Georgia Tech Procurement Assistance Center

‘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/

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

VA issues interim procurement guidance in wake of Supreme Court decision

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VA-LogoIn reaction to the June 16, 2016 U.S. Supreme Court reversal of a lower court decision on the Veteran-Owned Small Business (VOSB) contracting program at the Department of Veterans Affairs (Kingdomware Technologies, Inc. v. United States), the VA has issued guidance to its acquisition team to ensure that procurements for VOSBs and Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) are set-aside whenever a contracting officer has a reasonable expectation, based on market research, that two or more eligible firms are likely to submit competitive offers at a fair and reasonable price.

In the past, the VA had not implemented this rule, known as the “Rule of Two,” for orders placed against GSA and VA Schedule contracts.   The Supreme Court ruled that no exemption from the Rule of Two exists for such orders.  The Court also found that VOSB and SDVOSB set-asides should continue to be made even if and when the VA meets its goals for awards to VOSBs and SDVOSBs.

In announcing the new guidance, the VA’s Office of Acquisition and Logistics said that “additional policy and guidance will be provided via a Procurement Policy Memorandum and Class Deviation to be issued at a later date.”

Highlights of the interim guidance issued by the VA on June 22 include:

  • The VA’s Contracting Officers are to include a requirement in all solicitations that for evaluation purposes, only VA verified SDVOSBs or VOSBs in the VA’s VIP database at the time of contract award will be considered for award.  Non-VIP verified firms will be considered non-responsive and ineligible for award.
  • VA Contracting Officers are instructed to conduct and review the market research to ensure compliance with the Rule of Two, whether or not an initial decision was made to set-aside the acquisition to SDVOSBs or VOSBs.
  • For VA contracting requirements currently in the solicitation/evaluation phase, a review of the original market research is to be accomplished to confirm whether or not the Rule of Two was appropriately considered and whether offers are likely to be received from two or more qualified, capable and verified SDVOSBs or VOSBs at a fair and reasonable price. If the review results in a finding that there are two or more SDVOSBs or VOSBs, an amendment is to be be issued canceling the solicitation.
  • Where a notice to proceed has not yet been issued, VA Contracting Officers are directed to coordinate with the Head of the Contracting Activity, the Office of General Counsel and the Office of Small and Disadvantaged Business Utilization and “be prepared to proceed with issuing the notice to proceed if issued within 30 days of this guidance.”

Details on these changes can be found at: http://www.va.gov/oal/business/pps/flash16-16.asp

Supreme Court unanimously rules in favor of VOSBs in case involving the VA’s use of GSA Schedule contracts

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Supreme CourtToday – June 16, 2016 – the U.S. Supreme Court ruled in favor of the interests of Veteran-Owned Small Businesses (VOSBs) and Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) who challenged the practice of the Veterans Administration (VA) to not apply the veteran business preference to orders placed against GSA Schedule contracts.

According to government contract legal expert Steven Koprince, “The Supreme Court’s decision in Kingdomware Technologies, Inc. v. United States, No. 14-916 (2016) means that the VA will be required to truly put ‘Veterans First’ in all of its procurement actions – which is what Kingdomware, and many veterans’ advocates, have fought for all along.”

The issues involved in the Kingdomware case date back to 2006 when Congress first required the VA to restrict contract competitions to veteran-owned small businesses as long as there were at least two qualified VOSBs available to perform the work.  This is known as the “Rule of Two.”  In practice, the VA determined that this rule did not apply to orders the agency placed through GSA Schedules.  The Government Accountability Office (GAO) decided that the VA’s practices violated the law, but the VA refused to make any changes in its GSA Schedule purchasing.  Finally, in 2011, a SDVOSB company by the name of Kingdomware Technologies took the VA to court, but the U.S. Court of Federal Claims ruled against the GAO and in the VA’s favor.  Kingdomware appealed, but lost at the U.S. Court of Appeals in 2014.  One year ago, the U.S. Supreme Court agreed to hear Kingdomware’s case.

It’s been a long path to travel, but VOSBs and SDVOSBs can celebrate the unanimous decision handed down by the Supreme Court on June 16th.  The Court’s directive to the VA is clear – the written decision states that the Rule of Two “is mandatory, not discretionary.”  The Court goes on to state that the law in this case “unambiguously requires the Department [the VA] to use the ‘Rule of Two’ before applying other procedures.”

Koprince sums up the impact of the Supreme Court’s decision this way: “I expect that the Kingdomware decision will prove a major boon to SDVOSBs and VOSBs, ultimately resulting in billions of extra dollars flowing to veteran-owned companies.  The long battle is over – and SDVOSBs and VOSBs have won.”

Read the text of the Supreme Court decision here: http://www.supremecourt.gov/opinions/15pdf/14-916_6j37.pdf

Read Steven Koprince’s detailed analysis of the decision here: http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/victory-sdvosbs-win-in-kingdomware-supreme-court-decision/

Read earlier articles about this case here:

Live reports, tweets, and webinar offered on VA’s Kingdomware Supreme Court case

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On Feb. 22, 2016, the U.S. Supreme Court will be hearing oral arguments in a controversy that deals with whether federal agencies are doing enough to assure that their contracts go to businesses run by veterans, especially service-disabled veterans.

You’ll be able to access live reports, a Twitter feed, and even a free webinar on the Court’s hearing.  More about that in a moment, but first some background and information on why this case is so significant.

Background

The case dates back to November 27, 2012, when the U.S. Court of Federal Claims ruled that the Department of Veterans Affairs (VA) has discretion to procure goods and services from GSA’s Federal Supply Schedule (FSS or simply GSA Schedule) without first considering a set-aside acquisition for service-disabled veteran-owned small businesses (SDVOSBs) or veteran-owned small businesses (VOSBs).

The Court of Federal Claims ruling represented a departure from several U.S. Government Accountability Office (GAO) decisions that stated the VA should comply with the Veterans Benefits, Health Care, and Information Technology Act of 2006 before conducting a GSA Schedule buy.  The 2006 Act created the so-called “Veterans First” contracting program that gives priority to SDVOSBs and VOSBs in the VA’s acquisitions.  Despite GAO’s opinions, the VA instructed its contracting officers to not apply the “Veterans First” principles to GSA Schedule contracting.

A Winding Road to the Supreme Court

The company bringing the challenge, Kingdomware Technologies, Inc., appealed the decision by the Court of Federal Claims.  But the U.S. Court of Appeals for the Federal Circuit held that the purpose of the “Veterans First” rule is to ensure that the VA meets its SDVOSB goals, and that so long as the VA meets its SDVOSB goals, it is free to procure services and supplies from the Federal Supply Schedule without first considering a SDVOSB procurement.  This lead the Kingdomware firm to take its plea to the Supreme Court.

The U.S. Department of Justice urged the Supreme Court to deny review, contending that the Federal Circuit got it right.  The Supreme Court nevertheless granted review.

Then the VA surprised everybody.  It abandoned the argument that the statutory preference for veteran-owned companies applies only if the VA has not met its SDVOSB or VOSB contracting goals.  That position had proven to be successful in its arguments before both the Court of Federal Claims and the Federal Circuit.  The government’s new argument was that the statute’s use of the term “contract” excludes orders under the Federal Supply Schedule or other multiple award vehicles.  This new strategy by government lawyers puzzled Court watchers and federal contracting experts alike.

The mystery of how this case would turn out got more murky.  On Nov. 4, 2015 — just five days before the Supreme Court was scheduled to hear oral arguments in the Kingdomware case — the Court yanked the case from its docket.  The Court directed the parties, not later than Nov. 30, to submit briefs on whether the contracts in question had been fully performed, and if so, whether full performance renders the case moot.

Need another curious twist?   While attorneys for Kingdomware worried that the VA would most certainly take the position that the case is moot, the brief filed by the government took the position that the case is not moot.

In response to the briefs, the Supreme Court announced, just before Christmas, that the Court would hear oral arguments in Kingdomware Technologies v. United States on February 22, 2016.

Anxious To Learn about the Arguments Made to Supreme Court?

Everyone who’s interested is small business set-asides, in general, and to extent to which the VA must prioritize veteran-owned firms in its contracting, specifically, wants to know about the arguments being made to the Supreme Court in this case.

The good news is you have the opportunity to learn about the Kingdomware case almost as if you are in the courtroom.  Attorney Steven Koprince — who has been active in supporting Procurement Technical Assistance Centers (PTACs like the Georgia Tech Procurement Assistance Center) across the country, as well as the Association of Procurement Technical Assistance Centers (APTAC) — will be attending the hearing and reporting back on what happens.  He will be:

  • Posting his impressions on his blog, SmallGovCon, the afternoon of Monday, Feb. 22.  You can check SmallGovCon.com that day or let him know if you would like him to email the post directly to you.
  • Answering your questions posted on Twitter starting at 10:00 a.m. EST on Tuesday, Feb. 23, for a full hour. You can follow Steven on Twitter @stevenkoprince or use the hashtag #Koprince4Vets.
  • Offering a free webinar to those who are interested in hearing what he learns at the oral arguments.  Steven’s webinar will take place at 12 noon EST on Tuesday, Feb. 23.  You can register for it here.

Kingdomware Koprince

VA and Kingdomware agree: Supreme Court case isn’t moot

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Supreme CourtThe VA and Kingdomware Technologies Inc. haven’t agreed on much in recent years, but in briefs filed with the Supreme Court on November 20, 2015, they agree on one thing: the pending Kingdomware Supreme Court case is not moot.

VA sealHopefully, the fact that neither party wants the case dismissed on a technicality will help convince the Court to decide Kingdomware on the merits.

As you may recall, shortly before the Supreme Court was to hear oral argument earlier this month, the Court issued an order removing the case from its docket.  The Court asked the parties to submit briefs on whether the contracts in question have been fully performed, and if so, whether full performance renders the case moot.

Well, those briefs are in – and Kingdomware and the United States agree that the case is not moot.

Keep reading this article at: http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/va-kingdomware-agree-supreme-court-case-isnt-moot/

VA’s small business program still faces ‘serious problems’

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Despite improvements to its verification process and customer service, the Department of Veterans Affairs (VA) remains behind in efforts to improve its program for helping veteran-owned small businesses.

Rep. Richard Hanna statement 11.04.2015Testifying before a joint House subcommittee hearing Nov. 4, Tom Leney, executive director of the VA’s Office of Small and Disadvantaged Business Utilization, shared a status update on what’s been done to address problems with the Veterans First contracting program —but lawmakers were critical of the amount of progress that’s been made since the last report.

“VA has made substantial progress in improving the verification program since the last [Government Accountability Office] report of 2013,” Leney said. “In February 2015, GAO began its newest audit of the program. In short, by the end of [fiscal] 2015, applications were being processed within the regulatory time frame 99.8 percent of the time with an approval rate of 94 percent. Initial applications were processed in an average of 41 days, well below the regulatory target of 60 days.”

VA has also started conducting post-verification audits to monitor ongoing compliance, Leney said, and the Center for Veterans Enterprise has established a process for responding to fraud allegations and conducting investigations.

Keep reading this article at: http://federalnewsradio.com/hearingsoversight/2015/11/vas-small-business-program-still-faces-serious-problems/

Another shocker in veteran-owned business Supreme Court case: Oral argument suspended

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The Kingdomware SDVOSB/VOSB Supreme Court case, which had been scheduled for an oral argument on Monday November 9, is suddenly in a state of limbo.

In an order issued on November 4, 2015, the Supreme Court yanked the case from its docket.  The Court directed the parties to submit briefs on whether the contracts in question have been fully performed, and if so, whether full performance renders the case moot.

For Kingdomware and veteran-owned companies everywhere, this is extremely troubling news.  If the Court believes that the case is moot, it will be dismissed – meaning that Kingdomware would lose the war without even getting its day in court.

Briefs from both sides are due November 20, and each side may reply by December 1.

Follow this case at: http://smallgovcon.com.  

See earlier reports on this case at:

 

VA conducts monthly verification webinars for veteran-owned small businesses

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The Department of Veterans Affairs (VA) Center for Verification and Evaluation (CVE) is now hosting Verification Program webinars and virtual town halls to provide information to potential new applicants, firms re-verifying, and those who have achieved verification.

vets first“Verification” is the process veteran-owned small businesses (VOSBs) and service-disabled veteran-owned small businesses (SDVOSBs) must go through to prove their businesses meet the appropriate ownership and control standards set by the VA for Veterans First contract set-asides.

The schedule of webinars includes:

  • 1st Tuesday of each month – Preparing for Re-verification Webinar & Town Hall
    • This training is designed for firms whose verification will expire in 5 months or thirty days.
  • 3rd Tuesday of each month – Pre-Application Webinar & Town Hall
    • This training is designed for firms interested in submitted their first CVE Verification application. Also, firms who have been inactive in the program for some time and now desire to submit an application can also benefit from this session.
  • 4th Tuesday of each month – How to stay Verified Webinar & Town Hall
    • This training is designed for firms who have been verified in the last six months.

To learn more about CVE and the verification program, please connect via http://www.vetbiz.gov

Reverification process is not as simple as advertised for veteran-owned firms

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The Department of Veterans Affairs (VA) Veterans First Contracting Program continues to attract more and more veteran-owned small businesses (VOSBs) and service-disabled veteran-owned small businesses (SDVOSBs).

CVE badgeIndeed, the ability to gain access to VA contracts set aside for VOSBs and SDVOSBs remains an incredibly popular tool among small businesses in the veteran contracting community. Much to the dismay of many potentially eligible firms, the process of applying to the VA, Center for Verification and Evaluation (CVE) to be verified as an eligible VOSB or SDVOSB is still not a cakewalk, and for good reason.

The VA has a legitimate interest in ensuring that VOSB and SDVOSB set-aside contracts are awarded to firms that are eligible to participate in the Veterans First Contracting Program, and eliminating fraud and abuse requires that VOSBs and SDVOSBs be thoroughly vetted by CVE.

Nevertheless, previously-verified VOSBs and SDVOSBs, i.e., firms that have already undergone a complete CVE examination, are finding CVE’s reverification process to be no less cumbersome than the first go-around.

Keep reading this article at: http://www.jdsupra.com/legalnews/the-cve-reverification-process-is-not-45973/

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