Most service-disabled veteran-owned small business (SDVOSB) owners know they need not be listed in the Department of Veterans Affairs’ (VA’s) VetBiz database in order to compete for non-VA contracts. Rather, they must only meet the Small Business Administration’s (SBA’s) SDVOSB program eligibility requirements.
But what do business owners do when a federal agency makes a mistake? What happens when a federal agency finds an SDVOSB ineligible for a set-aside because it isn’t listed in VetBiz? It is not permitted to do that, and the contractor has a recourse. That recourse, however, must be sought in the appropriate forum. This was illustrated in a recent decision issued by the Small Business Administration Office of Hearing and Appeals (SBA OHA). 347 Construction Group, SBA No. Vet-232 (February 22, 2013).
In 347, the protestor was notified by the U.S. Department of the Air Force that it was excluded from competition for a solicitation simply because it was not registered in VetBiz. The protest of this decision ultimately made its way to the SBA OHA.
The SBA OHA didn’t disagree with the protestor’s contention that the Air Force acted improperly, citing to the well-established case law that SBA regulations do not require a business to be registered in VetBiz in order to be eligible for the SBA’s SDVOSB program. The problem was the protestor brought this argument in the wrong forum. As noted by the SBA OHA, it will only entertain an SDVOSB status protest directed against a procurement’s apparently successful offeror. In this case, however, 347 was requesting its own eligibility to be reviewed, not that of the awardee.
Because the protestor’s bid protest grounds related to the conduct of the procurement (ie, improper exclusion of an offeror), the proper forum was the Government Accountability Office (GAO). The SBA OHA noted several recent similar decisions decided by the GAO, such as a case where the GAO determined a protestor ineligible for a VA contract because it was not listed in VetBiz, and another case where the GAO held that an agency acted improperly by determining a protestor ineligible for the SBA’s SDVOSB program without referring the issue to SBA.
The lesson presented in 347 is clear: knowing why you’re fighting is only the first step. The second step is knowing where your battle is supposed to be!
