Legal Meets Practical

Last Monday, my husband and I packed up our car (and the dog, of course, as he is the Legal Meets Practical mascot!) and headed for Norfolk for the National Veteran Small Business Coalition’s (NVSBC) annual conference (VETS 16). I spent three days not only participating in the various conference activities (and presenting on VA VetBiz verification and bid protests), but also observing the crowd and listening to the NVSBC discuss its role in the procurement process. This emphasized it has a role – a big one. The NVSBC is highly respected by the same agencies its members get business from, as demonstrated by the following example:

Every veteran business owner has heard of Kingdomware. (And if you haven’t, just go here).  The Thursday before last, the Supreme Court handed down a unanimous verdict in favor of Kingdomware (and veterans), which means the VA must show preference to veteran businesses competing on federal schedule contracts. When this happened, Tom Leney, the Director of the the VA’s Office of Small Disadvantaged Business Utilization (i.e, a VA head honcho), called Scott Denniston, Executive Director of the NVSBC, and asked to speak at VETS 16 (which was the following week). Mr. Leney had also attended VETS 15. Mr. Leney ultimately could not attend this year because of Congressional hearings, and Scott defended this cancellation during a conference luncheon, explaining that Mr. Leney has to testify as the small business representative before Congress as our advocate. Love him or hate him, Mr. Leney is “our guy,” and Scott did a wonderful job of  conveying that point.

This is why the procurement and government officials respect the NVSBC. For some groups or individuals, the VA can’t do anything right, ever, and that kind of attitude is counterproductive. The NVSBC, however, has always been good about recognizing the limitations of government and working with officials to make things better. For example, even though the four-year Kingdomware saga was extremely frustrating (maddening), the NVSBC respectfully and professionally presented its position (the NVSBC submitted an amicus curiae – “friend of the court” – brief to the Supreme Court), all the while zealously advocating on behalf of veterans.

Here’s the point. As veteran business owners, or veterans, it’s easy to get angry at the VA. It is a fact, not an opinion, that our veterans deserve better than what the VA has been delivering. But here’s the thing – if a veteran’s recourse is to rant and rave via a LinkedIN post constituting fifty lines, or to write angry letters to his Congressperson, bashing the VA, it doesn’t help. Not because what is being said isn’t true, but because it isn’t productive.

The NVSBC is productive. It celebrates the good work agencies do (at the award luncheon at VETS 16, it handed out awards to agencies and primes that met small business goals); and when it has an issue, it addresses it rationally and professionally. That is why Tom Leney personally reaches out to Scott Denniston, as opposed to dodging his calls. The NVSBC’s view might not always be aligned with the VA’s, but because it is respectful and ultimately has the same goals as the VA (serving the veterans!), it is an organization with weight and deserved influence in the federal arena.

If you want to be a veteran advocate, the best way to serve that purpose is by trying to work with the VA and not against it. I try to do that (despite my occasional colorful blog posts), and I feel I get farther because of it. As hard as it may be – and feel free to say what you want to others who understand your VA-related frustration – there’s no denying you get more by contributing to the solution rather than merely identifying the problem. It’s true with anything, and it’s true with the VA.

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran issues at: https://legalmeetspractical.com.

“PC load letter?!?!” – Office Space

A client forwarded me the email with this decision, and here I am thirty seconds later, writing a blog because it is necessary that the entire veteran business community knows they’ve been vindicated! We have won the Kingdomware case!

Today, June 16, the United States Supreme Court, by a unanimous vote, ended a four-year long battle (that began at the GAO) holding that the VA is mandated to set aside contract opportunities for veteran-owned businesses on the Federal Supply Schedule when the “rule of two” is met – that the contracting officer has a reasonable expectation that two or more veteran-owned businesses will bid on the work, and offer a fair and reasonable price. Applying legal rules of statutory construction, the Supreme Court sided with veteran businesses in holding that key language (“shall”) was mandatory in requiring the VA to honor the preference.

This is a huge victory for veteran business owners who rely on the Federal Supply Schedule for a chunk of their federal (VA) work. The mandatory preference means that automatically, the VA will have to give the work to veteran-owned businesses rather than competing it in full and open competition (i.e., with the “big guys” thrown in the mix).

I am a member (and huge fan) of the National Veteran Small Business Coalition, which submitted an amicus curiae brief on the matter, and I’m sure that Kingdomware will be THE topic of discussion at our conference next week in Norfolk. (Registration is still open, for those who are interested in going to one of the best veteran business conferences out there).

What a development! Access the full decision here.

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran issues at: https://legalmeetspractical.com.

When it comes to vet-related news, I try to distill it as much as possible. No one wants to read a long article, especially when you can get the message in a short one. It’s like squeezing juice from an orange – you get the good stuff, and leave the rest. This week, here’s the good (actually, bad, in many instances) stuff:

• Firings in Wake of Phoenix Scandal. Remember that scandal? Three more administrators at the Phoenix VA Health Care System have been fired in the aftermath of investigations that focused on a breakdown in service to veterans and retaliation against hospital employees who tried to report mismanagement and corruption affecting patient care. All “higher-ups,” they were removed for “negligent performance of duties and failure to provide effective oversight” according to a VA press release. They have the right to appeal, and based on what happened with Kimberly Graves and Diana Rubens, I’m sure they’ll be reinstated, as well as receive back pay. And a pony.

• VA Proposes Coverage for Gender Reassignment Surgeries. The VA is proposing a rule change to begin covering sex-reassignment surgeries and other related medical treatment for transgender veterans. The proposed rule change, announced on the Executive Office of the President’s website, would allow veterans to apply for medical services to change their sex, including surgery, to be determined on a case-by-case basis. Coming in the wake of fights over transgender bathroom rules, the VA has noted that: “Recent medical research shows that gender dysphoria is a serious condition that has had severe medical consequences for certain patients if transition-related surgeries and procedures are not provided.” (Note, however, that the VA has not yet formally proposed the rule).

• Senate Blocks Vote to Fund Military Fertility Program. In January, a pilot program began that allowed U.S. troops to freeze their sperm and eggs before deployment. The goal is to give those in uniform the peace of mind that if they are hurt on the battlefield, they can still have children; as well as to encourage women to stay in the military longer. This week, however, the Senate voted 85-13 to approve a $602 billion military spending bill for 2017 that stripped funding for the program.

• Vet Accused of “Gaming” Set-Aside Program Now Stands Trial for Murder. Remember a few years ago, when Tammy Duckworth berated Braulio Costello before Congress for abusing the SDVOSB set-aside program? (This one is worth re-reading). Costello’s trial for the murder of his wife, who had a protective order against him and was the mother of his five children, began on May 20 in Loudoun County.

• Thousands of Living Vets Declared Dead and Lost Benefits Over Last Five Years. The VA has mistakenly declared thousands of veterans to be deceased and canceled their benefits over the past five years, a new snafu to emerge at the embattled department. According to The Wall Street Journal, The VA has made the error more than 4,000 times over a half-decade because of employee mistakes or erroneous cross-checking of data by the department’s computers, among other reasons. More details will emerge in the weeks to come.

There you have it! The “juicy” news, squeezed, so you don’t have to drink the whole glass. (Though, if you’re like me, reading most of this will make you bitter, too).

*If you found this article informative, please sign up for Sarah Schauerte’s legal blog on veteran issues at: https://legalmeetspractical.com.

**Also, while this is unrelated to veteran news, if you are a parent or grandparent (or just someone who would like to read a book promoted as “Jumanji with monsters”), sign up to win a free advanced release copy of Monsterville: A Lissa Black Production, here. Sarah’s book makes its debut on September 6, 2016, and please feel free to share the page link! 

Your VA news, distilled and squeezed for easy reading.

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  Read more here: http://www.mcclatchydc.com/news/politics-government/congress/article83811887.html#storylink=cpy

   

On Tuesday, May 31, the Small Business Administration (“SBA”) published a final rule in the Federal Register, amending several of its regulations to implement provisions of the National Defense Authorization Act of 2013, as well as to make changes to its regulations concerning the nonmanufacturer rule, affiliation, and joint ventures. It isn’t the most interesting piece of reading you’ll ever encounter, but given its wide scope, it might be worth checking out to see if and how it affects how your small business.

Here are a few of the highlights:

• Affiliation. The rule clarifies that one firm will be presumed to be “affiliated” with another for purposes of determining size if the concern in question derived 70% or more of its receipts from another concern over the previous three fiscal years (consistent with case law from the SBA’s Office of Hearings and Appeals). This presumption is rebuttable. (13 CFR 121.2013).
• Annual Receipts. The rule further defines the definition of “annual receipts” (as it is used to determine size) (13 CFR 121.104). This has confused contractors and been a contentious issue in size protests.
• Nonmanufacturer Rule. The rule clarifies the nonmanufacturer rule, further stating that the rental of an item qualifies as a “service” and will be treated as such in the application of the nonmanufacturer rule and the limitation on subcontracting (“LOS”). It also notes that the nonmanufacturer rule and the LOS performance requirements do not apply to set-asides with an estimated value between $3,500 and $150,000. (13 CFR 121.406).
• Size Protest Standing. The rule clarifies standing for initiating a size protest or requesting a formal size determination, stating that this includes “any offeror that the contracting officer has not eliminated from consideration for any procurement-related reason, such as non-responsiveness, technical unacceptability, or outside of the competitive range.” The prior language included a double negative, which was confusing even for attorneys. (13 CFR 121.1001).
• Limitations on Subcontracting. It clarifies that a prime contractor may subcontract work to a “similarly-situation” (i.e., in the same socioeconomic category) entity and have that count toward the LOS requirements. Not complying with LOS requirements is an easy way to either be found non-responsive in your offer, or to get into trouble (including such penalties as debarment), so it’s important to remain educated on this topic. (13 CFR 125.6).
• Joint Ventures. It alters the rules for joint ventures, noting that the joint venture will be considered “small” so long as each concern is “small” under the NAICS code assigned to the procurement. It also notes the joint venture’s obligation to comply with the LOS requirements set forth at 13 CFR 125.6 (13 CFR 125.15).

For a detailed account of the originally-proposed rule, the comments received and the SBA’s response/analysis, and the final rule (which goes into effect on June 30, 2016), visit this page. Remember – as a small business contractor, it’s your obligation to stay informed on rule updates!

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran small business issues at: https://legalmeetspractical.com. Also, if you’re attending the National Veteran Small Business Coalition’s wonderful conference in Norfolk this year (June 20-23), please stop by for my presentations on VetBiz verification and bid protests!

Knowing the rules that apply to you can help your bottom line.