Legal Meets Practical

For those of you who used to read my blog, you may have noticed just that: you used to read my blog. I haven’t posted anything in years. Since May of 2021, in fact.

I didn’t mean to stop posting. I liked doing it–covering topics I found interesting and/or helpful for small business owners, particularly veterans competing in federal space. But, as small business owners know, sometimes life takes over and certain items take a backseat. That’s the nature of having your own business–you calibrate and adjust, in order to make it work (and to facilitate how you work).

When I first started my business, a lot of my activity focused on pounding the pavement, looking for clients and building my practice. A big part of that was my blog, and also my newsletter–the idea was that by providing value to businesses and enhancing my visibility, this would bring in new clients. As my practice grew, I was able to keep up the blog (fairly) regularly, by virtue of there always being something to blog about. I also enjoyed doing it, and I enjoyed connecting with people via the comments made.

It is now twelve years later. In that time, I’ve built a solid book of clients, and I don’t need the blog, but that isn’t why I’ve stopped writing it. I have two kiddos, who are now five and seven, and I’ve been incredibly fortunate in being able to work a non-traditional schedule so I can spend more time with them. (That’s not to say that there aren’t the moments when I’m glued to my computer and feeling guilty for neglecting them). My practice has grown to the point where most of my time is spent on client matters versus marketing or administrative work, and one result is having more time with the monsters (which is how I’ll refer to them until they’re about forty). But, balancing an active practice with being a mother has resulted in me scaling back certain things, and the blog is one of them.

The other reason I don’t post is because of other things I write. Since . . . ever. . . I have wanted to be a writer. Over a period of ten years, I had three literary agents and we shopped a total of five projects. Getting a literary agent is hard–you have to pitch a finished novel to them, and they only represent you if they think the book will sell. Only about one percent of writers will get an agent, so you would think that my having been able to secure three would have resulted in publishing success.

You would be wrong. Of those books shopped, only one sold to a small publisher, and that impact was extremely underwhelming.

I stopped writing for the most part after I had my children. There was never any time, and I was always exhausted by the balancing act between work life and home life. (For example, this particular blog post may be coming to you from a Waffle House en route to Georgia from Illinois, as my children hit each other). I also switched up my reading materials, getting more of an interest in campy thrillers as an escape from reality.

Writers, however, simply can’t stop. It’s in us, regardless of whether success is achieved. (That’s what makes being a writer such a frustrating, mean enterprise). After a significant hiatus and once our family moved to the Atlanta area, I had an idea for a dark comedy thriller about a serial killer stalking the morally bankrupt residents of an upscale neighborhood. One of my favorite books is The Stand, and I wanted to try out King’s mode of writing a book in linear format via multiple narrators.

The problem was everything else. Where would I find time to write?

For the next two months, while the children were away at school, I wrote Neighborhood Watch, an entire chapter at a time because starting and stopping a chapter was a no-go. I did my legal work early in the morning, and after the children went to bed. A total of seven months after starting the book, I had a traditional publishing deal. And this April–eighteen months after this offer, as the publishing world moves like molasses–my book was released. There’s an audio book! With eleven different voice actors! Again, this is after over a decade of trying. It feels surreal that this happened, is happening. Present tense, since, after Neighborhood Watch, I’ve been writing again.

Having this book released made me think of this blog, and how I don’t write it anymore. I miss it. And I wanted to say–to those who have followed me over the years–that I have enjoyed writing for you. I would not have stopped if I had the bandwidth.

But it’s same situation with the other type of writing I do. I didn’t have the bandwidth, but I had the inspiration, and I made it work. I will try to make my blog work again. It simply might not be as frequent as it used to be.

We don’t stop doing some things because we don’t care. We stop because life has a way of distracting us. I know I’m not alone in this notion.

In a unicorn of a decision before the Small Business Administration Office of Hearings and Appeals (SBA OHA), Judge Chris Holleman overturned his own finding that a service-disabled veteran-owned small business (“SDVOSB”) did not meet the requirements of the Small Business Administration’s SDVOSB Program.

In this request for reconsideration decision, the protestor, Blue Cord DevGroup LLC, had originally successfully argued in its SDVOSB status protest that Purple Heart Heroes, LLC (Purple Heart), the awardee of a lease issued by the U.S. Department of Veterans Affairs, did not qualify as an SDVOSB. One reason alleged was that Purple Heart was not actually controlled by Zachariah Gore, the service-disabled veteran owner. In sustaining this protest ground, Judge Holleman found: “He (Gore) does not have managerial experience of the extent and complexity needed to run the concern, [and] Catalyst is so crucial to PHH’s business operations that Mr. Gore cannot exercise independent business judgment without great economic risk, and … he lives too far from PHH’s headquarters to adequately supervise the company.” In other words, the SBA OHA found three reasons that Purple Heart did not meet the control requirement.

Purple Heart moved for reconsideration on March 15, arguing that it had shown that Gore had the necessary managerial experience, pointing to his work both before and after his time in the military and his work with Purple Heart itself. Judge Holleman agreed on reconsideration that he had erroneously assessed Gore’s work record. While the information in Gore’s resume about his work experience prior to Purple Heart was “vague and unclear” and included several conflicting examples of jobs he had purportedly held at the same time, Gore’s work with Purple Heart itself was enough to show sufficient managerial experience by the time the company actually bid for the VA lease in March 2020. SBA OHA also found that Purple Heart had not been provided the opportunity to rebut the presumption that the veteran did not control the firm despite not being within close proximity. In its request for reconsideration, Purple Heart had provided ample evidence to overcome the presumption. Also, SBA OHA found that analogous case law supported Purple Heart’s arguments regarding its ability to exercise independent business judgment (and that the case relied on previously was not as similar to the facts of Purple Heart’s situation). Accordingly, the SBA OHA reversed its own decision and found Purple Heart eligible for the award.

As an attorney, I find this case fascinating. In general, while a party can request reconsideration of an SBA OHA decision, to actually prevail is extremely rare. One must file the request within 20 calendar days of having received the initial decision, and then convince the judge at SBA OHA that rendered the decision that s/he made “a clear error of fact or law.” As in, convince the judge to overrule himself or herself. That’s an extremely high hurtle, evidenced by the fact that almost all requests for reconsiderations at SBA OHA are denied. And in this case, Purple Heart had to show errors with respect to three separate eligibility findings. And it did!

Congratulations, Purple Heart. You are a legal unicorn.

For the first time in judicial history, the U.S. Federal Circuit Court (the “Court”) examined the scope of the Government Publishing Office’s (“GPO”) authority. And the GPO may not like the attention it received–the Court rejected the Government’s expansive interpretation of the “printing mandate” to require executive agencies to procure printing supplies and services through the GPO. (As relevant here, this would include VA opportunities subject to a statutory veteran preference). The Court also indicated, more generally, that applying the “printing mandate” violates the constitutional separation of powers. 

This bid protest decision challenging the VA’s decision to route a procurement for imprinted gunlocks and wallet cards for veterans originated at the Government Accountability Office (“GAO”). The VA had invoked the “printing mandate” of 44 U.S.C. 501 in arguing it had no choice but to hand over the procurement. The mandate states: “[a]ll printing, binding, and blank-book work for Congress, the Executive Office, the Judiciary, other than the Supreme Court of the United States, and every executive department, independent office and establishment of the Government, shall be done at the Government Publishing Office [“GPO”][.]” Because the supplies sought contained elements of printing, the VA argued, the printing mandate applied to require the acquisition to be conducted via the GPO. Then, because it became a GPO procurement, the requirements of the Veterans Benefits Act (“VBA”) at 38 U.S.C. 8127-8128 to set aside the opportunity for veteran firms did not apply. (These only apply to the VA). Veterans4You challenged this as violating the VBA and the Supreme Court Kingdomware mandate that when the VA acquires supplies or services for its use, it must apply the “Rule of Two” to determine if the opportunity should be set aside for veterans.

In a sustained decision, the GAO found that the VA had violated the VBA by routing the opportunity to the GPO with no consideration to its requirements. Because the GAO found in Veterans4You’s favor on the Kingdomware issue, it did not examine the interplay with the printing mandate. Immediately thereafter, the VA turned around to issue another seemingly-identical procurement via the GPO, which Veterans4You again protested, this time to the U.S. Court of Federal Claims (“CoFC”)(19-931c).

Ruling from the bench, Judge Lydia K. Griggsby found against Veterans4You. First, she held that the printing mandate had been properly invoked, as the printing mandate is “broad” and the sources sought fell within the definition of “printing.” Second, although conducting the acquisition via the GPO would result in the Kingdomware mandate not being followed at all (the GPO has no set aside procedures or means to providing veteran credit or preference), she held that the VA had met the requirements of the Veterans Benefits Act. Under one particular section that applies to contracts with other agencies (38 U.S.C. 8127(i)), the VA must request the agency to comply to “the maximum extent feasible.” In the form submitted to the GPO requesting it to conduct the procurement, the VA did include this language.

On appeal to the Court, Veterans4You raised the constitutional issue with the “printing mandate.” It argued this was exacerbated by the “broad-sweeping” ruling of the CoFC, which would enable virtually any supply containing an element of printing to be labeled as “printing” and routed through the GPO. Veterans4You and Kingdomware (which submitted an amicus brief) urged that the Court’s interpretation of the printing mandate must be guided by the doctrine of constitutional avoidance because “invocation of the printing mandate . . . violates constitutional provisions of separation of powers.”

The Court exercised its discretion in hearing the constitutional issue, noting that “executive branch actors have long maintained the position that the printing mandate in 44 U.S.C. § 501 violates the separation of powers between the legislative and executive branches mandated by the Constitution.” After describing this history, the Court found that acquiescence by the executive agency had not occurred, while acknowledging that the FAR Council had been aware of positions of unconstitutionality regarding the printing mandate yet had not revised FAR 8.8 accordingly (FAR 8.8 encompasses the printing mandate).

The Court concluded that the canon of constitutional avoidance counseled it to construe the printing mandate narrowly and to avoid its application to the procurement at issue. In so doing, the Court noted that both Veterans4You and Kingdomware (which submitted a brief as amicus) argued that a narrower reading of the term “printing,” limited to a particular category of printed matter, was both appropriate and supported by the historical context in which the term has been used in the statute. Here, the gunlocks (including the components that involve some element of “printing” in a broad sense, such as the wallet card and the imprinted information on the body of the padlocks) are not “written or graphic published material,” and therefore, the printing mandate was not invoked to require the VA to conduct the acquisition via the GPO.

The Court then provided a detailed analysis based on dictionary definitions, statutory analysis, and the historical functions and activities of the GPO in order to narrowly define “printing” as “written or graphic published material.” It also noted that “in view of our determination that the canon of constitutional avoidance compels a nar-row interpretation of the printing mandate, we need not conclude that our construction is the only possible construction. These dictionary definitions support our view that our construction of the statutory term “printing” is reasonable.”

Accordingly, the Court reversed and remanded the CoFC decision, holding that the VA had improperly concluded that the printing mandate was triggered. Based on the administrative record, the Court noted that it “underst[oo]d VA’s decision to route this solicitation through the GPO to have been premised on an understanding on the part of VA, confirmed by GPO, that VA was obligated by the printing mandate to route this solicitation through GPO.” Because the Court reversed the CoFC’s determination that the goods sought under the solicitation fell within the printing mandate, it did not reach the question of whether VA was in compliance with its obligations under § 8127(i). Nor did it analyze any constraints imposed by the VBA if the VA had exercised discretion in procuring through the GPO (versus arguing that the mandate applied).

In this case, what the court didn’t say is almost as interesting as what it did. The Court clearly found issue with a broad interpretation of the “printing mandate,” adopting a more targeted definition in its holding that this particular procurement didn’t fall within it. Executive agencies aren’t required to use the GPO unless the solicitation calls for “written or graphic published materials.” At the same time, the Court didn’t analyze how the constitutional separation of powers issue would be impacted if an executive agency chose to procure a “non-printing” procurement via the GPO because it had some elements of printing. The judges’ questioning of the Government during the oral argument was skeptical that the encroached agency consenting to the violation would fix the separation of powers issue. Also, the Government’s own prior questioning of the printing mandate’s constitutionality hinged not just on the executive agencies being required to hand over the printing work, but that a legislative agency was actually performing it. Regardless of whether the hand-off is consented to or not, the effect is the same with respect to a legislative branch agency conducting a procurement for an executive branch agency.

The Court also didn’t touch on Kingdomware and the limits it imposes on the VA’s ability to route procurements through other agencies. Had the VA said it was exercising its discretion in procuring the gunlocks via the GPO, would it have been permitted to do so considering the impact would be that the GPO has no means to complying with the VBA? That seems contrary to the intent of Congress.

This case may need a sequel. If another “non-printing” procurement comes along where an executive agency chooses to route through the GPO due to minor printing components, a constitutional challenge to that decision may provide further scope and clarification to this decision.

*Did you find this article informative? If so, sign up for Sarah Reida’s legal blog on veteran procurement issues.

**Note – Sarah Reida represented Veterans4You at all stages of this issue/appeal.

It seems like every email nowadays refers to “hoping all is well in these uncertain/difficult/strange times.” Small businesses–particularly restaurants–have been devastated by shutdowns. Teleworking is now the norm, not the exception (and we’ve realized most folks are just as productive). Whole companies are going belly-up, with the workforce poured into an already-tight job market. In general, times are tough, and on this day–Veterans Day, where we honor our heroes and acknowledge their sacrifices–I want to remind those veterans competing in the federal marketplace that the VA is required to put you first. When the VA fails to do that, strength in numbers holds them to it.

I’m referring specifically to the Kingdomware mandate, which was born when a Maryland-based small business prevailed at the U.S. Supreme Court in arguing that the Veterans Benefits Act at 38 U.S.C. § 8127 et. seq. (“VBA”) mandates the VA to set aside contracts for veteran-owned small businesses (“VOSB”) when certain requirements are met. These are when a contracting officer has a reasonable expectation that two or more VOSBs will offer and an award can be made at a fair and reasonable price that offers the best value to the government.

This is not a hand-out. This is consistent with the VBA’s purpose of assisting veterans in transitioning to civilian life by requiring the VA–the agency bound to protect them–to “maximize opportunities” for VOSBs, and it only applies when the result will be a contract that is of the “best value” to the VA. The VA isn’t required to award to veterans when the result is overpaying for a shoddier product or service; however, the law does require the VA to do more work in its award process by evaluating whether the opportunity should be set aside for veterans.

Since Kingdomware, which was a major victory for veterans and flooded the VA’s Center for Verification (“CVE”) with VOSB applications for the “verification” required to participate in VA set-asides, the VA has consistently been challenged on its meeting of the mandate, resulting in a body of case law that has further developed Kingdomware. One such development unfortunately carved out an exception to the veteran preference via legislation effective as of just this summer. This was prompted by the ruling in PDS Consultants, where the plaintiff prevailed at both the U.S. Court of Federal Claims and the Federal Circuit Court of Appeals. The courts affirmed that for the VA, the preference for veteran-owned firms is supreme. This includes any preference for firms covered by the AbilityOne Program (via the Javits-Wagner- O’Day Act, which applies to all agencies versus the VBA, which is unique to the VA. This was a “blanket” determination based on the language of both statutes.

In response to the Federal Circuit’s holding in PDS Consultants, Congress passed the Veterans Affairs Contracting Preference Consistency Act of 2020, which amends the VBA. The Consistency Act prioritizes blind and severely disabled entities by requiring the VA to use AbilityOne non-profit providers, rather than prioritizing VOSBs, when procuring any products or services added to the AbilityOne list prior to December 22, 2006.

In passing the bill, the Senate added an exception (to the exception) to protect some requirements that the VA had already transitioned to VOSBs. If the VA awarded a contract for a covered product or service to a VOSB pursuant to a Rule of Two determination between December 22, 2006 and August 7, 2020, the VA could not transition these requirements back to the AbilityOne program until a new Rule of Two analysis was conducted and the VA determined in writing that there was no reasonable expectation that two or more VOSBs could compete. 

Not even two months after this new law was passed, the VA violated it. Per a very recent ruling by the U.S. Court of Federal Claims (“CoFC”), the VA misinterpreted its scope in transferring a prescription glasses deal to nonprofits that employ the blind. Superior Optical Labs, Inc. v. U.S., No 21-1211C (Oct 21, 2020).  The CoFC granted the protest and the relief requested of a permanent injunction, holding that the VA had erred in failing to hold veterans first as was required.

The big takeaway here is this: since Kingdomware, the veteran preference continues to be chipped away, and we must do what we can to protect it. This can be especially hard due to the time and expense (not to mention quick acting) required to challenge a Kingdomware problem – most VOSBs simply cannot afford it, and one must wonder if the VA is banking on that during certain acquisitions.

Particularly within the veteran community, unity and action, are vital components necessary to ensure that the VA does its job in setting aside opportunities for veterans:

Unity – The federal marketplace is competitive, and it’s even harder when an opportunity isn’t set aside. If the VA is in pre-solicitation stages and it looks like they might not set aside for VOSBs, make sure you’re not the only one who emails the contracting officer to express interest. Remember: it’s the rule of two. Also, don’t be shy about contacting others for help in understanding what the VA is required to do and whether they’re falling short. Once bids are in, any argument you could have made is late because you must protest Kingdomware problems before offers are due.

Action – Organizations such as the NVSBC are wonderful at having members band together to prompt action. Considering joining an organization that suits you, and getting involved. Also, it’s not “bad business” to protest. Many folks fear retaliation, but if a protest is done in a respectful and professional manner, contracting officials in general understand it’s part of business. Last, respond to pre-solicitation notices. If the VA issues a sources sought notice and no VOSB responds, that can make challenging the decision not to set aside the work an uphill battle.

You had each other’s backs in battle and in the uniform, and now (more than ever) is the time to stand together to hold the VA to its mandate. The Kingdomware victory was a huge one, and you are entitled to enforce it.

*Did you find this article informative? If so, sign up for Sarah Reida’s legal blog on veteran business issues.

Yesterday marked the effective date of the Families First Coronavirus Response Act (“FFCRA,” or “Act”), which requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. Administered and enforced by the Department of Labor (“DOL”), these provisions will apply through December 31, 2020. Important for small businesses in particular to know, the FFCRA applies new sick leave and other requirements to employers previously exempted due to size.

Now, even small businesses must provide emergency sick leave for those affected by coronavirus – up to eighty hours of sick leave for full-time employees through the end of the year for a “qualifying need.” (Part-time employees are eligible as well, for their typical number of hours during a two-week period). This includes employees who have been found to have coronavirus (or have been advised by a physician that they have the virus or are an exposure risk), employees who are caring for a family member who has been infected and/or may threaten exposure to others, or caring for a child whose school or daycare is closed due to coronavirus precautions.

That third category is huge. This covers a significant percentage of the adult workforce. (In fact, I am writing this post during nap time, as I am now housebound with a one-year-old and three-year-old. The three-year-old in particular does not appreciate this new development).

If sick leave pay is invoked, employers must pay employees their normal wages, with one important note: sick-leave pay is capped at $511 per day per employee for the employee’s own health-related absence, and $200 per day when it comes to caring for a family member or child.

Another important element of the Act involves the expansion of the Family and Medical Leave Act (“FMLA”) for employees who need to take longer term leave through the end of the year because of closed schools or daycare. Any employer, even those with fewer than the current FMLA threshold of 50 employees, is subject. The Secretary of Labor can exempt employers with fewer than 50 employees if complying with the law would threaten the viability of the business; however, it is unclear how this exemption would be granted or the standards applied by the DOL.  Employers with fewer than 25 employees are exempt from reinstating an employee if the employee’s position no longer exists following the leave due to operational changes caused by the public health emergency. While the first 10 days of leave are unpaid (though the employee can choose other leave to invoke), the following 10 weeks must be paid at 2/3 of the employee’s rate of pay, with family leave pay capped at $200 per day.

Employers who provide the above leave will be eligible to receive a 100% payroll tax credit for these costs. Employers may deduct up to $200 per day for employees who are taking care of others.  Because this comes from the social security contribution, any amounts in excess of the social security liability will be paid for directly by the Treasury.  The tax credit for family leave is up to $200 per day, not to exceed $10,000.  For the self-employed, these credits will be applied against the self-employment tax.

Still, the short-term effects of these new requirements will hit small businesses, particularly for those performing stalled federal government contracts. Tax credit is great, but those benefits won’t apply for some time. Meanwhile, businesses are bleeding now.

As a business that may be affected by these new developments, it’s important you educate yourself on the FFCRA and what you need to do. While there are numerous resources available on the Internet, and you’ve likely received an email or two on this, you might want to start with the DOL’s press release, which does a good job spelling out the requirements in plain language and also provides facts sheets for both employees and employers. (The DOL press release may be accessed here). Also, if you haven’t already, hold a company meeting on coronavirus issues and applicable rules – do so. By law, your employees must be informed of their rights under the FFCPA, but with all of the information and panic flying around, that fact very well could be under your radar.

• Did you find this article information? If so, sign up for Sarah Schauerte Reida’s legal blog on the right-hand side of this blog post.

I’m not referring to the implementation of Weight Watchers regimes post-holiday, but the new Final Rule that will effective as of January 6, 2020. From now on, business size under NAICS codes will be calculated by looking at the last five completed years, not three (though businesses may elect to use the latter calculation until January 2022, during a “phase-in” period).

As some of you may know, a rule change has been in the works for a while now. Under this new rule, until January 2022, the SBA will give firms the OPTION to either calculate their size under a given NAICS code by utilizing a five-year, or a three-year, calculation (meaning that the SBA will either look at annual receipts from the last five completed fiscal years, or three years, depending on the firm’s election). After January 2022, a straight five-year rule applies across the board, meaning that a firm will no longer be able to make this election.

During the rule making and comment stage, the SBA noted that the proposed rule would benefit small businesses that have experienced significant growth over the last three years. The idea is that by adding in the lower-revenue years, the average of the five years would still allow a firm to qualify as “small” under its NAICS codes. By allowing a firm to choose between a calculation based on five versus three years, this allows firms a chance to prepare for (and possibly avoid) qualifying as “large,” and in the interim, potentially remain small. There is, of course, the opposite end of the stick – some firms were happy to shed earlier, higher-revenue years that are now back in receipts calculation and affecting a size standard).

You know what this means: do your homework! Considering this goes into effect as of January 6, 2020, get with your CPA or comptroller to figure out which calculation is more advantageous for your business. Also, for those businesses that self-certify as “small” or are VetBiz-verified under specific NAICS codes, take a look at your list and see if any changes are warranted. In particular, the VA’s Center for Verification and Evaluation is going to experience a huge backlog in adding and deleting NAICS codes based on changes due to size, so get on the bandwagon early by submitting a Change Request.

For more information (and detailed commentary, history, and reasoning for these changes), access the Final Rule here. Also, for those traveling to the VA’s National Veterans Small Business Engagement, safe travels! (Also, good luck navigating the hotel – it’s a beautiful labyrinth!)

As most veteran business owners competing in federal space know, the Kingdomware decision holding the VA to the Rule of Two (having to set aside contracts for vet-owned businesses when certain conditions are met) was supposed to usher in a new, prosperous era for veteran-owned businesses.

While this decision has certainly effected a positive change, the reality is that for many veterans, their Kingdomware experience isn’t actually securing a set-aside contract, but fighting with the VA in one way or another about a decision not to set aside an opportunity.

Now, a bill introduced in Congress threatens to obliterate the contracting preference for veterans, as well as overturn a huge post-Kingdomware victory (PDS Consultants), which held that the VA’s obligation to veterans trumps its obligations to the AbilityOne Program. In that case, the U.S. Court of Federal Claims held that because the Veterans Benefits Act takes statutory precedence over the Javits-Wagner O’Day Act, the AbilityOne Program is a mandatory source for the VA only after the VA Rule of Two analysis is performed and the VA does not find two VOSBs that are capable of providing the product or service. (This decision was affirmed on appeal).

On October 29, 2019, Mark Takano, a Representative for California’s 41st Congressional District, introduced a bill that has been characterized by supporters as a “legislative fix for AbilityOne contracts.” Cited as the “Department of Veterans Affairs Contracting Preference Consistency Act,” the bill effectively provides an exception to the “veterans first” mandate when it comes to products/services secured under the AbilityOne Program which were first on the procurement list on or before December 22, 2006 or replace such a product or service. HR 4920.

Obviously, the Congressional representatives supporting this bill are motivated by political reasons. This is illustrated particularly by the “fluff” quote from Representative Virginia Foxx (R-NC) voicing her support of the AbilityOne Program. Remember what happened in the Trump/Clinton election? What matters is who comes out to vote, who voices their opinion. YOU HAVE NO VOICE IF YOU DO NOT USE IT!

As such, if you are a veteran business owner and want to impede the passage of this bill (which could very well affect your ability to secure a contract), contact your Congressman (as for the Veterans Affairs staffer). Urge them to oppose the bill, and show that veteran members of the voting public are watching. Don’t just read this blog and lurk on the Internet to see what happens. Spend the ten minutes you’d idly spend searching for Christmas presents online and make a difference!

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

Yesterday, the Government Accountability Office (GAO) confirmed that the U.S. Department of Veterans’ Affairs (VA) cannot circumvent its statutory mandate to set aside contract work for veteran-owned small businesses by sneaking the opportunity through the Government Publishing Office (GPO). Veterans4You, Inc., B-417340.1, B-417340.2.

That’s the “legal” way of putting what just happened. The narrative way of explaining it is far more interesting, and as the attorney who handled this case, this was one of the most colorful and frustrating issues I’ve handled. As such, I’m taking to my blog, while noting that my client, Veterans4You, Inc. gave me complete liberty in presenting this tale.

First off, does a suicide gunlock for veterans sound like “printing” to you? No? What if the gunlock also includes an imprint of the Veterans Crisis Line Logo? Still no? Okay, just checking.

When Mr. Tim Farrell, the owner of Veterans4You, contacted me in mid-February and explained his issue with a solicitation issued by the GPO, I had trouble following the details because they simply didn’t make sense. The VA was procuring suicide gunlocks for veterans, yet running the contract through the GPO because it claimed that slapping a logo on the gunlocks qualified the procurement as involving “printing.” (Under a “printing mandate,” executive agencies have to obtain things like handbooks, pamphlets and flyers through the GPO. As such, the VA/GPO was/were arguing that the VA had to use the GPO to meet this need. Then, because it was no longer a VA solicitation, Kingdomware didn’t apply).

The opportunity was issued as an Invitation for Bids with a very quick turnaround (approximately a week), and the bids were due the next day at 10:00 AM. I told Tim that if he wanted to protest, we had to do it now, or otherwise we’d lose the opportunity. (If you’re protesting the terms of a solicitation, violation of a federal regulation, or other irregularities in conducting a procurement, you have to do it before bids are due). He said “sure,” noting this wasn’t the first time the VA had used the GPO for questionable “printing” requirements.

One basis of our protest was violation of the Kingdomware mandate, which is that, when a contracting officer has a reasonable expectation that two or more responsible veteran-owned small businesses (or service-disabled veteran-owned) will make an offer, and that the contract can be awarded at a fair and reasonable price that offers the best value to the government, the agency has to set aside the work for these veteran companies. 38 U.S.C. 8127(d). This is also known as the Rule of Two under the Veterans Benefits Act (VBA); this mandate was solidified at the U.S. Supreme Court in 2016 after a long and protracted battle in lower courts and forums.

Here, though, I wondered how the GAO (the forum where we were protesting) would address this argument, considering that this was not a “VA” procurement. It had been issued by the GPO. There are plenty of cases out there that say that Kingdomware and this “Rule of Two” does not apply to a non-VA procurement.

However, this effectively was a VA procurement. The VA was acquiring the supplies. And they were suicide gunlocks for veterans, work which the VA incomprehensibly wanted to take away from veteran business owners.

After our protest was filed, I thought the VA (through the GPO) would take corrective action. Again, suicide gunlocks for veterans.

It didn’t. We went through several rounds of briefing, during which I argued that even though Kingdowmare applies only to VA procurements, this was in fact a VA procurement and the VA shouldn’t have run the work through the GPO in the first place because a suicide gunlock that happens to have a logo is a far cry from “printing.” (And what next? If the VA is allowed to call a gunlock “printing” just because it bears a logo, imagine what else it can squeeze through the GPO).

Yesterday, or June 3, the GAO confirmed that the VA cannot use other agencies to circumvent its mandate to set aside work for veteran-owned small businesses. The decision, which addressed only the Kingdomware issue, found that even if the VA is using another agency to acquire services or supplies, it must adhere to the Rule of Two (which will trump other statutes or provisions). Accordingly, even if the printing mandate did apply and this was a GPO procurement, Kingdomware still applied.

Also, under 38 U.S.C. 8127(i) (another part of the VBA), if the VA enters into an agreement to obtain services via another governmental entity, it is required to include “a requirement that the entity will comply to the maximum extent feasible, with the [Rule of Two] to the maximum extent possible in acquiring such goods or services].” There was no evidence in the record that the VA did anything of the sort.

The decision did not address whether this requirement should have even gone through the GPO as “printing work,” noting that because Veterans4You won on the Kingdomware issue, this analysis was not necessary. Because the GPO is subject (or not subject) to certain requirements, this therefore leaves the door open for the VA to continue to procure items dubiously labeled as “printwork” through the GPO for reasons other than circumventing Kingdomware.

As a veteran attorney and advocate, this case baffled me. The VA not only has a statutory duty to award to veteran-owned businesses, but this is the Department of Veterans Affairs. It should want to provide work to capable veteran business owners, and especially given the procurement at issue, it makes no sense that it took such strenuous efforts to avoid following its mandate. (And it didn’t even have to do it! It just had to do the work to see if the Rule of Two applied! If it couldn’t make the award at a fair and reasonable price, it wouldn’t have to set the contract aside for veterans). Every day, I expected a notice that the VA would take corrective action and comply with Kingdomware, and it never came.

And then, the decision did. So now, it is publicly affirmed that the VA cannot use the GPO (or another agency) to avoid the Rule of Two by taking a procurement out of its own hands. Another veteran victory in the Kingdomware war.

Access the full decision HERE.

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Earlier this month, the U.S. Senate unanimously passed bipartisan legislation to help expand economic opportunity for veteran entrepreneurs. The Veterans Small Business Enhancement Act, which is now on its way to the House of Representatives, would allow veteran small business owners to acquire equipment and property that the federal government no longer has a use for by adding veterans to the list of eligible recipients for federal surplus property, which already includes women and minority small business owners as well as veterans service organizations.

“When our Veterans return home from their service, they deserve our full support as they transition back into civilian life, and that includes supporting their efforts to build and manage a small business,” said Senator Tammy Duckworth (D-IL), who co-sponsored the bill. “Our nation should be doing much more to help our Veterans and I’m pleased the committee passed our bipartisan bill to help them expand their business operations, reduce costs, and create jobs across Illinois and around the country. I’ll be working with Senators Kennedy and Durbin, as well as other members on both sides of the aisle, to send this legislation to the President’s desk.”

The General Services Administration has overseen distribution of federal surplus property for 15 years in partnership with the Small Business Administration and State Agencies for Surplus Property (SASP). When there is no federal need for excess property, SASPs disburse the property to eligible recipients who otherwise may have been unable to acquire it. Not surprisingly, this legislation is supported by the Veterans of Foreign Wars, the National Association of State Agencies for Surplus Property  and the American Legion.

This one seems like a win-win. The government should want to help veteran-owned small businesses to the greatest extent practicable, and the property that is the subject of the bill is surplus. Waste not, want not.

Track the progress of the bill here. (When/if it passes, I will pass on that information as well).

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