COFC Strikes a Blow to VA-Verified VOSBs and SDVOSBs

A few months ago, GAO confirmed that where VA uses GPO as its buying agent, it still must to comply with the Rule of Two in 38 U.S.C. 8127(d) (see our blog post on the case ). After VA took corrective action, however, another bid protest was again filed, but this time in the Court of Federal Claims. Surprisingly, there, the Court concluded differently, finding that GPO was not required to set aside the procurement for SDVOSBs or VOSBs, despite acting on VA’s behalf. In so doing, it has weakened the Rule of Two.

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Blindsided: AbilityOne Contractor Loses Work to SDVOSB, Has Protest Dismissed

As recently as May, the Department of Veterans Affairs told a nonprofit helping to employ blind workers that it intended to renew its contract. The organization was shocked, therefore, when on July 30, the VA issued a notice of award to a service-disabled veteran-owned small business. To make matters worse, the nonprofit’s GAO protest of the award was promptly dismissed for being untimely.

What the heck happened?

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GAO: VA Rule of Two Doesn’t Apply if Pricing Isn’t Reasonable

GAO recently gave its blessing to a VA decision not to follow the Rule of Two, despite knowing several SDVOSBs would bid. The VA’s decision was based on the contracting officer’s opinion that prices would not be fair and reasonable based on an evaluation of prices and market research. The decision is important for providing some clarification on what research a contracting officer must undertake to establish that prices will not be fair and reasonable for purposes of the Rule of Two.

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VA Agrees that Rule of Two Has Priority Over AbilityOne Procurement List

Statute A tells you to solve Problem X one way. Statute B tells you to solve Problem X a completely different way. How do you reconcile these two conflicting mandates? The Federal Circuit encountered this exact problem in 2018, and in response to its holding, the VA has now issued a class deviation to reflect its decision, confirming that the Rule of Two has priority over the AbilityOne Procurement List.

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Court of Federal Claims Decision Lends Support to VA’s SDVOSB Tiered Evaluation Scheme

In late 2017, we wrote that the VA was considering using tiered evaluations to simultaneously 1) comply with the VA’s statutory Rule of Two (and Kingdomware), and 2) address situations in which SDVOSBs and VOSBs might not offer “fair and reasonable” pricing.

Since then, the VA has instituted the tiered evaluation process for certain solicitations, using one of three approaches:

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GAO: WOSB Set-Asides and Sole Sources are Discretionary, not Mandatory

Historically, Uncle Sam has struggled to meet its WOSB contracting goals. It wasn’t until 2015, in fact, that the government first met its WOSB contracting goal and, since then, has continued to struggle to meet it.

Thankfully, agencies are authorized to use set-asides and sole-source awards to increase WOSB participation. But as a recent GAO decision shows, an agency isn’t required to use either procedure.

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Federal Circuit Affirms SDVOSB Priority Over AbilityOne

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.

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