Two years ago, GSA reached a $128 million settlement with Network Appliance, now known as NetApp Inc., based on a whistleblower False Claims Act (“FCA”) suit that alleged the company had failed to comply with the Price Reduction Clause of the contract. The settlement amount was, and continues to be, the largest Schedule contract fraud settlement reached by GSA.

While the company might have thought it had put the pain and expense of dealing with the lawsuit behind it, it now faces another legal action stemming from the FCA case. On August 9, 2011, Amalgamated Bank filed a complaint in Delaware state court seeking to compel inspection of NetApp’s books and records related to the company’s performance of its GSA Schedule contract. 

Amalgamated Bank serves as trustee of certain mutual funds which own shares of NetApp. Its complaint makes clear that the bank is searching for evidence of possible breaches of fiduciary duties by NetApp’s Board of Directors, specifically by “approving of and/or acquiescing in, and/or failing to monitor and prevent a course of systemic and sustained misconduct that allowed the [c]ompany consciously to ignore NetApp’s obligations to comply with federal procurement law . . . .”

The bank draws upon the facts alleged in the whistleblower’s complaint as a basis to demand books and records related to the company’s representations made to GSA concerning its compliance with contract requirements; the company’s compliance efforts and internal controls related to the Price Reduction Clause and Industrial Funding Fee provisions; any internal investigation or audit concerning the company’s contract compliance; and other related documents.

Whether or not the bank’s pursuit of NetApp’s Board of Directors will succeed is unknown at this time. But the fact that a company could face legal action by shareholders as a result of an FCA settlement is yet another indicator of the importance of avoiding FCA allegations in the first instance. While it is likely impossible to entirely remove the risk of having an FCA case filed against a company, particularly by a whistleblower, taking fundamental compliance steps, such as implementing and educating employees on policies, procedures, and internal controls specific to the requirements of the GSA Schedule contract (or any government contract), as well as conducting periodic internal reviews or audits to identify potential noncompliances will go a long way. In addition, instituting reporting mechanisms for employees to report concerns about contract compliance, and charging management with the responsibility to address and, if necessary, resolve reported concerns, will help companies prevent FCA allegations, particularly by disgruntled employees who believe, either accurately or mistakenly, that the company is not performing its government contracts appropriately.

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Here they go again. Undeterred by the failure of the EO Survey five years ago, on August 10, 2011, the Office of Federal Contract Compliance Programs (“OFCCP”) published an Advance Notice of Proposed Rulemaking (“ANPRM”) soliciting public feedback on development of a new compensation data collection tool.  According to the ANPRM, this data collection is intended to identify “potential problems of compensation discrimination . . . that warrant further review or evaluation by OFCCP . . . as well as to identify and analyze industry trends, Federal contractors’ compensation practices, and potential equal employment related issues.” This latest initiative is consistent with OFCCP’s long-standing focus on compensation issues, and is illustrative of the Agency’s recent aggressive efforts to significantly augment its investigative “toolbox” and broaden the obligations imposed on federal contractors and subcontractors. 

The ANPRM seeks input on a series of fifteen questions that address the types of data to be collected, the manner in which such data would be organized, and the intended uses of the data. The fifteen questions  indicate the OFCCP is considering the following:

  • Collecting data used on a very broad definition of compensation, which could include starting salary, current salary, bonuses, commissions, stock options, shift differentials, paid leave, and health and retirement benefits.
  • Collecting the data on an individualized basis or aggregated by salary grade or band, EEO-1 categories, job groups, or census occupational codes.
  • Using the tool to target specific industries for “industry-focused compensation reviews.”
  • Using the data to conduct nationwide reviews of a contractor’s compensation system, across multiple establishments.
  • Requiring businesses to submit compensation data as part of the initial bidding process for future government contracts to enable OFCCP to better “target[] contractors for post-award compliance”.
  • Expanding the scope of this data collection tool to include construction contractors as well as service and supply contractors.

While it is too early to predict the precise scope and structure of the compensation data collection tool the OFCCP will ultimately adopt, the one sure bet is that this initiative will have a significant impact on the affirmative action reporting obligations of all federal contractors and subcontractors.  We will keep you updated as the OFCCP continues to develop this tool. 

Professional whistleblower Brady Folliard’s most recent False Claims Act suit against technology vendors alleging violations of the Trade Agreements Act (“TAA”) has survived a motion to dismiss with respect to two defendants (GovPlace and Government Acquisitions, Inc.), but otherwise has been dismissed for the other six defendants (which include Hewlett Packard and GTSI Corporation).

In this case, Mr. Folliard alleged that the defendants violated the False Claims Act by listing Hewlett Packard and Cisco products on their respective GSA Schedule and NASA Solution for Enterprise-Wide Procurement (“SEWP”) contracts that were manufactured in TAA non-compliant countries, that the defendants were aware that the products were not compliant and consciously misrepresented that fact to the Government, and that they submitted claims for money from the Government based on that misrepresentation. 

The district court dismissed the complaint against six of the defendants based on the False Claims Act’s “first-to-file” bar, finding that essentially the same allegations were leveled against the six defendants in United States ex rel. Crennen v. Dell Marketing L.P., 711 F. Supp. 3d 157 (D. Mass. 2010), which was filed prior to this case (and was subsequently dismissed). The court also determined that Mr. Folliard’s complaint was precluded on res judicata grounds as to defendant Hewlett Packard by a previous False Claims Act case Mr. Folliard had filed against that company, which was dismissed for failure to state a claim and failure to plead fraud with particularity (United States ex rel. Folliard v. Hewlett-Packard Company, 272 F.R.D. 21 (D.D.C. 2011).

Defendants GovPlace and Government Acquisitions, Inc. were the only defendants in this case who had not previously been sued by Mr. Folliard or another whistleblower alleging the same violations as in this case. While these defendants argued that the complaint should be dismissed against them based on Mr. Folliard’s failure to plead fraud with particularity, the court determined that the complaint contained sufficient information to meet the pleading requirements for a fraud case. Unlike other cases filed by Mr. Folliard, including the case against Hewlett Packard and United States ex re. Folliard v. CDW Technology Services, Inc., 722 F. Supp. 2d 20 (D.D.C. 2010), the court here determined that the complaint contained sufficient detail about the alleged misrepresentations of product compliance and identified specific procurement orders for non-compliant products.

This latest Folliard case is yet another reminder of the importance of ensuring from the outset that products listed for sale on GSA Schedule contracts as well as other government contracts are compliant with the Trade Agreements Act, putting measures in place to routinely re-affirm the country of origin during contract performance, and promptly removing non-compliant products. It is also a reminder that individuals beyond those who meet the typical whistleblower profile(i.e., disgruntled employees or ex-employees) are on the lookout for any indication of possible TAA non-compliance and could seize upon such information and file a False Claims Act case against you.

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While the administrative tools of suspension and debarment allow the government to prohibit entities from receiving contracts or grants directly, the procurement regulations also contain restrictions on prime contractors’ ability to subcontract with suspended or debarred entities. Historically, these restrictions, found at section 52.209-6 of the Federal Acquisition Regulation, have:

  • Prohibited government contractors from entering into subcontracts over $30,000 with any entity that is excluded from government contracting (there is a “compelling reason” exception). This restriction has been limited to “first-tier subcontracts,” meaning suspended or debarred entities could work as government subcontractors at the 2nd tier or below.
  • Required government contractors to collect written certifications from first-tier subcontractors with subcontracts over $30,000 stating whether the subcontractor or any of its principals were suspended, debarred, or proposed for debarment.

In response to a legislative expansion of the definition of “procurement activities” to include, with certain commercial exceptions, subcontracts at any tier, these requirements were revised by an interim rule issued in December 2010. The interim rule includes two key changes: it exempts certain subcontracts from coverage regardless of whether they are over $30,000 and, for the first time, applies the restriction and certification requirements to lower tier subcontractors. Where the revised version of the clause applies, a contractor’s obligations now depend on whether (1) the items being acquired qualify as “commercial-off-the-shelf” (COTS) items, defined as commercial items sold in substantial quantities in the commercial marketplace and offered to the Government without modification (excluding bulk cargo such as agricultural or petroleum products) and (2) the prime contract is for non-commercial or commercial items:

  • If the prime contract is for a non-commercial item, the prime contractor must apply the prohibition and certification provisions to all lower-tier non-COTS subcontracts over $30,000.
  • If the prime contract is for a commercial item, the prime contractor must apply the prohibition and certification to only first-tier non-COTS subcontracts.
  • If the subcontract is for COTS items:

    • there is no restriction on subcontracting with suspended or debarred parties regardless of the amount of the subcontract
    • no suspension/debarment certification is required from the subcontractor
    • there is no requirement to flow down the requirement

Because we are now beginning to see the revised provision in contracts, we suggest that contactors, both primes and subs, review the new clause to ensure your policies and procedures take the revisions into account. While the changes present an opportunity to limit certifications required from COTS subcontractors, unless a prime contractor can be certain that a subcontractor is providing only COTS items a certification regarding suspension and debarment is still recommended. More important is the new requirement to flow down the provision to non-COTS lower tier subcontracts over $30,000 where the prime contract is not for a commercial item.

We note that the expansion of the definition of procurement activities to include subcontracts at any tier is a further indication of the reach of government procurement regulations. While the exceptions for certain commercial or COTS items contracts are helpful, government contracting has become more onerous, yet again, for non-commercial item contractors and subcontractors.

 

In One Largo Metro LLC et al., B-404896 (June 20, 2011), GAO sustained protests by three disappointed offerors, challenging GSA’s award regarding a lease of office space in suburban Maryland for the Department of Health and Human Services. Crowell & Moring attorneys represented King Farm Associates, LLC (“King Farm”), one of the protesters. 

In sustaining the protests, GAO found that the Head of the Contracting Activity (“HCA”) rejected the lower-level evaluators’ conclusions without articulating an adequate basis for doing so. The Agency’s source selection evaluation board (“SSEB”) had initially recommended award to King Farm. The source selection authority (“SSA”), however, raised concerns about the SSEB’s rationale for its ratings and directed it to reevaluate its recommendation. After a second evaluation that identified numerous technical differences between the proposals, the SSEB again recommended award to King Farm. The SSA, despite disagreement with the SSEB’s conclusion about the relative technical merits of the offerors, adopted the recommendation. The HCA then reviewed the SSA’s source selection decision. Rejecting the ultimate conclusions of the SSEB and SSA, the HCA summarily decided that Fishers Lane presented the best value to the Government.

Although GAO acknowledged the well-settled rule that source selection officials are not bound by the recommendations of lower-level evaluators, GAO found that the HCA failed to meaningfully consider not only a number of evaluated differences between the proposals, but also “considerable disagreement between the SSEB and the SSA concerning the relative merits of the proposals.” Instead, GAO determined that the HCA mechanically compared the percentages of adjectival ratings assigned to each offer by the SSEB and issued a conclusory pronouncement that Fishers Lane represented the best value to the government. GAO concluded: “In the absence of a documented, meaningful consideration of the technical differences between the offerors’ proposals, the HCA could not perform a reasonable tradeoff analysis.” 

GAO also sustained King Farm’s challenge to GSA’s evaluation of proposals under the access to amenities subfactor. The solicitation provided that offerors’ proposals would be evaluated for both the “quantity and variety” of specified amenities within a certain distance of the proposed office space, but GAO found that GSA improperly deviated from this requirement by considering only the amount of amenity categories. 

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The US Court of Federal Claims recently granted preliminary injunctive relief against a Federal contractor for an organizational conflict of interest, in a decision casting a deeply skeptical eye on an awardee’s improper access to competitor information–and the government’s lackadaisical attempt to police the impropriety.

The case, Netstar-1 Gov’t Consulting, Inc. v. United States, centered on a program management support services contract with the US Department of Homeland Security Immigration and Customs Enforcement (ICE) Office of Chief Information Officer. ICE awarded ALON, Inc. the contract. Both ALON and the protestor, NetStar-1, had performed previous related ICE contracts.

NetStar-1 alleged ALON used its previous access to ICE data – including NetStar-1’s labor categories, job categories, and labor rates – to improperly craft a winning proposal. The Federal Acquisition Regulations (FAR) definition of an organizational conflict of interest (OCI) includes situations where competitors have unequal access to procurement-related information, thereby giving one or more offerors an unfair bidding advantage. Judge Francis M. Allegra held that the facts established ALON had an OCI. ALON argued no unequal access existed because both firms had access to NetStar-1’s data—an argument the judge dismissed as “frivolous.” But it was the government’s conduct that drew much of his ire.

NetStar-1 alleged the ICE contracting officer (CO) involved failed to adequately mitigate the OCI. The FAR requires CO’s to “analyze planned acquisitions in order to (1) [i]dentify and evaluate potential organizational conflicts of interest as early in the acquisition process as possible; and (2) [a]void, neutralize, or mitigate significant potential conflicts before contract award.” In this case, the CO failed to make pre-award identification of ALON’s prior access to proprietary NetStar-1 data. “[E]ven more remarkable,” Judge Allegra noted, was that ALON’s other ICE contracts – negotiated by the same CO — had clauses specifically warning that ALON would have future OCIs.

Judge Allegra continued: “The mitigation plan adopted by the contracting officer has some interesting features.” (One can almost hear the judge’s “ahem” come off the page.) The CO had obtained declarations from ALON employees saying they had not obtained NetStar-1 data. However, it turned out that the CO sought declarations from the wrong people—she never contacted the dozen ALON employees who actually had access to the data. Furthermore, the court found that the CO relied on incomplete non-disclosure statements from ALON and verbal pledges by the company. “Indeed, if the latter were enough, one must wonder why the drafters of the FAR bothered to develop an extensive set of rules to deal with such conflicts,” wrote Judge Allegra in his May 27, 2011 opinion.

Based on these facts, the court concluded NetStar-1 had demonstrated the likelihood of success on the merits, the key requirement for obtaining preliminary injunctions. The court also found the three other injunction factors weighing in NetStar-1’s favor. The court enjoined the contract and set dates for a merits trial. The case demonstrates not only the imperative that Federal contractors to investigate competitors’ potential OCI’s, but also the need to demand that the government honor its FAR policing duties. Timely government contracts counseling can alert contractors to precisely such issues.

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With legislation to extend the GAO’s protest jurisdiction over civilian agency task and delivery order procurements stalled in Congress, GAO has concluded that its protest jurisdiction over those procurements will not only continue after the May 27, 2011 sunset date, but will expand.  The Federal Acquisition Streamlining Act (“FASA”) limited GAO’s protest jurisdiction to protests on the “ground that the order increases the scope, period or maximum value of the contract under which the order is issued” or involving orders in excess of $10 million. 10 U.S.C. § 2304c(e)(4) (Department of Defense (“DoD”)); 41 U.S.C. § 253j(e) (civilian agency). Since the 2008 amendments to FASA, GAO has enjoyed exclusive jurisdiction over protests of both DoD and civilian agency task and delivery orders. The amended clauses included sunset provisions with a date of May 27, 2011. While the FY 2011 NDAA extended Title 10’s grant of jurisdiction to September 30, 2016, no similar extension was passed to extend Title 41 jurisdiction past the May 27 sunset date.

On May 23, 2011, Technatomy Corporation protested the award of a task order issued by DISA under a GSA ID/IQ contract. Shortly thereafter, DISA filed a Motion to Dismiss arguing that GAO’s jurisdiction over civilian task order procurements sunsetted by operation of law on May 27, 2011, citing 41 U.S.C § 253j(e).

GAO denied that motion, ruling that the sunset provisions in 41 U.S.C. § 253j(e) jurisdiction did not remove GAO’s jurisdiction over civilian agency order procurements. Technatomy Corp., B-405140, June 14, 2011. Instead, GAO ruled that all of 41 U.S.C. § 253j(e) sunsetted, thereby eliminating any restrictions on GAO’s civilian agency task order jurisdiction, effectively reverting back to its pre-FASA, Competition in Contracting Act of 1984 (“CICA”) jurisdiction. Under CICA, GAO’s authority to hear bid protests made no distinction between contracts versus task or delivery orders, and did not require such orders to exceed $10 million. Additionally, under CICA, jurisdiction of these protests was not exclusively limited to GAO. By announcing a reversion to this CICA jurisdiction, the Technatomy decision means that GAO now asserts that it can hear a challenge over any civilian task or delivery order award, regardless of dollar figure, and that GAO’s jurisdiction over these protests is no longer exclusive.

Notably, to the extent that the Court of Federal Claims agrees with GAO’s interpretation of the § 253j(e) sunset clause, the Court’s existing jurisdiction over bid protests under the Tucker Act would not prevent it from hearing protests of civilian agency task and delivery order procurements.

Also of note in this decision is GAO’s analysis of whether the protest of this DISA task order award decision properly falls under Title 10 or Title 41 jurisdiction. The underlying contract vehicle, GSA VETS, was with GSA, a civilian agency. However, the task order competition was conducted by DISA, a DoD agency. Thus, there was a question of whether GAO’s jurisdiction over the protested task order award was authorized under Title 10 or Title 41. GAO’s interpreted the statutory language of Title 41 §§ 3101(c), 4103, to dictate that jurisdiction over task or delivery orders is determined by the agency issuing the underlying contract. As GSA issued the underlying contract, jurisdiction over the task order was authorized by Title 41, not Title 10.

With this ruling, GAO has potentially opened the door to new protests previously barred by the strict jurisdictional limits of § 253j(e), such as task order awards less than $10 million. Additionally, since the previously parallel jurisdiction over DoD task and delivery orders under Title 10 was extended on January 7, 2011 to run through September 30, 2016, this means that – for the time being – GAO will have broader jurisdiction over civilian task and delivery order procurements than they have over DoD task order procurements. It will be interesting to see if GAO’s decision spurs Congress to reinstate § 253j(e), but in the meantime GAO, and potentially the Court of Federal Claims, may entertain a broader protest jurisdiction over civilian task and delivery order procurements.

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The Recovery Act and the funds it has made available under various federal grant programs have brought renewed attention to domestic preference provisions. Contractors familiar with the longstanding Buy American Act restriction on federal procurement and the Trade Agreements Act exception have found themselves confronted by a dizzying array of much less well-known, and often significantly different, Buy American type provisions applicable to federal grant and loan programs used to fund both domestic and international projects. These restrictions vary program to program in terms of the scope of the restriction, the method for determining country of origin for a product, and how foreign content is evaluated. Some of the major grant or loan programs with Buy American restrictions include:

  • Recovery Act grants and financial assistance for public works projects by state and local government entities;
  • Federal Aviation Funds for airport improvement and other programs;
  • Federal Highway Funds for the construction of highways;
  • Federal Transit Funds for various mass transit projects;
  • The Foreign Military Financing Program administered by DoD;
  • U.S. Agency for International Development grants and contracts funded under the Foreign Assistance Act; and
  • Procurements funded by the U.S. Export-Import Bank.

These federally-funded programs provide significant business opportunities for contractors, but also present challenges in terms of navigating and complying with a myriad of domestic preference regimes. During the webinar, we will provide an explanation of the domestic preference restrictions associated with each of these programs, as well as practical advice for ensuring compliance, given the realities and global-sourcing pressures of the commercial marketplace.

On Tuesday, June 21st, from 2:00 pm to 3:30 pm EDT, please join Angela Styles, Alan Gourley, and Addie Cliffe, government contract practitioners from Crowell & Moring, for a discussion of these programs and compliance issues. Click here to register.

On June 2, 2011, the Department of Justice (“DoJ”) announced a $2.7 million settlement of a False Claims Act (“FCA”) case brought against Ultralife Corporation (“Ultralife”). The complaint alleges that Ultralife violated the FCA through the submission of false claims based on “defective pricing” under three contracts with the U.S. Army to provide lithium-manganese dioxide non-rechargeable batteries.  The settlement arose out of a government investigation following a 2005 Defense Contract Audit Agency (“DCAA”) audit suggesting a potential $1.4 million pricing adjustment related to the contracts.

The settlement was first made public in April, 2011, in Ultralife’s Form 8-K filing. The Form 8-K reported that, in light of the possible treble damages and penalties associated with the pricing adjustment, the Company had decided to enter into settlement negotiations with the government. As Ultralife described in further detail: “We had certain ‘exigent’, non-bid contracts with the U.S. government, which were subject to audit and final price adjustment, which resulted in decreased margins compared with the original terms of the contracts.” The DCAA suggested the adjustment based on reductions in the cost of materials prior to the final negotiation of the contracts. This finding prompted a 2007 Department of Defense Office of Inspector General inquiry, which was later consolidated with the DCAA audit by the U.S. Attorney’s Office for the Western District of New York.

In negotiating with the Government, Ultralife took the position that the proposed adjustments could be offset with other cost increases also occurring prior to the final negotiation of the contracts. But, citing its desire to avoid further time and expenses, Ultralife agreed to a settlement with the Government to resolve the matter. In contrast to Ultralife’s description of the inquiry, the DoJ characterized it as a routine defective pricing allegation. According to the DoJ’s press release last Thursday, Ultralife provided government contracting personnel with false certifications regarding the company’s cost and pricing information for the three contracts in question; and thus, “improperly pass[ed] inflated costs on to the American taxpayers . . . .” 

Because of the settlement, the complete details will not be discovered. But Ultralife’s characterization of the matter raises several issues. Most importantly, if the Army’s need to procure the batteries was so urgent that the Army only approached Ultralife, why was it necessary for it to require the company to submit a proposal, including certified cost or pricing data? Also—assuming Ultralife’s characterization is correct—is it possible to provide defective pricing data on a “non-bid” contract? Although the answers are unknown, at the very least, this settlement should serve as a warning to those contractors who enter into such “exigent” contracts with government agencies.

On May 31, 2011, the government issued an interim rule that implements two key executive orders directing environmental attributes of federal procurement actions. Executive Order 13423, “Strengthening Federal Environmental, Energy, and Transportation Management,” was issued by President Bush on January 24, 2007 and set a number of different environmental goals for federal agencies related to improving energy efficiency, increasing the use of renewable energy sources, reducing water consumption intensity, reducing the quantity of toxic and hazardous chemicals and materials acquired, and ensuring that new building construction and major renovations comply with “green” guidelines. It also specifically required agencies to incorporate sustainable environmental practices in the acquisition of goods and services, including acquiring “biobased, environmentally preferable, energy-efficient, water efficient, and recycled contact products.”

Two years later, on October 5, 2009, President Obama issued Executive Order 13514, “Federal Leadership in Environmental, Energy, and Economic Performance,” which required federal agencies to meet specific goals related to reducing greenhouse gas emissions and improving water efficiency, pollution prevention and waste elimination. It specifically required agencies to advance sustainable acquisition by ensuring that 95% of new contract actions are “energy-efficient, water-efficient, biobased, environmentally preferable and non-ozone depleting, and contain recycled content, non-toxic or less-toxic alternatives.” It also directed agencies to implement “high performance sustainable federal building design, construction, operation and management, maintenance, and deconstruction.”

Now, these requirements have been made part of the Federal Acquisition Regulation (“FAR”), and will affect agencies and contractors alike. From the agencies’ perspective, key requirements in the new FAR rule include:

(1) Considering and including sustainable acquisition requirements in synopses, acquisition planning documents, and descriptions of agency needs.

(2) Ensuring that 95% of new contract actions, including those for construction, contain requirements for products that are designated as energy-efficient, water-efficient, biobased, environmentally preferable (e.g., EPEAT-registered, non-toxic or less toxic alternatives), non-ozone depleting, or those that contain recovered materials.

(3) Making maximum use of energy-savings performance contracts (“EPSCs”).

(4) Implementing high-performance sustainable building design, construction, renovation, repair, commissioning, operation and maintenance, management, and deconstruction practices.

(5) When acquiring information technology, identifying agency requirements pursuant to EPEAT standards and policies that promote power management, double-sided printing, and other energy-efficient or environmentally preferable features, and best management practices for energy-efficient management of services and federal data centers.

The rule includes definitions of terms such as “renewable energy,” “sustainable acquisition,” “water consumption intensity,” and “greenhouse gases.”

The provisions affecting contractors include:

(1) a contract clause that requires the submission of paper documents, including proposals and reports, to be printed or copied on double-sided paper containing at least 30% postconsumer fiber, “whenever practicable” and when the information is not otherwise able to be submit electronically to the agency. Prior to this rule, there was only an agency “preference” for use of recycled paper.

(2) a contract clause requiring contractors that operate government-owned or government-leased facilities in the U.S. to comply with an agency’s environmental management system and provide monitoring and measurement information as required by the government.

Note that the interim rule removes the requirement for contractors to report and certify to toxic chemical releases, on the rationale that these reports are already required by federal environmental laws. Also, contractors should be aware that the Federal Procurement Data System (“FPDS”) will be used to collect sustainable acquisition data.

The stated goal of the rule is to leverage federal acquisition actions to foster markets for sustainable technologies and materials, products, and services. Whether the rule will accomplish this goal remains to be seen, particularly in light of shrinking private investments in these areas.

Comments on the interim rule are being accepted through August 1, 2011.