Georgia Tech Procurement Assistance Center

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

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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

‘Cascading’ set-asides now authorized at the VA

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In what many will see as VA’s continued assault on its Veterans First Contracting Program post-Kingdomware, the Dept. of Veterans Affairs (VA) recently implemented “Cascading” set-asides.

The VA refers to these set-asides as “Tiered Evaluations,” noting they are also known as “Cascading” set-asides.

The VA issued Acquisition Policy Flash (No. 18-15), transmitting Procurement Policy Memorandum (PPM) No. 2018-04, dated and effective February 8, 2018.

The VA issued the PPM in response to requests from VA contracting officers requesting guidance and procedures for the use of tiered evaluations within a single synopsized solicitation when applying the “VA Rule of Two.”

Keep reading this article at: http://vetlikeme.org/its-official-cascading-set-asides-are-now-authorized-at-the-department-of-veterans-affairs/

Indictment in $40 million alleged fraud case signals increased scrutiny of SDVOSB contractors

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On December 1, 2017, the U.S. Department of Justice (DOJ) announced the federal grand indictment of an army veteran for allegedly engaging in major government program fraud by using his status as a service-disabled veteran to obtain contracts set-aside for service-disabled veteran-owned small businesses (SDVOSBs), despite the fact that he did not control the management and daily operations of the company to which the contracts were awarded.

In the case, U.S. v. Dial Jr., the veteran has been charged with four counts of major program fraud as well as wire fraud in connection with his company United Medical Design Builders, LLC (“UMDB”) receiving over $40 million in government contract funds from the U.S. Army Corps of Engineers between 2008 and 2015.

Specifically, the Government alleged that Dial, who is a disabled Army veteran, acted only as a “figurehead” of UMDB in order for UMDB to obtain a SDVOSB set-aside contract to build health care facilities.

Keep reading this article at: https://www.lexology.com/library/detail.aspx?g=9b298da1-560e-43ad-86b2-2768bc5ba765

Former head of CVE urges VA to implement VOSB contracting preference

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For too long, the U.S. Department of Veterans Affairs (VA) has circumvented a policy known as VETS First, refusing to give preference to veteran-owned small businesses despite being directed to by Congress, the Government Accountability Office (GAO) and the U.S. Supreme Court.

This refusal hurts not only veteran-owned small businesses, but the millions of veterans who depend on the VA.

In 2006, Congress passed The Veterans Benefits, Health Care and Information Technology Act, which among other things established the VETS First program. But the VA, under administrations controlled by both parties, never followed through. On several occasions, the GAO has ruled that the VA has failed to follow the law. And still, it does nothing.

Keep reading this article at: http://thehill.com/blogs/pundits-blog/the-military/349692-the-va-must-do-its-duty-to-help-veteran-owned-small

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

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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/

Kingdomware doesn’t require recertification for GSA Schedule SDVOSB set-aside orders

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The Supreme Court’s landmark ruling in Kingdomware Technologies, Inc. v. United States does not require SDVOSBs to recertify their eligibility in connection with individual GSA Schedule task orders.

In a recent decision, the SBA Office of Hearings and Appeals held that Kingdomware doesn’t affect the SBA’s SDVOSB eligibility regulation for multiple-award contracts, which specifies that if a company qualifies as an SDVOSB at the time of the initial offer for a multiple-award contract, it ordinarily qualifies as an SDVOSB for all orders issued under the contract.

OHA’s decision in Redhorse Corporation, SBA No. VET-263 (2017) involved a GSA RFQ seeking transition ordering assistance in support of the Network Services Program.  The RFQ contemplated the award of a task order under the GSA Professional Services Schedule.  The order was set aside for SDVOSBs under NAICS code 541611 (Administrative Management and General Consulting Services).  The GSA contracting officer did not request that offerors recertify their SDVOSB eligibility in connection with the order.

After evaluating quotations, the GSA announced that Redhorse Corporation was the apparent awardee.  An unsuccessful competitor subsequently filed a protest challenging Redhorse’s SDVOSB status.  The SBA Director of Government Contracting sustained the protest and found Redhorse to be ineligible for the task order.

Keep reading this article at: http://smallgovcon.com/sbaohadecisions/kingdomware-doesnt-require-recertification-for-gsa-schedule-sdvosb-set-aside-orders

VA class deviation restricts SDVOSB nonmanufacturers

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The VA has adopted a Class Deviation to the VAAR, severely restricting the ability of VA Contracting Officers to request waivers of the nonmanufacturer rule–and, even more troubling, suggesting that Contracting Officers need not apply the statutory SDVOSB and VOSB preferences even when the SBA has already granted a class waiver.

You may be wondering “does the VA’s Class Deviation comply with Kingdomware?”  Good question.

Before diving into the details of the Class Deviation, let’s step back for a second to review why this is so important.

Under the SBA’s regulations, when any contract is set-aside for small businesses (including SDVOSBs and VOSBs) under a manufacturing NAICS code, there are two ways that the prime contractor can satisfy the requirements of the limitations on subcontracting.  As one option, the prime contractor can agree to pay no more than 50% of the amount paid by the government to it to firms that are not similarly situated.  In other words, the prime can do most or all of the manufacturing itself (or work with similarly situated small businesses).  Alternatively, the prime can sell the products of another business, so long as the prime qualifies as a nonmanufacturer.

Keep reading this article at: http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/va-class-deviation-restricts-sdvosb-nonmanufacturers/#more-7207

SBA and GSA, OFPP not seeing eye-to-eye on ‘rule of two’ application

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SBA logoA major dispute is brewing in the small business community. Just four months after the Supreme Court’s June 16, 2016 unanimous decision on the Kingdomware case, the Small Business Administration (SBA) is taking a stand on the “rule of two” that is stressing out industry and agencies alike.

As a quick reminder, the nation’s highest court ruled in the Kingdomware case that the Veterans Affairs Department (VA) must continue to apply the “rule of two” for veteran-owned small businesses even if the agency surpassed its annual prime contracting goal. The “rule of two” states if an agency can find two or more qualified small businesses during market research of a contract under the Simplified Acquisition Threshold (SAT) — between $3,500 and $150,000 — it must set aside the solicitation.

Now the SBA is expanding that Supreme Court ruling to apply to all task and delivery orders under SAT if the request for proposals comes under the General Services Administration’s Schedules.

Keep reading this article at: http://federalnewsradio.com/reporters-notebook-jason-miller/2016/12/sba-gsa-ofpp-not-seeing-eye-eye-rule-two-application/

Here is a copy of the SBA’s memo telling its PCRs that the should apply small business preferences to all task orders and all delivery orders because they are considered contracts pursuant to the Kingdomware decision: http://www.wifcon.com/dgc_memo.pdf

Helping veteran-owned firms get their share of government contracts

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veterans-dayShould veteran-owned enterprises be optimistic as we head into 2017? “Yes, 2017 should be a great year for government contracts for veteran-owned businesses and veteran-owned small businesses (VOBs and VOSBs),” says Matthew Pavelek, vice president of membership at the National Veteran-Owned Business Association (NaVOBA). His organization’s mission is to create opportunities for all of America’s veteran-owned businesses. The association’s members include both VOBs and corporations.

Pavelek says the June 2016 U.S. Supreme Court decision in Kingdomware Technologies, Inc. vs. United States was positive news for VOBs. The Supreme Court decided that the U.S. Department of Veterans Affairs must set aside more contracts to be filled by veteran-owned small businesses.

The court unanimously decided that the department has not fulfilled its obligation to steer more business to small companies owned by veterans or service-disabled veterans simply by meeting its annual contract targets. The decision, say experts, is likely to assist more VOBs compete for the billions of dollars in contracts that the VA awards.

Keep reading this article at: http://m.americancityandcounty.com/federal/veteran-s-day-helping-veteran-owned-firms-get-their-share-government-contracts

Tools that can help veteran-owned businesses win government contracts

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veterans-dayAs Veteran’s Day approaches on Nov. 11, things are looking up for veteran-owned businesses that are seeking government contracts. At the federal level, contract dollars awarded to Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) reached an historic high in FY15. For the 4th consecutive year, the federal government exceeded the goal for SDVOSBs, achieving 3.93 percent or $13.8 billion of all federal small-business-eligible contracting dollars compared to the 3.68 percent or $13.5 billion it achieved in FY14.

In 2017, government contracting opportunities for veterans who qualify as small businesses, including SDVOSBs, should prove to be as good if not better than previous years, says Tiffani Shea Clements, a public affairs specialist for the U.S. Small Business Administration. Things should open up once the new federal budget has been passed, she adds.

“Yes, 2017 has the potential to be a spectacular year for veterans who want to do business with the Department of Veterans Affairs, thanks largely to the Supreme Court’s Kingdomware decision,” says Gloria Larkin, president at TargetGov. The firm helps its clients reach their contracting goals in the federal marketplace. She is also author of “The Veterans Business Guide: How to Create a Successful Government Contracting Business.” 

Keep reading this article at: http://americancityandcounty.com/gpn/tools-can-help-veteran-owned-businesses-win-government-contracts-related-video

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