Legal Blog

Change from Within the VA on Procurement Policy

Posted by Joseph Whitcomb on Nov 6, 2016 12:36:55 AM


- Implementation of the Veterans First Contracting Program as a Result of the U.S. Supreme Court Decision

As you may recall, we sent out a newsletter a couple of months ago detailing some of the implications of the Supreme Court's decision in Kingdomware Technologies v. U.S. On July 25, 2016, the VA issued a new procurement policy memorandum titled "Implementation of the Veterans First Contracting Program as a Result of the U.S. Supreme Court Decision." This newly minted policy has far reaching implications.  

Most importantly, from this writer's prospective, is the change to the VA's policy for "requirements not set aside for verified SDVOSBs/VOSBs under the Veterans First Contracting Program."  According to the memorandum, the steps for the contracting officer include:

(i) A review of the original market research and VA Form 2268 shall be accomplished to confirm whether or not the VA Rule of Two was appropriately considered and whether offers are likely to be received fromt wo or more capable and verified SDVOSBs or VOSBs at a fair and reasonable price that offers the best value to the United States.
(ii) If the review finds the VA Rule of Two can be satisfied, an amendment shall be issued that cancels the solicitation.
(iii) Change the set-aside to SDVOSBs/VOSBs, in accordance with the contracting order of priority set forth in VAAR 819.7004 and resolicit.
(iv) However, if this impacts the required need date and results in a situation where unusual and compelling urgency exists to continue with the original acquisition strategy, a justification and approval is required in accordance with FAR 6.303 setting forth the circumstances to be approved in accordance with agency and HCA procedures.
(v) Supporting documentation must be maintained in the contract file in eCMS.

For requirements set aside for SDVOSBs/VOSBs and offers have been received and are currently being evaluated:

(i) Contracting officers shall review the market research conducted and documented to ensure compliance with §8127’s “VA Rule of Two” requirement and that the VIP database has been reviewed.
(ii) Ensure the solicitation included the requirement for offerors to be verified in VIP and evaluation criteria that clearly indicates that unverified SDVOSBs or VOSBs will be considered non-responsive to the requirements of the solicitation. Offers from unverified SDVOSBs or VOSBs are considered deficient and will not be evaluated. If required, issue an amendment to ensure the appropriate language is contained in the solicitation.
(iii) Supporting documentation must be maintained in the contract file in eCMS.

For all new competitive requirements:

a) The contracting officer will review the VIP database to determine if two or more verified SDVOSBs/VOSBs are listed in the NAICS code assigned to the acquisition and are capable of performing the requirements.
b) Appropriate market research shall be further conducted and documented to determine if the SDVOSBs/VOSBs identified are qualified and capable of performing the requirement(s) at fair and reasonable prices.
c) Document results on the VA Form 2268, as well as any required Acquisition Plan and Market Research Report as required by FAR part 7, 10, and VAAR part 807, VAAR part 810, and agency guidance.
d) If the procurement is not set aside for SDVOSBs or VOSBs in accordance with the contracting order of priority as set forth in VAAR 819.7004, submit the VA Form 2268 for review and approval in accordance with the latest OSDBU Small Business Procurement Review Program Policy memorandum.
e) If two or more verified VOSBs are awardees on an existing BPA, Federal Supply Schedule, or existing multiple award IDIQ, the contracting officer may consider setting the procurement aside using that vehicle or other contract vehicles where two or more verified VOSBs are awardees.
f) Ensure the solicitation includes the requirement for offerors to be listed as verified in VIP. Evaluation criteria should clearly indicate that unverified SDVOSBs or VOSBs will be considered non-responsive to the requirements of the solicitation. Offers from unverified SDVOSBs or VOSBs are considered deficient and will not be evaluated. Supporting documentation must be maintained in the contract file in eCMS.

We at WSM believe this policy change will be a game changer for SDVSOB and VOSB companies.  We will be keeping an eye on developments and updating you with any relevant changes.  Please keep a look out for upcoming newsletters for this information.

For those of you at the NVSBE conference, we hope you do well and that we get a chance to meet.  For everyone else, thanks for reading and please let us know how we're doing.

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Topics: sdvosb

Republic of Congo-Wall Street-International Business Transactions

Posted by Joseph Whitcomb on Oct 19, 2016 3:58:17 PM

Here’s a hint: It’s not just international treaties that impact iInternational Business Transactions and business.International business and congo Even seemingly domestic laws can have an international impact.

The Dodd-Frank Act for Wall Street Reform

Six years ago, the United States was faced with a financial crisis that left millions of Americans unemployed, and the economy is still struggling to fully recover. One of the major reasons for a financial crisis was an outdated and fragmented financial regulatory system. To ensure that a repeat of what happened in 2008 would never happen again, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act. The main issue that the Wall Street Reform and Consumer Protection Act tries to tackle is holding those risk takers on Wall Street accountable for their actions. More specifically, the act tries to make sure that “taxpayers will not have to bear the costs of Wall Street’s irresponsibility” while also ending bailouts.

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Topics: International Business

GAO Bid Protest-Meaningful Discussion

Posted by Joseph Whitcomb on Oct 19, 2016 3:34:15 PM

GAO bid protest turns on whether the Department of the Army offered meaningful discussion to disappointed bidderGAO bid protest-meaningful discussion


This case study is about a January 22, 2014, GAO bid protest named Matter of: Geo Marine, Inc. (GMI)/Burns & McDonnell Engineering, Inc., Joint Venture. In their protest, GEO Marine, Inc. (GMI), Download Case alleged in their GAO bid protest that their proposal was rejected without adequate discussion of their deficiencies. Specifically, the agency, the Department of the Army, Corps of Engineers, identified as a weakness the fact that GMI had not positioned the work turbine generators in the area designated in the performance work statement and had not explained its reasons for deviating from the RFP requirements.

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Topics: Bid Protests, Government Procurement

Should We Be Trying So Hard to Help Veterans Adjust?

Posted by Joseph Whitcomb on Oct 19, 2016 3:26:49 PM

Should Veterans Adjust to Us or Us to Them?

“In the military, we give medals to people who sacrifice themselves, so that others may survive.  In corporations, we give bonuses to people who sacrifice others, so that they may benefit.” Simon Sinek, author of Leaders Eat Last, Why Some Teams Pull Together and Others Don’t

It's not hard to find someone nowadays advancing the idea that hiring veterans is a good idea.  After all, the saying goes, look at all the great traits the military teaches its service members:

  • “Courage under fire,” which translates to “works well under pressure.”
  • “Teamwork,” which translates to, “works well with others.”
  • “Initiative,” which translates to, “Self-starter.”
  • “Selfless service,” which translates roughly to “they’ll work hard and ask for little in return.”
  • And “Discipline,” which translates to “they’ll show up to work on time and do what they’re told.”

What few CEOs or HR managers consider, is that they may commit to the feel-good measure of hiring Veterans and then realize few of the benefits they anticipated when making the hire.  Unfortunately, what usually follows is someone becoming the Veteran’s apologist.  Stakeholders expecting the Veteran to shine and finding themselves disappointed quickly run through the list of “usual suspect” excuses.

1) The Veteran is having a hard time adjusting to civilian life;

2) The military just didn’t train the Veteran for anything useful for the civilian market place;”

3) The Veteran must be suffering from PTSD or some other variety of “the military broke the Veteran.” 

What almost none of them do is think to themselves or say out loud, “boy, we must have really fallen short of this Veteran’s expectations.”  Unfortunately, even fewer would be willing to change their corporate culture if they did stop to ask the question and found themselves answering in the affirmative.

Is Your Mission Statement as Cool as Their Old One?

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Topics: Service Disabled Veteran Owned Small Business (SDV

Trademarks, Felony Battery, and Excusable Neglect

Posted by Brandon Selinsky on Oct 11, 2016 3:18:25 PM

‘National Police Gazette’ Battle

Case: Westlake v. Barrera, 2016 WL 4698964, September 8, 2016

The US Court of Appeals for the Federal Circuit recently handed down a decision in favor of the trademark holder despite accusations of fraud and felony battery by the petitioner; such charges not commonly associated with trademark law. The Trademark Trial and Appeals Board (the Board) found that Steven Westlake, who had petitioned to cancel a trademark owned by Edgar Alexander Barrera, had failed to prosecute his case and dismissed it. The Court of Appeals affirmed.

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Topics: Trademark Law

Size Standards and the Mentor-Protege Program

Posted by Joseph Whitcomb on Oct 9, 2016 11:27:33 PM

Size Standard Protest of JV Reversed

The SBA originally found that Field Training Support Services Joint Venture (FTSS) was small in response to Quadrant Training Solutions, LLC’s size protest.  Quadrant appealed contending that the SBA’s determination was clearly erroneous.  The SBA Office of Hearings and Appeals (OHA) reversed.


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Topics: mentor-protege

Sidebar Focus: Business Succession Planning

Posted by Dan McAuliffe on Oct 9, 2016 1:38:35 PM

Succession planning. Businesses need to plan for the closing or transfer of ownership even if the end of a
business is unforeseeable. An effective plan ensures a smooth transfer of the business from its current owners. Succession planning should begin at least 15 years before the anticipated end or transfer of a business. Succession planning involves a company’s partners’ explicitly defining their exit-related objectives then designing a strategy. The strategy should take into account personal, business, financial, legal, and taxation aspects of achieving the shareholders’ objectives. Objectives may include maximizing proceeds, minimizing risk, closing a transaction, or selecting new investors. The strategy should take into account plans for owners’ sudden illnesses or death. – whether it involves private shares transferred to a high-level manager, a leadership transfer to family members, or selling the business.

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Topics: succession planning

9th Circuit-Endangered Species Act and Threatened Plants

Posted by Dan McAuliffe on Oct 5, 2016 11:49:53 PM

Application of the ESA

The 9th Circuit Court of Appeals is a friendly venue for environmental groups seeking to overturn agency decisions based on violations of federal environmental laws, especially the Endangered Species Act (ESA), but not so in the recent case of the Center for Biological Diversity v. BLM, No. 14-15836 (9th Cir. 2016).

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Topics: Environmental

WSM Joins Colorado Agriculture's Legal Referral Center

Posted by Dan McAuliffe on Oct 5, 2016 8:04:25 PM

Colorado Agriculture 

Based on our firm’s qualifications we were invited to serve as a referral to farmers, ranchers and those doing business in the agriculture industry.

For the last agricultural census year, agriculture and agriculture-related industries contributed $835 billion to the U.S. economy (about 4.8-percent). The output of America's farms contributed $177.2 billion of this sum.

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Topics: Colorado Agriculture

Small Businesses-Bid Protests-Larger Attorneys Fees

Posted by Dan McAuliffe on Oct 5, 2016 10:50:57 AM

GAO Recommends Reimbursement of Attorney’s Fees for Small Business Protestors that Exceeds Cap Set for Large Businesses 

The GAO will recommend a protester’s attorneys’ fees be reimbursed when the hours charged are documented and reasonable and the agency cannot articulate why reimbursing fees should now be allowed.

Although GAO made its recommendation in the Matter of: 6K Systems, Inc., File: B-408124.6, almost two years ago on December 16, 2014, it is still relevant and important decision for small businesses because the GAO supported the reimbursement of attorneys’ fees at hourly rates exceeding $150 per hour cap that applies to large businesses. The GAO supported small businesses finding that the statutory cap on hourly rates for attorneys’ fees that can be reimbursed for successful large business protesters does not apply to attorneys’ fees incurred by successful small business protesters.

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Topics: Attorneys Fees

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