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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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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New Consolidated SDVOSB Eligibility Requirements: the Good, the Bad, and the Downright Ugly

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.

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VetBiz Verification Not Required For Non-VA SDVOSB Contracts, SBA OHA Reiterates

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.

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VA SDVOSB Rule of Two: Court Provides Important Guidance for Protesters

A protester contending that the VA violated the “rule of two” by failing to set-aside a solicitation for SDVOSBs must present sufficient facts to indicate that the VA should have had a reasonable expectation of receiving two or more offers from SDVOSBs at fair and reasonable prices.

In a recent decision, the Court of Federal Claims dismissed a rule of two challenge because, according to the Court, the protester only identified one SDVOSB–itself–that was likely to submit an offer at a fair and reasonable price.

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VA Issues Post-Kingdomware Acquisition Guidance

The VA has released an Acquisition Policy Flash providing guidance to VA Contracting Officers on implementing the U.S. Supreme Court’s decision in Kingdomware Technologies, Inc. v. United States.

The Policy Flash suggests that the VA is, in fact, moving quickly to implement the Kingdomware decision–and if that’s the case, it is good news for SDVOSBs and VOSBs.

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(Another) Kingdomware Shocker: Oral Argument Suspended

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 today, 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.  I will keep you posted.