The U.S. Department of Veterans Affairs properly limited its SDVOSB market research to firms located in the geographic area where the contract would be performed, according to a recent GAO bid protest decision.
In an era in which many contractors bid on procurements nationally, the GAO’s rationale is debatable–but should serve as a reminder that SDVOSBs cannot take VA set-asides for granted, even when the VA does not use the Federal Supply Schedule.
As I briefly reported last night, in a crushing blow to service-disabled veteran-owned small businesses, the U.S. Court of Federal Claims has overturned the GAO’s Aldevra decisions.
Judge Nancy Firestone, ruling in Kingdomware Technologies, Inc. v. The United States, No. 12-173C (Nov. 27, 2012), held that the VA reasonably interpreted the Veterans Benefits, Health Care, and Information Technology Act of 2006 as not requiring consideration of a SDVOSB set-aside before the VA procures goods and services under the Federal Supply Schedule. For SDVOSBs, the Kingdomware Technologies ruling means that the VA’s much-ballyhooed “Veterans First” acquisition policy means little more than “Veterans First (If We Feel Like It).”
VetLikeMe, a publication advocating for service-disabled veteran-owned small businesses, is reporting tonight that the U.S. Court of Federal Claims has ruled in favor of the VA in a decision essentially overturning the GAO’s Aldevra line of cases.
The court’s decision, issued by Judge Nancy Firestone, has not yet appeared on the Court of Federal Claims’ website, but I have seen a copy of the ruling and can confirm VetLikeMe’s report.
In the decision, Judge Firestone holds that the VA need not consider a set-aside for service-disabled veteran-owned small businesses before procuring supplies or services under the Federal Supply Schedule. Judge Firestone’s ruling essentially reverses more than a year’s worth of GAO decisions holding that the VA had violated the law by using FSS procedures without first considering SDVOSB set-asides.
More tomorrow on this crushing legal blow to SDVOSBs.
Contractors filed 2,475 GAO bid protests in Fiscal Year 2012, a five percent increase from the prior year, according to the GAO’s annual bid protest report to Congress. The GAO’s annual report indicated that “sustain” decisions were up slightly from the prior year, while the overall “effectiveness rate” of protests–a combination of sustain decisions and agency corrective actions–held steady at 42%.
Meanwhile, the VA was the only procuring agency to ignore GAO recommendations–something the VA did repeatedly in the Aldevra line of cases.
If you click the “service-disabled veteran-owned small businesses” tab on the right, you will find a list of SmallGovCon blog posts on CVE verification, affiliation, joint ventures, and the like. And don’t let me stop you from reading; this is a legal blog, after all.
But before you scroll through the latest SBA OHA or GAO decision, take a moment to think about that phrase, which can be tossed around rather casually in the industry these days: “service-disabled veteran.” Let’s not lose sight of the fact that, whether or not you are a veteran, the service-disabled veteran-owned small business program is worthy of our support because it is one small but important way for our country to say “thank you” to those who risked so much, and gave so much, on behalf of us all.
So, to my service-disabled veteran readers and my veteran readers: thank you. And Happy Veterans Day.
The U.S. Department of Justice has indicated David E. Gorski, an owner of Legion Construction, Inc., for alleged service-disabled veteran-owned small business fraud. The indictment alleges that Gorski, a non-veteran, fraudulently represented that Legion was a SDVOSB to win federal SDVOSB set-aside contracts, and used genuine service-disabled veterans as figureheads in an attempt to avoid detection.
VetBizCentral, an organization providing various services to veteran entrepreneurs, has posted a full copy of the Gorski indictment on its website. The allegations are well worth a closer look.
The U.S. Department of Veterans Affairs’ award of a contract to a small business under simplified acquisition procedures was improper because it appeared that a number of service-disabled veteran-owned small businesses could have filed the requirement, according to a recent GAO bid protest decision.
Unlike the ongoing Aldevra cases, in which the VA has purposefully continued making awards to non-SDVOSBs under the Federal Supply Schedule in the face of repeated GAO decisions stating that the practice is illegal, the GAO’s decision in Phoenix Environmental Design, Inc., B-407104 (Oct. 26, 2012), suggests that the VA simply did not understand how the agency’s own set-aside rules are supposed to work, at least in the context of a simplified acquisition.