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Monsters Ate My Blog!

Since I started my legal practice nearly five years ago, I have been faithful in posting a blog on veteran issues every week. Lately, however, I have been a bit inconsistent, and since my followers have been wonderful at offering feedback and comments to the blog, I wanted to explain that I missed a week or two because my debut middle grade (for ages 8-12) novel is being released today. I have been busy with a blog tour, organizing school and library visits, and getting my next book into the hands of my literary agent. For more details on all that, visit my writing website here. Thank you for your patience in waiting for this next post!

And why the reference to monsters? That’s what the book is about (and why it makes sense that it’s a Halloween release):

monsterville_coverMonsterville is Jumanji meets Goonies, a fast-paced adventure where board games come alive and winning your life depends on applying monster movie rules of survival. 13-year-old film-obsessed Lissa discovers a shape-shifting monster in her woods and decides to film the greatest horror movie of all time. . . until her little sister is kidnapped to the monster homeland of Down Below and she needs her star’s help to rescue her.

The literary rights to Monsterville are represented by Lauren Galit of the LKG Agency, and the film rights are represented by Pouya Shahbazian of New Leaf Literary (Divergent, The Selection).

Because I’ve missed a few weeks, there are some relevant cases I’d like to share with you. Here they are, in a nutshell and with any links to the cases themselves:

In URS Federal Services, the GAO held that the Navy did not err in assigning a “technically unacceptable” rating to a proposal after an individual identified as “key personnel” resigned. B-413034 et al. (July 25, 2016). The resignation was not the contractor’s fault, but the Navy acted reasonably in downgrading the proposal since technically it affected the quality of the services offered by the contractor.

The lesson from this protest is to protect yourself from this possibility of losing key personnel. Give them an incentive to stay and/or disincentive to leave in their employment agreement. This is keeping in mind that a court won’t make someone continue to work for an employer they want to leave. They can’t be forced to perform, but a strong employee contract can either entice them to stay (such as by giving them incentive payments for supporting that particular contract); or it can compel them to (such as by assigning a monetary penalty if they resign prior to the expiration of a certain period of time or milestone).

In Bryan Concrete & Excavation, Inc., the Civilian Board of Contract Appeals (CBCA) held that an SDVOSB set-aside contract was void and unenforceable because the prime contractor had entered into an illegal “pass-through” arrangement with a non-SDVOSB subcontractor. CBCA 2882 (August 26, 2016). Because the contract was obtained by misrepresenting the concern’s eligibility for the set-aside contract, it was invalid from its inception and the contractor had no recourse against the government when it was later terminated for default.

In Matter of Jamaica Bearings Co., the appellant appealed a Small Business Administration (SBA) area office determination that it was not an eligible SDVOSB for purposes of a set-aside. A disappointed offeror had lodged a status protest, and the awardee had failed to respond to the SBA’s request for information. Consequently, the SBA area office found the awardee ineligible. Here’s the twist: the protest itself was insufficient because it contained non-specific allegations. (See 13 CFR 125.125(b)). As such, the SBA Office of Hearings and Appeals ruled that the status protest should have been dismissed at the outset for lack of specificity, and reversed the SBA area office’s determination that the awardee was ineligible.

In this case, Jamaica Bearings Co. got lucky. Yes, the SBA OHA ruled in its favor in finding that the SBA area office erred in considering the protest; however, the SBA OHA was also very clear that Jamaica Bearings Co. had no business in introducing new evidence on appeal. If the protest had been sufficient, it had missed its window for responding and would have lost out on the award. In fact, this happened to another contractor not too long ago.

Cases often offer lessons, and make sure you stay informed to stay up to date on your rights, obligations, and recourses as it relates to federal contracts.

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Veteran Business Sues VA for Violating Kingdomware Mandate

A few months ago, the U.S. 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, the VOSB community has waited with bated breath to see how the VA would implement this mandate. Not only that, but it has waited to see if the VA would try to find ways around it. According to my contacts in the veteran business community, there have been several solicitations where the VA has failed to set aside the opportunity for VOSBs, or has failed to conduct market research to see if two or more responsible VOSBs would make fair and reasonable offers. These VOSBs that have been affected, however, have been afraid to publicly challenge the VA via a bid protest due to fear of retaliation.

One VOSB, however, is boldly going where no one else will.

On August 25, PDS Consultants, Inc. (PDS), an SDVOSB headquartered in New Jersey, filed a complaint with the U.S. Court of Federal Claims (CoFC)(Case No. 16-1063C). PDS seeks review of the VA’s continued ordering of certain vision-related products from Winston-Salem Industries for the Blind (Winston-Salem) for certain Veterans Integrated Service Networks (VISNs), despite not first conducting the required Rule of Two analysis. PDS also seeks review of the recent VA Policy Memorandum that authorizes orders from Winston-Salem without first conducting a Rule of Two analysis. Further, it asks for injunctive relief ordering the VA to adhere to its guidelines and the direction from the CoFC in Angelica Textile Services, Inc. v. United States, 95 Fed. Cl. 208 (2010)(requiring that Veteran Benefits Act and related VA procedures be given priority over the Javits-Wagner-O’Day Act).

This is an important case for VOSBs across the board because it should confirm the VA’s obligation to follow the Rule of Two, as well as the preference for the Veterans First Act over the Javits-Wagner-O’Day Act. It may also provide some much-anticipated guidance on the VA’s requirement to conduct market research pursuant to the Rule of Two, as well as further elaborate on the policy memorandum the VA issued this summer to implement Kingdomware.

HOWEVER, just because there’s a lawsuit, that doesn’t mean the court will issue a substantive decision. At this point, the CoFC has issued a scheduling order indicating that a decision won’t come for several months. There is the chance that the VA will take corrective action in the interim. If this happens, the parties may settle and the case be dismissed – resulting in the CoFC not issuing the public smackdown (to use a legal term) of the VA that many veteran business owners want.

At any rate, this is the case the veteran business community has been waiting for since Kingdomware. Stay tuned. . .

A copy of the Complaint filed in the CoFC may be accessed here. Also, the VA’s policy memorandum implementing Kingdomware is here.

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PDS's case before the CoFC continues the fight to ensure the VA puts VOSBs first in contracting preferences.

PDS’s case before the CoFC continues the fight to ensure the VA puts VOSBs first in contracting preferences.


President of Zero-Rated Vet Charity Speeds Off in Rolls Royce

We know there’s a lot of veteran-related fraud out there – scams playing the “it’s for veterans!” card, folks who defraud the veterans disability compensation system, shell companies set up to take advantage veteran status on federal contracts, etc. etc. But this one might take the cake.

I warn you: if you are a veteran who cares about your blood pressure, you might not want to read further.

A few months ago, CNN outed Mr.Thomas Burch, Jr. for running National Vietnam Veterans Foundation (the “Foundation”), one of the worst-rated veteran charities in the country. The now-defunct organization was located in Washington, D.C., and was bashed by CNN for donating only $122,000 to veterans of its $8.6 million raised in 2014. That’s around two percent.

In that CNN report, the watchdog group Charity Navigator gave the Foundation zero out of four stars. According to its public tax returns, called 990s, the Foundation took in $29 million over a four-year period but nearly all of it went to telemarketers and fundraisers. In one year, the charity also paid a parking garage bill of nearly $8,000.

Maybe this went to keep Mr. Burch’s Rolls Royce safe. This car has been photographed multiple times during the media scrutiny – a beauty of a vintage vehicle with the customized license plate, “My Rolls.”

Yesterday, CNN announced that the organization has shut down. This was confirmed by an interview with its vice-president; also, the website has been removed from the Internet.

Even though it’s horrible to think of someone running an extremely profitable veterans organization that did not actually give back to veterans, for me, the kicker is how it wasn’t shut down sooner. Because – wait for it – Mr. Burch was/is also a VA attorney!

For years, Burch managed to hold concurrent employment as the highest officer in a non-profit organization for veterans, as well as a senior employee at the VA. (He is the leading Freedom of Information Act (FOIA) attorney for the VA Office of General Counsel. He is also the Deputy Director of Homeland Security and Operations at VA). In public statements, the VA claims it was not aware of Burch’s involvement with the Foundation, but did no one with the VA have access to the Internet? Surely any Google search, LinkedIn update, Facebook post, etc., would have clued anyone in.

Obviously, this implicates conflict of interest rules. By executive order of the President, an officer or employee who is appointed by the President to a full-time, non-career position in the executive branch (such as the VA) may not receive any outside earned income during that appointment. Other higher-level officials in the executive branch – that is, non-career officials who are compensated at the rate above a GS-15, are limited in their outside earned income opportunities by other provisions of the Ethics Reform Act of 1989.29. Such officials may not have outside income which exceeds 15% of the official salary earned by a level II on the Executive Schedule.

Regardless of the category Burch fits into, according to information published by CNN, he earned $65,000 in 2014 as the head of National Vietnam Veterans Foundation, while also earning $127,000 at the VA. This is well over the 15% cap provided by the Ethics Reform Act (applied to the lower-rate category). Other conflict of interest rules likely apply as well – those put in place to ensure that an individual is able to carry out the ethical and fiduciary duties of his tax-paid position.

An internal investigation, conducted by the agency’s Office of Inspector General (“OIG”), is still in progress; and for now, Mr. Burch remains on the VA’s payroll as a staff attorney.

CNN has noted that attempts to reach Burch for comment both by phone and email were unsuccessful. At one point, when a reporter attempted to speak with him at his home, he sped off in his Rolls Royce.

I’d like a Rolls Royce, too, but I’d prefer to earn it by other means.

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VA CVE Wait Times: Can Their Statistician Keep a Straight Face?

In general, I feel like I’m fairly even-handed in how I discuss the U.S. Department of Veterans’ Affairs’ (VA) Center for Verification and Evaluation (CVE), which processes applications for inclusion in the VetBiz Registry (You must be recognized as a veteran-owned business in this registry to compete for VA set-aside work). The process is still undergoing growing pains, which I understand; but it has also back-pedaled recently with some of its recent “improvements” (to include the implementation of a new bifurcated process, which unnecessarily adds a step to the process). I generally cover any update with the CVE, since a lot of my readers are veteran business owners who are listed in the CVE’s VetBiz registry and depend on VA set-aside work for their livelihood.

One topic I’ve bitten my tongue on – for some time now – is the verification statistics the VA posts on its website. Finally, I’m going to say something: in my opinion, these statistics are misrepresentations, and veteran business owners should not be putting any stock into them when seeking either verification or reverification in the VA’s VetBiz Registry. They should assume the process should take at least three months, and carve out the time accordingly. They should also completely ignore the “success rate.”

First of all, the VA is claiming that there is a 99% success rate in verification (through June 2016). This figure is not real (at all), because it does not include veterans who withdraw their applications when the CVE determines they are ineligible, rather than receive denials. Because no one in their right mind would say “sure, send me a denial letter” this means that NO ONE elects that decision, so hardly anyone receives a denial to be counted.

The only reason why the 1% denial rate exists (as opposed to 0%) is because those veterans didn’t receive the email and didn’t elect that option in time. Or maybe they were so fed up by the process that they never responded and therefore received a denial by default.

Second of all, the VA is claiming that it only takes 42 days for verification, and 31 days for reverification. Where on earth is the VA getting this estimate? Is it only counting Tuesdays and Thursdays? (As a note, the statistics don’t specify whether these are in business days or calendar days). Especially recently, I have seen applications languish in one stage for weeks, even when the application should have no issue with moving forward and/or getting approved.

The statistics homepage provides a clue as to how the VA is able to manipulate that number. It says that the clock only starts running once a “complete” application is received. That means that the business has to get through the Initiation stage, which is the first stage where the CVE checks an application for “completeness” and then moves it along to the Examination stage.

“Completeness” doesn’t mean that an application contains all the basic required documentation. It means that an application has also submitted anything else the CVE feels is necessary for it to evaluate for eligibility, which isn’t necessarily on the required documents list. The CVE can take its time getting to an application in this first stage; then, once the veteran business owner has submitted any additional information, take its time again in marking the application as “complete” and putting it in the Examination queue. Then the clock starts running. That means there can be up to an entire month unaccounted for in the processing time (perhaps more). Not only that, but the VA stops the clock every time it asks for additional documentation (until it is uploaded and submitted by the business owner).

If the CVE needs to take 80 or 90 days to process applications – which I believe is a more accurate figure – that’s understandable. It takes time to verify eligibility (which we want to be done correctly), and resources are limited. However, the CVE claims a processing time that is less than half the real figure; and it also grossly skews its approval rate by not counting the many businesses who withdraw due to frustration with document requests or eligibility issues. This misrepresents to veteran business owners what to expect during the verification process, and this runs contrary to the CVE’s goal of helping veteran business owners.

What do you think? If you have an experience to share – positive or negative – that touches on wait times (or other VetBiz issues such as document requests), please leave a comment!

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Are the statistics for VetBiz applications laughable?

Are the statistics for VA VetBiz applications laughable?

The SBA’s Universal Mentor-Protege Program & How It Can Work for You

In a final rule published in the Federal Register on July 25, 2016, the SBA provides the framework for what may be one of the most important small business programs of the last decade–one that will allow all small businesses to obtain developmental assistance from larger mentors, and form joint ventures with those mentors to pursue set-aside contracts.

The SBA’s final rule creates a new regulation, 13 C.F.R. 125.9, entitled: “What are the rules governing SBA’s small business mentor-protege program?” The new regulation sets forth the framework of the small business mentor-protege program. It also sets out the major benefit to being in a mentor-protege relationship: A protege and mentor may joint venture as a small business for any government prime contract or subcontract, provided the protege qualifies as small for the procurement. Such a joint venture may seek any type of small business contract for which the protege firm qualifies (e.g., a protege firm that qualifies as a WOSB could seek a WOSB set-aside as a joint venture with its SBA-approved mentor).

In plain English, this means that if you are a small business in a good business relationship with a larger business with complementary capabilities and strong past performance, you could team up to take advantage of your socioeconomic status on set-asides. You just need to be willing to do the dance with the SBA to get your mentor-protege relationship approved.

So. . . who can be a mentor, and who can be a protege? 

As a general matter, “[a]ny concern that demonstrates a commitment and the ability to assist small business concerns may act as a mentor and receive benefits ” from the mentor-protege program. Mentors may be large or small businesses – the key is whether they have the good financial health and character to successfully guide their proteges.

To qualify as a protege, a company “must qualify as small for the size standard corresponding to its primary NAICS code or identify that it is seeking business development assistance with respect to a secondary NAICS code and qualify as small for the size standard corresponding to that NAICS code.” However, if the prospective protege is not a small business in its primary NAICS code, “the firm must demonstrate how the mentor-protege relationship is a logical business progression for the firm and will further develop or expand current capabilities.” Further, “SBA will not approve a mentor-protege relationship in a secondary NAICS code in which the firm has no prior experience.”

What is the mentor-protege agreement?

In order to participate in the mentor-protege program, “[t]he mentor and protege firms must enter into a written agreement setting forth an assessment of the protege’s needs and providing a detailed description and timeline for the delivery of the assistance the mentor commits to provide to address those needs . . ..” The mentor-protege agreement must provide that the mentor will provide assistance to the protege for at least one year. However, the agreement must also provide “that either the protege or the mentor may terminate the agreement with 30 days advance notice to the other party . . . and to SBA.” The written mentor-protege agreement must be approved by the SBA before it takes effect. Additionally, the SBA “must approve all changes to a mentor-protege agreement in advance, and any changes made to the agreement must be provided in writing.” A single mentor-protege agreement may not exceed three years, but it may be extended for a second three years.

What is the application process? 

On October 1, 2016, the SBA will begin accepting applications for the new universal small business mentor-protege program. Applications will only be accepted through the SBA’s new portal, and it is unclear whether the SBA will choose to cap the number of applicants to the program.

Applicants are required to register in the System for Award Management (SAM) prior to creating their profile in Applicants (both prospective Protégés and Mentors) will be required to complete an online training module as part of the application process, and to upload a certificate of completion to before they are allowed to complete the application process.

The application itself will be entirely electronic, and will require that certain documents – certificate of completion for the online training module, signed Mentor-Protégé agreement(s), size determination letters, and other documents – be uploaded to, or completed in narrative form within that web portal. Although Mentors are not required to provide financial statements and tax returns during the application process, the SBA retains the right to request such documentation during the reporting and evaluation processes. For further information, go to the SBA’s website for the small business mentor-protege program.

What do you think? What kind of logistical problems do you foresee in the application process? After all, this is brand new. Also, are there any issues the SBA should consider when implementing this new program?

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As of October 1, only the SBA approves mentor-protege applications. A Federal department or agency can no longer operate its own mentor-protégé program, unless: 1) the agency submits a program plan to the SBA, and 2) receives approval of the plan within one year of the SBA’s mentor-protégé regulations finalization. (The requirement for SBA approval does not apply to DoD, which has special statutory authority to operate its own mentor-protege program).

As of October 1, only the SBA approves mentor-protege applications. Absent special statutory authority, a agency can no longer operate its own mentor-protégé program, unless: 1) the agency submits a program plan to the SBA, and 2) receives approval of the plan within one year of the SBA’s mentor-protégé regulations finalization.

Is the VA Already Defying the Supreme Court?

As we know, in late June, the U.S. Supreme Court sided with veterans in holding that in some cases, the U.S. Department of Veterans Affairs (VA) is required to set aside certain pieces of work for veteran-owned small businesses (VOSBs).

Almost immediately, the VA issued an Acquisition Policy Flash, which reiterates the Supreme Court’s major holdings: namely, that the Rule of Two applies to orders placed under the GSA Schedule, and applies even when the VA is meeting its SDVOSB and VOSB contracting goals. (As a refresher, the “Rule of Two” is that the work has to be set aside for veteran companies when there is a “reasonable expectation” that at least two such businesses will bid on the contract and “the award can be made at a fair and reasonable price that offers best value to the United States.”). The Policy Flash states that the VA “will implement the Supreme Court’s ruling in every context where the law applies.” It also instructs contracting officers to conduct robust market research to ensure compliance with the Rule of Two.

More recently, the VA issued further guidance on the implementation of the Kingdomware decision, in the form of a memorandum that describes the changes to the Veterans Affairs Acquisition Regulation (VAAR). It juxtaposes the old policies contained within the VAAR, compared with the new policies adopted due to the Supreme Court’s holding related to the Rule of Two.

Notably, the memorandum enumerates the changes to the VAAR (at 810.001-70) as it relates to the market research contracting officers must conduct in determining whether a contract should be set aside for the veteran community:

“When performing market research, contracting officers shall review the Vendor Information Pages (VIP) database at as required by subpart 819.70. The contracting officer will search the VIP database by applicable North American Industry Classification System (NAICS) codes to determine if two or more verified service-disabled veteran-owned small businesses (SDVOSBs) and veteran- owned small businesses (VOSBs), in the appropriate NAICS code, are listed as verified in the VIP database. The contracting officer will determine if identified SDVOSBs or VOSBs are capable of performing the work and likely to submit an offer/quote at a fair and reasonable price that offers best value to the Government. If so, the contracting officer shall set-aside the requirement in the contracting order of priority (see 819.7005 and 819.7006).”

This is the qualifier for whether a contract will be reserved for veterans, and if you’ll examine it closely, you’ll see this is very “soft” language. How is the contracting officer supposed to assess if the VOSBs with the corresponding NAICS codes are “capable” of performing the work? How will he know/determine if they’re capable of offering a “fair and reasonable price” that is the “best value” to the Government? How are “fair and reasonable price” and “best value” defined?

Because this is soft language, this raises the issue of whether it provides wiggle room for the VA to avoid following Kingdomware. Many veteran business owners and organizations are concerned that the VA will attempt to escape Kingdomware on a technicality, or otherwise fail to follow its precedent. After all, the VA has been fighting the precedent for over four years – first at the Government Accountability Office, then the U.S. Court of Federal Claims, then a federal district court. . . and finally the end of the line, the U.S. Supreme Court. It stands to reason that it will try to find a way around adhering to the decision.

If you as a veteran business owner have concerns with the way the new regulations are worded, or with how the VA is now implementing Kingdomware, please know that you have a voice. The National Veteran Small Business Coalition (which was involved in the decision) is collecting input relevant to Kingdomware. This includes input into the new wording of the regulations and how you have seen contracting officers implement (or not implement) Kingdomware in recent procurements. If you would like to chime in on their input to the VA, please email their executive director director, Scott Denniston, at You may also leave comments below. Help us make sure Kingdomware has the positive impact it should!

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VA VetBiz System on Hiatus in August

UPDATE: Via a release issued today (August 5), the CVE has shortened the announced “down” time by one week. According to the latest news, the system will only be on hiatus until Monday, August 15th. This is good news for those going through reverification and getting close to expiration.

For those of you who are going through the reverification or verification process to be included in the U.S. Department of Veterans Affairs’ (VA) VetBiz Registry (its database of small business contractors eligible for veteran-owned and service-disabled veteran-owned set-asides), you might want to get a move on.

Commencing at 8:00 a.m. on Thursday, August 11th, and ending at 8:00 a.m. on Monday, August 22nd, the VetBiz system will be down. During this period, firms will not have access to their profiles and the CVE will not be able to process applications. Firms will not be able to commence the reverification process or submit a change request to modify any aspect of the firm’s profile/status. Additionally, the CVE will be unable to accept new verification applications.

In a notice sent out in mid-July to firms already in the VetBiz Registry, the CVE encouraged firms whose eligibility expires before October 15, 2016 – and firms that desire to update their information – to take action as soon as possible, as the CVE will not grant any extensions of eligibility due to this temporary hiatus.

This comes at an unfortunate time, as this is the end of the Government’s fiscal year, when contract solicitations and awards increase. Also, the notice was sent out only three weeks in advance of the hiatus.

So, why the need? According to the email blast: “The VA Veterans First verification program is undergoing a transformation in response to feedback provided by Veteran-owned Small Businesses. The modifications and enhancements will result in significant changes to our application process to improve the Veteran experience as we establish “My VA Verification.””

I’m not sure if the explanation given could be more vague, but I did some digging to find out what constitutes “My VA Verification.” Apparently, the VA is changing the examination phases of the application process, now requiring firms to go through a “pre-qualification” stage before undergoing a comprehensive evaluation.

As an attorney who regularly assists with these applications, I will say I’m not too thrilled with this development. A few years ago, the CVE was making some serious headway in making the application process easier; but requiring a company to go through both “pre-qualification” and an actual examination amplifies the work and complexity for both the CVE and the firm. Also, for those who have gone through the process already, and learned from trial and error, they might not be too happy to now have to master another process.

There are good intentions here, but we’ll see about execution. If you want to take a look at My VA Verification and offer your comments below based on your experience, please chime in!

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Vets: Beware IRS Phone Scam!

While my blog’s focused on veterans, this is one issue that can affect anyone with a phone and a social security number.

Recently, scammers have taken to calling individuals under the guise of being “officers employed by the Internal Revenue Service.” Initially, not even a live person calls – even if you pick up the phone, you’re treated to a one-minute recording where you’re told to call back the number. They also threaten the following:

“The IRS has issued an arrest warrant on you. Right now, you and your physical property both are being monitored. And it’s very important that I do hear back from you as soon as possible before we proceed further in any legal matter,” the voicemail says (or some variation thereof).

There are a few things wrong with this assertion:

  1. There are no officers with the IRS who would be criminally prosecuting you. It’s not the IRS who arrests/investigates those engaged in tax fraud – it’s the U.S. Department of Justice (though investigations start with an IRS special agent).
  2. If a U.S. government agency was prosecuting you, they wouldn’t initiate the matter by calling you and leaving a voicemail.
  3. If the IRS suspected you of tax evasion/fraud, they’d send you written correspondence first.
  4. The IRS would never make the threats contained in the voicemail, such as representing it will send local law enforcement agents to your door or levy your property.

If you do get on the phone with “Officer X,” he will try to scare you into asking for personal information such as debit card information and social security numbers. Hopefully obviously, never give that kind of information to a stranger on the phone! Especially not to a Special Human like this. Honestly, now – this isn’t even a smart scam.

I received such a call today, and when I Googled “IRS phone scam,” I found that this is a very recent phenomenon. If you find yourself at the receiving end of a call like this, you can add your number on the National Do Not Call List at Also, report the details and the phone number that called you by emailing (The number that called me was 254-488-6064).

Like dealing with the IRS isn’t stressful enough. We don’t need to be dealing with an IRS phone scam, too.

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Don't give this dummy your money!

       Don’t give this dummy your money!


Vet Games VA System, Taxpayers Lose

Considering how long it takes – and how hard it can be – to make the U.S. Department of Veterans (“VA”) fork over rightfully-deserved disability benefits, this story, released via a VA press release, is mind-boggling:

On June 30th, Bruce A. Endicott, 34, pled guilty in federal court to theft of government funds, and admitted he committed the theft over a course of more than three years.

According to court records, Endicott began receiving service-connected disability benefits through the VA in 2005.

In June 2012, Endicott filed an additional claim with the VA for Individual Unemployability (“IU”) benefits, claiming he was unemployed and unable to be employed due to his service-connected disabilities that included physical and mental impairments. Endicott also submitted a statement to the VA in February 2013, that stated he had not worked within the past 12 months.

In fact, Endicott was currently working at the Oregon Department of Justice under a second social security number that he had not disclosed to the VA. Based on Endicott’s false statements and concealments, the VA awarded him additional benefits and advised him to notify the VA immediately if he became employed.

Endicott left the Oregon Department of Justice in December of 2013 and began working for the Deschutes County District Attorney’s Office. He again failed to notify the VA he was working.

After Endicott left the District Attorney’s Office in May 2014, he applied for welfare benefits through the Oregon Department of Human Services (DHS), using the second social security number and claiming to have no income. Endicott failed to disclose to DHS that he was receiving approximately $2,700 per month in VA benefits. DHS awarded him Supplemental Nutrition Assistance Program (SNAP) (formerly known as food stamps) and Temporary Assistance to Needy Family (TANF) benefits.

In February 2015, Endicott submitted a statement to the VA regarding his IU claim, in which he failed to disclose his former employment with the Deschutes County District Attorney’s Office, and asserted that he had not worked in the past 12 months. Consequently, the VA continued to pay his IU benefits.

Between June 2012 and October 2015, Endicott received approximately $47,947 in IU benefits, $5,996 in SNAP benefits, and $2,770 in TANF benefits to which he was not entitled. As a consequence of these transgressions, which were eventually discovered and prosecuted, he entered into a plea agreement stating that the government will seek a 30-day term of imprisonment. (A federal district judge will determine his actual sentence).

Notably absent from the VA’s press release is a mention of the money. If Endicott has managed to exchange 30 days in prison for this amount, this means that this is $55,000 down the drain – money that could have gone toward veterans actually entitled to service-connected compensation. This is an insulting conclusion to a saga that has surely already cost taxpayers tens of thousands of dollars in investigatory and legal process fees.

It is also a baffling one. Ask most veterans who have applied for disability benefits, and they will recount stories of years-long delays and their perception that the VA presumes they are not entitled to their benefits until they prove otherwise. So, then, how did Endicott manage to game the system?

Maybe this just came down to a technicality with the differing social security numbers. But Endicott’s game is now over, and no one won.


*Did you find this article informative? If so, sign up for Sarah Schauerte’s legal blog on veteran (and veteran small business) issues at:

Bashing the VA Will Not Fix It

Last Monday, my husband and I packed up our car (and the dog, of course, as he is the Legal Meets Practical mascot!) and headed for Norfolk for the National Veteran Small Business Coalition’s (NVSBC) annual conference (VETS 16). I spent three days not only participating in the various conference activities (and presenting on VA VetBiz verification and bid protests), but also observing the crowd and listening to the NVSBC discuss its role in the procurement process. This emphasized it has a role – a big one. The NVSBC is highly respected by the same agencies its members get business from, as demonstrated by the following example:

Every veteran business owner has heard of Kingdomware. (And if you haven’t, just go here).  The Thursday before last, the Supreme Court handed down a unanimous verdict in favor of Kingdomware (and veterans), which means the VA must show preference to veteran businesses competing on federal schedule contracts. When this happened, Tom Leney, the Director of the the VA’s Office of Small Disadvantaged Business Utilization (i.e, a VA head honcho), called Scott Denniston, Executive Director of the NVSBC, and asked to speak at VETS 16 (which was the following week). Mr. Leney had also attended VETS 15. Mr. Leney ultimately could not attend this year because of Congressional hearings, and Scott defended this cancellation during a conference luncheon, explaining that Mr. Leney has to testify as the small business representative before Congress as our advocate. Love him or hate him, Mr. Leney is “our guy,” and Scott did a wonderful job of  conveying that point.

This is why the procurement and government officials respect the NVSBC. For some groups or individuals, the VA can’t do anything right, ever, and that kind of attitude is counterproductive. The NVSBC, however, has always been good about recognizing the limitations of government and working with officials to make things better. For example, even though the four-year Kingdomware saga was extremely frustrating (maddening), the NVSBC respectfully and professionally presented its position (the NVSBC submitted an amicus curiae – “friend of the court” – brief to the Supreme Court), all the while zealously advocating on behalf of veterans.

Here’s the point. As veteran business owners, or veterans, it’s easy to get angry at the VA. It is a fact, not an opinion, that our veterans deserve better than what the VA has been delivering. But here’s the thing – if a veteran’s recourse is to rant and rave via a LinkedIN post constituting fifty lines, or to write angry letters to his Congressperson, bashing the VA, it doesn’t help. Not because what is being said isn’t true, but because it isn’t productive.

The NVSBC is productive. It celebrates the good work agencies do (at the award luncheon at VETS 16, it handed out awards to agencies and primes that met small business goals); and when it has an issue, it addresses it rationally and professionally. That is why Tom Leney personally reaches out to Scott Denniston, as opposed to dodging his calls. The NVSBC’s view might not always be aligned with the VA’s, but because it is respectful and ultimately has the same goals as the VA (serving the veterans!), it is an organization with weight and deserved influence in the federal arena.

If you want to be a veteran advocate, the best way to serve that purpose is by trying to work with the VA and not against it. I try to do that (despite my occasional colorful blog posts), and I feel I get farther because of it. As hard as it may be – and feel free to say what you want to others who understand your VA-related frustration – there’s no denying you get more by contributing to the solution rather than merely identifying the problem. It’s true with anything, and it’s true with the VA.

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

“PC load letter?!?!” – Office Space



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