Legal Meets Practical

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!

As every veteran knows, the Department of Veterans Affairs (VA) disability compensation backlog has reached alarming numbers. According to a March 2013 report by the Center for Investigative Reporting, there are nearly 900,000 claims pending at the VA. That number is expected to soon top one million.

On March 20, members of the Iraq and Afghanistan Veterans of America presented a petition to White House Chief of Staff Denis McDonough, calling for President Obama to “keep the promise we made to the millions of veterans who have served and sacrificed to defend our nation” by ending the benefit backlog. The petition, which includes support from a bipartisan coalition of members of Congress, now has more than 36,000 signatures.

Other means of action are urged. Rep. Jeff Miller, R-Fla., chairman of the House Veterans’ Affairs Committee, also urges the removal of Allison Hickey, the VA’s under secretary of benefits. Miller is frustrated with Hickey, in part because she cannot project where the backlog will stand in 12 months, yet simultaneously promises that no veterans will be waiting 125 days or more for their benefits by 2015. This promise is also dubious in light of the fact that the current wait time for veterans filing an initial claim  is between 316 and 327 days.

This petition reflects the urgent need for real, substantive action to be taken as it relates to our nation’s veterans. While waiting for their disability compensation to be issued, many veterans face foreclosures or bankruptcy. By the time their claim is granted, they may be homeless or facing serious financial issues that could have been avoided with an expeditious resolution of a claim. Meanwhile, the VA faces absolutely no penalty for taking years to resolve a meritorious claim. If a claim is erroneously denied, even if the error is egregious or the wait time excessive, the VA is not expected to pay any type of penalty or interest for the period of time the veteran was without his benefits.

Interesting, isn’t it? That certainly isn’t the case when the situation is reversed : if a veteran forgets to pay all his taxes owed one year, when the Government eventually discovers the error, he’ll be socked with an additional amount owed.

For years, veteran organizations have loudly and forcefully complained about the backlog. Whether this recent effort will gain traction in the Obama administration is yet to be seen, but the reality is clear – the backlog is creating devastating effects on our veterans.  For more information about the efforts of the Iraq and Afghanistan Veterans of America and to voice your support of their cause, visit their website here.

On Friday, March 15, the General Services Administration (GSA) reported a security vulnerability in the System for Award Management (SAM). For a period of time not specified, registered SAM users with entity administrator rights and delegated entity registration rights had the ability to view any entity’s registration information, including both public and non-public data at all sensitivity levels. This vulnerability was discovered on March 8th, and on March 10th the GSA implemented a software patch to close the exposure. It later sent out a mass email to all SAM registrants.

As noted in the email release, this exposed data contained identifying information, including: names; taxpayer identification numbers (TINs) including Federal Employer Identification Numbers (FEINs) and social security numbers; marketing partner information numbers; and bank account information. The GSA has not, however, specified for how long this information was viewable.

Registrants using their social security numbers instead of a TIN were identified as being at a greater risk for potential identity theft. These registrants include sole proprietorships and solo member limited liability companies. These registrants were advised to monitor their bank accounts, and to immediately contact their financial institutions if they noted any discrepancies. They were also given free access to credit monitoring services.

This security vulnerability is worrying for a number of reasons. Thousands of SAM registrants were affected by the vulnerability, and yet they were not alerted until seven days after it was discovered. Also, while the issue was reported to the GSA on March 8th, it was not resolved for two days. Last, while registered SAM users are aware of the incident, there is no way they can know whether their information was compromised. Rather, they must monitor their credit and banking information to make sure that they do not become victims of identity theft.

Who knew that agreeing to do business with the federal government included consent to be exposed to identity theft?

SAM users can access the GSA’s System for Award Management Security Vulnerability FAQ webpage here. If you would like additional background or have questions, the FAQ webpage provides a contact number that is in service from 8:00 AM to 8:00 PM beginning March 18.

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As individuals working for or dealing with the Department of Veterans Affairs (VA) know, the VA is exempt from the sequestration that took effect on March 1 of this year. This does not mean, however, that the VA does not feel the effects of sequestration. A hit to the Department of Defense (DoD) results in collateral damage to the VA and the veterans it supports.

What is sequestration? 

“Sequestration” is a process of automatic, largely across-the-board spending reductions under which budgetary resources are permanently canceled to enforce certain budget policy goals. It was included as an enforcement tool in the Budget Control Act of 2011 (BCA). It can also occur under the Statutory Pay-As-You-Go Act of 2010.

On March 1, 2013, sequestration occurred because a Joint Select Committee on Deficit Reduction failed to develop legislation to reduce the deficit by at least $1.2 trillion. Under the BCA, Congress was supposed to adopt this legislation by January 12, 2013. Because it did not, this triggered a series of automatic spending reductions. This included sequestration of mandatory spending for fiscal year (FY) 2013 through FY 2021, a one-year sequestration of discretionary spending for FY 2013, and lower discretionary spending limits for FY 2014 through FY 2021.

What departments and programs are exempt? 

Since sequestration occurred, the exemptions and special rules of Sections 255 and 256 of the Balanced Budget and Emergency Deficit Control Act of 1985 (BBEDCA, as amended in 1985) apply. Most exempt programs are mandatory, and include Social Security and Medicaid; refundable tax credits to individuals; and low-income programs such as the Children’s Health Insurance Program, Supplemental Nutrition Assistance Program, Temporary Assistance for Needy Families, and Supplemental Security Income. Some discretionary programs also are exempt, including all programs administered by the VA.

A look at VA exemptions 

Under the letter of the law, the VA and its medical care programs are exempt from sequestration. This was not, however, initially clear, which resulted in concern within the VA and veteran community. Section 255 of the BBEDCA specifically excludes from sequestration all programs administered by the VA, which includes veterans’ medical care. This conflicts with Section 256(e) of the BBEDCA, which allows a maximum 2% reduction in budget authority for VA medical care for any fiscal year. To clarify the issue, on April 23, 2012, the Office of Management and Budget (OMB) issued a letter stating that “all programs administered by the VA, including Veterans’ Medicare Care, are exempt from sequestration under Section 255(b).” (Access the letter here).

The Collateral Effects on Veterans 

Despite the exemption from sequestration, both the VA and the veterans it serves will feel the effects of sequestration. This is due to the fact that support received from other agencies will lessen due to the resource strain within these agencies. This applies to the DoD in particular, which works in collaboration with the VA to meet many objectives. (About 800,000 civilian defense employees face one-day-a-week furloughs and a 20 percent dent to their paychecks, which are set to start next month). Programs operated by the VA in conjunction with other agencies will also be affected.

In addition to the direct impact on VA departments and programs, veterans will also see a reduction in services or resources due to a ripple effect from the DoD. This includes the following:

• The Department of Labor’s VETS job-training program –  This was being revamped and has been touted by the Obama administration as a key weapon in reducing high unemployment among post- 9/11 era veterans, and it is subject to cuts.

• Department of Labor’s employment and transition assistance programs – Acting Labor Secretary Seth Harris said last month that about 55,000 veterans and 44,000 service members would not receive employment and other transition assistance to help them find civilian jobs because of sequestration. Labor officials now say the exact number s are unknown but will amount to “tens of thousands.” In addition cuts to the Jobs for Veterans state grants program will mean an estimated 33,000 fewer veterans will be served.

• Homeless veteran programs – A program using Housing and Urban Development (HUD) vouchers that is credited with reducing the number of homeless veterans by 17 percent since 2009 may be harmed. According to Sandra Henriquez, the assistant secretary for public housing, while the vouchers are exempt, administrative funding is being cut, which HUD fears will have a “serious effect” on the number of local housing authorities willing to accept the vouchers because they would have to make up the deficit.

• Mental Health Counselor Availability – The number of DoD mental health counselors assisting service members returning from combat zones with issues such as post-traumatic stress disorder may be cut, Gen. Raymond Odierno, the Army chief of staff, told Congress last month.

Time will show how sequestration affects the VA and the veterans it serves. For now, however, one point is clear: the VA may have dodged a bullet, but it will suffer from the collateral damage caused by cuts to the DoD and other agencies.

Valentine’s Day marked a sweet victory for Pennsylvania company Miles Construction, LLC (“Miles”), when the United States Court of Federal Claims (“CoFC”) reinstated Miles’ service-disabled veteran-owned small business (“SDVOSB”) verified status in the Department of Veterans’ Affairs (“VA’s”) Vendor Information Pages. (CoFC No. 12-597C, February 14, 2013).

In this case, Miles had been verified as an SDVOSB by the VA’s Center for Veterans Enterprise (“CVE”). Its status was protested when it was awarded a VA contract for storm sewer repairs. The second low bidder alleged that Miles and a non-SDVOSB had common ownership and control, thus rendering Miles ineligible for SDVOSB status (due to affiliation issues). Interestingly, while the OSDBU rejected the basis of the protest, it sustained it on other grounds: unlawful transfer restrictions. Miles’ corporate documents contained a right of first refusal transfer restriction.

In finding that the right of first refusal provision was permitted under the VA regulations governing the Veterans First Contracting Program, the CoFC noted that “it is presently executory, is a standard provision used in normal commercial dealings, and does not burden the veteran’s ownership interest until he or she chooses to sell some of his or her stake.”

While this is certainly a triumph for Miles in this instance, the end result is confusion: as the CoFC noted in its decision, the operative VA rule (38 CFR Part 74.3)  is materially different from the text in the operative Small Business Administration rule (13 CFR Part 125.9). This means that if this contract had not been awarded as a set-aside under the Veterans First Contracting Program, the protest may have been sustained due to the right of first refusal provision. Because of the differences in the regulations, Miles may be an eligible SDVOSB for VA procurements, but not for solicitations issued by other federal agencies.

As many veteran businesses are aware, the ultimate goal is for the CVE’s verification process to apply government-wide. As a recent Government Accountability Office report pointed out, the system is still undergoing growing pains. This decision illustrates one such growing pain: working to ensure that the regulations governing eligibility are uniform across all federal agencies.

For further reading, access the Miles decision here.  Also, if you found this article informative, please sign up for my weekly blog on veterans issues. Remember to click the link sent to your email to activate your subscription!

On February 12, 2013, Thomas Leney, the Executive Director for Small and Veteran Business Programs at the U.S. Department of Veterans Affairs, made a special appearance at the monthly VET-Force meeting held in Washington, D.C. For over an hour, veteran business owners and advocates had the opportunity to listen to Mr. Leney’s discussion of the VA’s VetBiz Vendor Information Pages (“VIP”) Verification Program (the “VA VetBiz Verification Program”), as well as ask questions. The following illustrates a few highlights of this discussion:

• Processing Times – According to Mr. Leney, the average processing time for an initial verification request is 57 days. The average processing time for a request for reconsideration is 147 days. These statistics are a bit different from, but in the same general timeframe, as those included in a table that was very recently posted on the VetBiz website (58 days and 131 days, respectively). This table also includes current statistics relating to the VetBiz process, including statistics on the percentage of successful verification applications and requests for reconsideration. Access the VetBiz table of “Average Verification Processing Time(s)” here.

• Verification Counseling Program – Along with reading the Verification Assistance Briefs and taking the Verification Self-Assessment Tool, the Center for Veterans Enterprises (CVE) highly recommends that veteran business owners take advantage of the Verification Counseling Program. As Mr. Leney noted, 85% of businesses that used the Verification Counseling Program were successful in achieving verification (compared with an average 59% success rate for applications processed during FY 2013).

• Alignment with Small Business Administration (SBA) Regulations – Mr. Leney stressed that the regulations for the VetBiz are aligned with the regulations for the service-disabled veteran-owned small business (SDVOSB) program set forth in the SBA regulations. However, as a VetForce member pointed out, if we assume that this is true, the unusually high denial rate for the VetBiz Program demonstrates that the issues preventing successful verification may exist in the evaluation phase.

• Transparency – Mr. Leney relayed that in the interest of government transparency, the CVE plans to publish its Standard Operating Procedure (SOP) of its VA VetBiz Verification Program on the VetBiz website.

• Government-Wide Verification Program – As of now, the VA VetBiz Verification Program applies only to VA contracts, meaning that a business need not be verified in VetBiz to compete for SDVOSB set-aside contracts issued by other federal agencies. As Mr. Leney noted, the intention is to move towards a Government-wide verification program. As illustrated in the recent GAO report on the VetBiz Program, however, issues with devising long-term solutions and other flaws in the still-developing Program prevent that from occurring any time soon. This GAO report is available here.

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Also, for further reading on the VA VetBiz Verification Program (including helpful resources and links), visit my frequently-updated VetBiz FAQs page here.

It used to be that when a veteran started the disability compensation claim process, he was forced to simply deal with the delay. Now, with the Department of Veterans Affairs’ (VA’s) new Fully Developed Claims (FDC) Program, a veteran has a genuine opportunity to truly expedite his claim.

The FDC Program is exactly what it sounds like – if a veteran can give the VA a fully developed application, including relevant medical evidence, he will be placed in a priority channel for review of his claim. In order to meet the criteria for an FDC claim, the veteran must do three things: 1) submit his claim on the VA Form 21-256EZ; 2) simultaneously submit with his claim any relevant private medical treatment records and/or identify the medical records that may be available at federal facilities; and 3) if applicable, report for any medical examinations scheduled by the VA.

Sounds great, doesn’t it? After all, no one likes standing in line, especially if it’s a very long one! But before you take advantage of the FDC Program, be careful:

• First, make sure that you have all information necessary to render your claim appropriate for the FDC Program. If the VA finds that other records are necessary to decide your claim, it will pull your claim from the FDC Program queue and put it in the Standard Claims Process (ie, the very long line).

• Second, obtain all information you require from private care providers. In the Standard Claims Process, the VA will make efforts to obtain records from private providers. This is not done in the FDC Program. This does not mean that the VA will not obtain and/or consider them; it simply means that it will  pluck your claim from the FDC queue so the records may be obtained.

• Third, make sure that you have thought of everything you would like to include. One advantage of having to wait so long for an initial decision in the Standard Claims Process is that if in the interim, a veteran thinks of more evidence he would like to add, he has the opportunity to do so within one year of the VA’s receipt of the claim. In contrast, while you may submit additional evidence for a claim in the FDC Program queue, the penalty is that your claim will be removed from the FDC Program queue and put in the Standard Claims Process.

If you know how to take advantage of it, the FDC Program can be your ticket to having your disability compensation claim resolved as quickly as possible by the VA. However, before you pursue this as an option, do your research. Make sure you truly understand how the Program works and have gathered all of the possibly relevant information that the VA will need to decide your claim. If not, the VA will put you right back in the place you were looking to avoid…the very long line.

For more information on the FDC Program, visit the VA’s website at: http://benefits.va.gov/transformation/fastclaims/. A copy of the FDC Program application is available at: http://www.vba.va.gov/pubs/forms/VBA-21-526EZ-ARE.pdf.

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The Veterans Benefits Administration (VBA)  has begun the nationwide transition to paperless processing of veterans’ disability claims at its Regional Offices. This transition sets the stage for the VBA’s new electronic claims processing system, called the Veterans Benefits Management System (VBMS), which aims to eliminate the VA’s backlog of disability claims by 2015. As of December 2012, 18 VBA regional offices (ROs) have implemented the new system and are beginning to process newly-received compensation claims in an entirely digital format.

Part of the push in implementing an electronic system is due to the increase in disability compensation claims received in recent years. From 2008 to 2012, the VBA saw a 50% increase in incoming claims. This increase, according to the VBA, is attributed to the following factors: ten years of war with increased survival rates, post-conflict downsizing of the military, additional medical presumptive conditions, and successful outreach encouraging more veterans to submit claims. Because of these factors, the number of pending disability compensation claims approaches one million. Due to the backlog, in some ROs a service-disabled veteran must wait nearly a year for an initial decision on his or her claim.

The VA Claims Transformation Homepage lists three stages to successfully implementing VBMS, which should streamline the claims process. These stages described in very broad, general terms. First, the VBA’s “Transformation Strategy” contains 40 initiatives that the VA claims will reduce the backlog by 40 to 60%. Second, the VBA’s “Transformation Roll-Out” will implement “changes in People, Process, and Technology through a deliberate process.”  Third, the “VBA’s Transformation End State” provides a projection of how the disability compensation claims system will look and operate when it has been successfully established by the VBA.

The VA Claims Transformation Homepage may be accessed at: http://benefits.va.gov/transformation/. More interesting, however, will be the inevitable Government Accountability Office report that will explain the system’s effectiveness. Stay tuned for 2014, when that report will provide the low down on how the VBA’s on-paper (or rather, not-on-paper-anymore) plan looks in practice.

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On January 16, 2013, the Government Accountability Office (GAO) released a report addressing many questions business owners have regarding the Department of Veterans Affairs’ (VA’s) VetBiz Vendor Information Pages (VIP) Program.

Business owners want figures – how many VA contract dollars go to veteran-owned small businesses (VOSBs) and service-disabled veteran-owned small businesses (SDVOSBs)? And what are the success rates for verification applications, requests for reconsideration, and re-verification requests?

In terms of contract dollars, the GAO report on VetBiz reported that in 2011, the latest fiscal year for which information is available, 20.5% of VA contract dollars were awarded to VOSBs (including SDVOSBs). The vast majority of this percentage went to SDVOSBs.

The GAO report on VetBiz also provided percentages of businesses successful in verification applications, requests for reconsideration, and re-verification requests. This was based on applications or requests made to, and resolved by, the VA between November 2011 and September 2012.

Of the initial verification applications processed, 61% were verified. As of September 30, 2012, the VA’s database listed 691 pending applications for verification.

Of the requests for reconsideration processed, 48% requests were successful. As of September 30, 2012, the VA’s database listed 165 pending requests for reconsideration from businesses that were denied verification.

Of the re-verification requests processed, 80% were successful. As of September 30, 2012, the VA’s database listed 131 pending reverification requests.

In addition to providing this data, which most businesses will agree is difficult to find, the GAO report on VetBiz scrutinizes the current VetBiz Program procedures. The VetBiz Program, which is new compared with other government certification programs, is still undergoing growing pains. In general, the GAO concluded that while the VA has made advances in improving its timeliness and consistency in verifying contractors’ eligibility, implementing the program government-wide is not yet a viable possibility. The report noted specifically the VA’s difficulty with creating long-term solutions for issues that arise in the VetBiz Program.

The January 16, 2013 GAO report may be accessed at: http://www.gao.gov/assets/660/651281.pdf. Also, I maintain a frequently-updated webpage on VetBiz verification FAQs, gleaned from my practical experience as a certified VetBiz counselor.

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For residents of the D.C. area, it’s a shame to miss out on Inauguration Day. After all, Americans travel from all over the country for this event, while we live mere miles from the White House.

Prior to inauguration, I was completely aware of this fact. I was also, however, wary of the hours-long lines to enter Pennsylvania Avenue, the frostbite-inducing temperatures, and the formidable security guards. Just because we might not have to drive as far to arrive there, that doesn’t mean the inauguration itself doesn’t have the same inconveniences as it does for a distant traveler.

Luckily, I was fortunate to receive an invitation to attend an inauguration party hosted by area law firm Mintz Levin Cohn Ferris Glovsky and Popeo, PC. Its offices, located across from the National Archives, overlook the parade route. This means, importantly, that I did not have to crane my head to glimpse President Obama’s bulletproof limousine as it spent ten seconds passing by; and it also meant that I did not have to freeze (and stand) while listening to the inaugural address. Instead, the address came to me courtesy of a large screen and capable speaker system. Mimosas were bottomless, and cardboard cutouts of our President provided an amusing photo opportunity. All in all, Mintz and Levin truly outdid themselves, and I was honored to be invited.

Now that I am back home, I feel a tad bit guilty for my initial ambivalence. When I was watching the inauguration, the cameras panned over the thousands of people gathered in our Capital to witness this moment. These people knew that they would be waiting for hours to gain access to Pennsylvania Avenue, that they probably wouldn’t be able to hear the President, and that Porta-potties would be scarce.

But still, they came. And they were grateful to be there, and to be a part of this moment in history.

As for me, I hadn’t planned to take part in the inaugural events. I thought everything would be too much – the crowds, the wait, the cold. It wasn’t until I received an invitation to a party that I decided to come into the city. To not attend would have been my choice, but I know I would have regretted it. Seeing the swarms of people gathered to see the swearing in of President Obama illustrated that for me.

Though it is nice to be warm, and it is nice to sit, the important thing is to participate.

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Patriotic dessert at Mintz Levin event

View from Mintz Levin offices