Georgia Tech Procurement Assistance Center

VA agrees that rule of two has priority over AbilityOne Procurement List

By

In its most recent attempt to strike the appropriate balance between the Veterans First and AbilityOne programs, the U.S. Department of Veterans Affairs (“VA”) issued on May 20, 2019 a class deviation to the VA Acquisition Regulations (“VAAR,” 48 C.F.R. Chapter 8), instructing contracting officers to conduct a “Rule of Two” analysis before procuring from the AbilityOne Procurement List.

The Rule of Two is set forth in the Veterans Benefits Act of 2006 (“VBA”), 38 U.S.C. § 8127(d), which established the Veterans First program.  The Rule of Two requires that VA contracting officers determine whether two or more veteran-owned small businesses (“VOSBs”), including service-disabled veteran-owned small businesses, are capable of meeting the VA’s requirements at reasonable prices.  If two or more qualified VOSBs can satisfy the VA’s needs, the VA must procure those goods through those VOSBs that are awarded contracts.  The VBA also allows contracting officers to grant sole-source contracts to VOSBs under limited circumstances (38 U.S.C. §§ 8127(b)-(c)).

The new VA class deviation revises VAAR 808.002, Priorities for Use of Government Supply Sources, and subpart 808.6, Acquisition from Federal Prison Industries, Inc.—the two provisions that implement for the VA the FAR Part 8 mandatory source priority generally enjoyed by AbilityOne Procurement List and Federal Prison Industries vendors across government procurements.  The deviation instructs that the Veterans First priority displaces the AbilityOne priorities for “all VA contracts,” but that “if an award is not made to an eligible . . . VOSB under VAAR subpart 819.70, the priority use of AbilityOne applies and supplies and services on the Procurement List are mandatory sources.”  In this respect, the new VA class deviation reconciles the VA’s priorities for veterans and the separate, government-wide priority for AbilityOne nonprofit companies.

Continue reading at:  Government Contracts and Investigations Blog

DoD could award more contracts to companies with disabled workforce

By

The Defense Department may soon have an additional way to award contracts to companies that employ people with severe disabilities, breathing life back into a project Congress set up 15 years ago but that’s languished ever since.

A proposed rule, published April 1, amends the Defense Federal Acquisition Regulation Supplement by implementing a demonstration project giving Defense agencies more incentive to purchase contracts directly from eligible firms employing those with severe disabilities.  It gives contractors with a disabled workforce a boost when competing for certain awards.

Most DoD contracts with entities that employ large numbers of disabled Americans are currently handled through a procurement list maintained by the AbilityOne program.  But under the proposed rule, DoD would be able to award contracts to companies — both nonprofit and for-profit — that do not qualify to sell through AbilityOne, as long as the contractors can meet other criteria.

  • Individuals suffering from severe disability must make up at least 33 percent of a contractor’s workforce over a 12-month period from the time the award period begins.
  • The entity cannot pay those with disabilities less than minimum wage.
  • The organization must also provide those individuals with health insurance and a retirement plan comparable to those provided by other contractors.

“Contracts awarded to eligible contractors under this demonstration project may be counted toward DoD’s small disadvantaged business goal,” the proposal said.

Continue reading this article at: Federal News Network

White House issues new guidance on category management

By

Eight years after the Obama administration began importing the private-sector procurement tool known as “category management,” the Trump administration on Thursday rescinded old directives and delivered new agency guidance.

In a March 21 memo to all agency heads, Office of Management and Budget Deputy Director Margaret Weichert—who is doing double duty running the Office of Personnel Management — tasked agencies with a new reporting regime for shared services that “supersedes and rescinds” OMB directives from 2011 and 2012.

Category management involves agency teams coordinating bulk purchasing in areas such as information technology, security and protection, and transportation. Weichert’s memo reported that as much as 56 percent of the government’s $325 billion in purchases of software, mobile services, technology services and travel remained “unaligned” or decentralized, as of December 2018.

“This statistic confirms that substantial cost-avoidances and performance benefits are going unrealized and underscores the need for greater management attention on collaborative buying at both the federal and agency levels by increasing the portion of an agency’s spend” using category management, the memo said.

Keep reading this article at: https://www.nextgov.com/cio-briefing/2019/03/white-house-issues-new-guidance-category-management/155759/

In VA procurements, veteran-owned businesses trump all other contractors

By

On October 17, 2018, the Federal Circuit ruled that the Department of Veteran Affairs (“VA”) must give priority to veteran-owned small businesses (“VOSB”) when awarding contracts.  (PDS Consultants Inc. v. U.S., et al., Nos. 17-2379 and 17-2512, 2018 WL 5019735 – Fed. Cir. Oct. 17, 2018).

At first blush, no one would argue with the foregoing statement.

But, this mandate became less clear when the VA was faced with awarding a contract to a VOSB or following an otherwise mandatory requirement for all federal agencies to buy a specific list of items made by nonprofits employing the blind and significantly disabled.

Here is the source of confusion. More than 40 years ago, Congress enacted the Javits-Wagner-O’Day Act (“JWOD”), which required federal agencies to buy certain items and services from nonprofits that employ the blind or people with other significant disabilities. Today, this mandatory procurement policy is implemented through the AbilityOne program.

In 2006, Congress passed the Veterans Benefits, Health Care, and Information Technology Act (“VBA”). As the U.S. Supreme Court stated in Kingdomware, the VBA made it mandatory in almost every procurement for the VA to follow the “Rule of Two.” The “Rule of Two” requires the VA to award a contract to a VOSB whenever at least two VOSBs can perform the work at a reasonable price.

Keep reading this article at: https://governmentcontractsnavigator.com/2018/10/18/in-department-of-veterans-affairs-procurements-veteran-owned-businesses-trump-all-other-contractors

Another big win for vets: SDVOSBs trump AbilityOne at VA, court rules

By

The VA cannot buy products or services using the AbilityOne List without first applying the “rule of two” and determining whether qualified SDVOSBs and VOSBs are available to bid.

The May 30, 2017 decision of the U.S. Court of Federal Claims in PDS Consultants, Inc. v. United States, No. 16-1063C (2017) resolves – in favor of veteran-owned businesses – an important question that has been lingering since Kingdomware was decided nearly one year ago.  The Court’s decision in PDS Consultants makes clear that at VA, SDVOSBs and VOSBs trump AbilityOne.

The Court’s decision involved an apparent conflict between two statutes: the Javits-Wagner-O’Day Act, or JWOD, and the Veterans Benefits, Health Care, and Information Technology Act of 2006, or VBA.

As SmallGovCon readers know, the VBA states that (with very limited exceptions), the VA must procure goods and services from SDVOSBs and VOSBs when the Contracting Officer has a reasonable expectation of receiving offers from two or more qualified veteran-owned companies at fair market prices.  Last year, the Supreme Court unanimously confirmed, in Kingdomware, that the statutory rule of two broadly applies.

The JWOD predates the VBA.  It provides that government agencies, including the VA, must purpose certain products and services from designated non-profits that employ blind and otherwise severely disabled people.  The products and services subject to the JWOD’s requirements appear on a list known as the “AbilityOne List.”  An entity called the “AbilityOne Commission” is responsible for placing goods and services on the AbilityOne list.

Keep reading this article at: http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/another-big-win-for-vets-sdvosbs-trump-abilityone-at-va-court-rules/

Contracting News

Read More

Contracting Tips

Read More

GTPAC News

Read More

Georgia Tech News

Read More