Legal Meets Practical

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

by Sarah Schauerte

The Department of Veterans Affairs (“VA”) is amending its regulations in a way that may impact veterans with service-connected traumatic brain injury (“TBI”). Under its proposed amendments, five diagnosable illnesses will be considered secondary to service-connected TBI (the “Secondary Disabilities”). If a veteran has a rating for TBI, and also suffers from a Secondary Disability, he or she will be presumed to be entitled to disability compensation for the Secondary Disability.

The five Secondary Disabilities are:

• Parkinson following moderate or severe TBI;
• Unprovoked seizures following moderate or severe TBI;
• Dementias (presenile dementia of the Alzheimer type and post-traumatic dementia) if manifested within 15 years following moderate or severe TBI;
• Depression if manifested within three years of moderate or severe TBI, or within 12 months of mild TBI; and
• Disease of hormonal deficiency that result from hypothalamo-pituitary changes if manifested within 12 months of moderate or severe TBI.

Under these amended regulations (codified at 38 CFR 3.310), a veteran will be presumed to have these disabilities as secondary to service-connected TBI unless there is “clear and convincing” evidence to the contrary. Evidence of “clear and convincing” evidence to the contrary includes: 1) evidence that the Secondary Disability predated the TBI (and was therefore not caused by the TBI); 2) medical evidence that another disability (other than TBI) caused the Secondary Disability; or 3) medical evidence showing that the Secondary Disability is unrelated to the TBI.

TBI is rated under VA Diagnostic Code 8045, which explains the ten different facets of TBI impairment. These include, among others: memory, attention, concentration, executive functions; judgment; social interaction; orientation; and subjective symptoms. The VA rates a veteran who claims disability caused by TBI under each facet, and the highest rating assigned to any facet controls. Under the wording of the amended regulation, in order to be entitled to the presumption as it relates to the Secondary Disabilities, a veteran must be rated as a “two” under at least one TBI facet (or 40%), which entitles him or her to a “moderate” rating for TBI.

This development follows a report issued by the National Academy of Sciences, Institute of Medicine (“IOM”), Gulf War and Health, Volume 7: Long-Term Consequences of Traumatic Brain Injury (the “NAS Report”). This report analyzes the association between TBI and the Secondary Disabilities, finding that there is “sufficient evidence of an association” between moderate or severe levels of TBI and the Secondary Disabilities. Based on the evidence presented by the NAS Report, the Secretary of the VA determined that a revision to its regulations is warranted.

This amendment is the first regulation change affecting TBI disability compensation claims in four years. In October 2008, the VA revised the rating criteria for TBI, which was considered by both the VA and veterans advocates alike as inadequate to compensate for the disabilities caused by TBI. Under the previous rating criteria, most veterans who suffered from TBI were awarded only a 10% evaluation for disabilities that may have been moderately severe, very severe, or totally disabling. Complaints that the previous schedule was inadequate to adequately compensate veterans for the many and complex residuals of TBI brought about VA’s revision of the TBI rating criteria.

Similarly, this new amendment reflects efforts to adequately compensate veterans who suffer from other disabilities caused by TBI. The presumption contained within the rule will eliminate hoops veterans must generally jump through to receive compensation – rather than having to prove service-connection, a diagnosis of the disability will suffice.

Comments must be received on or before February 8, 2013 to be considered by the VA. For a complete copy of the rule and instructions for providing comments, please visit: http://www.gpo.gov/fdsys/pkg/FR-2012-12-10/pdf/2012-29709.pdf.

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In a huge defeat for service-disabled veteran-owned small businesses (SDVOSBs), on November 29th the Court of Federal Claims (CoFC) ruled that the Department of Veterans Affairs (VA) acted reasonably in determining that it need not set aside Federal Supply Schedule (FSS) contracts for SDVOSBs.

This decision, issued by Judge Nancy Firestone, follows two Government Accountability Office (GAO) decisions that followed the same fact pattern: Aldevra and Kingdomware. In both instances, the GAO sustained the protests on the grounds that under the Veterans Benefits, Health Care, and Technology Act (the “Act”), the VA should have conducted market research to determine whether an FSS solicitation should be issued as an SVOSB set-aside . (Aldevra, B-406205, March 14, 2012; Kingdomware Technologies, B-406507, May 30, 2012).

In order for Judge Firestone to overturn the VA’s decision not to set aside an FSS acquisition for SDVOSBs, the plaintiffs bore the heavy burden of demonstrating that the VA acted “arbitrarily, capriciously, or contrary to law.” As federal government contractors who have been involved in disputes with the government know, this is an incredibly difficult standard to meet. And here, according to Judge Firestone, Kingdomware did not.

Chevron Deference

Judge Firestone analyzed the VA’s decision using Chevron deference. (Chevron, U.S.A. v. National Resources Defense Council, 467 U.S. 837 (1984)). Chevron deference is the standard used by a court to determine whether to grant deference to an agency’s interpretation and application of its own statute (a statute created to apply to the agency). The decision to grant deference is based on a two-part test.

First, the court will determine whether Congress spoke directly to the question at issue. If so, that is the end of the matter, as the court must give effect to an unambiguous interpretation provided by Congress. This makes sense given that while the legislature writes the law, the judiciary interprets it. If the law is clear, the judiciary cannot assign another meaning.

If, however, Congress has not spoken to the precise issue at hand, the judiciary proceeds to the second step. It must determine whether the agency has assigned a permissible definition to the law. This definition must be reasonable.

Chevron Deference Applied to Kingdomware

Because in this instance, the VA was interpreting and applying its own statute, Chevon deference applied. Thus, Judge Firestone proceeded with applying its two-step test.

As it relates to the first step, Judge Firestone found that Congress had not spoken directly to the issue of whether the VA was required to conduct mandatory procurements for SDVOSBs under the “Rule of Two.” The “Rule of Two” under the Act provides that a contracting officer must have a reasonable expectation that an award can be made to two or more SDVOSBs at a fair and reasonable price. A contracting officer will conduct market research, such as by searching through small business databases, to determine whether the Rule of Two is satisfied.

Judge Firestone found that Congress had not addressed the mandatory nature of the Rule of Two. In noting that “the 2006 Act must be construed in light of its goal-setting provisions,” she found that “the statute is at best ambiguous as to whether it mandates a preference for SDVOSBs and VOSBs for all VA procurements.”

This is the part of the decision that most SDVOSBs have trouble understanding – after all, the statute contains mandatory “shall” language. Nonetheless, Judge Firestone held that the phrase “shall” must be read in connection with the other terms in the 2006 Act. On the whole, these terms demonstrate that the Act is goal-setting in nature. Thus, that the term “shall” does not clearly show that the VA must conduct set-asides for SDVOSBs under the Rule of Two.

Because Judge Firestone concluded that the Act was not unambiguous, she proceeded to the second step, which was to determine whether the VA assigned a permissible definition to the applicable provision. In applying the “substantial deference” afforded to an agency’s application of its own statute, Judge Firestone held that the VA’s interpretation was reasonable. In a lengthy analysis, Judge Firestone pointed to the VA’s consistent application of this interpretation, as well as the fact that this interpretation does not conflict with the rest of the Act or the VA Acquisition Regulation.

So What Now?

SDVOSBs across the board had expected Judge Firestone’s decision to establish once and for all that the VA must conduct set-asides under the Rule of Two. This, of course, did not happen. Going forward, what can SDVOSBs do?

First, Kingdomware might choose to appeal the decision before the U.S. Court of Appeals for the Federal Circuit. Several sources confirm that Kingdomware is contemplating this option. While this is a costly alternative, given the broad sweeping effect of the decision, the benefit is worth it. Further, veterans organizations will surely want to get involved (and perhaps chip in for cost). Given the high profile, this is also a perfect pro bono case for a large law firm.

Second, SDVOSBs may choose to accept the decision. Given the backlash from the veteran community, however, this likely will not happen. This decision affects hundreds, if not thousands, of veteran-owned businesses. No matter what, they will stand behind Kingdomware in its push forward.

Third, SDVOSBs can attempt to obtain legislative clarification of the meaning of the word “shall” as it relates to the Rule of Two, or push for an amendment to clarify. This might actually be the most viable solution, as it is not as though Judge Firestone came to her decision lightly. She carefully analyzed the history of the Act, as well as the VA’s tradition of implementation and interpretation. Given the substantial deference given to agency interpretation of its own statute, it may be difficult to receive a more favorable decision at the U.S. Court of Appeals. If Congress did intend for the statute to mandate set-asides, it could verify that intention.

Time will dictate this decision’s impact. Clearly, however, it stands to be one of the most important decisions affecting veteran-owned businesses. Stay tuned to this blog for updates on how it plays out over the next months.

A copy of the Kingdomware decision may be accessed here.

This Monday, I heard something quite shocking on CNN: ecstasy, the illegal drug most frequently used in clubs, may be a viable means to alleviating the symptoms of post-traumatic stress disorder (PTSD). Ecstasy dramatically reduces immediate anxieties, allowing a user to open up emotionally, even as the body and brain are energized by the drug.

CNN reported the effects of a study conducted by the National Center for PTSD (the “Center”). The Center conducted a long-term follow-up assessment of 171 rape victims who had been treated for PTSD by the administration of ecstasy. The Center found that after ten years, fully 80% experienced milder symptoms than they did previously.

Shortly before the CNN story hit airwaves, a husband-and-wife team were featured in the New York Times. The husband is a psychiatrist and the wife is a nurse, and they are conducting a study with 24 veterans suffering from PTSD. This study will combine controlled doses of ecstasy with psychotherapy in treating PTSD. According to the couple, they have been contacted by over 250 veterans eager to take part in the study. 250 veterans, for 24 spots. For these veterans, traditional methods of treatment are not working.

Surprisingly enough, this isn’t new news. On July 19, 2010, the Journal of Psychopharmacology reported the results of the first randomized, controlled trial of ecstasy (known to chemists as 3,4-methylenedioxymethamphetamine, or MDMA). The study’s authors gave MDMA or a placebo to patients with post-traumatic stress disorder (PTSD).  The study showed that ecstasy is not only safe when administered in controlled settings but also remarkably effective in treating PTSD in conjunction with psychotherapy.

The Journal of Psychopharmacology paper marked the first time the FDA and the Drug Enforcement Administration had allowed a scientific study on MDMA. The authors spent more than a decade getting approval for the research, which began in 2004.

And now, for the first time, the national media has caught hold of this story. Sure, maybe it isn’t new news, but it affects many PTSD-sufferers. For example, I’m sure those 226 veterans on the waiting list for the experimental study covered in the New York Times would appreciate another opportunity. Perhaps with this “new” public focus, additional studies will follow.

For more information on PTSD, visit the Center’s website at: http://www.ptsd.va.gov/public/pages/what-is-ptsd.asp. The New York Times article is available at: http://www.nytimes.com/2012/11/20/health/ecstasy-treatment-for-post-traumatic-stress-shows-promise.html?ref=posttraumaticstressdisorder.

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As a veterans attorney who handles disability compensation claims, I often get the same question from frustrated veterans: is there anything I can do to make this process faster? The short answer is no, but the long answer is there are many things you can do to make sure it isn’t delayed further.

While a veteran’s hands are tied when it comes to many aspects of the disability compensation claims process, there are still some things that can be done to make sure that the process moves as quickly and as efficiently as possible. The following is a list of practical tips in applying for disability compensation, as presented at a free legal clinic for veterans I spearheaded in September of this year:

• Keep excellent records – Maintain a file of everything sent to and received from the VA.
• Keep track of deadlines – Understand the important deadlines and track them on a calendar.
• Use lay witness statements – These can be very helpful especially if there are any gaps in available medical evidence. Good lay witness statements are based on personal observation and describe: 1) how the witness saw the injury took place in service; and/or 2) the disability.
• Get help – The VA makes errors, often. Search for pro bono veterans organizations in your state that can either answer questions or potentially assist with your specific case. (After an initial denial, a fee-based attorney may be obtained as well). Research the internet, ask questions of other veterans who have applied for compensation before you. Do NOT rely on the VA to do the work for you.
• Proof of Service – When sending important documents to the VA (especially ones that must comply with deadlines), always ask for receipt of service.
• Don’t duplicate – If you are submitting private (non-federal) treatment records, and are also completing VA Form 21-4142 (authorization for release of records), don’t duplicate. If you send complete records from one doctor’s care, it unnecessarily burdens the VA if you also complete VA Form 21-4142 because the VA ends up with double records.
• Don’t Unnecessarily Complicate – If you have been treated by any doctor for a condition (or conditions) that you are not claiming, don’t send those records or fill out a VA Form 21-4142 unless you feel the records may be relevant to your claimed conditions.
• Attend Scheduled Examinations – Make all possible efforts to attend scheduled VA examinations and do not reschedule unless you have an unavoidable conflict. The VA will unfavorably view a failure to attend a scheduled examination, and it may take a long time for an examination to be rescheduled.
• Label Documentation – With any documentation you submit, make sure your full name and VA file number (generally your social security number) are visible at the top of the first page. This allows the VA to associate match the documents with your file much quicker.
• Don’t Approach Elected Officials – Don’t bother writing to the U.S. President or your Congressman. This won’t make your Regional Office move any faster, and they’ll likely only provide you with a status report (generally detailing what you already know).

In the end, there is little you can do to make your claim move faster. Once your claim reached a regional office, it is put into the queue, and it will remain there until it is your turn. There are, however, things that you can do to make your claim take longer, such as by not submitting all evidence, not responding to requests, and not showing up for scheduled examinations. There are also things you can do that can result in the VA reaching an initial denial, such as not fully substantiating your claim or making your claim as strong as it can be.

To date, over 900,000 claims are pending before the VA. Some regional offices are taking upwards of a year to process an initial claim (A previous blog I posted addressed VA disability compensation wait times by regional office, available at: https://legalmeetspractical.com/2012/09/04/location-location-location-va-claim-response-times-vary-by-area/) Because the VA disability compensation claims process is a long one, do what you can to make sure it doesn’t take any longer than it has to.

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On November 13, the Senate approved a 1.7% cost of living adjustment for veterans and their survivors receiving disability compensation and benefits. This adjustment, effective as of January 1, 2013, is expected to affect approximately 3.9 million veterans and their survivors by offsetting inflation and other factors.

The bill containing the cost of living adjustment, HR 4113, was passed by the House of Representative in July. It needed to pass the Senate by November 13 in order to take effect by January 1, 2013.

While a bill approving a cost of living adjustment for veterans generally passes Congress each year without incident, this year the bill was blocked by an unnamed Republican senator on September 21. As Senate rules require unanimous consent, a single senator can block legislation. With literally no time to spare, the single senator on November 13 changed his vote to allow the bill to pass.

A freshman lawmaker, Republican Jon Runyan of the House of Representatives Veterans’ Affairs Committee’s disability assistance panel, has proposed legislation to make veterans’ compensation automatically increase at the same time as Social Security, without the need for congressional involvement. His proposal passed the veterans’ committee in 2012 but has not passed the full House. At this rate, it seems unlikely to become law before the current session of Congress ends.

It does seem that a bill such as Mr. Runyan’s would ease the pressure of making sure that this adjustment takes effect every year as it should. Granted, a cost of living adjustment bill has always passed both Houses by the November 13th deadline, but why risk the monies used to pay for groceries and electricity for veterans and their survivors?

For many contractors denied inclusion to the Department of Veterans Affairs’ (VA’s) VetBiz Vendor Information Pages (VIP) (the VetBiz Program), the second chance offered by the request for reconsideration process appears attractive. It is another bite at the apple. However, denial letters do not mention two things:  1) the high scrutiny at this level of review; and 2) the incredibly long wait time for requests for reconsideration. Combined with little guidance from the Center for Veterans Enterprises (CVE) on how to effect a successful request for reconsideration, contractors find difficulty in taking true advantage of this “second chance.”

Many Denied Inclusion to the VetBiz Program Are Not Actually Ineligible

As many who have run the gauntlet for verification know, the devil is in the details. As Mr. Thomas Leney, the Executive Director of Small and Veteran Business Programs communicated in a memorandum on the Vetbiz website (http://www.vetbiz.gov/), 90% (ninety percent) of initial denials are attributed to a misunderstanding of 38 CFR Part 74, which is the section of the Code of Federal Regulations (CFR) that enumerates the eligibility requirements. This statistic strongly suggests that a large number of applicants denied are denied not because of ineligibility in the true sense of the word, but because of problems in their applications such as drafting issues in their corporate documents.

The CVE Offers Little Guidance for Effecting a Successful Request for Reconsideration

For contractors who have been denied inclusion in the VetBiz Program, an available route of action is filing a request for reconsideration. This option is set forth at 38 CFR 74.13. However, the regulation itself provides little guidance as to how to effect a successful request for reconsideration. It states only: “An applicant may request that the Director, CVE, reconsider his or her decision to deny an application by filing a request for reconsideration with CVE within 30 days of receipt of CVE’s denial decision.” This language is mirrored in denial letters, which state that applicants must provide official documentation substantiating each claim made in the request.

Requests for Reconsideration Are Met With Scrutiny

When the contractor files a request for reconsideration, the request is treated differently than an initial application. As the VA stated in an August 2012 GAO report (GAO 12-697), “it then enters a completely separate queue and since such firms are designated higher risk than an initial application, they receive a new, comprehensive examination of all documentation and a review by VA’s Office of General Counsel in many cases.” This is a strengthened level of review compared with the level of review previously applied, which may be reflected by the fact that of the request for consideration received between November 2011 and September 2012, 52% of requests for reconsideration were denied. (This statistic is contained in a recent Government Accountability Office report, which examined the Vetbiz process and released many statistics, including: success rates for initial verifications, requests for reconsideration, and reverification. The report may be accessed at: http://www.gao.gov/assets/660/651281.pdf).

Also, in deciding upon the request for reconsideration, the VA may deny the application on grounds other than those cited in the initial denial letter. This means that a contractor may fix one problem, and the VA may find another. This essentially requires the contractor to conduct a complete review of its application…and all within the 30 days provided to file a request for reconsideration.

Request for Reconsideration Wait Times Exceed 180 Days

The other element not mentioned in a denial letter is the wait times. The current wait time to process a VetBiz request for reconsideration, as stated by the VA, is “in excess of 180 days.” (This is despite the regulation providing 60 days as an estimate). This means that a contractor will still be waiting after the date by which it could have filed an entirely new application (See 38 CFR 74.14 – contractors are permitted to reapply after six months). Then, if a contractor files this request and is denied on the same grounds, a mandatory six month waiting period will be imposed. If the contractor is denied on different grounds, the contractor may file another request for reconsideration and sit in the processing line for another period of time “in excess of 180 days.”

The Need for Process Improvement of this “Second Chance”

While important that the VA has checks in place to exclude ineligible contractors, the system currently defeats its own purpose. Contractors are denied because they don’t understand the eligibility requirements and because the application process is extremely difficult to navigate. This denial causes an extremely long subsequent wait period, regardless of whether contractors opt to file a request for reconsideration or wait to reapply.

This is a situation where process improvement is desperately needed. Luckily, the VA has issued several publications meant to help contractors understand what they need to do to get verified (See vapInitialVerificationApplicationGuide  – an excellent resource). Also, as of late, the VA has been responsive to critcisms and suggestions. However, more guidance should be provided relating to VetBiz requests for reconsiderations to ensure that they are not merely wasted time. Contractors do not understand that a “quick fix” after a denial might work against them.

If the VA affords veterans a second chance, it should be a true second chance, and these veteans should be given the tools by the VA to take advantage of it. After all, the name of the program is “Veterans First” – it should function to help those it is meant to serve.

Did you find this article informative? If so, sign up for my weekly blog on veterans issues and updates at: https://legalmeetspractical.com. Make sure to click the link sent to your email to activate your subscription! Also, my frequently-updated FAQs webpage on the VetBiz program may be accessed here (based on my practical knowledge of the VetBiz process as a certified VA VetBiz counselor).

According to recent Congressional testimony, headway is being made towards minimizing wait times for inclusion in the VA’s VetBiz Vendor Information Pages (VIP) database (VetBiz). Unfortunately, this headway does little to benefit businesses waiting to reapply or on a decision for reconsideration.

Listing in VetBiz is mandatory in order for veteran-owned businesses and service-disabled veteran-owned small business (SDVOSBs) to receive set-asides from the VA. However, businesses seeking to be included in VetBiz have often found themselves excluded, many times after waiting months to receive decisions on their applications. In fact, in 2011 60% of all initial applications to the VetBiz program were denied.

Veteran contractors and advocates have complained long and loud regarding the delays and issues with VetBiz. After all, its purpose is to benefit eligible veteran-owned businesses. This purpose is undermined if eligible contractors are not listed.

On August 2, 2012, Mr. Thomas Leney, the executive director of the Office of Small and Disadvantaged Business Utilization, appeared before Congress and testified relating to the VetBiz verification process. This testimony followed up on a prior hearing on November 30, 2011, and again, it addressed a question all veteran contractors want answered: is there an improvement in VetBiz application processing times?

The short answer is “yes.”  Mr. Leney on November 30, 2011 had testified that the average application processing time was 75 days. During the more recent August 2, 2012 hearing, Mr. Leney stated that a July 2011 processing time of 130 days had been “improved upon” but declined to say whether the 75-day forecast was still accurate.

For veteran contractors who have been denied, however, the answer is “not really.” For veteran contractors requesting reconsideration, wait times are much longer than 75 days, or even 130 days. When Mr. Leney appeared before Congress on August 2, 2012, he relayed that requests for reconsideration are currently taking 200 days to process. (If this number remains accurate, this means that a business will still be waiting for a decision after the date on which it would have been eligible to reapply). This is despite the fact that under regulation, requests for reconsideration will be processed within sixty days. Luckily for the VA, key conditional language (“when practicable”) makes it okay for the VA to take 200 days instead.

The complication for firms requesting reconsideration is that the CVE will not limit its re-evaluation to prior problematic parts of the business’ application. Rather, the regulations provide that upon a motion for reconsideration, the Director of the CVE may either approve the application, deny the application on the same grounds, or deny the application on different grounds. (38 CFR 74.13). If the application is denied on the same grounds, a six-month waiting period applies until the applicant can reapply to VetBiz. If the application is denied on different grounds, the applicant may again request reconsideration. (38 CFR 74.13(c)).

For those firms that choose to reapply, a six month waiting period applies. Thus, even if the actual processing time is relatively fast, the contractor must also add the six months onto the total waiting time.

The takeaway here is that while the CVE has improved upon its processing time for applications, firms that have been denied inclusion do not reap the benefits. This is clear by simply doing the math, which is based on the conditional factors of VA wait times and the assumption that a reapplication or motion for reconsideration will be successful. Know that a change in wait times, or another denial, will alter these estimates:

• If a firm is denied and waits to reapply, it will take approximately nine and a half months for them to be included in VetBiz upon a successful reapplication (including the six month wait period, plus the three and a half months of processing time).
• If a firm is denied and requests reconsideration, it will take approximately eight months for them to be included in VetBiz upon a successful motion for reconsideration (including the one month the business has to make the request, plus the current seven-month wait time).

In short, only initial applicants are truly benefited by the improvement in wait times. With the 200-day processing estimate for motions for reconsiderations, and the six-month penalty period applied for reapplications, these contractors still find themselves waiting for considerable periods of time to be included in VetBiz. Thus, the message is clear: make sure that your application is airtight the first time around. And if it’s too late for that, sit back and wait.

Did you find this article informative? If so, sign up for my weekly blog on veterans issues and updates at: https://legalmeetspractical.com. Make sure to click the link sent to your email to activate your subscription! Also, my frequently-updated webpage on VetBiz verification FAQs may be accessed here. (created based on my practical experience as a certified VA VetBiz counselor).

How many disability compensation claims could the Department of Veterans Affairs (VA) pay out with $700,000? How many veterans could avoid foreclosure on their homes, prevent bankruptcy proceedings, and pay grocery and medical bills? These were the first thoughts that crossed my mind when I read the VA’s Office of Inspector General’s report (the Report) on the $700,000 wasted at two VA training conferences held in Orlando in 2011.

The September 28, 2012 Report follows an administrative investigation prompted by  allegations of wasteful expenditures relating to the two VA conferences. You may have heard about this on the news – the VA received a lot of flak, particularly for the $50,000 spent on a parody of General George S. Patton (video not publicly available). It also didn’t help that the public was already hopping mad over the allegations of waste at a 2010 General Services Administration (GSA) conference in Las Vegas. These latter allegations forced GSA Chief, Martha Johnson, to step down.

The September 28, 2012 Report’s conclusions are hardly surprising. It found that while the conferences were held to fulfill valid training needs, the “VA’s processes and oversight were too weak, ineffective, and in some instances, nonexistent.” In fact, the VA could not even provide sufficient accounting to reconstruct the costs of the conferences – the total cost is estimated at $6.1 million, but the Report noted that it could not gain reasonable assurance that the figure reflected a complete accounting for the conferences. Also, some of the costs weren’t sufficiently documented, which made it difficult to clearly justify them, show their necessity, or prove reasonableness in price.

Waste, insufficient oversight, and poor planning weren’t the extent of the Report’s observations. It also concluded that during the pre-selection of hotels for the conferences, VA employees accepted “illicit gifts” from hotels and hotel employees. These included meals, lodging, room upgrades, transportation (including one helicopter ride), spa treatments, and gift baskets. These tokens were considered in the Report as “illicit” gifts from federal government contractors, as these hotels and their representatives may have used these gifts to attempt to secure future contracts from the VA (ie, to sway the VA to use these hotels for future conferences).

As a result of the Report’s findings, John Sepulveda, the Assistant Secretary for the VA Human Resources Department who oversaw the conferences, stepped down. Other members of VA leadership may soon follow, as the Report lists many of the key figures by name. (In particular, the Report notes the names of those who received gifts from the hotels). Accordingly, the Report assigns individual accountability to the persons responsible for the waste and abuse that occurred at these conferences.

While the VA (and the taxpayers) will not recover the monies wasted at the conferences, as noted by George Opfer, the VA Inspector General, “as VA moves forward, this report should serve as lessons learned that all VA management officials and staff share responsibility and accountability for meeting program objectives in an economical manner and reflect proper fiscal stewardship of taxpayer funds.”

In light of this firm hand taken by the VA Inspector General, as well as the public backlash, let’s hope that the waste and abuse at these conferences are not repeated. The money would be better spent elsewhere – such as on our veterans returning from Iraq and Afghanistan.

The Report may be accessed at: http://www.va.gov/oig/pubs/VAOIG-12-02525-291R.pdf.

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In a last-minute effort to cut red tape at the approach of the end of the Government fiscal year, on September 10th the Center for Veterans Enterprises (CVE) issued a memorandum providing that failure to be listed in the VetBiz Vendor Information Pages is not necessarily a kiss of death as it relates to receiving a contract award.

This memorandum follows a previous memorandum issued on June 1, 2012, which issued a class deviation to Veterans Affairs Acquisition Regulation (VAAR) section 819.7003 . This deviation allowed previously verified SDVOSB/VOSB firms undergoing the re-verification process to compete for an award and have their re-verification “Fast-Tracked.” An official award could not be made, however, until re-verification was complete.

The September 10, 2012 memorandum clarifies the provisions of the prior memorandum and provides that firms that are undergoing requests for reconsideration are also eligible for Fast Track. According to the memorandum, firms that have requested reconsideration of an initial denial remain part of the verification renewal process.

In English, not legalese, these memorandums say that SDVOSBs and VOSBs in limbo with re-verification of status are still eligible for set-aside and sole source awards if: 1) they are currently undergoing re-verification; or 2) they have filed a request for reconsideration.

As it relates to the former, only firms that had previously been verified through the program are eligible. At the time of making an offer, they must have been included in the VetBiz Vendor Information Pages.

As it relates to the latter, to be eligible, the following criteria must apply:

• The contractor was verified on VetBiz when it submitted its initial proposal or offer;
• The contractor subsequently received a CVE denial during the re-verification process;
• The contractor has filed a request for reconsideration on the denial; and
• The contractor is likely to receive contract award.

The fast track approval procedure on reconsideration requests expires October 1, 2012, at the commencement of the next Government fiscal year. For a copy of the memorandum, visit: http://www.sdvosblaw.com/wp-content/uploads/2012/09/R4Rfast%20track.pdf.