VA Acquisition Academy Putting the Law into Practice Application - PowerPoint PPT Presentation

VA Acquisition Academy Putting the Law into Practice Application of Vets First per SCOTUS Decision July 2016

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Agenda  Background and Judicial Timeline  Key Definitions  Overview of Deviations  Market Research  Overview of Road Map  Scenario-Based Application  Key Takeaways  Resources 3

BACKGROUND AND JUDICIAL TIMELINE  4

Judicial Tim eline 2006 2012 2014 2016 Court o t of f Suprem eme e Federa ral VA A Act ct Court rt Claim laims S Suit it Decis isio ion Federa ral Bid P Protest t Circuit t wi with th G GAO Appeal al 5

Judicial Tim eline VA Act, 2006 Veterans Benefits, Health Care, and Inform ation Technology Act of 20 0 6 §8 127  Secretary of Veterans Affairs (VA) sets annual goals for contracting with service- disabled (SD) and other Veteran-owned small businesses (VOSB).  Rule of Two provision restricts competition to VOSBs if two such businesses are expected to submit offers and the award can be made at a “fair and reasonable price that offers the best value to the United States.”  Exceptions : Contracting Officer may use noncompetitive and sole-source contracts for contracts below specific dollar amounts.  Eligibility and Database: Created the eligibility requirements for VOSB and SDVOSB to be verified and listed in VIP database. 6

Judicial Tim eline Bid Protest w ith GAO, 2012 Bid Protest to GAO (B-40 650 7)  January 2012: VA procured an Emergency Notification Service using FSS procedures. Contract No. VA-245-12-F-0622 was awarded to Everbridge, Inc. (non-SDVOSB). Kingdomware Technologies (SDVOSB) protested the award, asserting that VA failed to – comply with the requirements of the “rule of two” IAW Veterans Benefits, Health Care, and Information Technology Act of 2006 because the requirement was not set-aside for SDVOSB (or VOSB) concerns. VA argued that the “rule of two” did not apply to FSS procurements. –  May 2012: GAO agreed with Kingdomware and determined that VA acted unlawfully , but VA declined to follow the GAO’s nonbinding recommendation, holding that “rule of two” did not apply to FSS. 7

Judicial Tim eline Court of Federal Claim s Suit, 2012 Bid Protest Claim to Court of Federal Claim s (No. 12-173C)  March 2012: Kingdomware files a complaint to the Court of Federal Claims. Kingdomware argues that GAO is correct that 2006 Act mandates VA first determine – whether SDVOSB/VOSB set-asides should be used before VA can order against FSS. VA argues that 2006 Act is a goal-setting statute that provides VA with tools to meet – SDVOSB and VOSB goals, and that nothing in the Act restricts VA’s discretion to order against the FSS.  November 2012: Court of Federal Claims disagrees with GAO’s interpretations of the 2006 Act and finds that VA’s decision not to set-aside was not arbitrary, capricious, or contrary to law. 8

Judicial Tim eline Federal Circuit Appeal, 2014 Appeal to U.S. Court of Appeals for the Federal Circuit (No. 20 13-50 42)  January 2013: Kingdomware filed an appeal of the judgment by the Court of Federal Claims.  June 2014: Federal Circuit affirmed the Court of Federal Claims’ earlier judgment, holding that VA need not perform a VOSB Rule of Two analysis for every contract, as long as the annual goals are met. 9

Judicial Tim eline Suprem e Court Decision, 2016 U.S. Suprem e Court Decision (No. 14 -916)  January 2015: Kingdomware filed an appeal of the Circuit Court’s judgment to the U.S. Supreme Court (SCOTUS).  June 2015: SCOTUS agrees to hear Kingdomware’s case.  February 2016: SCOTUS hears arguments to examine whether the Rule of Two: Must be applied for every award, or only to the extent necessary to meet annual – minimum goals for contracting with veteran-owned small businesses. Must be applied for orders placed using FSS. –  June 2016: SCOTUS concludes “…the Rule of Two contracting procedures in [38 U.S.C.] §8127(d) are not limited to – those contracts necessary to fulfill the Secretary’s goals under §8127(a).” “[38 U.S.C.] §8127(d) applies to orders placed under the [Federal Supply Schedules] – FSS.” 10

KEY DEFINITIONS  11

Key Definitions Program Office VA organization that will be the end user of a contracting requirement . A program office normally provides direct services to the public, or provides administrative, legal, financial, technological, or other support to offices that provide direct services to the public. A program office is staffed by one or more Federal employees, either dedicated exclusively to the program or as a collateral duty; is managed by at least one decision maker able to commit to a course of action on behalf of the office; and has a funding source that can be obligated in support of a contracting requirement. Except when it is acquiring supplies and services for its own use, a contracting office is not a program office. 12

Key Definitions VA Rule of Two Process in 38 U.S.C. 8127(d) whereby a contracting officer of the Department ”shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans, if the 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 United States.” For purposes of this VA specific rule, a service-disabled veteran-owned small business (SDVOSB) or a veteran-owned small business (VOSB), must meet the eligibility requirements in 38 U.S.C. 8127(e), (f) and VAAR subpart 819.7003 and be listed as verified in the Vendor Information Pages (VIP) database. 13

Key Definitions Vendor Information Pages (VIP) The Department of Veterans Affairs Office of Small and Disadvantaged Business Utilization (OSDBU) Vendor Information Pages (VIP) database at https://www.vip.vetbiz.gov. The site’s database lists businesses that the VA Center for Verification and Evaluation (CVE) has determined eligible for the Veterans First Contracting Program. 14

Key Definitions “Veterans First Contracting Program” The program authorized by 38 U.S.C. 8127 and 8128 (Pub. L. 109-461 as amended) implemented under VAAR subpart 819.70. This program applies to all VA contracts (see FAR 2.101, Definitions) including Blanket Purchase Agreements and orders against the Federal Supply Schedules, unless otherwise excluded by law. 15

Key Definitions Service Disabled Veteran Owned Small Business (SDVOSB) Has the same meaning as Service-disabled veteran-owned small business concern defined in FAR subpart 2.101, except for acquisitions authorized by 38 U.S.C. 8127 and 8128 for the Veterans First Contracting Program. These businesses must then be listed as verified in the VIP database . In addition, some of the SDVOSB businesses listed in the VIP database may be owned and controlled by a surviving spouse. See definition of surviving spouse in VAAR 802.101 . 16

Key Definitions Veteran Owned Small Business (VOSB) Has the same meaning as Veteran-owned small business concern (VOSB) defined in FAR 2.101, except for acquisitions authorized by 38 U.S.C. 8127 and 8128 for the Veterans First Contracting Program. These businesses must be listed as verified in the VIP database. A business whose SDVOSB status derives from ownership and control by a surviving spouse shall also be considered VOSB. 17

OVERVIEW OF DEVIATIONS  18

Class Deviations The following parts of the VAAR have been updated:   VAAR Part 813 VAAR Part 802   VAAR Part 817 VAAR Part 804   VAAR Part 819 VAAR Part 806   VAAR Part 852 VAAR Part 808   VAAR Part 873 VAAR Part 810  VAAR Part 812 19

Market Research & Acquisition Planning Contracting Program Offices OSDBU Officer • Initial Market Research • Collaborate early and • Work with Program throughout the Office on formal • Engage with Industry process market research • Forecast of Contracting requests • VA Form 2268 Opportunities • Ensure compliance • Review market with Procurement research as part of Integrity recommendation • File documentation: Market Research Memo and 2268 20

MARKET RESEARCH  21

Step 1: VIP Search 22

Step 2: SAM Search 23

Step 2: SAM Search 24

Knowledge Check # 1 If a firm is listed in VIP under a specific NAICS, they are capable to perform under that NAICS.  True  False Explanation Being listed in VIP only confirms a firm is verified and eligible for award under the Veterans First Contracting Program. Searching VIP by NAICS assists in determining which firms may be eligible for a requirement, but it does not confirm they are capable. Further market research is needed to determine if a firm is capable. Remember determining capabilities includes considering requirements such as lead times, production, delivery, and cost/price. There may be other items to consider to determine capability based on the specific requirement. 25