The FAR mandates that agencies use the AbilityOne program to award contracts for items on the AbilityOne procurement list to qualified nonprofits. The purpose of the program is to increase employment and training opportunities for persons who are blind or have other severe disabilities.
With rare exceptions, when an item is on the AbilityOne procurement list, an agency has no choice–it must purchase through AbilityOne, even where the AbilityOne items are included in the procurement of larger services. The GAO recently sustained a protest where the GSA awarded a courthouse lease without requiring that the associated custodial services be procured from an AbilityOne nonprofit.
In May 2017, SDVOSBs and VOSBs lodged another big win in their battle to enforce the statutory preferences for veteran-owned companies: the Court of Federal Claims held that the VA cannot buy products or services using the AbilityOne list without first applying the “rule of two” and determining whether qualified SDVOSBs or VOSBs are likely to bid.
But the AbilityOne vendor in question isn’t going down without a fight. It’s taking the case to the United States Court of Appeals for the Federal Circuit–and the Court of Federal Claims just issued a ruling staying its May decision pending the results of the appeal.
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.
Today’s 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.
Hopefully those of you on the East Coast are hunkered down and ready for the historic snow storm headed your way. And since many of our readers may be having a lot of unplanned time at home this weekend, we have the perfect idea to prevent boredom: catching up on the latest and greatest in government contracts news.
In this week’s edition of SmallGovCon Week In Review, a major investigation of the AbilityOne program is underway, Guy Timberlake offers some common sense advice on multiple-award contracts, and much more.
With July almost over, we are looking forward to the remainder of the summer. But even in the hottest weather, government contracting news never stops. In this week’s SmallGovCon Week In Review, a new study pushes back at “bid protest hysteria,” Guy Timberlake continues his important discussion of federal agency classifications, CNN investigates alleged corruption in the AbilityOne program, and more.
The AbilityOne Program cannot be used to award a contract when it is questionable whether the contractor will comply with the requirement that significant portions of the work be performed by the severely disabled, according to a recent decision of the U.S. Court of Federal Claims.
In Systems Application & Technologies, Inc., No. 12-526C (2012), Judge Eric Bruggink, in an opinion brimming with colorful quotes, shot down the Army’s effort to award a contract involving significant degrees of physical labor at a remote location to an erstwhile AbilityOne participant, holding that the prospective awardee had not come close to demonstrating that the work would (or could) be performed by the severely disabled.
For contractors concerned that the AbilityOne program may be subject to misuse, the Systems Application case is confirmation both that questionable practices occur in AbilityOne contracting, and that such practices will not be tolerated by the Court.
More than once, a small government contractor has complained to me that there is “just no way” a particular AbilityOne contract recipient is performing at least 75% of direct labor hours with people who are blind or have other significant disabilities, as is required for a non-profit agency to participate in the AbilityOne Program.
Now those same contractors might be saying “I told you so.” The U.S. Department of Justice announced yesterday that a Texas company has agreed to pay $5 million to resolve False Claims Act allegations that the company failed to comply with the 75% direct hour requirement over a period of six years, but misreported its compliance to the government.