Ever since the Supreme Court’s Kingdomware decision was handed down in 2016, an important question has remained: who has priority at the VA for items on the AbilityOne List?
Yesterday, the Federal Circuit Court of Appeals provided the answer. The VA is required to prioritize service-disabled veteran-owned or veteran-owned small businesses when the Rule of Two is met, even when it buys items on the AbilityOne List.
In a strongly-worded opinion, a federal judge decried a “labyrinth of legal and regulatory hoops and hurdles” imposed on the VA as a result of the famous Kingdomware Supreme Court decision–and suggested that Congress could exercise a “kill switch” to curtail or even eliminate the SDVOSB and VOSB contracting preferences the Supreme Court unanimously affirmed.
While I have no reason to suspect that Kingdomware is in any danger of being overturned or curtailed by Congress, its certainly not great news for SDVOSBs and VOSBs that a federal judge seems to be pushing for that very thing.
New, consolidated SDVOSB eligibility regulations kicked in on October 1. The new regulations replace the old VA and SBA rules, which provided separate eligibility standards for SDVOSBs.
Veterans have long been confused by the fact that the Government operated two separate SDVOSB programs, each with its own standards. The consolidated rule will eliminate that confusion, and that’s a very good thing. There are also several other pieces of the new SDVOSB eligibility rule that veterans should like–but also some that aren’t so great, or that require further clarification as to how they’ll be applied.
My colleague Matt Schoonover provided a broader overview of the new regulations earlier last week. Now it’s time for me to get on my soapbox. Without further ado, here’s my list of the good, bad, and the downright ugly from the new SDVOSB regulations.
Earlier this week, Steve updated SmallGovCon readers on a very important SDVOSB eligibility change: beginning October 1, the VA will begin using the SBA’s eligibility rules to verify SDVOSBs and VOSBs.
The SBA has now followed suit—in a final rule published today, the SBA has amended its eligibility rules for SDVOSBs. These rules provide important clarity into SDVOSB eligibility going forward.
Let’s take a look at some of the most important changes.
The VA will begin using the SBA’s eligibility rules to verify SDVOSBs and VOSBs beginning October 1, 2018.
In a final rule published today in the Federal Register, the VA confirms that the SBA’s eligibility requirements will apply beginning next week–but in my eyes, one very important question remains unanswered.
Despite a longstanding and very common misconception, the VA’s SDVOSB verification requirement doesn’t apply to non-VA SDVOSB contracts.
As the SBA Office of Hearings and Appeals recently reiterated, it was “simply not correct” to believe that a company was required to be verified in VetBiz to be awarded a non-VA SDVOSB contract.
On May 21, 2018, the VA will suspend SDVOSB and VOSB applications for “approximately thirty (30)” days while the VA transitions to a new VIP interface.
According to a notice posted on the VA OSDBU website, the suspension will affect “both new applications and applications for re-verification.” However, the VA CVE “will continue processing previously submitted applications during the suspension.” The VA doesn’t beat around the bush: “any applicants (Veterans) that desire to have their cases begin the verification process before the suspension start date, should strongly consider case submission completion to VIP prior to May 21, 2018.”