A SDVOSB was improperly downgraded for not identifying its subcontractors in its proposal, according to a recent GAO bid protest decision.
In Coburn Contractors, LLC, B-408279.2 (Sept. 30, 2013), the GAO held that the VA improperly applied an unstated evaluation criterion by requiring that the protester identify its subcontractors, because according to the solicitation, a subcontractor list was only required at the task order level.
The VA SDVOSB protest process has been criticized by some (including a certain Kansas-based government contracts attorney) for failing to offer a right of appeal. Under the VA’s rules, if a protested company was found to be ineligible as a SDVOSB, its only option was to sue the VA in federal court–an expensive and time-consuming proposition.
Today, the VA published an interim final rule, under which a protested SDVOSB has the right to an appeal within the VA. The new system isn’t perfect, but it’s a step in the right direction.
GAO bid protests regarding a competitor’s compliance with the applicable limitation on subcontracting can be difficult to win.
As the GAO held in a recent bid protest decision, unless the competitor’s proposal “on its face” should have led the procuring agency to recognize that the limitation on subcontracting would be violated, the agency is free to assume that the offeror intends to comply. Of course, as was the case in the recent decision, it doesn’t hurt the protested company to specifically state that it will comply with the limitation on subcontracting.
The VA CVE has instructed verified SDVOSBs to remove so-called “large NAICS codes” from their VetBiz Vendor Information Pages profiles within 30 days–or else.
According to a recent email from the VA CVE (which was kindly shared with me), SDVOSBs must remove any NAICS codes for which they do not qualify as a small business. Failing to remove these “large NAICS codes” may result in potentially harsh penalties, including debarment.
Today, Congressman Mike Coffman introduced the Improving Opportunities for Service-Disabled Veteran-Owned Small Businesses Act of 2013.
The bill would standardize the requirements for SDVOSB eligibility, eliminating the current differences between the SBA’s and VA’s regulations. In addition, the bill would transfer responsibility for verifying SDVOSB status to the SBA (the VA would retain authority for determining whether an individual is a service-disabled veteran).
Hardy Stone’s website, VetLikeMe, has a more detailed summary of the bill. I will be closely tracking this legislation and will post updates if and when it moves forward.
The VA is seeking public comment on its VOSB and SDVOSB verification regulations in an effort to “improve the regulations to provide greater clarity, to streamline the program, and to encourage more VOSBs to apply for verification.”
As part of the public comment process, the VA is inviting the public to weigh in on previously-suggested changes, as well as answer specific questions about ways the VA might improve its verification rules.
Did your company file a request for reconsideration of a VA CVE SDVOSB verification denial? If so, be prepared to wait awhile–approximately 128 days, according to a recent VA CVE email.
The email, which was sent to a number of SDVOSBs and VOSBs (and kindly shared with me) indicates that the VA CVE is currently processing approximately 300 requests for reconsideration. As a result, the VA CVE says, the time frame to process a request for reconsideration is now more than double the regulatory goal of 60 days.