Legal Meets Practical

Our holiday season is made possible in part by the sacrifices made by our nation’s veterans. The following poem, written in 1986 by a Marine Lance Corporal, James M. Schmidt, first appeared in Leatherneck in 1991 and has since been widely reproduced and re-circulated during this time of year. It is my pleasure to present it, with thanks to our nation’s veterans and the request that it be shared if desired: 

Today I arrived back in Atlanta, Georgia after attending the National Veteran Small Business Engagement (NVSBE) in St. Louis, Missouri. In general, the NVSBE is always a good experience, if only because I have the chance to network and meet up with folks I only communicate with on the phone and via email the rest of the year.

The NVSBE is also an opportunity to (in many cases) get the early scoop on the policies in the pipeline at the U.S. Department of Veterans Affairs (VA). This year, I found none more fascinating than the VA’s proposed policy of “tiered evaluation” as a means to complying with the Kingdomware mandate, which was presented during a general session featuring three VA higher-ups.

And what, pray tell, is the Kingdomware mandate? Many of you already know, especially if you’ve been following this blog for a while. In a nutshell, Kingdomware was a Supreme Court case where , in a unanimous ruling, the Court held that under 38 U.S.C. § 8127(d), the VA must set aside procurements for competition among veteran-owned small businesses ”if a contracting officer has a reasonable expectation that two or more small businesses owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers the best value to the United States.”

This provision applies to orders placed against the Federal Supply Schedules (FSS), and a lot of businesses were very excited about the ruling. Finally, the VA was mandated to provide opportunities to veteran-owned businesses on the schedules. More work – hurrah! Right?

Maybe not. . .

Since this ruling came down during the summer of 2016, a fair number of veteran business owners have been complaining that the VA has been trying every tactic possible to circumvent the ruling. In fact, during the general session at the NVSBE, one well-informed gentleman whose business specializes in office supplies stated that he had conducted extensive research to conclude that the VA was complying only 10% of the time. 

On the VA’s end, they complain that “prep” work to determine whether they’ll get the requisite number of responsible bidders creates delays and extra costs in the procurement process. There’s also the question of how much more the VA should pay in order to buy from veterans (i.e., what is “fair and reasonable?”). These aren’t unreasonable concerns.

During this general session at the NVSBE, the VA rolled out its new “tiered evaluation” approach to contracting under the FSS. It’s pretty simple – when awarding under the FSS, the VA will permit everyone to submit a bid – veteran-owned small business or not – and then place the offerors in different tiers for evaluation. Tier One, of course, is veteran-owned small businesses. If the VA can make an award in Tier One, they never have to look at the offers in the other Tiers. If they can’t, they’ll go to Tier Two (small business); then on to Tier Three (large businesses).

Do you see the issues with this that I do? First of all, read the statute: it says the VA must set aside the procurement based on its “reasonable expectation” that it will receive the requisite number of offers from veteran-owned small businesses. With tiered evaluations, there’s no “setting aside” (though I suppose one could argue that placing them in Tier One has that practical effect), and there’s no market research or other work to determine whether the opportunity should be set aside. They’re not “expecting” anything because they’ve done no advance work or research, effectively making it a free-for-all.

Second of all, what about the businesses in Tier Two and beyond? Even if the opportunity calls for a Request for Quotations, which is simpler to respond to than a Request for Proposals, those folks are still doing the work in researching and responding to an opportunity, knowing it might be a sunk cost because there’s the chance no one will even look at their proposal even if they offer the lowest price. Because the VA isn’t doing its work, these folks are picking up the slack.

Problems aside, think about the practical effect. We want the VA to be awarding to veteran-owned small businesses, right? If they implement tiered evaluation for every opportunity rather than doing the prep work to set aside to veteran-owned small businesses, one could argue that they’re uniformly complying with the effect meant by Kingdomware in giving the work to veteran-owned small businesses. That’s what we want, so is obtaining the effect worth the other issues?

What do you think? This is a developing policy, so perhaps this will never see the light of day. Should it or shouldn’t it? (If you would like to remain anonymous in commenting, I can change your “handle” to anything you like).

Tiered evaluation: can you swallow it?

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

Maybe this title should be shocking, but I bet it isn’t – by the time a claim for disability benefits makes it way through the U.S. Department of Veterans Affairs, an infant born the same day the claim was submitted might be in kindergarten.

According to a chart (fairly) recently uploaded to the Board of Veterans’ Appeals (BVA) webpage, it can take almost six years from the time a veteran first files his claim to when the BVA finally resolves it. More, depending on the regional office initially handling the claim.

Let’s walk through the process. First, a veteran files a claim, and it is routed to the regional office closest to him based on his address. Depending on where the veteran lives, it can take somewhere from one to two years for that regional office to render a decision. (For instance, a regional office in Montana will move a lot faster than a regional office in California due to the disparity in population density).

More likely than not, the veteran will disagree with elements of that decision. As such, he will file a Notice of Disagreement (which he has a year to do). Then, the VA will take a second look at his claim and either: 1) grant it and issue a rating decision; or 2) issue a Statement of the Case explaining why they were right the first time. According to the BVA’s chart, this takes an average of 480 days.

If the veteran receives a Statement of the Case, he must file a Form 9 within 60 days to appeal to the BVA. This preserves the effective date of his claim. Still, the claim stays at the regional office so long as the veteran keeps sending in evidence, so the regional office might issue two or three more Supplemental Statements of the Case (or a rating decision). On average, it takes 644 days for that to be all over.

Then it gets kicked up to the BVA. It takes 288 days to certify a claim before the Board of Veterans Appeals. Once that happens, it takes an average of 248 days for the BVA to issue a final decision. In 2016, the BVA received and docketed 86,836 appeals.

So. . . what do these numbers tell us? First, the VA is incredibly slow. They’re backlogged, but they’re slow, too. It shouldn’t take a year for a veteran to receive a boilerplate letter.

Second, it means veterans should do everything they can to get their appeals resolved at the regional office level. This timeline only applies if a claim goes all the way to the BVA, which can happen due to VA error. And if that’s the case, the poor veteran has to appeal every step of the way and preserve his rights, or he doesn’t get the initial filing effective date. Then, when he finally gets his money, there is no interest or penalty assigned.

There are, however, steps the veteran can take to reduce the chance of VA error, and to make sure he presents the most effective case possible. These include, but are not limited to, the following:

• Make sure you send every piece of important correspondence via priority mail. In other words, be sure it’s received (i.e., get delivery confirmation).
• Respond to all document requests, namely requests for information about medical providers who will provide documents. Make sure the medical provider actually sends it in, because if they don’t, you’ll get a statement of the case that doesn’t include evidence you thought would render a favorable decision.
• Send in private medical provider information yourself, and draw attention to documents you think are pertinent. Make it hard for the VA to not see evidence that matters.
• Send in all relevant evidence, generally. Don’t forget anything.
• Don’t send in evidence that clearly isn’t relevant. You don’t want the regional office to have to go diving in your file to find the evidence that supports your claim.
• When you write letters to the VA, keep it simple. If something is important, bold it so they have to read it.
• If you have any gaps in your evidence, use lay witness affidavits. That can make a difference.

In other words, don’t let your evidence be ignored! Make sure the VA not only has everything it needs to grant your claim, but that it can’t miss it. If you don’t, your claim might be old enough to ride the school bus by the time you get your money. And that isn’t right. You’ve earned it.

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran’s issues at: https://legalmeetspractical.com. Also, please keep in mind that this article is informational in nature and is in no way legal advice about your specific claim or applicable deadlines.

At first glance, a new proposed rule published in the Federal Register on September 28, 2017 sounds like great news for businesses that have been denied verification as veteran-owned small businesses (“VOSBs”). “Verification” is the term for approval as a VOSB or SD (“Service-Disabled”) VOSB in the VA’s VetBiz registry, where a firm must be listed to pursue a VOSB or SDVOSB set-aside opportunity listed by the VA.

In a nutshell, the rule establishes that the Small Business Administration’s Office of Hearings and Appeals (“OHA”) will have jurisdiction over such denials, just as it has jurisdiction over size and socioeconomic status appeals. However, there are two big takeaways from this rule: one, it is a proposed rule, meaning that nothing may come from it; and two, it requires an appellant to include a statement as to “why the cancellation or denial is in error.”

Let’s break down this requirement. First of all, it relates to a cancellation or a denial. Cancellations are simple – that’s when you get booted from the program because you no longer meet the eligibility requirements. A “denial,” however, is an ambiguous term. The VA currently boasts of a near-100% verification rate, because it does not count any business that withdraws in its denial rate. (Businesses receive a letter if they are found ineligible, which states that they may either receive a denial, or withdraw their application and reapply when they are ready). Because the proposed regulation at 13 C.F.R. 134.1103 provides specifically that only “denials” can be appealed, this means that a business has to accept the denial and then fight it at the appeal level. And if they lose, a six-month wait period applies to reapply.

Because the VA is accepting comments, the comment to make here is that appeals should not be limited to businesses that choose to accept denials, but to any business that receives a pre-decision or pre-determination letter finding it is ineligible for the VetBiz program.

Also, the appeals process doesn’t address the bigger problems with the VetBiz process. For example, if a business cannot begin the process because a 1% shareholder refuses to sign a form (To start the process, all business owners must sign a form called the 0877; and if someone refuses to do so, the veteran owner is out of luck. This is ironic considering that the VA is so fixed on ensuring the veteran owner controls his company, yet requires a form that enables a non-veteran owner to call the shots by refusing to sign and preventing the company from even starting the process).  Also, some businesses have to withdraw because the VA won’t budge on the provision of a “required” document, despite the availability of other documents containing the same information.

Those folks caught in limbo can’t appeal. Also, by giving standing only to those who have been flat-out denied, the six-month wait period if one loses the appeal deters businesses from accepting the denial and fighting it at the higher level. They’re more inclined to withdraw and then get back on the CVE-level merry-go-round.

Further, because the standard to win is showing “a clear error of fact of law” (a high bar), this automatically presents an uphill challenge given that the regulations for assessing verification eligibility are written so generally. In fact, the VA has been attempting to rewrite these regulations for years. Due to the adverse nature of comments to the rule, the VA recently withdrew the rule.

If you are a veteran-owned business and have an interest in the establishment of an appellate process for denials for VetBiz applications, please comment on this new rule. (Comments close on October 30). Keep in mind that this blog only highlights a few aspects of the rule – you may find another element you want to offer insight on based on a personal experience with verification. And, you owe it to yourself and to other veterans to speak up.

Instructions for commenting and the complete proposed rule may be accessed here.

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

Everyone who deals with the federal government encounters red tape. It exists in every form – from the paperwork veterans complete to receive the benefits to which they are entitled, to the hoops we have to jump through to obtain federal certifications for our business. But I have to say – today it’s the small stuff that’s getting to me.

Many of those who follow this blog have been doing so for quite some time, so I feel comfortable in disclosing a fact that’s personal – I had a baby girl last November. Brooke has just begun to crawl, and everything goes in the mouth, so this legal blog has not been posted every week. It’s a matter of prioritizing, although I do enjoy writing this blog.

As a busy working mother, today I was annoyed to see that my email is having server issues. It has nothing to do with my account, which I suspected upon multiple calls to Godaddy, all of which were answered with a busy signal to indicate a widespread issue. I then went on their Twitter account and found this:

Thank you! I’m not happy that my email is down, but considering this has happened once before, a year ago, I can live with the minor inconvenience today. And by posting this message front and center, Godaddy has saved probably thousands of its clients from calling in, stressing about whether this malfunction is their unique problem.

Meanwhile, there’s the U.S. Department of Veterans’ Affairs’ (VA) Center for Verification and Evaluation (CVE). The CVE issues the verifications (certifications) for veteran-owned companies to pursue set-aside work with the VA, and I deal with these folks a lot.

Two weekends ago, I was on my computer, and I received ten emails from the CVE in succession. All of them contained a boilerplate message that someone had been removed as a representative from the business’ account. (Since I help with verifications, I’m listed on a number of accounts). It wasn’t me – it was the business owner, who would have received the same message. Immediately, I forwarded the message to each owner to tell them it was surely a glitch and that I hadn’t done this but would check on it for them. (I did this right away because I didn’t want them thinking I’d taken them off their own account!).

That week, I ended up talking to the help desk and realized that the message was sent in error – hundreds had been sent (that’s probably a conservative estimate), but no one had actually been removed from their VA account. Of course, no one would know this unless they tried logging in, and why would they do so if they thought they’d been removed? The CVE Helpdesk person noted that “most business owners had already called in” by that point.

If the CVE knew that hundreds of business owners would think they’d been removed from their own accounts, and would inevitably be calling in about this, jamming up the Helpdesk line (and making the VA’s life harder, too), why on earth couldn’t they put a note of the error on the wesbite? This isn’t as bad as the time a huge glitch sent out emails telling businesses they’d been booted from the program, but it’s still a stressful experience. And unnecessary too, given that the business owners hadn’t even been removed! Instead, the CVE did nothing, and likely collective days were wasted when adding up all the time spent by veterans trying to figure out what happened and Helpdesk folk fielding their phone calls.

I understand this is the government we’re talking about, but what kind of red tape has to be cut through to post something simple on the website? And if not the website, on Twitter or LinkedIn? (I checked both and did not see anything about the emails sent in error). Small business owners, myself included, have many tasks cluttering their day, and it’s frustrating to see how many hours were wasted when a quick post (or what about a follow-up boilerplate email?) could have saved so much time.

I know we’re dealing with the government, but is it red tape causing issues like these, or something else?

What is a frustrating, avoidable (but not) experience you’ve had with the government?

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog at: https://legalmeetspractical.com. Make sure to check the link sent to your email to activate your subscription!

On September 1, 2017, the U.S. Court of Federal Claims (“CoFC”) granted an AbilityOne vendor’s request to stay the relief granted in a landmark case confirming that veteran-owned businesses take priority over AbilityOne vendors at the U.S. Department of Veterans Affairs (“VA”). As such, the VA may not procure eyewear products or services in VISNs 2 or 7 outside of the AbilityOne Procurement List until the appeal is resolved. (PDS Consultants, Inc. v. U.S., No. 16-1063C).

As many veteran-owned businesses competing in federal space are aware, a recent CoFC decision issued on June 30, 2017 held that at the VA, veteran-owned small businesses (“VOSBs”) and service-disabled veteran-owned small businesses (“SDVOSBs”) trump AbilityOne vendors (employers of those who are blind or have other significant disabilities). Even if a product or service is on the AbilityOne Procurement list, the “Rule of Two” (i.e., that the VA must set aside the procurement for VOSBs or SDVOSBs when a contracting officer had a reasonable expectation that he will receive offers from two or more qualified VOSBs at fair market prices) still applies.

In the case at issue, the VA had decided to procure eyewear products and services from an AbilityOne nonprofit for four Veterans Integrated Service Networks (“VISNs”) without performing a Rule of Two analysis. Eyewear products and services for VISNs 2 and 7 were added to the AbilityOne Procurement List before 2010. VISNs 6 and 8 were added to the AbilityOne Procurement List after 2010. In its protest PDS, a SDVOSB, argued based on the plain language of the Veteran Benefits Act (“VBA”) and the broad reading to the language of the VBA given by the Supreme Court in Kingdomware, that the VA’s decision to continue to enter into new purchasing agreements for eyewear products and services with AbilityOne nonprofits for VISNs 2, 6, 7 and 8 before performing a Rule of Two analysis was inconsistent with the VA’s obligations under the VBA. PDS argued in its bid protest that before the VA could continue to procure eyewear products and services through new agreements with AbilityOne nonprofits for VISNs 2, 6, 7 and 8, the VA had to first apply the Rule of Two to see if the opportunity should be a VOSB/SDVOSB set-aside.

The court entered judgment in favor of PDS and denied the government and the AbilityOne contractor’s (Wilson-Salem Industries for the Blind, Inc., DBA “IFB”) motion for judgment upon the administrative record on June 30, 2017. Before fashioning injunctive relief, the court learned that a bridge contract with IFB for VISN 2 was set to expire on September 30, 2017 and that the Blanket Purchase Agreement with IFB for VISN 7 would expire in July 2017, but that there were several option periods available under the agreement with IFB for VISN 7. In its judgment, the CoFC stated that the VA would be required to perform a Rule of Two analysis with regard to VISN 2 before the bridge contract with IFB expired on September 30, 2017. With regard to VISN 7, the court determined that the VA would be required to perform a Rule of Two analysis before December 2017, and, if the Rule of Two is satisfied, award a contract before January 31, 2018.

With a reported 52 jobs and $15.4 million in avenue revenue on the line, IFB filed an appeal before the U.S. Appeals Court of the Federal Circuit on July 31, 2017. It then asked the CoFC to stay its decision, meaning that the VA may not procure eyewear products or services in VISN 2 or 7 outside of the AbilityOne Procurement List until the appeal is resolved. As this motion was granted on September 1, this means that so long as the appeal is up in the air, IFB’s jobs and revenue from the contracts at issue are protected. Also, the VA may extend its contract as permissible under option years.

It’s as if PDS has won an Olympic medal but doesn’t yet get the glory because a competitor cried foul. Until the referees are done recalculating and reevaluating, second place keeps the trophy cup for now.

For further updates on this case, stay tuned to this blog. If you’re not signed up, you can do so at https://legalmeetspractical.com. Please check the link sent to your email to activate your subscription!

Last week, I had the pleasure of presenting at the National Veteran Small Business Coalition’s annual conference in Norfolk, Virginia. For those of you not familiar with the Coalition, and especially if you’re in the northern Virginia area, consider looking into the conference – every year, it provides an opportunity for veteran business owners to network with prospective teaming partners and procurement officials.

Because I’ve been busy with conference preparations, I’ve missed a blog or two. Accordingly, in a nutshell, here are a few major items of veteran business news you should know:

It’s (Court) Official: SDVOSBs Trump AbilityOne at VA! According to the U.S. Court of Federal Claims, The VA cannot buy products or services using the AbilityOne List without first applying the “rule of two” and determining whether qualified SDVOSBs and VOSBs are available to bid. In other words, SDVOSBs take precedence over those on the AbilityOne List.

The Court’s decision involved an apparent conflict between two statutes: the Javits-Wagner-O’Day Act, or JWOD, and the Veterans Benefits, Health Care, and Information Technology Act of 2006, or VBA. The VBA states that (with very limited exceptions), the VA must procure goods and services from SDVOSBs and VOSBs when the contracting officer has a reasonable expectation of receiving offers from two or more qualified veteran-owned companies at fair market prices.  The JWOD predates the VBA and provides that government agencies, including the VA, must purpose certain products and services from designated non-profits that employ blind and otherwise severely disabled people (on the “AbilityOne List”).  While after Kingdomware, there was confusion as to which statute took preference – JWOD or VBA – a bid protest filed by SDVOSB contractor, PDS Consultants, Inc., has finally resolved this issue in favor of veteran-owned businesses.

Do You Know How to Properly Calculate Your Size? As small business contractors know, size is determined by looking at receipts over the last three fiscal tax years. Notice there’s a period at the end of this sentence. You cannot manipulate your size by delaying filing your last fiscal year’s tax returns, which was confirmed by a recent Small Business Administration Office of Hearings and Appeals decision. There, it took a federal agency over two years to award a contract to a firm that had self-certified as “small” at the time it submitted its offer, and, upon a size protest, the SBA area office asked the firm to produce its tax return for 2013 even though these had not yet been filed at the time of its 2014 offer. The SBA OHA confirmed that this request was proper and that the awardee’s size should have been calculated by referring to its 2011, 2012 and 2013 tax returns (i.e., the last three years prior to its offer).

Pay Attention to Limitations on Subcontracting Changes. A year ago, the SBA published a rule holding that the new standard for compliance with the limitations on subcontracting requirements is the amount paid by the government, not the cost of personnel (fully burdened direct labor rate). Also, in July of 2016, the VA issued a memorandum noting that from now on, it would be applying the SBA’s new rule (amount paid, not cost of personnel), and would later amend the VAAR to reflect this.

I am finding that many VA contracting officers do not know about this change or the class deviation. As such, if you are pursuing a VA SDVOSB set-aside contract, check to make sure the right clause is being applied. Especially in contracts where the cost of equipment is significant, it is entirely possible to be compliant under one clause but not another. And you don’t want to fall on the wrong side.

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

When you think of the paperwork necessary to have your disability compensation claim granted by the U.S. Department of Veterans Affairs, you might not think that creativity can come in handy. What matters is adhering to deadlines, responding to the VA’s boilerplate correspondence, making sure the VA has all of your medical records in its possession, and showing up for VA-scheduled medical examinations.

Sometimes, however, creativity can help. This week, I was reminded of this when I attended an online continuing legal education course, hosted by an attorney named Eric Gang of Gang and Associates, LLC.

Mr. Gang told a story about a Vietnam war veteran he’d assisted with his disability claim for hearing loss. In that case, the Vietnam veteran didn’t have evidence of injury causing hearing loss during his service (his records were lost in the fire at the National Personnel Records Center). Accordingly, the VA was having an issue finding the “service-connected injury” prong of entitlement.

Get this – Mr. Gang established the veteran’s injury during service by submitting love letters. That’s right, love letters to the veteran’s then-girlfriend, to whom he has now been married for over half a century. While in Vietnam, he wrote her letters where he complained about the loud sounds from active warfare. These were submitted to the VA to demonstrate the in-service injury – consistent gunfire and booms and explosions that hurt his ears and ultimately caused hearing loss.

This tactic is similar to ones I’ve used in disability claims. For instance, when I helped my father with his claim, I tracked down Army buddies from Germany for detailed accounts of how he was injured. These were not in his files, because as I am sure many readers of this blog can understand, military men often don’t complain. They don’t go to go to sick bay to report a bad back or a hurt knee – they grin and bear it.

If you have a piece missing from your disability compensation claim, consider getting creative. The examples above show how thinking out of the box can demonstrate in-service injuries, but there are other gaps to be filled by creativity. For instance, in the Vietnam veteran example above, what if he not only didn’t have evidence of injury, but he hadn’t gone to the doctor for twenty years after being discharged? To show the nexus between the injury and the current disability, the veteran could submit lay witness (non-expert) statements of family members and friends describing what his hearing was like before, and after, his service, providing specific examples and dates.

These individuals are not medical experts, but they don’t have to be if they’re testifying to facts that are readily observable by a layperson (i.e., they can’t say, “I know he had hearing loss,” but they can say “he asked me to repeat myself,” “he watched T.V. at such a loud volume that the neighbor complained about the noise,” etc). It would just need to be clear that the statements are being offered to show personal observations, and not to provide expert medical opinions.

In addition to filling gaps, lay witness statements can help make the VA provide a veteran with a disability exam. This is part of the VA’s duty to assist. If credible lay witness statements show that a veteran may have a current disability, that won’t be enough to make the VA pay up, but it will trigger the VA’s duty to have an examiner weigh in on the subject.

Being creative has its merits. And that applies to VA disability claims, too.

*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran’s issues at: https://legalmeetspractical.com. Also, if you’d like to check out Sarah’s creativity outside of the legal sphere, check out her middle grade debut, Monsterville: A Lissa Black Production, here. (Sarah is a writer for children ages 8-12).

**Sarah is not currently accepting new VA disability compensation claim clients. The information presented in this blog is for informational purposes only and is not legal advice. Every VA disability compensation claim is different and entitlement hinges upon the facts and circumstances of each case.

What’s the point in a victory if the other party refuses to admit they’re beat?

Recently, service-disabled veteran-owned small businesses (“SDVOSBs”) across the country are asking themselves that same question. Even though Kingdomware Technologies, Inc, a small business located in Waldorf, Maryland, spent years bravely acting as the representative of SDOVSBs in challenging the VA’s refusal to put veterans first in its issuance of set-aside contracts off the Federal Supply Schedule – sparring with the VA at the Government Accountability Office, the U.S. Court of Federal Claims, a U.S. District Court, and finally the U.S. Supreme Court – the VA has been attempting to find ways to wriggle out of its mandate ever since the Supreme Court handed down its unanimous decision last summer.

In a nutshell, the Supreme Court held that the VA is mandated to set aside certain contracts for veteran-owned small businesses (“VOSBs”) when “procuring goods and services pursuant to a contracting preference under [Title 38] or any other provision of law.” Known as the “Rule of Two,” this mandatory preference applies if the solicitation’s contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers the best value to the U.S. (38 U.S.C. § 8127(d)).

Since this ruling, I have not heard from veteran owners who have been leveraging the opportunities landed by this development. Instead, I have heard from veteran owners who have experienced the VA not following it. Veteran business organizations maintain that the VA policy memorandum issued to implement Kingdomware misinterprets the Supreme Court’s decision. They also report many instances of the VA attempting to skirt the decision’s requirements. This includes by:

• Procuring open market medical surgical items and industrial supplies from large business prime contractors without regard to VETS First.
• Contracting using strategic sourcing, to the detriment of veterans in the office products industry.
• Placing Ability One vendors above veteran-owned small businesses (In fact, there is  a U.S. Court of Federal Claims pending with this accusation).
• Sending requirements to other agencies to contract for VA.

The VA’s mission is “to fulfill President Lincoln’s promise: To care for him who shall have borne the battle, and for his widow, and his orphan ‘by serving and honoring the men and women who are America’s Veterans.'” The VA’s Office of Small and Disadvantaged Business Utilization’s (OSDBU) mission is to: “enable Veterans to gain access to economic opportunity by leveraging the federal procurement system and expanding participation of procurement-ready small businesses.”

If you are a veteran business owner competing in the federal marketplace, what do you think? Have you encountered issues with the VA circumventing Kingdomware? (Any comment made can be made anonymously, or with a handle – merely request it when you submit your comment). Also, if you’re interested in joining the D.C.-based National Veteran Small Business Coalition’s fight to shame the VA into following the Kingdomware mandate, you can access more information here.

As a procurement attorney and SDVOSB advocate, I find it necessary to note this: while I have heard many complaints about violations of Kingdomware, I have not heard from one business that is willing to stamp its name on a public declaration of the VA’s dereliction of duty. I understand – you fear retaliation, you fear the cost, and you don’t want to be “that guy.” But if everyone takes that stance, doesn’t that mean the VA will get its way?

We can’t let the Kingdomware ruling mean nothing. It’s too important for our nation’s veteran business owners.

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

Not even a U.S. Supreme Court decision will make the VA bow to the king.

Have you ever been trapped in a nightmare where you run, and run, yet you always end up in the same place, with the same monster chasing you? Well, lately, that’s the exact situation of many veteran business owners, only that monster has a face – it is the VA’s Center for Verification and Evaluation, which has recently undergone a series of changes to effectively render the process a nightmare for all veterans who want to do set-aside business with the VA: long delays, redundant record requests, and vague citations to laws that do not exist to justify invasive and non-sensical requirements.

As an initial note to this blog, please comment if you have an anecdote to share about the new system. Perhaps, if enough folks chime in, the VA and OSBDU Executive Director Tom Leney might begin to recognize that this new piecemeal system needs to be scrapped. I can make your comment anonymous – just include a line with the request. 

Once upon a time, the CVE’s verification process was improving. It really was. There were a few snags, but it wasn’t the nightmare it now is. That nightmare is best illustrated by a case example representative of the process generally.* I am even being charitable here, as the example comes from a company wholly-owned by two service-disabled veterans with no outside employment, which has been reverified on multiple occasions (“Company”). Of all applicants, these folks should have encountered the least amount of trouble. Yet, here is what has happened so far:

• Early January – Company submits VetBiz reverification application.
• Mid-March – After ten weeks (the current wait time), CVE sends Company a boilerplate document called a “Pre-Application Questionnaire” that asks a series of eligibility questions. It makes no sense that this is a “Pre-Application Questionnaire,” given that the application is already submitted; also, since the questions bear on eligibility, wouldn’t it be a better use of everyone’s time for companies to complete this prior to submitting an application and wasting time if the company is ineligible? Still, Company complies and submits answers.
• Mid-March – As the Company’s representative, I call the CVE to check status, advising that the Company’s verification period is expiring shortly and that they wish to bid on a VA set-aside contract after that date. Their examiner advises me that the documentation is “perfect” and she is not expecting any requests.
• Late March – After radio silence, we receive a document request for at least six documents, which we comply with immediately.
• Early April – The CVE asks for more documentation. Almost all of this documentation is necessitated only by the fact that the CVE has taken over three months to process the application and therefore it is now out of date. Whether a document is “current” is supposed to be determined as of the date of the application. Effectively, the CVE is penalizing the Company for its own delays; however, the Company has no choice but to comply.
• Mid-April – The Company receives a request stating: “Due to new Federal Regulations, amendments to Operating Agreements must be within the Operating Agreement itself. . .This Operating Agreement must reflect the current date.”  First, I called the CVE and a manager confirmed that there is no “federal regulation;” this new requirement is an arbitrary CVE requirement. Second, state law generally does not require amendments to be effected this way, but the CVE is now making this company re-do their entire operating agreement to comply with its own arbitrary and random requirement. Third, by requiring the operating agreement to reflect the current date, this compromises company actions/changes because the date will be different than that of the actual effective date of the amendment. Fourth, this creates more work for the Company because it is forced to rewrite corporate documents that are perfectly good in the first place.

So, that’s where we are. An utter nightmare, and it appears all due to the system “improvements” effected in September/October of 2016. You will note that none of the above is specific to Company – these are generic issues everyone will encounter.

As an attorney who deals with many applications and VetBiz issues, I am baffled – yes, I am extremely frustrated for myself and veteran business owners who are battling the system (and note – this should not be a battle!), but also for the poor CVE examiners who are given convoluted, inconsistent, unproductive, and incorrect guidance to process applications for inclusion in the VA’s Veterans First Contracting Program. How is it that it was getting better several years ago, and now such huge steps backward have been taken?

The current status of every CVE examiner and veteran applicant due to system “improvements.”

It looks like we’re all stuck in the nightmare. So, how do we get out? Perhaps Executive Director, Tom Leney, might want to chime in here. After all, I understand he implemented the new system. And remember, Mr. Leney, when you attended my VetBiz presentation during a conference? You stood up and stated that the entirety of the content was accurate. I don’t want want to fight you. After all, both of our missions is to help veteran business owners. Right?

“No, Mr. Leney! I don’t want to fight you!”

*”Company,” while anonymous, approved the telling of its nightmarish tale.

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