Tag Archives: set-asides

Breaking: Federal Court Sides With VA, Overturns Aldevra Decisions

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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.

DoD Suspends 8(a) Simulation Training Awards

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The Department of Defense has apparently suspended all 8(a) contract awards under the Simulation, Training and Instrumentation Acquisition Center in the wake of a federal court decision issued earlier this month.

In a press release, leaders of the Native American Contractors Association and the United States Hispanic Chamber of Commerce blasted the DoD for overreaching in response to Dynalantic Corporation v. United States, No. 95-2301 (2012), in which the United States Court of Appeals for the District of Columbia upheld the constitutionality of the 8(a) Program as a general matter, but found that the 8(a) Program was unconstitutional as applied to the plaintiff’s specific industry, military simulation and training.

I’ll have much more on Dynatlantic and the fallout from the court’s decision after the Labor Day weekend.  Unfortunately, for 8(a) companies–especially those doing business with DoD– the holiday weekend begins on a very ominous note.

Agency Awards HUBZone Set-Aside to Federal Prison Industries

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When is a HUBZone set-aside not really a HUBZone set-aside?  According to one GAO bid protest decision, when Federal Prison Industries (also known as UNICOR) submits an offer.

In Tennier Industries, Inc., B-403946.2 (June 29, 2012), the Defense Logistics Agency set-aside a procurement for HUBZone contractors, but awarded the contract to Federal Prison Industries rather than a HUBZone company.  One might think that the GAO would sustain a bid protest.  Instead, the GAO held that the award to FPI was A-OK.

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GAO: Agencies Must Consider SDVOSB Set-Asides Before Issuing Small Business Set-Aside RFPs

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One day back when I was in fourth grade, my teacher informed our class that Thomas Jefferson had never been a United States president.  I marched to the back of the classroom, pulled out the Encyclopedia Britannica, and quickly proved that Mr. Jefferson had, in fact, served in our nation’s highest office, leading to a chorus of laughter among the fourth graders of Winship Elementary.  After all, it’s rather amusing to find out that the person in charge got it wrong.  (No wonder my teacher never liked me very much after that stunt).

In a recent GAO bid protest decision, both the procuring agency and the SBA initially got it wrong, too, by erroneously relying on outdated regulations to argue that the agency need not consider a SDVOSB set-aside before awarding a small business set-aside contract.  Fortunately for SDVOSBs, the GAO set matters straight.

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GAO Confirms: AbilityOne Trumps SDVOSB for VA Set-Asides

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The VA has been on the receiving end of a number of GAO bid protest decisions, the most recent issued just a few weeks ago, holding that the VA is acting illegally by ordering off the Federal Supply Schedule without first determining whether the procurement at issue can be set-aside for service-disabled veteran owned small businesses.  But the GAO’s recommendations, and the outrage from the veteran community (which, in my opinion, is very well-deserved), have not stopped the VA from pushing ahead with its “FSS First” acquisition strategy.

Now, the VA has pushed SDVOSBs even further toward the back of the line.  The VA has determined that the Javits-Wagner-O’Day, or JWOD Act, which calls for agencies to make certain purchases from nonprofits listed by the Committee for Purchase for People who are Blind or Severely Disabled (also known as the “AbilityOne” program), trumps SDVOSB set-asides for items on the Committee’s list.

And this time, the VA agrees with the GAO.

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Here We Go Again: Another Aldevra-Style GAO Protest Sustained–Is a Court Resolution Looming?

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Kids love repetition.  Even though my daughter isn’t 10 months old yet, some of her favorite games involve doing the same thing over and over.  For instance, she throws a toy.  I pick it up and give it back to her.  She throws it again.  And so on.  She finds this hilarious, whereas I find the whole thing funny just because she’s so adorable (I admit to a bit of bias).

Repetition is also the name of the game in the GAO’s standoff with the VA over the VA’s refusal to set-aside procurements for SDVOSBs before procuring goods and services under the Federal Supply Schedule.  The GAO recently sustained yet another bid protest, holding that the VA had improperly awarded a contract to a non-SDVOSB, even though 20 or more SDVOSBs were capable of doing the work.  But before long, the showdown between the GAO and the VA may end, because one SDVOSB seems to have taken the matter to the U.S. Court of Federal Claims, which–unlike the GAO–has the power to compel the VA to put “Veterans First.”

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GAO Protests: VA Awards Set-Aside to Self-Certified Large Company

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“So, are you a small business?”  “Nope.”  “Great.  How would you like a small business set-aside contract?”  “Umm, sure, okay.”

The dialogue above is fictional (and its lack of quality demonstrates why I am a government contracts lawyer, not a Hollywood screenwriter), but it could have occurred in relation to a recent Department of Veterans Affairs procurement.  In that case, a company self-certified that it was not small.  Despite the certification, the VA awarded the company a small business set-aside contract.

Not surprisingly, the GAO had something to say about it.

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