A procurement may not be set aside for SDVOSB concerns without also including mandatory VA set-aside VAAR provisions, including the limitation on subcontracting.
In a recent bid protest decision, the GAO held that a solicitation was flawed where the cover sheet indicated that the solicitation would be set aside for SDVOSBs, but the solicitation omitted the mandatory VAAR SDVOSB set-aside clause.
Last month, Steve wrote about a new Class Deviation rule adopted by the VA that, in effect, would limit the VA’s use of class waivers as part of its decision to restrict competition to SDVOSBs (or otherwise issue solicitations as sole source awards). But in an apparent contradiction to this Class Deviation rule, GAO recently denied a challenge to an SDVOSB set-aside decision for a manufacturing solicitation, based in large part on SBA’s adoption of a class waiver for the particular NAICS code.
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.
A common misconception in government contracting is that to be eligible under a particular solicitation, a small business must have the solicitation’s assigned NAICS code listed under its SBA System for Award Management (“SAM”) profile.
Not so. GAO, in a recent decision, affirmed this misconception to be false—it found that an awardee’s failure to list the assigned NAICS code under its SAM profile did not make its proposal technically unacceptable.
SDVOSB joint venture agreements will be required to look quite different after August 24, 2016. That’s when a new SBA regulation takes effect–and the new regulation overhauls (and expands upon) the required provisions for SDVOSB joint venture agreements.
The changes made by this proposed rule will affect joint ventures’ eligibility for SDVOSB contracts. It will be imperative that SDVOSBs understand that their old “template” JV agreements will be non-compliant after August 24, and that SDVOSBs and their joint venture partners carefully ensure that their subsequent joint venture agreements comply with all of the new requirements.
Good news for veteran-owned contractors: the VA’s SDVOSB and VOSB “Rule of Two” applies even when the VA issues a solicitation for a multiple-award IDIQ contract.
A recent GAO decision represents the latest instance where the VA’s failure to apply the Rule of Two and set-aside a procurement for SDVOSBs has been found to be unreasonable. In Spur Design, LLC, B-412245.3 (Feb. 24, 2016)*, GAO determined that the Rule of Two required the VA to set-aside a solicitation to award several multiple award indefinite-delivery/indefinite-quantity (“IDIQ”) contracts for SDVOSBs.
The VA’s decision not to issue a SDVOSB set-aside was improper because the VA adopted an unreasonably narrow approach to determining whether two or more SDVOSBs were likely to submit proposals.
In a recent bid protest decision, the GAO held that the VA’s narrow market research did not support its set-aside determination. And in so holding, the GAO reaffirmed its position that the VA must put “veterans first” in federal procurements.