From a recent GAO decision it appears that the ends can, in fact, justify the means; at least when it comes procurement set-asides for HUBZone companies. The decision is Foxhole Technology, Inc. B-419577 (May 12, 2021). In this matter, Foxhole Technology, Inc., a service-disabled veteran-owned small business, protested the Department of Education’s decision to set aside an RFQ to supply cybersecurity services for HUBZone businesses. In its protest, Foxhole argued that the agency’s decision to set aside the procurement for HUBZone small business concerns was based on inadequate market research and was therefore not justified. GAO denied the protest.
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OHA: Broken Hyperlink Doesn’t Excuse Not Responding to CVE
In my last blog post I wrote about a contractor’s unsuccessful attempt to convince the GAO that its solicitation was improperly dismissed as being untimely because the State Department didn’t recognize its automatic “out of office” email reply response. It appears that federal agencies in general are unforgiving when it comes to a contractor’s reliance on electronic communications without follow-up.
In a recent case, the SBA Office of Hearing Appeals (OHA) rejected a contractor’s petition for reconsideration upholding the OHA’s appeal of a cancellation of the contractor’s verified status as a Service-Disabled Veteran-Owned Small Businesses because it could not access a cancelation letter through a link provided by the VA.
Continue readingHappy Anniversary, SDVOSBs: The Supreme Court’s Kingdomware Decision Was Five Years Ago Today
For SDVOSBs and VOSBs, June 16, 2016 was a monumental day. That morning, the U.S. Supreme Court issued its unanimous decision in Kingdomware Technologies, Inc. v. United States, holding that the VA must follow the law by putting “veterans first” in VA contracting.
Koprince Law LLC was honored to submit an amicus brief to the Supreme Court supporting Kingdomware, and my colleagues and I were thrilled with the Court’s 8-0 decision. Click here to check out my post from June 16, 2016 proclaiming “Victory!” for SDVOSBs and VOSBs in this watershed case.
The Kingdomware decision didn’t (and couldn’t) solve every problem that some SDVOSBs and VOSBs have had with VA’s contracting practices, but five years later there is no doubt in my mind that the Court’s decision has been the driving force behind a large increase in VA’s SDVOSB and VOSB contracting. Happy anniversary!
Recent Task Force Meeting Underscores Challenges Facing SDVOSB Transfer from VA to SBA
Sometimes, task force meetings are held just for the sake of having meetings. However, on June 2nd and 3rd the Interagency Task Force on Veterans Small Business Development (IATF) and Advisory Committee on Veterans Business Affairs (ACVBA) met to discuss important issues facing small businesses. This shed much needed light on the issues fast approaching and what steps the SBA needs to take.
The main topic of discussion was the pending CVE transfer. The transfer, as I soon found out, is deceptively complex. In a separate point, SBA noted that the Biden Administration announced it will use the purchase power of the federal government to make more awards to disadvantaged businesses, raising the target from 5% to 10%.
The star of the show, however, was the CVE transfer. So, what does this mean for you?
Continue readingSBA’s SDVOSB “Normal Business Hours” Rule Needs Fixing–Here’s How
SBA’s regulations for service-disabled veteran-owned small businesses create a rebuttable presumption that a service-disabled veteran doesn’t control the company if the veteran is unable to work normal business hours in the company’s industry.
The rule sounds reasonable at first blush, but as a recent SBA Office of Hearings and Appeals case demonstrates, the SBA may apply the presumption even to a one-person start-up with no contracts. Not many people can afford to quit their day jobs before their businesses truly get off the ground–creating a real conundrum for SDVOSB start-ups.
For the sake of fairness, the SBA’s Normal Business Hours rule needs fixing, pronto. Here’s how to do it.
Continue readingReminder: If Pricing is Too High, VA Rule of Two Might Not Apply
The VA Rule of Two, while a powerful motivator for setting procurements aside for service-disabled veteran-owned small businesses, does have its limits.
One of those exceptions was discussed in a recent ruling from the United States Court of Appeals for the Federal Circuit. The court confirmed that the VA may convert a service-disabled veteran-owned small business set-aside solicitation to a small business set-aside if the SDVOSB bids it receives are too high in price.
Continue readingVA SDVOSB “Rule of Two”: Contracting Officer’s Price Reasonableness Determination Need Not Defer to FSS
The VA’s “rule of two” for service-disabled veteran-owned small businesses provides a powerful contracting preference. Thanks to the rule of two, the VA awarded 23.39% of prime contracting dollars to SDVOSBs in Fiscal Year 2019, compared to 4.39% governmentwide.
But the rule of two has its limits. Importantly, before issuing an SDVOSB set-aside, the Contracting Officer must have a reasonable belief that “the award can be made at a fair and reasonable price that offers best value to the United States.” And, as a powerful federal court recently held, the fact that an SDVOSB’s prices have been accepted by the GSA under the Federal Supply Schedule program does not require the VA to accept those prices as fair and reasonable in a rule of two analysis.
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