Last week, two things happened that are huge for veterans competing in federal space. One, you can’t do anything about. The second, you can. So please – chime in!
As to the first item, on November 9 the Supreme Court issued an Order yanking the Kingdomware case from its docket, requiring the petitioner (a veteran-owned small business) to explain why the case should be heard given that the contracts at issue have been fully performed. This is because the Court won’t hear a case if the issue is “moot,” meaning that deciding it doesn’t matter any more. It will, however, hear a case if the result doesn’t matter in the instant scenario, but will affect others in the future. (For example, when Roe v. Wade, the landmark case legalizing abortion, was decided, the petitioner had already given birth).
This case has been dragging along since 2012, when the Government Accountability Office (“GAO”) first determined that the VA had violated its own regulations (not to mention policy of helping out veteran-owned small businesses) by failing to set aside contracts off the Federal Supply Schedule for veteran-owned small businesses when certain criteria were met. (Access the full history on the case here). After the VA won at the U.S. Court of Federal Claims, and again at a district court level, Kingdomware filed a writ of certiorari at the U.S. Supreme Court, which was granted this summer.
The parties must file briefs with the Court by November 20, and assuming the case moves forward, oral argument will be re-scheduled for January. Hopefully this is a hurdle, not a brick wall, and veteran business owners will have their day!
The second item relates to the VA’s Veterans First Contracting Program, which is the means by which the VA awards set-aside contracts to veteran-owned small businesses and service-disabled veteran owned small businesses. Businesses must undergo a rigorous verification process in order for the VA to deem them “verified,” and then list them in the VetBiz database. (This process is not required for contracts issued by any federal agencies other than the VA).
On November 6, the VA published a Proposed Rule in the Federal Register, which seeks to strike the appropriate balance between preventing fraud in the Veterans First Contracting Program, and providing a process that would make it easier for more veteran-owned small businesses to become verified. The Proposed Rule is the result of a significant amount of dialogue between the VA’s Center for Verification and Evaluation (tasked with the verification process) and the veteran community. Some stakeholder feedback has been that the current regulations are too open for interpretation and are unnecessarily more rigorous than similar certifications programs run by the Small Business Administration (like the 8(a) program).
The last time the VA published a Proposed Rule on this topic, back in 2013, it received only 39 comments. 39! At this point there are over 10,000 businesses that have been verified. You cannot tell me that all of these businesses don’t have something to say about the process and how it can be improved. As such, if you are one of them, please chime in by the comment due date of January 5. For instructions on how to do so, access the Proposed Rule and instructions for comments here.
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The current regulations are not being enforced, why don’t we start there? I think a change would only loosen the requirements and make it easier for frauds. We need folks enforcing the SDVOSB program who know what they are doing, and who have the strength and authority to rid the system of fraud. I have personally protested several known frauds and many of them not only remain in the system, but continue to steal from the legitimate SDVOSB’s. I would like to see more prosecutions, right now if you are busted as a fraud, most go on unpunished. I would like to see the current required percentages of ownership of minority shareholders limited to 25%, that would make it alot less attractive to schrewd businessmen taking advantage of Veterans.
Respectfully,
Neeson,
That old VA stand-by tactic, “deny until they die.” It is a sad day when the SCOTUS agrees with it.