. The Coalition applauds GSA’s efforts to modernize Schedule 70 and highlight innovations in the cloud computing services available to customer agencies. We look forward to working with GSA on this initiative and future opportunities to provide input on the modernization of the Schedules program.
GSA Developing “Hallways” as Key Acquisition Resource
The General Services Administration (GSA) and the Strategic Sourcing Leadership Council (SSLC) plan to launch their first “hallways” as part of the new Acquisition Gateway portal in October. So what are these “hallways” ? In a GSA Blog posted in April 2014, FAS Commissioner Tom Sharpe provided the following explanation:
“Here is how the hallways will eventually work: Before any federal buyer goes out to the marketplace with a procurement, they will enter [the Common Acquisition Platform] through a digital gateway and choose a category, or search for the product or service they need. From there they will virtually “walk” down a hallway which houses everything from subject expertise and data, to tools and on-demand procurement assistance. All of this will be specific to exactly what they are looking to purchase. The hallways will house both advice and acquisition sources that government-wide category managers have determined would help professionals make better buying decisions. Over time, the hallways will be iteratively developed with services and capabilities needed to continuously improve acquisition outcomes.”
The IT hallways that will be released in the fall will cover hardware and software. A hallway for Administration is also scheduled for release in October that will include office supplies. The Acquisition Gateway portal will initially only be open to government agencies. A broader scope of product and service hallways will be added over time, including a much anticipated hallway for professional services.
Waldron Speaks to GSA’s IT Hallways on In Depth
Roger Waldron, Coalition President, was a guest on In Depth with Francis Rose this week. The program focused on GSA’s move toward a “category management” approach to federal purchasing. GSA is working on a new concept called “hallways” – with IT hardware and software coming this fall. Waldron explains during the program how the “hallways” fit into GSA’s overall objectives for category management. To listen to the program, visit www.federalnewsradio.com/?nid=1269&sid=3658812.
Tiffany Hixson on Off the Shelf
This week on Off the Shelf, Tiffany Hixson, the professional services category executive at GSA’s Federal Acquisition Service, discusses the new professional services category management agenda for FAS. Hixson is responsible for OASIS and OASIS SB as well as GSA’s family of professional services schedules including MOBIS, LOGWORLD, FABS and AIMS, environmental, engineering and the consolidated services schedule.
In a wide ranging discussion, she provides an update on key initiatives like category management, prices paid information, and standardized labor categories. Hixson also highlights a management initiative to merge or consolidate GSA’s professional services contracts. To listen to the discussion click here.
OS3 Final Protest Decision
The Government Accountability Office (GAO) recently issued its decision on the last open protest to the FSSI Office Supplies (OS3) contract. GAO denied the protest filed by National Industries for the Blind (NIB) against the terms of the OS3 contract. NIB had expressed concerns about the inability of brick and mortar stores to comply with the Javits-Wagner-O’Day Act. The decision can be viewed at the link here: www.gao.gov/assets/670/664642.pdf.
Join the FSSI HR Services and Training (HRST) Working Group
The Coalition will provide recommendations and input to GSA on the FSSI acquisition strategy for Human Resources and Training and Capital Management. This is a joint GSA/OPM initiative which will replace OPM’s existing Training and Management Assistance (TMA) contract vehicle. If you are interested in participating in the Coalition’s working group, please send an email to Aubrey at awoolley@thecgp.org.
Defense Reform: Empowering Acquisition Services
Testifying before the House Armed Services Committee on July 10th, Frank Kendall, Undersecretary of Defense for Acquisition, Technology and Logistics (AT&L) spoke about the need for Department of Defense (DoD) reform to improve the acquisition process. Kendall’s testimony addressed the ever-growing role of new technological services and equipment in the military, which corresponds to a need for an improved hiring process within AT&L. Kendall testified that internal reform empowered by legislation will allow AT&L to “change the culture of the AT&L workforce.” The main goal of this reform is to improve the productivity and efficiency of the defense acquisition system. He believes that by improving the way in which highly qualified personnel are brought into his office, AT&L will be able to address new acquisition needs for DoD in a more timely, effective manner. During the hearing, some congressmen asked Kendall questions pertaining to hiring processes and delegation of authority within AT&L and technology needs that DoD expects to increase in the coming years, especially in regards to information technology and satellite devices. In addition, Kendall was questioned about issues pertaining to compliance with acquisition regulations, and those regulations’ effectiveness in improving defense acquisition. The hearing is entitled “Defense Reform: Empowering Acquisition Success” and can be viewed here.
DAPA Holders are Caught in the Middle of a Disagreement between the VA and DLA over the Application of the IFF to DAPA Sales
By Jack Horan, Partner, McKenna Long & Aldridge LLP
Sales to the Department of Defense under its Distribution and Pricing Agreement program are very important to many VA FSS contractors. The VA, itself, views DAPA sales as integral to the success of VA Schedule contracts, telling contractors that “success of your VA FSS contract requires the development of a strong federal customer base and active promotion of your business to these customers” and “[p]articipation in the Defense Logistics Agency’s (DLA) Troop Support Distribution and Pricing Agreements (DAPA) program is a surefire way to penetrate the federal healthcare marketplace.” See VA FSS eNewsletter, No. 55 (March 2014) at 1
Despite the importance of these sales to VA FSS contractors, DOD and the VA are in the midst of a disagreement over whether VA FSS contractors are required to pay the industrial funding fee on sales of items through the DAPA when those items are also listed on the contractor’s VA Schedule Contract. The VA’s position is explicitly set forth in a somewhat unusual appendage to the standard Industrial Funding Fee and Sales Reporting Clause, GSAR 552.238-74, included in VA Schedule contracts:
NOTICE REGARDING DISTRIBUTION AND PRICING AGREEMENTS (DAPA)
If your firm has a DAPA with the Department of Defense, items available therein that are also awarded under FSS contract must, during the course of the FSS contract, be reported as FSS sales and included in quarterly FSS Sales Reports and Industrial Funding Fee (IFF) remittance.
See, e.g. RFP 797-FSS-99-0025-R9, Solicitation Document at 38.
The VA recently confirmed (and justified) its position that FSS Contractors must pay the IFF on DAPA sales in its FSS eNewsletter:
One of the questions we most often receive is “I have a DAPA, do I need to report those sales on my quarterly sales report?” In 1999, DoD and the VA signed a memorandum of understanding indicating that FSS pricing is the preferred method of pricing for products identified on DAPAs and as such sales for items awarded under a VA FSS contract that are also available under a DAPA must be reported as FSS sales.
Any delivery/task order placed against a VA Schedule contract – whether for a base contract item, blanket purchase agreement, or DAPA, is a reportable sale and must be included in the quarterly sales report & IFF payment. Additionally, all sales made to agencies other than the VA, state & local governments, and through prime vendor programs & direct-to-patient distribution must be reported. Direct all FSS sales reporting & IFF remittance questions to the VA Sales Desk.
See VA FSS eNewsletter, No. 55 (March 2014) at 5 (emphasis in original).
So the VA’s answer is a firm “yes” – VA Schedule contractors must pay the IFF on DAPA sales. Based on the VA’s eNewsletter, the VA appears to believe it has two justifications for the requirement: (1) a 1999 memorandum of understanding with DOD; and (2) its apparent view that items purchased under a DAPA is “placed against a VA Schedule contract.” Id.
A major problem with the VA’s position is that DOD apparently does not agree. The Defense Logistics Agency, the DOD Executive Agent for Medical Material. responsible for administration of DAPAs, is instructing its DAPA holders not to pay the IFF for sales to prime vendors under a DAPA:
The following is specific DAPA guidance:
• There is no direct relationship between a Federal Supply Schedule (FSS) and DAPA.
• A DAPA does not require a vendor to establish or have a FSS.
• Prime Vendor contracts are separate acquisitions and sales thereunder using the DAPA catalogue do not require reporting or payment through the Department of Veterans Affairs (DVA) Industrial Funding Fee (IFF) process.
Any DAPA holder given contrary guidance should immediately contact DLA.
See DLA Memorandum to Prime Vendor DAPA Program, found at https://www.medical.dla.mil/Portal/.
DLA views DAPAs as “DLA pricing vehicles used to establish and manage pricing with manufacturers and/or distributors for medical material purchased under DLA’s Prime Vendor contracts” rather than orders “placed against a VA Schedule contract,” Compare, id and VA FSS eNewsletter at 5. DLA also sees its Prime Vendor contracts – “FAR Par 12 acquisitions that use pricing vehicles such as DAPA under FAR Part 16 as single source awards within a region” — as separate from VA’s FSS contracts. Id. Thus, these opposite views on the IFF grow out of a fundamentally different view of the role of VA Schedule contracts in DAPA orders. VA views the DAPA orders as “placed against” Schedule contracts while DLA views them as placed under DLA’s Prime Vendor contracts independent of the VA’s Schedule contracts. In its instruction to DAPA holders, DLA does not address the 1999 memorandum referenced in the VA’s eNewsletter.
So, FSS contractors with a DAPA, at least for now, are caught between the conflicting views of the VA and DLA – one telling them that they have to pay the IFF and the other telling them that they should not. Each relying on a fundamentally different view of the status of orders placed through DLA Prime Vendors based on DAPA pricing.
Moreover, a contractor faces risk in following either position. By excluding DAPA sales from the IFF, as instructed by DLA, the contractor risks a claim by the VA that it is not complying with its FSS contract, or worse, a potential claim under the False Claims Act. By paying the IFF, the contractor faces at least the financial risk of paying a fee that it is not obligated to pay. To the extent the fee is included in the cost in its DAPA, the DAPA holder also faces a potential request for a price reduction under the DAPA to eliminate the IFF. Given these risks, the VA and DLA have an obligation to their contractors to resolve this issue.
VA and DLA are involved in a discussion of these issues and we hope to report a resolution soon.
Important Decision Impacting Government Contractors
IN RE: KELLOGG BROWN &ROOT, INC., (KBR) (D.C. Circuit June 27, 2014)
This week the court decided a significant case for government contractors. The case is important because a contrary ruling would have eliminated the attorney-client privilege in connection with internal investigations conducted by companies required by law to maintain compliance programs. Given the requirements for compliance plans and mandatory disclosure of FAR Subpart 3.10, Contractor Code of Business Ethics and Conduct, many contractors would have been affected. Because of the potential impact, a number of organizations, including The Coalition for Government Procurement, submitted an amicus brief in support of KBR. The court cited the amicus brief as demonstrating the depth of industry concern with this issue. The following is an analysis of the case from McKenna Long & Aldridge. We suggest that you share it with your corporate attorneys and internal audit staff.
D.C. Circuit Upholds the Attorney-Client Privilege for Corporate Internal Investigations
By: Jack Horan, Partner, McKenna Long & Aldridge LLP, Jason Workmaster, Partner, McKenna Long & Aldridge LLP and Sandeep Nandivada, Associate, McKenna Long & Aldridge LLP
On June 27, 2014, the U.S. Court of Appeals for the D.C. Circuit granted Kellogg Brown & Root’s (KBR) petition for a writ of mandamus and vacated the District Court’s order in United States ex rel. Barko v. Halliburton Co., No. 05-cv-1276, 2014 WL 1016784 (D.D.C Mar. 5, 2014) compelling KBR to produce internal investigation documents. In Re: Kellogg Brown & Root, Inc., No. 1:05-cv-1276 (D.C. Cir. June 27, 2014). The D.C. Circuit’s ruling has upheld important protections for companies conducting internal investigations pursuant to statute or regulation, and affirmed the continued vitality of the Supreme Court’s decision in Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) for companies claiming the attorney-client privilege.
District Court Proceedings
In Barko, the relator sought documents created by KBR during its internal investigation of the allegations that are the basis for the relator’s qui tam case. KBR’s legal department oversaw the investigation, which was conducted pursuant to KBR’s Code of Business Conduct. KBR asserted the attorney-client privilege over the investigation, arguing that KBR created the documents so that KBR’s internal lawyers could provide legal advice to the company. The relator argued that the documents were not privileged because they were ordinary business records. The District Court applied a “but for” test for determining whether the purpose of the documents was to obtain legal advice – analyzing whether the documents would have been created “but for” the need for legal advice. The District Court reasoned that because regulations and KBR’s own corporate policy required KBR to conduct the investigation, KBR had not created the documents solely to obtain legal advice. The Court concluded that the documents were not privileged because KBR created them to satisfy regulatory and corporate requirements.
KBR immediately requested that the District Court certify the privilege question for interlocutory appeal and to stay its order compelling production pending a petition for a writ of mandamus from the D.C. Circuit. The District Court denied those requests. Left with no other choice, KBR took the extraordinary action of filing a petition for writ of mandamus with the D.C. Circuit. The D.C. Circuit stayed the District Court’s order pending a ruling on the mandamus petition.
D.C. Circuit’s Analysis
KBR had two difficult hurdles to clear to prevail on mandamus – it had to show legal error and that the error justified the extraordinary writ of mandamus. It cleared both of them.
The Circuit found two fundamental legal errors. First, the District Court improperly used a “but for” causation analysis when applying the “primary purpose test.” The correct formulation of the “primary purpose” test requires legal advice to be a significant purpose of the communication. The significant purpose of legal advice is not undermined simply because the internal investigation is also required by statute, regulation or a company’s compliance program.
Second, the District Court misinterpreted Upjohn. The D.C. Circuit noted that Upjohn does not require any of the following for the privilege to apply: (1) the involvement of outside counsel to claim the attorney-client privilege; (2) that attorneys personally conduct employee interviews when the investigation is conducted at the direction of counsel; or (3) the use “magic words” informing employees of the purpose of the interview.
The D.C. Circuit noted that KBR’s assertion of the privilege was “materially indistinguishable” from the basis upheld in Upjohn. As in Upjohn, KBR initiated an internal investigation in response to reports of potential misconduct and as part of a concerted effort to gather facts and ensure compliance with applicable laws and regulations. As in Upjohn, KBR’s in-house legal counsel coordinated the investigation. In short, the Circuit confirmed the continuing validity of Upjohn procedures in establishing the attorney-client privilege.
After finding clear legal error, the D.C Circuit applied the three factors required for mandamus as set forth in Cheney v. U.S. District Court for the District of Columbia, 542, U.S. 367, 380 (2004): (1) no other adequate means to secure the desired relief; (2) the right to relief must be clear and indisputable; and (3) the writ is appropriate under the circumstances. KBR easily met the first two factors. Mandamus provided KBR with the only meaningful remedy. The District Court had denied KBR’s motion for interlocutory appeal, and an interlocutory appeal under the collateral order doctrine is not available for attorney-client privilege orders. An appeal after final judgment would be too late to protect the documents that KBR was ordered to produce. The DC Circuit’s finding of clear legal error itself made KBR’s right to relief clear and indisputable.
The third factor, “a relatively broad and amorphous totality of the circumstances consideration”, also favored KBR. The potential for grave harm to the attorney-client privilege if the District Court’s decision remained in effect made mandamus “appropriate under the circumstances.” Left in place, the District Court’s decision could “work a sea change in the well-settled rules governing internal corporate investigations”:
Because defense contractors are subject to regulatory requirements of the sort cited by the District Court, the logic of the ruling would seemingly prevent any defense contractor from invoking the attorney-client privilege to protect internal investigations undertaken as part of a mandatory compliance program. See 48 C.F.R. § 52.203-13 (2010). And because a variety of other federal laws require similar internal controls or compliance programs, many other companies likewise would not be able to assert the privilege to protect the records of their internal investigations. See, e.g., 15 U.S.C. §§ 78m(b)(2), 7262; 41 U.S.C. § 8703. As KBR explained, the District Court’s decision “would disable most public companies from undertaking confidential internal investigations.” KBR Pet. 19.
Id. at 15. Thus, although not binding, the incorrect “but for” analysis could gain traction in other district courts. To protect against these harms to both KBR and the attorney-client privilege more broadly, the D.C. Circuit granted KBR’s petition for a writ of mandamus.
Government contractors (and the many other companies subject to statutory and regulatory requirements to conduct internal investigations) can now breathe a sigh of relief – the application of the attorney-client privilege to corporate internal investigations required by law or regulation has been vindicated and upheld. Companies following Upjohn procedures can conduct their internal investigations with the assurance that the attorney-client privilege will protect candid and full communications.
White House Nominates Anne Rung as New Procurement Chief
On Thursday, Anne Rung was nominated by the White House to be Administrator of the Office of Federal Procurement Policy (OFPP). Rung currently serves as a senior adviser in the Office of Federal Procurement Policy. Rung also served for two years at the General Services Administration, as Associate Administrator of Governmentwide Policy and Chief Acquisition Officer.
Welcome Christine Harada to GSA’s OGP
In June, Christine Harada was named Associate Administrator of Government-wide Policy at GSA. This is Harada’s first position in the public sector; she previously worked as an aerospace engineer at Lockheed Martin and as a consultant with the Boston Consulting Group building oversight for a team focused on transforming businesses and Booz Allen Hamilton as a leader in their US government classified business. Harada’s primary goal at the Office of Government-wide Policy (OGP) is improving analytical capabilities and expanding data collection initiatives to inform decision-making. The Coalition for Government Procurement welcomes Ms. Harada to her new position, and we look forward to working with her to improve the efficiency and effectiveness of acquisition policy government-wide.
HHS Buyers Club for IT Innovation
In a recent interview with Federal News Radio, Department of Health and Human Services (HHS) Chief Technology Officer (CTO) Bryan Sivak discussed the recently launched HHS Buyers Club. According to the Buyers Club website, the program gives HHS employees a new way of procuring information technology. CTO Sviak says that the platform will give contracting officers and other acquisition employees examples and confidence to take calculated and small risks to bring innovation to how they buy and manage technology.
Sivak said the goal of the Buyers Club is two-fold. The first is to bring new vendors into the marketplace. The second is to open the door a bit wider to innovation for contracting officers.
According to the Federal News Radio report, the Buyers Club is looking to impact the agency’s buying and managing of IT in 2015. Sivak said he hopes to have the first draft of the playbook done this summer and even run a procurement or two through it this year. “We’re out actively soliciting projects from across HHS now,” he said. Recognizing the need for innovation, early adopters within the agency “are lining up at our door” to use the Buyers Club for innovation, Sivak said. Vendors interested in participating in the HHS Buyer’s Club may contact idealab@hhs.gov for more information. _
Army Contract Writing System Solicitation Coming Soon
According to Federal Times, the Army plans to issue a draft solicitation for a new contract writing system to industry soon after the next fiscal year begins. The Army Contract Writing System (ACWS) is expected to be a single enterprise contract writing and management system that will integrate with other Army enterprise resource planning (ERP) systems and replace the existing Standard Procurement System (SPS)/Procurement Desktop-Defense (PD2) and Procurement Automated Data and Document System (PADDS). ACWS is estimated to have about 8,000 users at 280 sites worldwide.
Project Manager for the Army’s General Fund Enterprise Business Systems (GFEBS) Col. Patrick Burden said the Army’s new system will interface with several Army financial management systems, including: GFEBS, which manages activities for the Army’s general funds; the Logistics Modernization Program (LMP), which manages wholesale supply and Working Capital Fund activities; and the Army Corps of Engineers Financial Management System.
Mary Davie to Join GWAC/MAC Committee, July 22
The Coalition is pleased to announce that the GWAC/MAC Committee will be hosting GSA Assistant Commissioner for the Office of Integrated Technology Services Mary Davie on July 22. Mary Davie will join the committee for an informative dialogue on a host of ITS priorities and upcoming initiatives. The member meeting will take place at 1:30pm on July 22 in Fairfax, VA at CGI Federal. For more information and to RSVP contact Roy Dicharry at rdicharry@thecgp.org.
DoL Proposed Rule: Minimum Wage for Contractors, Extended to July 28
The Department of Labor (DOL) has extended the deadline to comment on the Minimum Wage for Contractors proposed rulemaking. The new deadline is July 28. The rule implements Presidential Executive Order (EO) 13658, which set a new minimum wage of $10.10 per hour, effective January 1, 2015. Beginning on January 1, 2016, and annually thereafter, the applicable minimum wage will be determined by the Secretary of Labor.
DOL has posted a fact sheet about the rule on its website. The fact sheet includes the following helpful information about the proposed rule.
A. Contracts covered – new contracts and replacements for expiring contracts that result from solicitations issued on or after January 1, 2015 in the following four major categories
(1) procurement contracts for construction covered by the Davis-Bacon Act (DBA);
(2) service contracts covered by the Service Contract Act (SCA);
(3) concessions contracts, including any concessions contract excluded from the SCA by the Department of Labor’s regulations at 29 CFR 4.133(b); and
(4) contracts in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.
B. Contracts not covered
(1) grants;
(2) contracts and agreements with and grants to certain Indian Tribes
(3) procurement contracts for construction that are not subject to the DBA (i.e., procurement contracts for construction under $2,000); and
(4) contracts for services that are exempted from coverage under the SCA or its implementing regulations. For example, the SCA exempts contracts for public utility services, including electric light and power, water, steam, and gas, from its coverage.
(5) employment contracts providing for direct services to a Federal agency by an individual.
(6) contracts for the manufacturing or furnishing of materials, supplies, articles, or equipment to the Federal Government, i.e., those subject to the Walsh-Healey Public Contracts Act.
C. Contractor Obligations
(1) contractors and subcontractors must pay not less than the Executive Order minimum wage to workers for all hours spent performing on covered contracts;
(2) include the Executive Order minimum wage contract clause in lower-tiered subcontracts; and
(3) comply with obligations related to wage deductions, frequency of pay, and recordkeeping.
The proposed rule also prohibits taking kickbacks from wages paid to workers on covered contracts and retaliation against any worker for exercising his or her rights under the Executive Order or the implementing regulations.
Under the proposed rule, prime contractors and upper-tier contractors would be responsible for the compliance of any subcontractor or lower-tier subcontractor. Contractors would be required to maintain records for three years including for each worker the rate or rates of wages paid, the number of daily or weekly hours worked and any deductions made. Compliance with the EO’s requirements will be monitored by the Department of Labor’s Wage and Hour Division.
The Labor Secretary is scheduled to issue the final regulations implementing EO 13658 by October 1, 2014. Within 60 days of their release, the Federal Acquisition Regulatory (FAR) Council will update the FAR with the appropriate contract clause.
The Coalition is interested in hearing member feedback on the rule. Please send your comments to Carolyn Alston at calston@thecgp.org or (202) 600-2915 by Tuesday, July 22. We will be providing written comments to the Labor Department by July 28.
Sweeping Counterfeit Reporting Proposed Rule
The FAR Council published a proposed rule on June 10th extending certain reporting requirements for contractors beyond what is already required for counterfeit electronic parts to a broader scope of products and services. The proposed rule, titled “Extending Reporting of Nonconforming Items”, is intended to reduce the risk of counterfeit items entering the supply chain by ensuring that contractors report suspect items to a government database. According to an article by Crowell & Moring, “a contractor would be required to report to the contracting officer within 30 days of becoming aware that any ‘end item, component, subassembly, part or material contained in supplies purchased by the Contractor for delivery to, or for the Government is counterfeit or suspect counterfeit’”. It would also require that the contractor report the incidence to the Government-Industry Data Exchange Program (GIDEP) and monitor this site regularly to avoid delivery of any reported items to the government. For more details on the proposed rule, access Crowell & Moring’s article here. Comments on the rule are due August 11, 2014. Members who would like to provide feedback on the rule to the Coalition, please contact Aubrey Woolley at awoolley@thecgp.org.
Coalition Small Business Forum – July 23
How will teaming, strategic sourcing and proposed changes to the federal small business programs impact your business? This forum is excellent way for small businesses and small business program managers within large companies to get up to date on key initiatives impacting performance in the federal market. The speakers include key players from the Hill and government agencies, as well as companies with real world experience selling to federal agencies. See below for more details!
Keynote: On the Hill – How the legislative agenda will affect strategic sourcing and other federal initiatives impacting the small business community
- Emily Murphy, Senior Counsel, House Committee on Small Business
Panel: Contractor Teaming Arrangements and Joint Ventures, from Formation to Payment – what they are; how they really work; what’s the benefit. Have your questions answered by a panel with hands on experience
- Kenneth Dodds, Director, Small Business Administration
- Joseph Hornyak, Partner, Holland and Knight, LLP
- Mark Lee, Deputy Director, GSA, Office of Governmentwide Policy
- Marian Morley, Vice President, Government Sales & Operations, Allsteel
- Jim Connal, Vice President, Contracts and Compliance – Red River Computing (Moderator)
- Tom Walker, Government Manager – Nucraft, Furniture (Moderator)
Time: 8:00AM – 11:30AM
Location:
Tower Club
8000 Towers Crescent Dr #1700, Vienna, VA 22182
Pricing:
Keystone Member: Complimentary
Premier Member: $65
Standard: $95
Non-Member: $145
Click HERE to Register!
Two-Part Webinar Series for GSA Schedule Contractors
The Coalition for Government Procurement, in conjunction with Baker Tilly, is pleased to announce an upcoming Two-Part Webinar Series for GSA Schedule Contractors:
The landscape for GSA Schedule contractors has become increasingly difficult. Both products and services contractors are facing new challenges as they negotiate new GSA Schedule contracts or administer their existing GSA Schedule contracts. Pricing, contract terms and conditions, and post-award compliance have all come under the microscope, and contractors must be ready to respond. This two part series will address some of GSA’s and GSA OIG’s recent focal points so that contractors can consider potential impacts to their business and how they can best prepare.
Part 2: Challenges Facing Products Contractors
Thursday, August 14th, at Noon EDT
Presented by Jeff Clayton and Steven Brewer
GSA is facing immense pressure to achieve lower prices for its federal government customers. This has impacted the government’s negotiation tactics and in turn it has impacted, and will continue to impact, products contractors. Prices paid data is being tracked and horizontal pricing comparisons are becoming the norm. Federal Strategic Sourcing Initiatives, an increasingly popular tool for GSA, continue their march across the supply side of the Schedules program. The presentation will discuss all of this and more, including best practices, so that contractors can prepare themselves to respond to these issues.
The Coalition’s Second Annual Joseph P. Caggiano Memorial Golf Tournament
Please join us for The Coalition’s 2nd Annual Joseph P. Caggiano Memorial Golf Tournament on August 27th at Whiskey Creek Golf Club! This charity tournament is to honor our good friend and colleague, Joe Caggiano, who was not only a 23-year veteran of the federal contracting marketplace but a naval veteran as well.
We believe Joe would be proud of the fact this year’s tournament proceeds are going to a brand new cause that will continue to support our nation’s veterans. In honor of the 35th Anniversary of The Coalition for Government Procurement, and in conjunction with The George Washington University, we are creating a scholarship/fellowship to provide financial support to a veteran. Specifically, qualified veterans concentrating their studies in the field of US Government procurement and pursuing the JD or LLM degree in Government Procurement Law or the interdisciplinary Masters of Science in Government Contracting degree (MSGC) at The George Washington University will benefit from the fund as we count on them to become the next generation of skilled professionals leading this critically important sector of the US economy.
Registration will begin at 9:30am with an 11:00am shotgun start, followed by a 4:30 pm post-tournament reception. The tournament will consists of a 4 player scramble with 144 maximum players. Please click here to register your foursome or as an individual golfer!
We have several exciting sponsorships available from title sponsors to beverage cart sponsors to hole sponsors, and also a wide range in pricing so no matter what your budget, you will still have an opportunity to support this wonderful cause. Please click here to review sponsorship opportunities and contact Matt Cahill at mcahill@thecgp.org or 202-315-1054 with any questions or sponsor commitments.
We look forward to your support and a fun and rewarding day for everyone!