Legal Meets Practical: Accessible Solutions

Archive for the ‘Uncategorized’ Category

VA Won’t Bow to the King(domware Decision)

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: http://www.legalmeetspractical.com.

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

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

 

Are You In This VA Nightmare Too?

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.

Monster

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 due to system "improvements."

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!"

“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: http://www.legalmeetspractical.com.

Careful Examination of the CVE’s Gift Horse

As you may know, the VA’s Center for Verification and Evaluation (“CVE”), which deems firms to be service-disabled veteran-owned small businesses (“SDVOSBs”) or veteran-owned small businesses (“VOSBs”) for purposes of competing for set-aside contracts issued by the VA, recently announced that it’s implementing a three-year verification rule. It’s simple: March 21 and beyond, get in the program, get three years instead of two.

Now, however, the CVE has announced that everyone already in VetBiz gets the three years. If you check out your profile, the expiration date isn’t a mistake – you’ve been extended for another year.

Not to look a gift horse in the mouth, but this change is likely due to the CVE drowning in the backlog created by its new, convoluted and inefficient process that was implemented in September. (The CVE claims the backlog is due to the Kingdomware decision, but how many companies can really have jumped on the bandwagon after that? Most companies affected are already in VetBiz. And at any rate, shouldn’t the CVE have increased the number of examiners and taken reasonable measures to deal with an influx?).

If you are listed in the VetBiz registry, here is what you should know, based on your verification status:

  1. If you have submitted your reverification application but no one has contacted you yet (i.e., you have not yet been assigned an examiner), you don’t need to do anything. You will be administratively withdrawn and an extra year applied to your verification. (Just make sure you check your profile to confirm the new date).
  2. If you have submitted your reverification application and a case analyst has contacted you, you may go through the reverification process and receive your new three-year period. However, if you don’t feel like putting yourself through the trouble right now, you can withdraw and take advantage of having another year.
  3. If you are in VetBiz and are not yet up for reverification, your verification period has been extended for another year.
  4. If you have applied for VetBiz for the first time, you will be verified for three years assuming your application is successful.

Here is the VA’s publication on the new three-year period. (Interestingly, while this affects every single business in VetBiz, it is my understanding that no email will be sent out to alert business owners). If you have thoughts on the new three-year period or comments to share about your experience with the CVE (especially if you have encountered the new process, post September 2016), please comment below. Upon request, I am happy to make your comment anonymous or to substitute your name with a handle.

Thanks for reading, and I’ll continue to keep you posted with further changes that affect veteran-owned businesses!

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

gift_horse

VA News in a Flash

I’m sure we’re all busy this Friday, so here are three VA-related news items. In the interest of brevity (despite my lawyer status), they’re all 100 words or less!

Firms VetBiz-Verified March 21st and Beyond Get THREE Years! If you’re waiting for approval of your VetBiz application, you should hope that the VA holds off for a few days. Any business that becomes verified or re-verified March 21 and beyond will be verified for a period of three years, not two.

It’s worth asking whether this change is a quick fix to appease veteran business owners who are frustrated at more substantive problems: the CVE’s requesting of invasive, irrelevant documents, 0877 headaches, long delays, and abrasive examiners (There are pleasant ones, too). These issues that have been called to the CVE’s attention many times, but no changes have been effected.

VA Institutes New Pre-Need Burial Program. A new VA program allows veterans, spouses and unmarried dependent adult children to prepare for burial in a VA national cemetery prior to the time of need. Interested individuals may submit VA Form 40-10007 Application for Pre-Need Determination of Eligibility for Burial in a VA National Cemetery, along with a copy of supporting documentation of military service such as a DD214, if readily available, by: toll-free fax at 1-855-840-8299; email to Eligibility.PreNeed@va.gov; or mail to the National Cemetery Scheduling Office, P.O. Box 510543, St. Louis, MO 63151.

VETS 17 Is In Three Months! The National Veteran Small Business Coalition (NVSBC) is an extremely constructive, professional, and well-organized veteran business advocacy group that has done much to protect veterans’ interests in the federal contract arena. The NVSBC’s annual conference is set for June 12-14 in Norfolk, Virginia. Attendees will network with prospective teaming partners and procurement officials, attend training sessions (I’m presenting on VetBiz), and learn about navigating government contracts. Especially valuable for start-ups and businesses newer to the federal contracting arena, early bird registration ends March 31. Learn more here.

That’s it! Happy weekend to all!

calvin

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

Is This PTSD Treatment Method Legal In Your State?

As many of you know, numerous states already allow veterans who suffer from post-traumatic stress disorder (“PTSD”) access to medical marijuana. Currently, twenty states (including Guam and Puerto Rico) permit medical marijuana to be used to treat PTSD. These include the following:

  • Arizona
  • Arkansas
  • California
  • Connecticut
  • Delaware
  • Florida
  • Hawaii
  • Illinois
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Montana
  • Nevada
  • New Jersey
  • New Mexico
  • North Dakota
  • Ohio
  • Oregon
  • Pennsylvania
  • Rhode Island
  • Washington, D.C.
  • Puerto Rico
  • Guam

In addition to these states, other states are beginning to recognize medical marijuana as a legitimate means of treating PTSD. For example, laws to allow usage are in the works in Colorado, Georgia, and New Mexico. If you are a veteran or a family member who believes medical marijuana may be a viable method of treating PTSD (or if you have strong feelings against it), it may be worth looking into whether this is an item on the legislative agenda.

Furthermore, if you are an active military member, know that using medical marijuana may not be an option even if it is legal in your state. This because the military still considers marijuana a controlled substance. Someone in active duty caught using the drug could be punished and in most cases, processed for separation from the military. For someone who is not on active duty, it could still result in a discharge, which could close the door for future benefits and career options.

To be frank, medical marijuana for PTSD treatment is not an issue I have followed. I do, however, know that many have strong opinions one way or the other – some who say that it amounts to “self medication” (such as alcohol), and some who believe that it as viable a treatment method as a pill prescription. With 20 states already having signed legislation legalizing medical marijuana as treatment for PTSD, more will likely follow in the next few years.

If you’re interested in learning more about this subject – current state-based legislation, benefits and drawbacks, legal issues, etc., find a great resource here. And, as always, if you have opinions on this subject or know of further resources, please feel free to comment.

Lively discourse is, of course, legal everywhere.

*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.

 

New CVE Rule Tries to Keep It Simple

As many of you may have heard, the VA’s Center for Verification and Evaluation (“CVE”) is considering an interim final rule to require firms to go through the VetBiz verification process every three years, not two. (Verification is necessary for firms interested in competing for SDVOSB or VOSB set-aside contracts issued by the VA). This is a welcome change for many, simply because the verification process is tedious and cumbersome, and it’s obviously preferable to be spared from it for an extra year.

The VA gave the following reason for the change:

“This change is appropriate because VA conducts a robust examination of personal and company documentation to verify ownership and control by Veterans of applicant businesses. In addition to verifying individual owners’ service- disabled veteran status or veteran status, in accordance with 38 CFR 74.20(b), VA reviews an applicant’s: [lists the required documentation]. Given the depth of this review, annual or biennial re-verification examinations have become an unnecessary administrative burden on both applicants/participants and VA.”

I’m all for simplifying the VA’s verification process, which has gone sharply downhill over the last few months due to new processes. However, I don’t believe this rule should apply to newly-formed companies that obtain verified status shortly thereafter. Requiring these companies to go through re-verification every two years provides a needed check, as firms can go through considerable changes during that time period. This is especially true for start-up firms that speed through the verification process due to the fact that they have very little documentation to provide. After they are verified and begin building their infrastructure and performing contracts, that’s when eligibility issues arise. As such, to permit those firms to remain verified for three years undermines the integrity of the program. It also puts those firms at risk, as the verification process provides an official audit of their eligibility for the set-aside contracts they depend upon for financial viability. (As such, if anything is wrong, it can be pointed out and corrected during the verification process). Accordingly, I believe the three-year rule should only apply to firms that have already been re-verified once.

If the VA wants to simplify the verification process, how about doing away with requesting tax returns? Not only is that requirement invasive, but especially for the non-veteran business owner it is complexly irrelevant. Why on earth does the CVE need the non-veteran business owner’s spouse’s W2? The CVE states that the tax return is necessary to see where the business owners are receiving their revenue, but how is that really relevant? A business should not have to withdraw because the veteran can’t find the W2 that shows he earns $3K a year as a referee for a high school basketball team. Nor should it have to withdraw because the non-veteran’s spouse holds her W2 hostage (which, ironically, undermines the “control” the VA is so concerned with the veteran having).

What do you think? How can the CVE simplify its process? Also, if you want to comment on the new three-year rule, the VA is accepting comments through April 24. Go here for specific instructions for submitting a comment.

*If you found this article informative, sign up for Sarah Schauerte’s legal blog at: http://www.legalmeetspractical.com.

 

Trump’s Pick for VA Secretary: Who Is This Guy?

If you caught my blog last week, you learned that on January 11, President elect Donald Trump announced his intention to nominate Dr. David Shulkin to be VA Secretary. Here are the top ten things you need to know about Dr. Shulkin and his appointment to this important position:

  1. Dr. Shulkin currently serves as the Undersecretary for Health at the VA, a position he has held since July of 2015. The Undersecretary is the highest official directly responsible for the Veterans Health Administration.
  2. When Dr. Shulkin took over as Undersecretary, these were his top five priorities: Fix access; staff and physician engagement; consistency of best practices and resource prioritization; development of a high performance network; and restore trust and confidence. Of these, he expressed that restoring trust and confidence was the most important.
  3. A practicing physician, Dr. Shulkin continues to see patients despite his role as Undersecretary.
  4. The following is his biography in a nutshell: numerous chief executive roles in medical facilities and organizations; numerous physician leadership roles including the Chief Medical Officer of the University of Pennsylvania Health System, the Hospital of the University of Pennsylvania, Temple University Hospital, and the Medical College of Pennsylvania Hospital; numerous academic positions including the Chairman of Medicine and Vice Dean at Drexel University School of Medicine. The question, of course, is whether these roles prepare him for his biggest one yet: to lead our embattled and beleaguered VA.
  5. Unlike every previous VA Secretary, Dr. Shulkin is not a veteran.
  6. Dr. Shulkin has said that his number one priority as Secretary will be increasing veteran access to health care.
  7. Dr. Shulkin has mentioned the need to apply “best practices from the private sector” to the VA.
  8. Dr. Shulkin oversaw increased use of private care outside VA with mixed results. As Undersecretary, Dr. Shulkin has nearly doubled the amount of health care that veterans receive through private doctors. But he has also rejected calls for broader privatization, saying that it would cost untold billions and undermine the hospital system — a stance that puts him at odds with President Trump.
  9. Dr. Shulkin has not spoken in detail on his intentions to implement/follow the Kingdomware decision as it relates to the Veterans First Program.
  10. In the weeks to come, the Senate Committee on Veterans Affairs will hold a hearing on Dr. Shulkin’s nomination.

The VA needs process improvement, and I have the hope that Dr. Shulkin can bring this to our embattled VA. However, consider the red tape and broken system he faces – even the best pick for Secretary has struggles ahead.

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

Will Trumps pick for VA Secretary make us happy?

Will Trump’s pick for VA Secretary make us happy?

 

Or happy?

Or unhappy? Time will tell. . .

VA News Every Veteran Should Know

What’s happened this week, in the world of the U.S. Department of Veterans Affairs (“VA”)? Quite a bit, actually. Read more to find out. . .

2017 NDAA May Render VetBiz-Verified Firms Ineligible for Veterans First Contracting Program.

This is certainly worth mentioning to veteran business owners, yet I have not seen any buzz on this yet. Among other changes to federal contracting rules applicable to veteran-owned small businesses, the 2017 NDAA (which President Obama signed into law on December 23) effectively prevents the VA from developing its own regulations to determine whether a company is a veteran-owned business. Basically, to ensure uniformity between the SBA’s and the VA’s programs, the VA will be required to use regulations developed by the SBA that relate to ownership, control, and size status of an SDVOSB or a VOSB.

Currently a notable difference between the SBA’s and the VA’s rules is the VA’s allowance of businesses to include “right of first refusal” provisions in corporate documents without running afoul of the ownership requirements set forth at 38 CFR 74.3 (the requirements that apply to the VA’s set-aside program). This is because 38 CFR 74.3 expands on the definition of “unconditional ownership,” allowing a business to utilize “normal commercial practices” without violating the requirement that a veteran unconditionally own his share of the business.

In contrast, the SBA’s rules at 13 CFR 125.9 do not contain this additional language, and therefore a “right of first refusal” provision in corporate documents would not pass muster with any agency other than the VA. (For a great case that analyzes the difference between the VA’s and the SBA’s treatment of the right of first refusal, check out a prior blog of mine). As such, with the requirement that the VA adopt the SBA’s provisions, businesses that were approved for the VetBiz program will suddenly be ineligible.

How will this logistically pan out? There is no way the VA’s Center for Verification and Evaluation will take another look at every single firm’s corporate documents, searching for the offending provision. Likely, businesses will run out the remainder of their two-year verification period (so long as they aren’t protested, and the issue discovered that way), and then encounter an issue upon reverification.

For those of you who will be affected by this, don’t panic. It might not even happen, and if it does, it will be well over a year from now, given that we’re relying on the government to implement these changes. The 2017 NDAA provides that the SBA and VA “shall issue guidance” pertaining to these matters within 180 days of the enactment of the 2017 NDAA. From there, public comment will be accepted and final rules eventually announced. As such, if you have something to say about this, make sure you comment on the rule changes.

Trump Appoints VA Secretary.  On January 11, President-elect Donald Trump appointed Philadelphia-based physician, David Shulkin, to run the embattled U.S. Department of Veterans Affairs as Secretary. As the current undersecretary of health for the VA, Shulkin is responsible for the health care of nearly 8.8 million vets. He commands 168 medical centers and 1,600 clinics from Philadelphia to the Philippines, and oversees a $68.6 billion budget. Prior to this position – which he has held for 18 months – Shulkin worked in the private sector. He spent more than a decade in hospital management in Philadelphia, serving as chief medical officer at the University of Pennsylvania Health System, Medical College of Pennsylvania, and Temple University Hospital.

Veteran Pens Military Science Fiction Novel.  With the help of his wife, a veteran infantry sergeant with the 101st Airborne Division and later the 28th Infantry Division has penned his first (and second) novels – these are military science fiction novels set in the world of the bestselling series, The Human Legion. Writing under a pseudonym, Virginia resident J.R. Handley draws from his combat and military experience to bring the world a fast-paced read that does justice to the original series. Both books – The Legion Awakens (Volume One) and Fortress Beta City (Volume Two) – are available on Amazon.com.

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

This week, President-elect Donald Trump appointed David Shulkin as VA Secretary.

This week, President-elect Donald Trump appointed David Shulkin as VA Secretary.

Nightmare Before Xmas: VA Tales

I’m back, everyone! And I have to apologize – for those of you who read my blog regularly (for which I thank you), you’ll note there hasn’t been one for some time. I have a good excuse, however – on November 2, my husband and I welcomed our first child, a daughter we named Brooke Avery. Our little Bean is doing very well, my parents are safely back home in the St. Louis area, and we’re learning all sorts of tricks as new parents (For example, did you know there is something called gripe water?).

img_4969

Also, as mentioned, I recently released my debut novel for kids (NOT self-published), and have been busy promoting it. (I’ve been far, far less busy with this compared with caring for my new tiny human!). If you have any kid or grandkid that would be interested in a book for ages 8 to 12 likened to Jumanji but where the players go into the board to outsmart monsters (instead of safari animals), you can check it out here.

monsterville_cover

Since I realize that I’ve missed several weeks of the blog due to these recent developments, I’ve decided to share three VA-related anecdotes with you. Unfortunately, none are filled with quite the cheer that should be characteristic of this season:

  • First, is anyone going through verification or reverification with the CVE? If you are, you know there are a number of changes with the CVE that have made the process a lot more difficult. One, because of the Kingdomware case, a lot of businesses looking to jump on that bandwagon have applied for verification. This influx has resulted in much longer wait times. Two, if you need to re-set your password, just call the CVE at (866) 584-2344 rather than waste time on the website. (The account screen will say it has sent you a new password, but it hasn’t. And won’t.). Do it before 6:00 PM – while the website says the Help Desk hours are until 8:00 PM, that’s an error that hasn’t been corrected for several months. (And please be nice to the poor folks at the Help Desk – account glitches and incorrect website information is not their fault). Three, the CVE is trying out a new process where it attempts to “personalize” applications. This involves a welcome call to veterans (I won’t go into details, but this call has little value), and the assignment of applications to a specific case manager. It can take almost a month for this assignment to occur and for the first document request to go out. And for the record, an application is “complete” – and the CVE’s 60 days to process an application starts ticking – after the applicant has thoroughly responded to that first document request. This can be a full month and a half after one first hits “submit.”
  • Second, Representative Jeff Miller (Florida), who is leaving Congress and his post of chairman of the House Committee on Veterans Affairs, is reportedly one of President-elect Donald Trump’s top picks for VA Secretary. An insider into the woes of the VA and some of the actual solutions to fix the broken system, Miller would be an excellent choice (though one disadvantage cited is he is not a veteran). You can read his interview with USA Today about potentially taking the post here. Other rumored candidates include Sarah Palin, Massachusetts Senator Scott Brown, Texas Governor Rick Perry, and 2012 Presidential nominee Mitt Romney. While Miller is not recognized as the front-runner, we can only hope that Trump will eventually realize the value he offers to the position.
  • Third, in early December, the VA released reports on VA hospital ratings. If possible, some of you may want to consider traveling for better health care. The documents show that Denver’s VA Eastern Colorado Health Care System was given two stars out of five, and the Grand Junction VA Medical Center (Colorado) was given three. Many of the lowest-performing centers were centered in Texas and Tennessee: the Dallas, El Paso, Nashville, Memphis and Murfreesboro centers all received one-star ratings in the second quarter of 2016. The much-discussed Phoenix VA also received one star. Meanwhile, many centers situated in the Northeast and Upper Midwest received five-star ratings.
A Nightmare Before Christmas. . . But surely next week there can be a positive story about the VA? Suggestions are always welcome.

A Nightmare Before Christmas. . . But surely next week there can be a positive story about the VA? Suggestions are always welcome.

There you have it – three stories, and more to come next week. I have some catching up to do!

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

GAO Protests: Will You Get Your Money Back?

 

As a government contractor, at one point or another you’ve probably encountered a bid protest. Maybe you missed out on an award and felt that the Government didn’t properly apply the terms of the solicitation. Maybe someone protested your socioeconomic status (such as if the contract was an SDVOSB set-aside). Or maybe you protested someone you suspected was ineligible.

Overall, protests are not fun. No one wants to be involved in one. They are, however, sometimes necessary, which is unfortunate given the time and money it would save if the government always properly evaluated proposals and only awarded contracts to eligible contractors.

One question I get a lot as a procurement law attorney is whether someone who brings a bid protest at the Government Accountability Office (“GAO”) can recover filing costs if they prevail. After all, if the government errs in evaluating a proposal, resulting in the time, stress, and money required to hire an attorney to pursue a contract, why should the contractor be penalized?

Long story short, the answer is a protestor is usually out the costs of protesting to the GAO. The bar is high, because the protestor has to show two things: one, that the protest was “clearly meritorious;” and two, that the agency unduly delayed in taking corrective action to remedy its mistake.

In other words, it’s not enough that source selection officials make a gross error in evaluating proposals; the contracting agency also has to drag its heels once the contractor files a protest to complain about the error.

A recent GAO decision illustrates this principle: in Cape Environmental Management, Inc., a protestor unsuccessfully attempted to recover its costs after an agency took corrective action. (B-412046.3, September 30, 2016). The GAO noted that a “clearly meritorious” protest is one where the issue is “not a close question” and the government has “no defensible legal position.” Because the GAO found that the protestor had not established this element, it didn’t reach the second element of undue delay. (As a note, there is generally no entitlement to fees if the agency takes corrective action prior to the due date of its agency report).

Basically, if you are considering protesting a lost contract to the GAO, know that it will involve a monetary investment. Absent fairly extraordinary circumstances, you won’t recover your filing fees.

As such, consider whether “going after the prize” is worth it to your business.

*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.

 

Page 4 of 23« First...«23456»1020...Last »

Mission Statement

My mission is to provide accessible, high-quality legal services to small business owners and to veterans. I will strive to clearly communicate, understand objectives, and formulate and execute effective legal solutions.

Disclaimer

No Attorney-Client Relationship

This website is maintained exclusively for informational purposes. It is not intended to provide legal or other professional advice and does not necessarily represent the opinions of the lawyer or her clients. Viewing this site, using information from it, or communicating with Sarah Schauerte through this site by email does not create an attorney-client relationship.

Non-Reliance

Online readers should not act nor decline to act, based on content from this site, without first consulting an attorney or other appropriate professional. Because the law changes frequently, this website's content may not indicate the current state of the law. Nothing on this site is meant to predict or guarantee future results. I am not liable for the use or interpretation of information contained on this website, and expressly disclaim all liability for any actions you take or fail to take, based on this website's content.

Links

I do not necessarily endorse and am not responsible for content accessed through this website's links to other Internet resources. Correctness and adequacy of information on those sites is not guaranteed, and unless otherwise stated, I am not associated with such linked sites.

Contacting Me

You may email me through the email address provided by this site, but information you send through email or this website is not secure and may not be confidential. Communications will not be treated as privileged unless I already represent you. Do not send confidential information until you have established a formal attorney-client relationship with me. Even if I represent you, please understand that email security is still uncertain and that you accept all risks of such uncertainty and potential lack of confidentiality when you send us unencrypted, sensitive, or confidential email. Email from me never constitutes an electronic signature, unless it expressly says so.