Legal Meets Practical: Accessible Solutions

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The VA’s RAMP: Is It Real Assistance?

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: http://www.legalmeetspractical.com.

VA Disclaimer: Process May Be Slower Than Object Appears.

Veteran News in Brief

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.

*Did you like this article? Stay informed on veteran business issues by signing up for Sarah Schauerte’s weekly blog at: http://www.legalmeetspractical.com. Please remember to click the link sent to your email to activate your subscription!

Hackers Divert Government Payments to Contractors on SAM.gov

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: http://www.legalmeetspractical.com.

A Soldier’s Night Before Christmas

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: 

Merry Christmas, My Friend

T’WAS THE NIGHT BEFORE CHRISTMAS,
HE LIVED ALL ALONE,
IN A ONE BEDROOM HOUSE
MADE OF PLASTER AND STONE.
I HAD COME DOWN THE CHIMNEY
WITH PRESENTS TO GIVE,
AND TO SEE JUST WHO
IN THIS HOME DID LIVE.
I LOOKED ALL ABOUT,
A STRANGE SIGHT I DID SEE,
NO TINSEL, NO PRESENTS,
NOT EVEN A TREE.
NO STOCKING BY MANTLE,
JUST BOOTS FILLED WITH SAND,
ON THE WALL HUNG PICTURES
OF FAR DISTANT LANDS.
WITH MEDALS AND BADGES,
AWARDS OF ALL KINDS,
A SOBER THOUGHT
CAME THROUGH MY MIND.
FOR THIS HOUSE WAS DIFFERENT,
IT WAS DARK AND DREARY,
I FOUND THE HOME OF A SOLDIER,
ONCE I COULD SEE CLEARLY.
THE SOLDIER LAY SLEEPING,
SILENT, ALONE,
CURLED UP ON THE FLOOR
IN THIS ONE BEDROOM HOME.
THE FACE WAS SO GENTLE,
THE ROOM IN SUCH DISORDER,
NOT HOW I PICTURED
A UNITED STATES SOLDIER.
WAS THIS THE HERO
OF WHOM I’D JUST READ?
CURLED UP ON A PONCHO,
THE FLOOR FOR A BED?
I REALIZED THE FAMILIES
THAT I SAW THIS NIGHT,
OWED THEIR LIVES TO THESE SOLDIERS
WHO WERE WILLING TO FIGHT.
SOON ROUND THE WORLD,
THE CHILDREN WOULD PLAY,
AND GROWNUPS WOULD CELEBRATE
A BRIGHT CHRISTMAS DAY.
THEY ALL ENJOYED FREEDOM
EACH MONTH OF THE YEAR,
BECAUSE OF THE SOLDIERS,
LIKE THE ONE LYING HERE.
I COULDN’T HELP WONDER
HOW MANY LAY ALONE,
ON A COLD CHRISTMAS EVE
IN A LAND FAR FROM HOME.
THE VERY THOUGHT
BROUGHT A TEAR TO MY EYE,
I DROPPED TO MY KNEES
AND STARTED TO CRY.
THE SOLDIER AWAKENED
AND I HEARD A ROUGH VOICE,
“SANTA DON’T CRY,
THIS LIFE IS MY CHOICE;
I FIGHT FOR FREEDOM,
I DON’T ASK FOR MORE,
MY LIFE IS MY GOD,
MY COUNTRY, MY CORPS.”
THE SOLDIER ROLLED OVER
AND DRIFTED TO SLEEP,
I COULDN’T CONTROL IT,
I CONTINUED TO WEEP.
I KEPT WATCH FOR HOURS,
SO SILENT AND STILL
AND WE BOTH SHIVERED
FROM THE COLD NIGHT’S CHILL.
I DIDN’T WANT TO LEAVE
ON THAT COLD, DARK, NIGHT,
THIS GUARDIAN OF HONOR
SO WILLING TO FIGHT.
THEN THE SOLDIER ROLLED OVER,
WITH A VOICE SOFT AND PURE,
WHISPERED, “CARRY ON SANTA,
IT’S CHRISTMAS DAY, ALL IS SECURE.”
ONE LOOK AT MY WATCH,
AND I KNEW HE WAS RIGHT.
“MERRY CHRISTMAS MY FRIEND,
AND TO ALL A GOOD NIGHT.”

This poem was sent to me by one of my blog followers. Because the email I received did not include the author’s name, I did a quick search and found that there have been various variations of this poem floating around over the last few decades, with different authors credited. It appears that the original version was written by a Corporal James Schmidt, whose 1986 poem first appeared in Leatherneck and was written for members of the Marines. Here is that version. The poem has also been altered to make an Army soldier or a sailor the central figure. It has touched many over the years, and will touch many in years to come if we continue to pass it on.


 

 

 

 

The VA’s Answer to Kingdomware: You Do the Work, Not Us

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 http://www.legalmeetspractical.com.

Some VA Claims Are Older Than Kindergarteners

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: http://www.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.

Proposed Rule to Allow Appeal of VetBiz Denials

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: http://www.legalmeetspractical.com.

Government: “I Don’t Have to Waste Your Time. But I Will.”

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: http://www.legalmeetspractical.com. Make sure to check the link sent to your email to activate your subscription!

 

Veteran Victory Over AbilityOne On Pause

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 http://www.legalmeetspractical.com. Please check the link sent to your email to activate your subscription!

 

VOSB Need-to-Know News

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: http://www.legalmeetspractical.com.

 

 

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