Legal Meets Practical

On July 27, 2012, the Department of Veterans Affairs (VA) issued an interim final rule reducing the burden of reverification under its VetBiz Vendor Information Pages (VIP) Verification Program (the Program). This rule provides that service-disabled veteran-owned small businesses (SDVOSBs) and veteran-owned small businesses (VOSBs) that have already verified their veteran-owned and veteran-controlled status must re-verify once every two years, compared with the prior annual requirement.

VA officials have observed from administering the Program since 2010 that an annual examination is not necessary to adequately maintain the integrity of the program. The VA conducts a thorough examination of personal and company documentation to verify ownership and control by a veteran, including reviewing the corporate documents, federal personal and business tax returns, personal history statements, and occasionally administering an on-site investigation or interview.

The VA also notes that implementing a longer eligibility period is consistent with other Federal set-aside programs – for example, Historically Underutilized Business Zone (HUBZone) concerns re-certify every three years; and a program term of nine years applies to the Small Business Administration’s (SBA’s) 8(a) Business Development Program.

The effective date of the rule is July 27, 2012. Comments must be received by the VA on or before August 27, 2012. For a full copy of the rule, visit its entry in the Federal Register at: http://www.gpo.gov/fdsys/pkg/FR-2012-06-27/html/2012-15801.htm.

As families of veterans suffering from mental disorders know, the possibility of seeking health services can be a sensitive topic.  Spouses and family members who have not served in war struggle to connect with veterans’ plights and to say the right words to make the veteran take a step forward.

The Department of Veterans Affairs (VA) is taking action to help these family members better communicate. It has launched Coaching Into Care, a call center for veteran family members. The call service is free and the number of calls unlimited. The coaching is provided by licensed clinical social workers and psychologists. They provide coaching services that help the caller figure out how to motivate their veteran loved one to seek mental health services in their community.

Coaching Into Care can help veteran family members or spouses as follows:

• Understand how the veteran can enroll for VA care – Coaching Into Care’s telephone responders understand the procedures, what documents a veteran needs needs and what to do with them, as well as other VA resources that might be beneficial.

• Approach the veteran about getting help – The team at Coaching Into Care can assist veteran family members or spouses learn how to approach the topic of help, as well as formulate ideas about what to do and say to help the veteran take the next step.

• Encourage a veteran who is enrolled in care to attend appointments – The team at Coaching Into Care will work with veteran family members and spouses to help the veteran accept the benefit of keeping scheduled appointments.

I am pleased to announce that I am spearheading a second one-day free legal clinic for veterans in Virginia Beach. The clinic will be held on September 15th at the Old Dominion University Higher Education Center and sponsored by the university’s Student Veterans Association. The clinic goal is to assist as many area veterans as possible in understanding and applying for their federal benefits.

As a lawyer, I am grateful for this opportunity to assist our veterans. Applying for benefits through the Department of Veterans Affairs (VA) can be burdensome, frustrating and confusing. It can also take an extremely long time – with the current number of pending claims hovering at one million, it is now taking regional offices upwards to nine months to render an initial decision. I can’t fix the problems with the VA, but at least I can help veterans understand the process better and minimize mistakes that can delay receipt of benefits.

The set-up of this clinic is similar to the previous one that took place on April 14th. That previous clinic was intended as a one-time affair, but we decided to hold another event. Turnout was incredible, veterans followed up with thanks and a request for a second clinic, and the participating attorneys were enthusiastic about a repeat performance.

Veterans who attend the free legal clinic will receive an individual consultation with a veterans lawyer, view a helpful power point presentation, and receive a packet of benefits information. More information about the clinic is available at the clinic website: http://vavetslegalclinic.wordpress.com. Also, the prior clinic was covered by the VETERANS LAW JOURNAL, which can be accessed at: http://www.cavcbar.net/Spring_2012_VLJ.pdf.

If you have any questions about the clinic or would like to receive an electronic or hard copy of the clinic materials, feel free to reach out to me at [email protected].

For the last few years, service-disabled veteran-owned small businesses (SDVOSBs) have struggled with the challenges of verifying their eligibility for the VA’s SDVOSB set-aside program through the VetBiz VIP Verification Program (VetBiz). Now, for those SDVOSBs that have already run the gauntlet of verifying their status, the process may have gotten easier.

We all know why VetBiz exists. VetBiz is a response to years of complaints and GAO reports that ineligible contractors were benefiting from the SDVOSB program. One highly-publicized report detailed how millions of set-aside contract dollars were awarded to SDVOSBs used as pass-throughs, or to contractors ineligible under program requirements (see http://www.gao.gov/new.items/d10108.pdf).

VetBiz acts as a check on ineligible contractors by requiring SDVOSBs to submit their business documents to an online repository and to undergo an eligibility examination. If approved as an eligible SDVOSB, the Center for Veterans Enterprise (CVE) will issue the SDVOSB an approval letter verifying status that is good for one year. The business will also be listed in an online database, the VA Vendor Information Pages, which is necessary in order to bid on VA set-asides.

Sounds great, doesn’t it? In theory, it is – it allows the VA to track eligible contractors for set-asides, as well as identify ineligible contractors that may be abusing the system.

In reality, it could be great. It just needs a few tweaks to make sure that the process of verifying online does not inspire hair-pulling and throwing one’s computer across the room.

On June 6th the CVE announced implementation of a new system that may accomplish this: its Verification Case Management System (VCMS). The self-stated goals of VCMS are to “streamline the eligibility and verification process, simplify business owners’ ability to track their companies’ progress, improve case management, and minimize evaluation processing time.” (see VetBiz press release: http://www.vetbiz.gov/ReverPressRelease.pdf). As of the date of the press release, 275 SDVOSBs that previously verified were eligible to use the VCMS process. This is a simpler procedure for verifying one’s status, available to those companies that have already proven themselves as eligible for the SDVOSB program. After all, to make them go through the same tedious process all over again is not only unnecessary, but it wastes VA resources.

This move represents a step in the right direction for the VA.  If SDVOSBs are willing to experience the trials and headache of the initial verification – to submit the paperwork, tolerate an onsite visit, and answer potentially invasive questions – the process won’t be nearly as difficult when reverification rolls around. And if this system does in fact act as a check on ineligible contractors to make sure that awards truly go to SDVOSBs, isn’t it worth it?

The Department of Veterans Affairs (VA) recently lost yet another protest on the grounds that it should have set aside an award for service-disabled veteran-owned small businesses (SDVOSBs).

This decision is the latest in a slew of GAO rulings berating the VA for not following its mandate in the Veterans Benefits, Health Care, and Information Technology Act of 2006 (the “Act”). The Act, which recognizes that agencies, particularly the VA, fail to meet set-aside goals for SDVOSBs, provides that before using Federal Supply Schedule (FSS) procedures, a contracting officer must determine whether he has a reasonable expectation that two or more SDVOSBs will submit offers, and if the award can be made at a fair and reasonable price. If so, the award must be set aside for SDVOSBs. (38 U.S.C. 8127(d)(2006)).

In this case, the VA had ordered off the FSS for employee emergency notification services. Even though its own market research concluded that at least 20 SDVOSBs held FSS contracts for the acquired services, it did not set the award aside for SDVOSBs and ultimately awarded the contract to a non-SDVOSB. Kingdomware Technologies, Inc., B-406507 (May 30, 2012). Earlier, in a similar protest, the GAO sustained a pre-award protest when the VA failed to conduct market research to determine whether a solicitation issued off the FSS should have been set aside for SDVOSBs. Aldevra, B-406331 (April 20, 2012).

These decisions are ironic if you think about why the VA implemented its VetBiz VIP Verification Program.  The VA has been using its VetBiz VIP Verification Program to crack down on ineligible contractors and more easily identify contractors it can target for set asides. The VetBiz VIP Verification Program is designed to meet the VA’s specific goal of increasing awards to eligible veteran-owned businesses, yet it is undermining its own goals by failing to conduct mandatory set asides.

The practical takeaway from these recent decisions is that SDVOSBs and VOSBs need to be on the alert for awards that should be conducted as set-asides. Note that in Kingdowmware, only one of twenty eligible contractors protested a solicitation that should have been for SDVOSBs. The VA is required to give contracting preferences to SDVOSBs and VOSBs, but if contractors fail to catch mistakes like the ones made in Kingdomware and Aldevra, they’ll miss out on awards.

The Kingdomware decision may be accessed at: http://www.gao.gov/assets/600/591245.pdf. Aldevra is available at: http://www.gao.gov/assets/600/590299.pdf.

The Department of Veterans Affairs (VA) has red tape everywhere. Red tape in applying for benefits, red tape in appealing an adverse decision for benefits, and red tape in certifying a business as a service-disabled veteran-owned small business.

Until recently, I didn’t realize that the VA has red tape in another area – affording service dogs to veterans.  As of today’s date, the VA has no system in place to pair veterans with service dogs.

The VA is, however, engaged in a step towards installing that system. As part of the Service Dog Veteran’s Act, the VA is immersed in a research program designed to determine whether service dogs can help veterans who suffer from mental health disabilities such as post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). This pilot program will use at least 200 dogs and veterans to assess the therapeutic value of the dogs for veterans with physical and mental injuries.

The initial question is obvious. Why would the VA need to conduct its own research program to determine whether a service dog would be helpful to a veteran? Aren’t there studies out there that confirm or disprove that? Why the extra red tape?

Here’s the problem. Yes, maybe the VA is creating an unnecessary burden here. Veterans are not the only individuals who suffer from PTSD and TBI, and service dogs have been used to help these other individuals before. But at the same time, if the VA is going to sign off on veterans obtaining service dogs, and create an entire program for providing service dogs, it needs to be sure that it endorses the method, procedure, and tools for training service dogs.

Because the VA wants to take this precaution, it is currently engaged in a research project rather than actually providing (or collaborating to provide) service dogs to veterans. The result is that in the meantime, thousands of veterans are in desperate need of service dogs because non-profit service dog providers can’t meet the needs of every veteran. Training a dog can take years and cost tens of thousands of dollars. Also, these organizations are often limited to only providing dogs to veterans within a certain mile radius, as the veteran is generally required to train with the dog several times a week.

When I first heard about these unmet needs of those who served our country, I was angry with the VA. I asked myself why the VA wasn’t doing more to help veterans obtain service dogs. If a veteran needs a service dog because that veteran was brave enough to serve our country, he shouldn’t have to jump through any hoops to receive one. The dog should show up on his doorstep, groomed, housebroken, and wearing a bow in the veteran’s favorite color.

But this assumes that the VA has the money for every veteran to get a dog. This is far from the reality of the situation, which leads to the second problem preventing the VA from providing service dogs: you can’t squeeze blood from a turnip.

The VA’s resources are overburdened and strained to the breaking point. With all of our soldiers returning from Iraq and Afghanistan, and the mounting number of outstanding disability compensation claims (currently at one million) and veterans in need of medical care, the VA system cannot support everything that is needed for our veterans. That’s the sad truth, and the issue with service dogs is just one more example.

Maybe it’s not just the red tape to blame after all.

To access the full text of the Service Dog Veteran’s Act, visit: http://www.opencongress.org/bill/111-s1495/text.

As a resident of the Washington, D.C. area, I see reminders of our veterans’ bravery everywhere. From the war memorials to the national monuments, from Arlington Cemetery to the reflecting pool – our city is filled with memories of those who have so valiantly fought to give this nation its freedom.

The honor of those who have fallen cannot be overstated. Today, however, I find myself also thinking of those who have returned to us. Last month at a legal clinic I held I met veterans who served for us all over the world – Iraq, Afghanistan, the Persian Gulf, Vietnam. Every single veteran had a story to tell, and every single veteran came back to this country with wounds of war. Some of these wounds were more visible than others.

In recognition of what these individuals have given our nation, our Government tries to give back. This is why it provides federal benefits such as disability compensation and pensions, and also why businesses owned by veterans have special status in federal contracting programs.

The problem is that not only are the systems in place to provide these benefits imperfect, but veterans may not know how to maximize the opportunities they have earned by their service.

Attorneys talk about their gratitude towards veterans for what they have done, and it is important to show our thankfulness, but  I want to do something a bit different. I am not in a position to correct an imperfect system, but I am in a position to help veterans better realize opportunities afforded to them because of their veteran status.

If you are a veteran participating in the service-disabled veteran-owned small business contracting program, there may be opportunities in this arena of which you are unaware. The following is not legal advice, as I am unaware of your individual circumstances, but general guidance to help you take advantage of your ability to participate in this program:

• Be aware of your eligibility to participate in the SDVOSB contracting program, and the requirements you must meet and maintain. For example, in corporate documents, the veteran upon whom eligibility is based must hold the highest position. The veteran must also own 51% or more of the business and control the management and day-to-day operations of the business.

• Obtain the proper certifications.  To be eligible for VA set-aside contracts, SDVOSBs must register in the VA’s VetBiz VIP Verification Program.

• Make connections with large contractors who must meet small business subcontracting requirements. For example, mentor/protégé agreements or subcontract agreements can be extremely mutually beneficial. The SDVOSBs receive subcontracting opportunities and valuable experience which can be cited in later proposals, and large concerns will be viewed favorably in proposal evaluations for meeting small business subcontracting goals. Also, large concerns may receive additional subcontracting plan credit towards a specific VA contract.

• Know where to look for set-aside opportunities for SDVOSBs.

• Know how to recognize a valid basis for a protest. For example, is there reason to believe the awardee was ineligible for the award? Also, did the agency properly consider conducting the procurement as an SDVOSB set-aside? The latter ground has recently been the subject of several sustained bid protests due to the  Veterans Benefits, Health Care, and Information Technology Act of 2006. This Act mandates the VA to set aside contracts for SDVOSBs when the contracting officer determines: 1) that there is a reasonable expectation that two or more SDVOSBs will submit offers; and 2) that these offers will be offered at a fair and reasonable price.

If you are a veteran applying for disability compensation or pension benefits, feel free to contact me at scs@legalmeetspractical for a free packet containing information and guidance on the application process.

To all of the veterans, thank for all you have done. I pledge to give back to veterans this year because I know what the generations of veterans have given me. Because of all of you, I am free.