FAR and Beyond Blog
For this week’s comment I wanted to share with you a blog post first published on the Federal Times’ Acquisition Blog (www.federaltimes.com). The post highlights GSA’s current cloud RFI. The Coalition appreciates GSA’s decision to extend the comment period to next Thursday, August 21 and will be submitting a response.
Price Reduction Clause could Slow Cloud on Schedule 70
Last week GSA’s Federal Acquisition Service (FAS) Office of Schedule Programs issued a Request for Information (RFI) seeking feedback on the “GSA Proposed Change to Add a Cloud Computing Special Item Number (SIN) on IT Schedule 70.”
The RFI indicates that the purpose of the new Cloud Computing SIN “would be to improve the way GSA offers cloud computing services through IT Schedule 70, increase visibility and access of cloud computing services to customer agencies, and to provide industry partners the opportunity to differentiate their cloud computing services from other IT related products and services. “ The RFI notes that the proposed change “would support OMB’s ‘Cloud First’ policy by enabling agencies to take advantage of cloud computing benefits to maximize capacity utilization, improve IT flexibility and responsiveness and minimize cost.”
The goals of the RFI are to:
(1) Gain feedback from industry and any other relevant stakeholders on a proposed new Cloud Computing Services SIN; and
(2) Better understand how industry partners are selling cloud computing services today on IT Schedule 70, to support a decision on creating a Cloud Computing Services SIN.
The RFI seeks feedback from both customer agencies and industry partners. The due date for submission of comments is August 6th. The RFI can be found here.
The RFI is a positive step on the part of FAS in seeking innovative solutions to customer agency requirements. However, in order to seed the cloud via IT Schedule 70, FAS should address the applicability of the Price Reduction Clause to the proposed Cloud Computing SIN. The PRC is an outdated (from the 1980s) pricing compliance scheme that increases contract administrative costs while restricting the ability of contractors to maximize service solutions with their latest technologies at best value—including best price for agency requirements. Simply put, the PRC is an anti-competitive, anti-innovation contract term.
The origins of the PRC date from a 1982 Multiple Award Schedule policy statement addressing the pricing negotiation and terms of schedule contracts. Under the PRC, a customer or category of customers is identified as the tracking customer for purposes of price reductions. Generally, under the terms of the PRC, if a MAS contractor offers the tracking customer(s) a price reduction during the life of the MAS contract, a corresponding reduction must be provided to the government. Failure to do so results in a breach of contract, and potentially severe consequences, including possible Civil False Claims Act liability. The PRC reflects a time when the MAS program was product-based. It also reflects a time when the MAS program was a mandatory program and when competition was not required at the order level. At the time, given the structure of the program, the PRC was intended to provide price protection for the government. Times have changed!!
Today, services account for approximately two-thirds of annual purchases under the MAS program. The MAS is open to all commercial sources (with the exception of Schedule 75, Office Supplies, which is closed to new offers) and the statutory and regulatory framework governing the MAS program require competition for all orders exceeding the simplified acquisition threshold. Simply put, unlike the MAS program of the ‘80s, task and delivery order competitions for agency specific requirements are driving pricing under the program.
Moreover, task and delivery order competition for agency specific requirements is sound procurement practice when acquiring IT/professional service solutions like cloud computing. With the cloud, each service requirement is unique, reflecting the customer agency’s IT infrastructure, security requirements, mission, workforce, and organizational structure.
The PRC ignores the unique quality of service solutions in the market. Variations in service solutions for each customer mean that an apples-to-apples comparison for purposes of the PRC is problematic at best, if not impossible. Each time an MAS contractor provides a commercial customer with a solution, the contractor must address whether that solution impacts the PRC. The result is an unhealthy restriction on the contractor’s ability to compete in the commercial marketplace. Due to the competitive and administrative challenges in tracking commercial transactions for PRC compliance many contractors will not offer their newest products, services and technologies via IT Schedule 70. As a result, access to the latest commercial innovations is restricted under the MAS program.
Cloud computing solutions are typically tailored to meet customer needs. As with many other complex services, each requirement stands on its own. Applying a costly administrative pricing oversight mechanism like the PRC in such a dynamic, innovative environment makes no business or procurement sense. Waiving the applicability of the PRC to the Cloud Computing SIN is the best way to accelerate best value “cloud computing” solutions and increase access to commercial innovation via IT Schedule 70. Eliminating the PRC and relying on task order competitions for agency specific requirements will drive competition, innovation, value and pricing for cloud services across the MAS program.
Interestingly, there is precedent for such an approach, a little over a year ago FAS waived applicability of the PRC for MAS furniture contractors in order to allow the MAS contractors to fully compete for a series of furniture procurements. Alternatively, FAS could issue a class deviation eliminating the PRC for the Cloud Computing SIN.
Over the longer term, given the growing convergence of IT and services, the time is right for GSA to reform the MAS pricing policies (and eliminate the PRC) to reflect the 21st century marketplace. Such an approach will be a win for customer agencies, the American people, and contractors.
The next step in accelerating cloud computing solutions via IT Schedule 70 is the activation of “Other Direct Costs” through the current FAR Clause that is already in the IT Schedule 70 contracts. But more on that in my next blog.
Roger Waldron
President
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!
GSA Awards Office Supplies FSSI- OS3
On August 12th, GSA awarded its latest Federal Strategic Sourcing Initiative (FSSI) for office supplies (OS3). GSA made awards to 21 companies, 20 of which are small businesses. OS3 is the first FSSI government-wide contract offered as an IDIQ not based on the Schedules program. Schedule 75 for Office Products and Supplies remains closed to new offers. According to GSA, OS3 is expected to provide more than $90 million in annual savings for office supplies captured through lower prices. Further, GSA estimates that “more than $9 out of every $10 spent on OS3 purchasing will go to small business.” Awards were made in four categories:
- General Office Supplies Full Catalog (13 vendors)
- Office Paper (2 vendors)
- Toner/Ink (5 vendors)
- GSA On-the-Go (1 vendor)
Additional awards may be made pending further review. OS3 contractors are expected to receive orders beginning August 20th. For more details on OS3 and a list of awardees, visit http://gsa.gov/portal/content/195439.
OMB Launches Digital Strategy Team
The Office of Management and Budget (OMB) announced in a White House blog post that they have launched the U.S. Digital Service, a small team of digital experts from across the country. The Digital Service will work with federal agencies to “remove barriers to exceptional service delivery and help remake the digital experience that people and businesses have with their government.” Mikey Dickerson, who was part of the team that helped repair HealthCare.gov last fall, will serve as the Administrator of the U.S. Digital Service and Deputy Federal CIO. According to OMB, the Digital Service will closely collaborate with GSA’s 18F program, which “houses a growing group of talented developers and digital professionals who are designing and building the actual digital platforms and providing services across the government.” The Digital Service team will be piloted using existing funds from fiscal year 2014, and President Obama has included $20 million in his FY 2015 Budget Request to expand the size of the team.
Along with the announcement of the U.S. Digital Service, the Administration also released a Digital Services Playbook and TechFAR Handbook as part of a “growing IT toolkit that will help enable agencies to do their best work.” The Playbook outlines 13 key “plays” from public and private-sector best practices, which the Administration says “if followed together, will help federal agencies deliver services that work well for users and require less time and money to develop and operate.” The Handbook explains how agencies can carry out the plays from the Playbook in accordance with the Federal Acquisition Regulation. OMB is open to feedback on both the Digital Services Playbook and the TechFAR Handbook, which may be submitted here.
Past Performance Information Improving
The Government Accountability Office (GAO) reports that that Office of Federal Procurement Policy (OFPP) has taken several actions to increase the number and quality of past performance submissions available to source selection officials. Since 2009, OFPP has—
- emphasized reporting requirements through memos to agency officials;
- assessed and reported on the level of compliance and quality of evaluations;
- directed the development of a compliance tracking tool;
- set performance targets for certain agencies;
- directed the consolidation of systems for entering past performance information; and
- developed government-wide past performance guidance.
The table below shows an improvement in past performance reporting for the ten agencies with the most number of evaluations due:
OFPP plans to continue oversight and provide additional training and guidance in order to improve compliance for agencies that have not met OMB’s performance targets.
The Department of Health and Human Services (HHS) has released the first procurement initiative under its Buyers Club program, an innovative IT acquisition approach that assembles templates for contracting officers to make quicker and more creative purchases. On August 6 the Department’s Office of the Assistant Secretary for Planning and Evaluation (ASPE) issued a solicitation to implement a world-class web presence, content dissemination strategy and brand recognition. According to the notice, the IT system will advance policy development and related activities in policy coordination, legislation development, strategic planning, policy research, evaluation, and economic analysis.
With the RFP release, ASPE intends to utilize various output methods, responsive design principles and social sharing functionality to increase its digital presence by making content more usable, searchable, and sharable by targeted audiences. The RFP is a small business set-aside due August 19, 2014.
Federal Agency Environmental Performance
Government Executive recently published an article highlighting the environmental performance of cabinet-level agencies. Reducing the amount of greenhouse gases generated by the Federal government has been identified by the Administration as a cross-agency priority goal. As the government moves to cut its greenhouse gas emissions and adopt initiatives to increase energy efficiency and green Federal properties, they have committed to reporting their plans and progress at www.performance.gov . The Office of Management and Budget (OMB) publishes Sustainability/Green Scorecards that show how agencies have performed in the following areas:
- Greenhouse Gas Reduction
- Energy Intensity Reduction
- Renewable Energy
- Potable Water
- Fleet Petroleum Use
- Green Buildings
The Sustainability/Green Scorecards are posted at www.performance.gov/node/3406?view=public#supporting-info. Based on the results of the most recent scorecards for FY2013, Government Executive ranked the most and least sustainable cabinet-level agencies as follows.
Most Sustainable Agencies
- Housing and Urban Development
- Treasury
- State
- Labor
- Energy
Least Sustainable Agencies
- Education
- Homeland Security
- Veterans Affairs
- Agriculture
- Defense
To read the original article from Government Executive, click here.
Call for Feedback on UPC Notice
This week FAS Commissioner Tom Sharpe spoke with Coalition members about GSA’s recent notice to Schedule holders to submit UPC codes and MSNs for items on GSA Advantage. We appreciate Commissioner Sharpe for engaging in a Myth-buster’s dialogue with Schedule contractors on some of the issues involved in the implementation of the notice.
As a next step, the Coalition will provide written feedback and recommendations to GSA. We are asking members to please send their input on the UPC/MSN notice to Carolyn Alston at calston@thecgp.org by COB Monday, September 8, 2014. Based on the input received, we will prepare a draft for member review. Thank you again to all members who have submitted their thoughts thus far. We look forward to continuing the dialogue with GSA on data management for product labeling under the Schedules program.
Obama Signs VA Reform Bill into Law
On August 7th, President Obama signed the Veterans’ Access to Care through Choice, Accountability and Transparency Act of 2014 into law. The $16.3 billion law is the government’s sweeping response to major issues that have surfaced in the Veterans Affairs Department (VA). The VA reform law allocates $10 billion in emergency spending over a three year period to pay private health practitioners to care for qualifying veterans who either cannot get timely appointments at VA facilities, or who live over 40 miles away from the closest one. The law devotes $5 billion for hiring more VA doctors, nurses and medical staff, and the remaining $1.3 billion will go towards opening 27 new VA clinics around the country. President Obama stated at the signing ceremony that “This will not and cannot be the end of our effort…And even as we focus on the urgent reforms we need at the VA right now, particularly around wait lists and the health care system, we can’t lose sight of our long-term goals for our service members and our veterans.” The full text of the law can be viewed here.
Industry Groups Urge Supreme Court to Review “Per Invoice” Application of Fca Penalty
By: Donna Lee Yesner, Partner, Morgan Lewis
Violations of the False Claims Act (FCA) subject contractors to high penalties which can be unrelated to any loss actually suffered by government. The Act provides for treble damages for injury to the government, and a separate civil penalty of not less than $5,500 and not more than $11,000 per violation,. In recent years, an increasing number of whistleblower cases brought under the False Claims Act have been based on false certification and fraudulent inducement theories. The cases allege that a false representation or certification provided with the proposal induced the government to enter into the contract. Under this theory, some courts have considered the penalty applicable to every claim for payment as a matter of law, because each is tainted by the single misrepresentation at the contract formation stage. In such cases, the amount of the penalty will vary greatly depending on the number of individual orders submitted under the contract, as each invoice would be deemed a false claim subject to the penalty provision. For Multiple Award Schedule contracts, and similar IDIQ contracts, which provide a convenient means for government agencies to place repeat small orders for supplies or services as needed, a false certification can result in excessively high penalties, even if the invoices state the correct amount for work performed and there are no contract damages. Industry groups are urging the Supreme Court to consider whether such disproportionate penalties violate the Eight Amendment prohibition against excessive fines.
Last December, the Fourth Circuit Court of Appeals considered a whistleblower case involving a false certificate of independent price determination, . The Circuit Court reversed a lower court’s decision that the FCA penalty of $24 million, derived from application of the penalty to over 9,000 invoices, was grossly disproportionate to the conduct at issue under the Eighth Amendment. In that case, there were no proven damages and the invoices did not incorporate or reference the certificate at issue. In reinstating the penalty, the Fourth Circuit acknowledged problems with the “per invoice” rule, but nevertheless found that the penalty appropriately reflected the gravity of the offenses and provided the necessary and appropriate deterrent. The defendants in the case, United States ex rel. Bunk v. Gosselin World Wide Moving NV, 741 F.3d 390 (4th Cir. 2013), petitioned the Supreme Court for certiorari. A petition for certiorari is a request that the Court review the decision, as there is no right of appeal to the Supreme Court. The petition is currently pending. In June, three trade associations, PhRMA, the Chamber of Commerce, and the American Hospital Association submitted a brief as amici curiae, in support of the petitioners due to the importance of the issue and the need for clarification. The National Defense Industrial Association also submitted an amicus curiae brief.
In their briefs, the industry groups argue that the Fourth Circuit’s decision requiring a mechanical application of the FCA penalty to each invoice 1) results in irrationally large penalties that 2) bear no relationship to the severity of the offense or financial harm to the government. These are two of the four factors governing review of penalties under the Eight Amendment’s Excessive Fines Clause. The groups assert that the risk of incurring huge penalties leads defendants to settle, even when the claims are weak, and may deter smaller companies that depend on frequent billing from doing business with the government. This risk is exacerbated in government programs that necessitate a high volume of invoicing. In such programs, the magnitude of the penalty is determined not by culpability or harm to the government but by contract terms. Whistleblowers target defendants because the penalty is driven by the number of invoices rather than on the severity of the offense. Because there is no correlation between the penalty and culpability or harm, the same type of violation – false certification – can result in grossly disparate penalties. Industry groups have urged the Supreme Court not to wait for another circuit court decision to address this important issue, and to take this opportunity to provide needed clarification on the constitutional limits of the FCA penalty provision.
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.
Response Needed – Amicus Brief
The Coalition is considering filing an amicus brief in a Supreme Court case that will have a significant impact on government contractors. The Case involves two issues
1. Whether there is a statute of limitations for issues involving fraud against the government, and
2. The extent to which relators in False Claims Act cases can file repetitive cases.
A favorable decision in this case could reduce the risks and liabilities for government contractors involved in False Claims Act cases. The summary at the link above gives a detailed description of the case and its impact. We recommend that you read the summary and discuss it with your legal counsel immediately.
Member companies that are interested in supporting the filing of an amicus brief should contact Carolyn Alston at calston@thecgp.org or 202-600-2915 by August 21, 2014.
The 4th Quarter Scramble: Opportunities for Contractors?
On Off the Shelf, join Bill Gormley, president of the Gormley Group, Cameron Leuthy, senior budget analyst for Bloomberg Government, and Miguel Garrido, quantitative analyst for Bloomberg Government as they dissect the end of fiscal year budget profile — who has funding and where it will be obligated!
Gormley provides insights and recommendations regarding key competitive market strategies for companies responding to the fourth quarter surge in buying.Leuthy provides analysis of fourth quarter funding availability. He also shares insights into anticipated funding profiles for the first quarter of FY 15.In addition, Garrido analyzes historical buying patterns and obligations under multiple award contracts during the fourth quarter and what it means for contractors.
The data show that the streamlined capabilities of multiple award contracts make them the government procurement tool of choice in meeting fourth quarter acquisition deadlines. To listen to the program, visit www.federalnewsradio.com/80/3678378/The-4th-quarter-scramble-Opportunities-for-contractors.
EIP Award Nominations Now Open!
Nominate a deserving acquisition official for an EIP Award today! The Excellence in Partnership (EIP) Awards honor acquisition officials in the public and private sectors who have made significant strides in promoting and utilizing multiple award contracts, saving taxpayer dollars and contributing to veterans hiring and green initiatives. Awards will be given to individuals, organizations and contractors involved in procurement with GSA, VA, DoD, DHS and other government agencies. EIP Award nominations for 2014 are being accepted in the following categories:
1. Lifetime Acquisition Excellence Award
2. Contractor Savings Award
3. Government Savings Award (Civilian)
4. Government Savings Award (DoD)
5. Myth-Busters Award
6. Best Veteran Hiring Program
7. Green Excellence in Partnership Award
Nominations may be submitted on the CGP website here. If you have any questions, please contact Matt Cahill at mcahill@thecgp.org or (202) 315-1054.
Cloud RFI Extended to Aug 21
GSA has extended the deadline to respond to the Request for Information (RFI) to add a Cloud Computing Special Item Number (SIN) under IT Schedule 70. The deadline has been extended to 4:00pm on August 21, 2014. Members interested in contributing to the Coalition’s response, please contact Roy Dicharry at rdicharry@thecgp.org. For more details, see GSA’s RFI posted on FedBizOpps.
Counterfeit Comments Extended to Sept 10
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. Members who would like to provide feedback on the rule to the Coalition, please contact Aubrey Woolley at awoolley@thecgp.org.
The comment period for the proposed rule has been extended to September 10, 2014.
Notice on Equal Employment Opportunity Reporting
On August 8th, the Department of Labor’s (DoL) Office of Federal Contract Compliance Programs (OFCCP) issued a notice of proposed rulemaking (NPRM) to amend an implementing regulation under Executive Order (EO) 11246, “Equal Employment Opportunity”. The NPRM would require certain federal contractors and subcontractors to supplement their Employer Information Report (EEO-1 Report) with information on compensation paid to employees, “as contained in the Form W-2 Wage and Tax Statement (W-2) forms, by sex, race, ethnicity, and specified job categories, as well as other relevant data points such as hours worked, and the number of employees.” OFCCP states that this new reporting requirement will help in their goal to eradicate compensation discrimination, and allow them to focus enforcement resources on contractors whose data suggests potential pay violations, rather than entities whose data does not.
The OFCCP has also published a Fact Sheet and FAQs on the NPRM to assist contractors. Public comments on the NPRM are due by November 6, 2014, and can be submitted here.
Training – GSA Schedule Contracting for In-House Counsel, Sept 17
This class is a “must attend” for lawyers and corporate officials with significant contract management and compliance responsibilities in companies that have GSA Schedule contracts.
GSA Schedule contracts offer a huge market opportunity. 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. In some instances, state agencies can place orders against their contracts. These multiple year, government-wide contracts cover professional services, information technology, pharmaceuticals, medical equipment and a vast array of commercial products.
Thousands of companies including both Fortune 500 companies and a vast number of small businesses have GSA/VA Schedule contracts.
Of particular interest to in-house counsel and corporate executives, 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 commercial enterprise realizes anticipated profits. Failure to do so can result in significant monetary, administrative, civil and even criminal penalties.
This seminar will provide information and tools to help you understand the GSA/VA Schedule contracting program and provide insightful advice to your in-house clients and business partners.
Instructors:
- Carolyn Alston, General Counsel and Executive VP, Coalition for Government Procurement
- John Horan, Partner, McKenna, Long & Aldridge
- Jason Workmaster, Partner, McKenna, Long & Aldridge
Who Should Attend
- In-house counsel for current GSA/VA Schedule contractors
- In-house counsel for companies considering becoming a GSA/VA Schedule contractor
- Government attorneys that advise clients who evaluate or buy against Schedule contracts
- Outside counsel interested in learning more about GSA/VA Schedule contracting
- Compliance Officers
- Non-lawyers with extensive MAS experience
- Contract Managers
- Contracting Officers
What you can Expect
After attending this seminar you will:
- Earn 6 hours VA CLE!
- Understand GSA/VA’s most favored customer pricing policy and major requirements of the government solicitation
- Understand current audit/oversight procedures
- Understand current GSA Schedule Price Negotiation Priorities
- Understand how the GSA Schedule can impact your company bottom line
Be able to advise your in-house clients regarding:
- Disclosure of company records
- Establishing management and compliance processes
- Establishing ethics programs and mandatory disclosure
- Avoiding penalties
- Identifying resources to assist with continuing legal support of your internal GSA/VA Schedule programs
Registration Fees and Details – Register Here!
- Registration opens at 7:15am
- Training will begin at 8:00am