Comment of the Week: “In war, there are no unwounded soldiers.”[1]
On Wednesday, August 28, the Coalition will be hosting the Joseph P. Caggiano Memorial Golf Tournament Supporting Wounded Veterans at the Whisky Creek Golf Course. Quite simply, it is one of the highlights of the Coalition calendar each year. It provides a wonderful opportunity for the government contractor community to give back to our veterans. Over the last two years, our golf tournament has raised over $25,000 to support wounded veterans through Hope for the Warriors and Operation Second Chance. As noted in the Friday Flash article below, Hope for the Warriors and Operation Second Chance are two organizations that are providing support for our returning veterans as they transition to civil life.
The transition to civilian life can be especially daunting for war veterans who have suffered physical and/or mental injury. And the need continues to grow. Over the next three to five years, it is estimated that more than one million veterans will re-enter civilian life. That’s why your support is still needed and deeply appreciated. We must never forget those who have served, sacrificed and protected our freedoms.
The driving force behind the success of the Coalition’s golf tournament over the last two years was Joe Caggiano. Joe worked tirelessly to recruit sponsors and players. He brought a passion and commitment to the cause that was infectious! As a Navy veteran himself, he understood the challenges our service men and women face upon re-entering the civilian world. He wanted to make sure the Coalition was doing its part to our veterans. He succeeded!
Joe also truly enjoyed the tournament’s fellowship and camaraderie among all the participants from across the procurement community. As Joe said to me during the course of last year’s event, “Roger, this is what it is all about!”. Indeed, Joe was right on!
It is an honor and privilege that our tournament bears his name. The Coalition thanks the Caggiano family for its support.
Please click here for information on remaining sponsorships and to register to play.
Thank you for your support and we will see you on the 28th!
Roger Waldron
President
Honor Wounded Veterans and Play Golf!
Our annual Charity Golf Tournament has even greater meaning as we are now also honoring our good friend and colleague, Joe Caggiano. Joe was not only a 23-year veteran of the federal contracting marketplace but a naval veteran as well. We look to honor his memory and his passionate support of our nation’s heroes through the Joseph P. Caggiano Wounded Veteran Golf Tournament.
Proceeds from the tournament will be donated to Hope for the Warriors and Operation Second Chance.
How will member participation in the golf tournament support wounded veterans and their families? Hope for the Warriors will use the contributions to provide a full cycle of care to service members, veterans and military families including Employment & Education, Clinical Care Management, Recreational & Athletic Programs, and Community Outreach. Also, by participating in the tournament you will help Operation Second Chance provide emergency financial assistance to wounded, injured and ill veterans, in the form of rent, utilities, daily essential items, travel and morale. These organizations are deeply grateful for your continued support of our heroes!
The tournament will be August 28 at the Whiskey Creek Golf Club in Ijamsville, Md. If you would like to participate as a player, a sponsor, or both – please contact Athena Oliff at aoliff@thecgp.org. A special thank you to our title sponsor, Price Waterhouse Cooper, as well as our event sponsors, Cohn Reznick, Integrity Consulting and Baker Tilly for their generosity in making this event possible.
4th Quarter Refresh Webinars to Increase Your Market Share
Join our Two Part GSA e-Tools Myth Buster Webinar series as a 4th quarter refresh to increase your market share! Attending both Part 1 (August 15) and Part II (August 22) will help you to successfully navigate GSA e-Tools and meet your objective to increase sales. Attendees will have the opportunity to ask questions and learn about how GSA e-Tools benefit your company. You will hear how the Federal market place uses these tools and how you can benefit from this knowledge. Don’t miss the opportunity to hear from a GSA e-Tools domain expert!
Part I – August 15, 12:30 – 1:30pm
Part II – August 22, 12:30 – 1:30pm
Featured Speakers:
- Tim Dempsey, Chief, Systems, Office of Acquisition Management Federal Acquisition Service (FAS)
- Bill Gormley, President, The Gormley Group
- Carolyn Alston , Executive Vice President & General Counsel, The Coalition for Government Procurement
Who Should Attend? GSA Contractors, Business Developers, Marketing Managers, Contract Managers, Sales, and Market Research professionals.
For more details and to register, visit https://thecgp.org/event/gsa-e-tools-myth-buster-webinar. If you have any questions, please contact Athena Oliff at aoliff@thecgp.org or (202) 315-1052.
GSA Region 2 held an Industry Day this week for OS3, the third generation Federal Strategic Sourcing Initiative (FSSI) contract vehicle for Office Supplies. GSA addressed the successes and lessons learned from the current FSSI BPA for office supplies, OS2, and asked industry for feedback on a number of topics GSA is considering for OS3. Some of the questions that GSA is seeking input on are:
- How can GSA reduce costs under OS3?
- Should the scope of OS3 be expanded beyond traditional office supplies to include small “stand alone” office furniture items (e.g. tables and chairs) and “plug-in” IT transactional purchases (e.g. printers, monitors, keyboards and hardware items)?
- Should GSA require reporting of Open Market and non-FSSI sales as part of OS3?
- What are industry’s OCONUS capabilities?
GSA is also considering establishing OS3 as an Indefinite Delivery/Indefinite Quantity (IDIQ) contract rather than a blanket purchase agreement (BPA) based on the Schedules. Region 2 plans to release the OS3 solicitation in Fall or Winter 2013 on FedBizOpps. They are continuing to collect feedback from industry through the OS3 Industry Community on GSA Interact.
The Coalition remains concerned about the overall strategic sourcing strategy, especially the total acquisition costs and the impact on the Federal supply chain. We will be engaging with members on OS3 through the General /Office Products Committee. Members who would like to join this group, please contact Roy Dicharry at rdicharry@thecgp.org.
New GSA Tool Matches Customers with IT Solutions
The General Services Administration (GSA) has launched the IT Solutions Navigator, a new online tool designed to help government customers purchase information technology (IT) products and services from GSA. The navigator takes GSA customer requirements and provides the contract solution that best fits their needs, as well as a point of contact for more information. “We are in constant contact with our customers and we understand the challenges they face with IT acquisition,” explained Mary Davie, assistant commissioner for GSA’s Office of Integrated Technology Services. The program also simplifies market research for IT products and services, along with providing new features such as live chat tools, video tutorials, and the option to contact GSA’s Assisted Acquisition Services team for help.
For more information on the IT Solutions Navigator, click here!
Strategic Sourcing Working Group
The Coalition is establishing a multi-industry Strategic Sourcing Working Group to work on the association’s strategic sourcing strategy moving forward. Current Federal Strategic Sourcing Initiative (FSSI) BPAs that cover the membership include OS2 for office supplies, Print Management Services and SmartBuy. FSSI contract vehicles in development include Janitorial and Sanitation products; Maintenance, Repair and Operations products; and OS3 for office supplies. The government is looking to establish more FSSI contracts in FY2014.
Members interested in getting involved in the Strategic Sourcing Working Group, please contact Roy Dicharry at rdicharry@thecgp.org. We will have our first meeting after Labor Day.
DHS Call for Papers for CrossTalk
The Department of Homeland Security (DHS) Software and Supply Chain Assurance (SSCA) is co-sponsoring the March/April 2014 issue of CROSSTALK Journal of Defense Software Engineering, “Mitigating Risks of Counterfeit and Tainted Components.” Companies that are interested in authoring or co-authoring an article on this topic please contact Joe Jarzombek, DHS Director for Software & Supply Chain Assurance Stakeholder Engagement & Cyber Infrastructure Resilience Cyber Security and Communications at Joe.Jarzombek@hq.dhs.gov. Author guidelines for submitting articles are available at www.crosstalkonline.org/submission-guidelines.
DoD Interagency Acquisition Working Group
The Coalition is forming a working group of GWAC/MAC Committee members to provide Defense Procurement and Acquisition Policy (DPAP) with recommendations concerning interagency acquisition. Mike Canales with DPAP has requested our input for the Interagency Acquisition Working Group and has provided a package of documents for the Coalition to review. DPAP is requesting feedback by mid-September. If you would like to join the Interagency Working Group for this short term project, please contact Aubrey Woolley at awoolley@thecgp.org.
Gratuities – Cautionary Tales for Contractors and Government Employees
By Tom Barletta, Partner, Steptoe & Johnson LLP; Fred Geldon, Senior Counsel, Steptoe & Johnson LLP; & Mike Navarre, Special Counsel, Steptoe & Johnson LLP
Recent events demonstrate that government investigators and prosecutors are taking more seriously the ethical regulations that govern gratuities. Cases in point:
- On April 25, 2013, the U.S. Department of Justice issued a press release announcing that a Bureau of Prisons (BOP) employee had pled guilty to a charge of receiving unlawful gratuities. The BOP employee, a supervisory traffic management specialist in the BOP Relocation Services section, was responsible for giving relocating BOP employees a list of approved movers and then referring their move to agents of the chosen carrier. While performing these duties the employee received spa and salon gift cards in the amount of $1,007 and $790 from one carrier’s agent, as well as free moving services from moving companies. The BOP employee was subsequently assessed a fine of $1,500 and placed on probation for 18 months.
- On June 5, 2013, the Washington Post reported that the Internal Revenue Service (IRS) had placed two managers on administrative leave for accepting free food and other gifts in violation of government ethics rules. These violations were discovered during an audit of a years-old conference, at which the managers “allegedly held an after-hours party in their private hotel suites.” It apparently was not clear who gave the managers the food, worth $1,162. Acting Commissioner Danny Werfel said in a statement to the Post that the IRS has started the process of firing the managers.
The basic rules applicable to government employees regarding gratuities are set forth in the Standards of Ethical Conduct for Employees of the Executive Branch (“Standards”), which are codified at 5 C.F.R. § 2635. The Standards generally prohibit federal government employees from accepting gifts [1] from “prohibited sources,” a category that includes, among others, contractors (and employees of contractors) doing business with or seeking to do business with the federal government employee’s agency. 5 C.F.R. §§ 2635.102(k), 2635.203(d).
There are some exceptions, however. For example, under the Standards, federal employees may accept, even from “prohibited sources,” items worth $20 or less, as long as the total value of the gifts from the same source is not more than $50 in a single calendar year (calculated by including a contractor and its employees as a single source). 5 C.F.R. § 2635.204(a). The Standards also include other limited exceptions, such as gifts motivated by family relationships.
The size of the gratuities in the two recent examples discussed above far exceeds these thresholds. In the case prosecuted by the Justice Department, however, the amount at issue was significantly less than amounts usually cited in large corruption cases, and demonstrates that even these (relatively) small violations are attracting the attention of auditors, investigators, and prosecutors.
Although the Standards apply only to government employees who receive gratuities rather than to contractor employees who offer gratuities, contractors can face potential liability in relation to gratuities as well.
The federal criminal gratuities statute, 18 U.S.C. § 201, provides for fines or imprisonment for anyone who, for example, directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official or person selected to be a public official.
18 U.S.C. § 201(c)(1)(A).
Unlike a bribe, an illegal gratuity does not require an intent to influence; rather, the illegal gratuity only need be given “for or because of” an official act. An illegal gratuity “may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.” United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404-405 (1999). There must, however, be a connection, i.e., the government must prove “a link between a thing of value conferred upon a public official and a specific ‘official act’ for or because of which it was given.”[2] Id. at 414.
The risk to contractors is heightened, however, because the line between an acceptable gift and an illegal gratuity is nuanced. For example, in United States v. Hoffmann, 556 F.3d 871, 877 (8th Cir. 2009), the court rejected the defendant’s contention that the Government had failed to prove that he violated the gratuities statute because he did not reasonably believe that the government employee would take an official action and because the government employee never did so. Rather, the court upheld the conviction finding that a “reasonable juror could conclude” that the contractor gave the government project manager a set of golf clubs “to . . . reward future performance.”
The risk to contractors is demonstrated by yet another recent Justice Department announcement in a whistleblower “qui tam” case that included gratuities allegations. On March 7, 2013, DOJ announced that three CIA contractors (American Systems Corporation, Anixter International Inc., and Corning Cable Systems LLC) had agreed to pay $3 million to settle allegations they violated the False Claims Act and Anti-Kickback Act. The announcement included allegations[3] that in pursuit of a 2009 contract the companies had provided gratuities (meals, entertainment, gifts, and tickets to sporting and other events) to CIA employees.
Prohibitions on gratuities applicable to contractors are also incorporated into various FAR provisions. For example, FAR 52.203-13(b)(3) (Contractor Code of Business Ethics and Conduct) requires that contractors “timely disclose, in writing, to the agency Office of the Inspector General, with a copy to the Contracting Officer, whenever, in connection with the award, performance, or closeout of this contract or any subcontract thereunder, the Contractor has credible evidence that a principal, employee, agent, or subcontractor of the Contractor has committed . . . [a] violation of Federal criminal law involving . . . gratuity violations found in Title 18 U.S.C.” In addition, FAR 52.203-3(a) allows the government to terminate a contract if a contractor or contractor employee “[o]ffered or gave a gratuity (e.g., an entertainment or gift) to an officer, official, or employee of the Government; and [i]ntended, by the gratuity, to obtain a contract or favorable treatment under a contract.” The government also may recover damages and/or suspend or debar a contractor from federal contracting for violations of this clause. See FAR 3.204(c).
Finally, in addition to potential criminal penalties and suspension and debarment, providing gratuities to government employees can also result in other adverse effects for a contractor, such as negative past performance ratings that could affect current and future business.
In sum, to maintain healthy relationships with their government customers and to protect government employees and themselves from potential liability, contractors should understand the laws and regulations applicable to gratuities to government employees, have a clear policy regarding gratuities (which, for many contractors includes a prohibition on giving gratuities) and provide appropriate education and training to their employees.
Of course, contractors should also be aware of laws and prohibitions that apply in related contexts, including anti-kickback laws that prohibit certain improper payments between prime contractors and subcontractors, the Foreign Corrupt Practices Act, which prohibits certain types of payments to foreign officials, and laws and regulations that regulate payments that can be made to members of Congress and staff.
[1] “Gifts” include entertainment, favors, discounts, hospitality, transportation, and other things of value. 5 C.F.R. § 2635.203(b).
[2] The Court in Sun-Diamond also rejected the Government’s contention that the illegal gratuities statute is violated by providing a gift to an official because he is in a position (i) to act favorably at some unknown future time, or (ii) to “build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts.” Sun-Diamond, at 405.
[3] The Justice Department also alleged that the companies improperly received source selection information from a CIA employee to whom they had provided gratuities.
Congress: Move All VOSB, SDVOSB Verification to SBA
Last week, House Small Business Committee Member Rep. Mike Coffman (R-CO) introduced the Improving Opportunities for Service-Disabled Veteran-Owned Small Businesses Act of 2013. The bill would move the verification process for Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) and Veteran-Owned Small Businesses (VOSBs) from the Department of Veterans Affairs (VA) to the Small Business Administration (SBA). Currently, the VA verifies all potential SDVOSB companies applying for VA contracts while the SBA executes this verification process for all other agencies.
Additionally the legislation will reconcile the separate definitions of SDVOSB and VOSB into one. This will allow the VA to determine an individual’s Veteran or Service-Disabled Veteran status while the SBA would rule on whether a firm is owned and controlled by a Veteran or Service-Disabled Veteran. According to a press release on Congressman Coffman’s website, the bill aims to reduce fraud and costs from duplication in the verification processes.
Proposed Rule on Past Performance
On August 7, a proposed rule was released in the Federal Register that would reduce the amount of time contractors would have to submit responses to past performance evaluations, making the evaluations available to source selection officials sooner. The revision would allow contractors up to 14 calendar days from the date of delivery of past performance evaluations to submit comments, rebuttals, or additional information pertaining to past performance. In addition, past performance evaluations are to be made available to source selection officials not later than 14 days after the evaluation was provided to the contractor, whether or not the contractor has responded. These changes to the FAR are being made in accordance with the FY12 and FY13 National Defense Authorization Acts. Comments on the proposed rule are due October 7, 2013. Please contact Roy Dicharry at rdicharry@thecgp.org if you have any feedback on the rule you would like included in the Coalition’s comments.
The Coalition plans to submit comments on the interim rule that amends the Federal Acquisition Regulation (FAR) to clarify the government’s obligations regarding End User License Agreements (EULAs). The rule titled, “Terms of Service and Open-Ended Indemnification, and Unenforceability of Unauthorized Obligations” is primarily focused on open-ended indemnification clauses for social media applications. However, the interim rule states that commercial EULAs could also result in a violation of the Anti-deficiency Act if the legal liability to the government exceeds an agency’s appropriation. Consistent with a recommendation by the Office of Management and Budget, the interim rule amends FAR parts 12, 13, 32, 42 and 52 to provide additional guidance concerning purchases containing EULAs. According to the rule, the purpose is to “clarify that the inclusion of an open-ended indemnification clause in a EULA, TOS, or other agreement, is not binding on the Government unless expressly authorized by law and shall be deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.” Comments are due August 20, 2013. If you would like provide the Coalition with input on the rule, please contact Aubrey Woolley at awoolley@thecgp.org.
Public Key Infrastructure Industry Day
Schedule 36 and 70 contractors are invited to a Public Key Infrastructure (PKI) Industry Day on Monday, August 26, 2013 12:30 – 3:30 PM EST at the GSA Auditorium (1800 F Street, NW, Washington, DC). This Industry Day will discuss the Committee on National Security Systems Directive (CNSSD) #506, October 9, 2012, National Directive to Implement Public Key Infrastructure for the Protection of Systems Operating on Secret Level Networks and its impact on the current and future federal marketplace for Personal Identity Verification (PIV) tokens and National Security Systems Public Key Infrastructure (NSS-PKI) tokens.
Co-Chair Stephen Gregory, Committee on National Security Systems (CNSS) workgroup, and GSA representatives from Schedules 36 and 70 will discuss the impact on products and services offerings on GSA Schedules. For more information about the event, click here! Contact Terence Rountree (703) 306-6439 or Terence.rountree@gsa.gov if you have any questions.
Save the Date – 2013 Fall Conference – October 30th
Join the Coalition on October 30 for its 2013 Fall Training Conference: The New Federal Market. Hear from Federal agency Chief Financial Officers, Congressional staff and industry leaders about the evolving government market and how best to adjust to this new environment. The conference will be held at the Fairview Park Marriot in Falls Church, VA. More details will be available soon. Please contact Athena Oliff at aoliff@thecgp.org to learn more about sponsorship opportunities or for other information about the event.
USDA Subject Matter Expert – Women Infants Children (WIC)/Child Nutrition
Integrity seeks a Subject Matter Expert (SME) to help write the Performance Work Statement (PWS) in support of the USDA for an upcoming Food and Nutrition Services (FNS) procurement. The work will be intermittent, about 200 hours over 6 months.
Section 232 of the Healthy, Hunger-Free Kids Act of 2010 requires that FNS conduct a review of the WIC food package at least every ten years (Section 17(f)(11)(D) of the Child Nutrition Act of 1966. Integrity needs a SME who will apply social science research design expertise to provide technical assistance in order to complete a PWS to help FNS procure this support.
The SME will help develop the procurement package for the review, including the PWS and Instructions to Offerors. FNS will then use the PWS Integrity develops in its request for quotation (RFQ) to fulfill HHFKA Section 232.
The SME will support Integrity’s discussion with FNS regarding the goals and purpose of the scientific review, and help Integrity develop a PWS and Instructions to Offerors. This includes a literature review, objectives and research questions, and a list of tasks and deliverables. Integrity will provide the procurement expertise to augment the SME’s technical expertise.
Qualifications. The SME must have knowledge and expertise gained from involvement in social science research projects. The SME must have expertise in:
- The Special Supplemental Nutrition Program for Women, Infants, and Children (WIC).
- WIC food packages.
- Healthy, Hunger-Free Kids Act of 2010.
- The management and policy development processes in WIC.
- WIC nutrition education based on experience with WIC (at national, regional office, state or local levels) or authorship or peer-reviewed publications in this area.
- Nutrition Research, evidenced by peer-reviewed journal publications.
- Experience writing statements of work, performance work statements, grant proposals, is highly preferred.
For more information or to make a referral, please contact Ed Harrington at (617) 447-5972.