Legal Meets Practical

UPDATE: As of June 6, 2018, the VetBiz site is still down with the exception of the search function. Document requests continue to be suspended, and there is no information as when the CVE will be back to business as usual (to include the processing of applications and complete usability of VetBiz portals).

I write this to clear up confusion for folks involved with veteran-owned small businesses registered with the U.S. Department of Veterans’ Affairs (“VA”) VetBiz registry, which is the database for all businesses approved for SDVOSB and VOSB set-aside work with the VA.

Specifically, if you’re undergoing verification and/or have been on their new site, you might be tearing your hair out in light of the new login system. For example, if you’ve logged in, where on earth is your business information? Why can’t you log in? If you can’t log in, what about that pending document request or your expiring verified status?

Here’s the gist. On May 21, the VA shut down all access to the VetBiz site while completing updates, relaying that it would be up and running in 30 days. This meant that if you wanted to get VetBiz-verified, or re-verified, you had to hit “submit” on May 20 before the system went down (during the system upgrades, applications were still being processed).

On June 22, the VetBiz site was updated with information on how to get an account under the new system. The process is different for veteran owners compared with non-veterans and representatives, with the latter requiring inputting multiple codes sent via text and the answering of several security questions (similar to the D&B process). However, when one logged in to the system, they would find no information in their portal, while their old account still worked.

Earlier this week, the old system was phased out, meaning that no one had (or still has) access to it, with business information in the process of being migrated over to the new one. Here are the major snags:

• The business information from the legacy system is not yet in the new system. This means that for those of you who have logged into your new portal, it looks empty. Accordingly, if you were looking forward to getting back to work on your application after the 30-day hold, or have a document request pending, you won’t be able to complete these tasks.
• Anyone who is not the veteran owner has been booted from any and all business accounts for which they are a representative. The only way for them to be added to the account is for the veteran owner (only) to sign up for an account under the new system and to add the non-veteran as a representative.
• If you are not yet in the new system, you will not be receiving alerts relating to document requests and the expiration of your verification period because these are generated from the legacy system. As such, when access to the new system becomes available, make sure you have an active account so you receive any alerts pertinent to your verified status/verification application. (As an FYI, however, while I was informed of this via the help desk, I am still receiving alerts despite having been removed as a representative across the board).

So. . . what can you do? .

• If you have a pending document request – If you have a document request that is outstanding, the CVE will be extending your time because they are aware you can’t access your account.
• If your verification period is expiring soon – As of now, the system has now been out of commission for approximately 35 days. The hope is for those businesses that are expiring soon, the CVE will provide a reasonable extension of their verified period. However, there has been no announcement has of yet, and it might be difficult for the CVE to identify the affected companies and take appropriate steps.
• If you have been unable to apply for verification for the first time, or for re-verification – There is no information available as to when the site will be up. However, as soon as it goes up, if you have the ability to hit “submit,” do so before it goes down again. That will at least get you in the queue to be assigned to an intake analyst (which has been taking about three weeks). During this system upgrade, it is still business as usual on the examination side.

I’ll share any updates there are to provide, and please know this information is from my own experience, conversations with the help desk and other pertinent individuals, and the website. It is as accurate as possible, and I’ll update this article to reflect any changes.

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Now that the federal government has had a week to catch up after their three-day holiday, you might have an influx of emails and deliverables since everyone’s back in action. Accordingly, in lieu of a longer post, here are three quick items for you to peruse:

The New VetBiz Verification Guidebook is Out! Several years ago, I created a comprehensive guidebook to address all major issues with VetBiz verification (eligibility criteria, the process, re-verification, cancellations, audits, etc). For anyone who is in the VetBiz registry (which is the VA’s way of tracking businesses it has cleared as “veteran-owned small businesses” or “service-disabled veteran-owned small businesses,” and therefore eligible for its set-aside opportunities), you may have noticed a lot of recent changes to the process. This Guidebook is updated as of June 1, 2018 and is a one-stop shop for everything you need to know if you want to get/stay verified.

NVSBC Conference in Only One Week! Every year, I attend and speak at the National Veteran Small Business Coalition’s conference in Virginia Beach. This year, they’ve moved it a short distance away to historic Williamsburg, Virginia, where they’ll have knowledgeable speakers on a variety of federal procurement topics, an Exhibit Hall, and a chance to rub elbows with prospective teaming partners and procurement officials. Especially if you’re in the D.C. area, consider taking the trip from June 11th through the 14th, because Scott Denniston and the folks up top at the NVSBC do a wonderful job of providing a conference with a lot of value. While the hotel where the conference is being held is full, there are plenty of other lodging options in the area. (We’re booked at the Great Wolf Lodge). For non-NVSBC members, registration is $649 if you do it ahead of time ($449 for members).

Peter O’Rourke Tapped as New VA Acting Secretary. President Trump has tapped longtime VA official Peter O’Rourke as the agency’s acting secretary, the White House announced last Wednesday, a move that comes ahead of the confirmation hearing of VA secretary-designate Robert Wilkie. O’Rourke, who previously served as chief of staff for the agency and as its executive director for the Office of Accountability and Whistleblower Protection, took on the role effective last Tuesday, the White House office of the press secretary announced in a statement.

That’s it and that’s all! For more news on issues affecting veteran-owned businesses, sign up for my legal blog at: https://legalmeetspractical.com. Remember to click the link to activate your subscription!

Pricey GAO Protest Fee Is Now a Reality

On April 2, the GAO released a final rule implementing its Electronic Protest Docketing System (“EPDS”). As of May 1, EPDS became the “sole means for filing a bid protest at GAO” (with the exception of protests containing classified information). Also, new protest actions are subject to a $350 filing fee, which is refundable only in the instance of delayed corrective action (Corrective action is where an agency decides to fix the issues raised in a protest rather than have the GAO decide the protest on the merits, generally because the agency believes the protestor is right or that taking such action is in the best interest of the procurement protest). Chances are, this will result in a decline in the number of protests filed. The interesting question is whether this will also result in a steep increase in the percentage of protests that are sustained/receive corrective action, since protestors will only risk the dough on stronger cases.

Guilty Plea for Lies to Obtain SDVOSB Set-Aside Contracts

On May 1, the VA’s Office of Inspector General issued a press release relating to an individual who entered a guilty plea for conspiracy to defraud the VA in the performance of 12 contracts (valued at a total of $1.6 million) intended for service-disabled veteran-owned small businesses (“SDVOSB”). According to the press release, the company at issue falsely claimed that the veteran owner had majority ownership, when in fact this was not true.

This is an interesting case, given that most issues with SDVOSB fraud seem to center on “control;” i.e., the veteran owner not actually being in the driver’s seat in company decisions, working full-time elsewhere, etc. Ownership, control – it doesn’t matter – when you go through the certification process and start winning contracts because your business is “owned” and “controlled” by a veteran, know this is serious business. You can’t fudge anything, or exaggerate – be truthful, be transparent, and disclose all relevant facts bearing on eligibility. It’s not worth getting in hot water later.

Search for New VA Secretary Continues

In late April, Navy Rear Adm. Ronny Jackson withdrew from consideration as President Trump’s nominee to be the next VA Secretary, amid allegations of prior misconduct at the White House medical office where he is physician to the President. Such allegations including improperly prescribing medications, using his position to abuse and denigrate colleagues, and alcohol abuse on the job. Sen. Jon Tester, D-Mont., and ranking member of the Senate Veterans’ Affairs Committee, said the charges stem from nearly two dozen current and former service members who approached lawmakers without congressional prompting. He said he could not verify the validity of each charge, but the volume of the accusations raised concerns.

As such, the search for a new VA Secretary continues, with candidates including acting VA Secretary Robert Wilkie, former Florida Rep. Jeff Miller (whose fine work I have blogged about on numerous occasions), and Ron Nichol, a senior advisor to the Boston Consulting Group. President Trump has indicated he intends to pick someone with a more political background for the role, with the objective of navigating the confirmation process in a divided Senate.

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If you are procrastinating in applying for verification or re-verification with the VA’s Vendor Information Program (i.e., VetBiz), spend the next week getting your documents together and hitting “submit!” On May 21, the VA is suspending the ability to submit any new applications or re-verification applications for 30 days, in order to facilitate the transition to a new case VIP interface.

In a notice sent out just today, the VA’s Center for Verification and Evaluation (CVE) is citing a number of changes made during this shutdown. However, if you take a look at their list, is the 30-day wait worth it?

• First, the VA is creating a new “single sign-on login process,” which comes with a different process for veterans versus non-veterans/representatives. However, no information has been provided as to how this sign-in process is an improvement over the old. (As for me, I never had an issue with signing on. It was frustrating to re-set my password every 90 days and adhere to the strange password requirements, but there’s no indication that different password requirements come with the change).
• Second, Sam.gov validation is now automatic when you enter your DUNS number. It appears that your DUNS number has to be right to sync with Sam.gov and give you access to the VetBiz portal. The VA claims this “eliminates Veteran frustration when submitting applications with incorrect DUNS or incomplete SAM registration.” However, how often would this issue really arise? Most folks know how to enter a DUNS number, and to already be in Sam.gov when applying for VetBiz registration.
• Third, and most substantively, the VA cites changes to the “dashboard capabilities and enhanced Veteran process enhancement,” providing a list of changes in its May 14, 2018 notice that went out to all veterans in the VetBiz system. However, some of these likely won’t make a difference. It will be “easier to upload individual taxes,” but the process now is basically the same as uploading an attachment to an email (requiring two clicks of the mouse). Same thing with uploading resumes. It will, however, be nice to be able to automatically request ten-day extensions for most document requests and to submit and track the status of Help Tickets, so that’s definitely an improvement.

What do you think? If you’ve been through the VetBiz process and someone had asked you how to make the process easier from a technical standpoint, what would you have changed? (I for one would have permitted the deletion of irrelevant or duplicative documents – unfortunately, once you hit “submit,” whatever is in your portal stays in forever!).

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

On April 2, when Vietnam and Desert Storm veteran Rick Fall went to his favorite restaurant to enjoy his 20th wedding anniversary, he was surprised when he was turned away. He’d brought Ben, his service dog, to Riverwalk Grill on at least six occasions before with no incident. That night, however, a (presumably inexperienced) server told him to leave the restaurant despite being told “‘at least six times” that Ben was a service dog.

Brock Dennings, Riverwalk Grill’s owner, was horrified to later learn of the incident. “We just want to know what happened and ensure it does not happen again,” Dennings told a local Michigan newspaper. “That is what I know for sure. I’m not saying we didn’t have any fault. We just want to understand what happened.”

To be proactive in ensuring the incident is not repeated in his restaurant, Mr. Dennings is working on establishing that employees are educated on dealing with service dogs, to include having them sign a statement that they understand. He is also hosting a service dog workshop that will cover understanding service dogs in the community and what to do if you suspect a fake service dog.

This incident underscores the difficulty in preventing incidents with, and embarrassment to, veterans with service dogs. In this instance, it is likely the restaurant staff on duty that night did not know how to address the issue of a patron with a service dog. It’s hard to educate staff on such matters, especially given the turnover of restaurant staff and the relative rarity of such an incident. As a result of this difficulty, poor Mr. Fall didn’t get his anniversary meal, and the restaurant received negative attention.

The lesson here is for small business owners who cater to the public. Under the Americans with Disabilities Act (“ADA”), you must accommodate individuals with service dogs. If it is not obvious that a dog is a service animal, a public entity or a private business may ask only two questions: 1) Is the animal required because of a disability? and 2) What work or task has the animal been trained to perform? Here, the wait staff should have asked Mr. Fall these questions, and, when reasonably satisfied, brought Ben a bowl of water. He’s a customer, too!

For more information on service dog requirements under the ADA, click here. Also, if you’re interested in receiving updates relating to veteran and small business issues, subscribe at https://legalmeetspractical.com. Remember to click the link to activate your subscription!

“No soup for you?” Think before you enforce that rule.

On August 23, 2017, President Trump signed into law the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act), which boasted of creating a new claims and appeals process for those pursuing VA benefits; specifically, those who have been chasing their benefits for a long, long time.

A long time.

As implemented beginning in November of 2017, the Appeals Modernization Act plucked older applications from the purgatory of the queue and provided those veterans with a choice between one of two lanes: the Supplemental Claim Lane or the Higher Level Review Lane. By taking a “lane,” these claims are supposed to be resolved sooner than they would be if continuing to languish in the standard appeals process. This is called RAMP, or the Rapid Appeals Modernization  Program. (That’s right. The VA is referring to one of its own processes as rapid. The VA).

While RAMP sounds good in theory, one of the most curious aspects is the lack of information about it. I first looked into RAMP when a veteran mentioned it to me, and the only information I found was months-old Internet pages, most of them from the VA itself and providing general information about RAMP and its background, rather than the dynamics of its operation.

After a considerable amount of digging, here’s the skinny on RAMP:

As mentioned, RAMP is invite-only, and extended only to those veterans who have the oldest claims out there, though the VA plans to have all claims processed under RAMP by February 2019 (though there is no elaboration as to what that means). There are two lanes: the Supplemental Claim Lane and the Higher-Review Claim Lane. When you’re invited, you pick one or the other.

The Supplemental Claim Lane is for those who have additional evidence to submit relating to a claim. The VA will assist the veteran in gathering the evidence and then decide the claim within a goal of 125 days. You can continue to submit supplemental claims with new or material evidence or elect for the other lane (the Higher-Level Review Lane) by making an election for further review within one year after a decision.

The Higher Level Review Lane is for those veterans who have no additional evidence to submit and believe there was an error in the initial decision. Also operating under a goal of a 125-day turnaround period, this higher-level review consists of an entirely new review by an experienced claim adjudicator.

While the idea of expedited review sounds good, many aspects of RAMP are confusing. For example, in the Supplemental Claim Lane, if the VA is required to help the veteran obtain more evidence, does this stop the clock on the 125-day period? Surely it does. And with the Higher Level Review Lane, the review by an “experienced claim adjudicator” sounds very similar to the election to have a Decision Review Officer look at your claim after receiving a denial. Is the only difference that you’re in a different queue than those in the standard appeals queue? And how much does that help you, considering that RAMP is invite-only? If you’re getting an invite to participate in RAMP, doesn’t that mean you’re up for a decision soon anyway?

Then there’s the issue with appeal rights. The letters sent to veterans don’t really discuss how appeals to the Board of Veterans Appeals (BVA) work, other than to note that a veteran participating under RAMP cannot appeal to the BVA until February of 2019. They also don’t discuss how appeals in RAMP might be resolved at the Regional Office level such as by submitting additional information after a decision and waiting for either a new Statement of the Case or decision, which is how it currently works (though it takes years for that process to go through).

As of February 2018, only 450 veterans who have been invited to participate in RAMP have done so. That represents a three percent opt-in of the 15,000 veterans who have been invited to participate.

If you get a RAMP invite, before you elect to get out of traffic to the safety of the VA’s new “HOV lane,” please do your research. Disability compensation is an entitlement, and there’s no need to make getting what you deserve harder than it already is.

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

VA Disclaimer: Process May Be Slower Than Object Appears.

It’s the Friday before a holiday, and I know your time is valuable. As such – and not to be cheeky – I bring you veteran news in brief!

“You’re Fired!” Trump Gives VA Secretary the Boot.

After weeks of uncertainty atop the Department of Veterans Affairs (“VA”), this week President Trump dismissed its secretary, David J. Shulkin, and announced he would replace him with the White House physician, Dr. Ronny L. Jackson, a rear admiral in the Navy. If confirmed, Dr. Jackson will inherit a set of challenges that have bedeviled Democratic and Republican administrations alike. The department, the federal government’s second largest, has been burdened for years by aging infrastructure, an inefficient health care system, and an unwieldy 360,000-person work force. Sounds like a great career change for someone who has no real experience running a large bureaucracy.

As some of you might know, this follows an unflattering Office of Inspector General report that found that former Secretary Shulkin had engaged in improper conduct in overseas travel, including by improperly accepting Wimbledon tickets, unnecessarily taking his wife along on the taxpayer dime, and misusing VA resources and time.

Comment TODAY if You Want Anything With VetBiz to Change.

On January 29, the Small Business Administration (“SBA”) issued a proposed rule to finally merge the VA’s and SBA’s definitions of “ownership” and “control” for veteran-owned small businesses that compete for work from federal agencies. This is part of the SBA’s/VA’s plan to merge VetBiz verification and self-certification into one program controlled and managed by the SBA.

As of now, over 13,500 businesses have been “verified” as veteran-owned small businesses (“VOSBs”) or service-disabled veteran-owned small businesses (“SDVOSBs”) by the VA. Many of those businesses have not been particularly happy with the process. (Still more have not received verification). And yet, when a companion rule called for comments due on March 12, a grand total of 17 folks commented. Half of those were attorneys and professionals, including myself, who were invited to take part in a VA focus group on the changes. That is sad! Let your voice be heard. Comment tonight by midnight to make your input part of the official record.

Fantastic Veteran Business Conference in Williamsburg this June

I have been active with the National Veteran Small Business Coalition for years now, and the reason why is because they are fantastic for veteran businesses (especially in the D.C. area) looking to: get into federal business, learn more about the federal business, petition for change, and network to find teaming partners or prospective clients. This year, the conference is in Williamsburg from June 11 through the 14th and kicks off with a golf tournament. If this might be of interest to your business, find out more here.

That’s it and that’s all! Have a wonderful weekend, and stay posted for next week.

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The SAM.gov federal website that registers thousands of federal contractors has been hit by an alleged fraud, General Services Administration (“GSA”) officials announced on March 22.

Since 2012, federal contractors have been required to register in the System for Award Management, or SAM.gov (formerly CCR/ORCA, which was phased out), and to provide detailed company information, including sensitive information such as bank account numbers. If you want to be paid by the federal government (or even the possibility of getting paid), you must provide this information and be registered and up to date in SAM.gov.

The suspected fraud involved payments from the government that were improperly diverted to third-party accounts. At this time, GSA believes “only a limited number” of companies have been affected, and they have been notified. Accordingly, if you have NOT received an email from Sam.gov that made you spit out your coffee, presumably your information is safe, although from the GSA’s statement it appears that more notifications of individual breaches may be coming.

The GSA, in its March 22 statement, urged contractors to review their bank information to determine if their account was affected. “Entities should contact their federal agency awarding official if they find that payments, which were due their entity from a federal agency, have been paid to a bank account other than the entity’s bank account,” GSA wrote. If an entity suspects a payment due them from a Federal agency was paid to a bank account other than their own, they should contact the Federal Service Desk at www.fsd.gov, or by telephone at 866-606-8220 (toll free) or 334-206-7828 (internationally), Monday through Friday from 8 a.m. to 8 p.m. (EDT). Accordingly, check your bank statement to make sure everything is as it should be. Now! Don’t assume the government properly identified you as safe from the breach, and properly omitted to send you a notice.

GSA confirmed that its Office of Inspector General is investigating the suspected fraudulent activity. The affected accounts have been deactivated and systems modifications are being made to prevent further fraudulent activity.

For new registrations, GSA is now requiring an original, signed notarized letter identifying the authorized Entity Administrator for the entity associated with the DUNS number before a new SAM.gov entity registration will be activated.

This is the worst breach of SAM.gov yet. Back in 2013, a glitch in the system enabled those using its search function to access sensitive information, but there were no reported incidents of resulting theft. While right now, the details are sketchy, soon there should be information relating to the number of contractors affected and the amount of funds diverted.

For more information, access the GSA statement here.

For updates and other information that affects federal government contractors, follow Sarah Schauerte’s legal blog at: https://legalmeetspractical.com.