Legal Blog

Case Alert for Veteran-Owned Small Business

Posted by Joseph Whitcomb on Jul 7, 2014 11:46:16 AM

Veteran-Owned Small Business Must Be Small

In early June, the U.S. Court of Appeals for the Federal Circuit issued a notable opinion for those involved in government procurement.  The case, Kingdomware Techs, Inc. v. United States, was on appeal from the U.S. Court of Federal Claims. Kingdomware, a small certified service-disabled veteran-owned small business, brought suit against the U.S. when the U.S. Department of Veterans Affairs (VA) procured services it needed to install an Emergency Notification Service in several of its hospitals from a vendor on the FSS, although the specific vendor was not a Veteran-Owned Small Business (VOSB). The FSS (Federal Supply Schedule) is a list of vendors approved to do business for any governmental agency, and a Veteran-Owned Small Business may appear on the list. The U.S. Court of Federal Claims found against Kingdomware and the Court of Appeals agreed. The issue came down to statutory construction. Particularly important to the decision was 38 U.S.C. § 8127(c), which states:

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Topics: Government Procurement, sdvosb, Colorado government procurement attorneys, Colorado government procurement lawyers, SDVOSB, SDVOSB attorney, sdvosb certification, SDVOSB lawyer

SDVOSB-Does the Veteran owner have control?

Posted by Joseph Whitcomb on Jan 25, 2014 1:32:32 PM

Does the veteran owner have control of the SDVOSB?

In the Matter of: Battalion, LLC, Appellant

This case arose from a Dept. of the Air Force SDVOSB set aside. The SBA's OHA decided this case pursuant to the Small Business Act of 1958. The bid protest arose when an unsuccessful offeror, Douglas P Fleming, LLC, filed a protest challenging appellant's size and status as an SDVOSB. Fleming alleged in part that the appellant's majority owner, Mr. Jason Harris, was a full-time employee of Sota Construction Services, Inc., a firm controlled by appellant's minority owner, Mr. Earnest Sota.

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Topics: Bid Protests, Government Procurement, sdvosb, bid protest attorneys, bid protest lawyer, CVE certification, CVE denial, SDVOSB, SDVOSB attorney, SDVOSB bid-protest, sdvosb certification, SDVOSB challenge, SDVOSB denial, SDVOSB Status protest, service disabled veteran owned business, service disabled veteran owned small business, CVE-Center for Verification and Eligibility, veteran control, veteran owned business, veteran owner control

Lack of VetBiz registration insufficient for SDVOSB Status protest

Posted by Joseph Whitcomb on Dec 28, 2013 9:22:43 AM

SDVOSB Status Protest Case Study: Matter of MJL enterprises

Many of my clients express worry about an SBA SDVOSB status protest in the event they are awarded a contract before their CVE certification is complete. This recent ruling from the SBA OHA sheds some light on that issue.

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Topics: Bid Protests, Government Procurement, sdvosb, Bid Protest attorney, bid protest lawyer, CVE certification, CVE denial, CVE status denial, government contracting, government contracts attorney, SBA protests, SDVOSB, SDVOSB attorney, sdvosb certification, SDVOSB challenge, SDVOSB status, SDVOSB status denial, SDVOSB Status protest, service disabled veteran owned business, CVE-Center for Verification and Eligibility, veteran control, veteran owned business, veteran owner control

Can Your SDVOSB Status Survive Death?

Posted by Joseph Whitcomb on Dec 11, 2013 9:53:25 PM

The US Court of Federal Claims Rules that SDVOSB Status Can Survive Veteran Owner's Death

On November 26, 2013, the US Court of Federal Claims heard an appeal from a the son of a veteran business owner after a contracting officer working for the defendant, the United States Environmental Protection Agency, issued a "determination of non-responsibility," proposed a debarment, and finally canceled the solicitation. [button link="http://www.uscfc.uscourts.gov/sites/default/files/BRADEN.NEIE120613.pdf" style="download" color="red" bg_color="red" border="black" window="yes"]Down Load this Case[/button]

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Topics: Bid Protests, Appellate Law, Debarment, Government Procurement, sdvosb, Bid Protest attorney, bid protest attorneys, bid protest lawyer, contract cancellation, CVE certification, CVE denial, CVE status denial, Debarment, finding of non-responsibility, SBA protests, SDVOSB, SDVOSB attorney, SDVOSB bid-protest, sdvosb certification, SDVOSB challenge, SDVOSB lawyer, SDVOSB status, service disabled veteran owned business, service disabled veteran owned small business, CVE-Center for Verification and Eligibility, veteran control, veteran owned business, veteran owner control, veteran owner dies

CVE SDVOSB denial--Challenging in federal court

Posted by Joseph Whitcomb on Dec 4, 2013 11:01:10 PM

 Challenging a CVE SDVOSB denial in pre-award contest

In KWV, Inc. v. United States, a disappointed bidder filed a pre-award bid protest of the CVE's denial  of  their SDVOSB status.  In that case,  the US Court of Federal Claims found the CVE’s reliance on the Veteran applicant’s residency alone was “arbitrary and capricious” and not in accordance with VA’s regulations.  KWV, Inc. v. United States, 111 Fed. Cl. 119, 127 (Fed. Cl. 2013).  In deciding in the Veteran’s favor, the Court indicated that  “there [was] nothing in the administrative record to suggest that [the Veteran] was not exercising sufficient control over [the company]” and “the government has not provided a coherent and reasonable explanation of its exercise of discretion…nor articulated a rational connection between the facts found and the choice made”  Id., see also Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1333 (quoting Latecoere Int'l, Inc. v. United States Dep't of the Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)); Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962))(internal quotations removed).

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Topics: Bid Protests, Appellate Law, sdvosb, Bid Protest attorney, CVE sdvosb denial, CVE status denial, GAO bid protest, SBA protests, SDVOSB, SDVOSB attorney, sdvosb certification, SDVOSB challenge, SDVOSB lawyer, SDVOSB status, service disabled veteran owned business, CVE-Center for Verification and Eligibility, veteran control, veteran owned business, veteran owner control

SDVOSB status denial--Quorum Language

Posted by Joseph Whitcomb on Dec 4, 2013 11:16:09 AM

Was Your SDVOSB Status Denial Due to Quorum Language in Your Bylaws?

According to the Center for Verification and Eligibility (CVE) website, the number one reason for SDVOSB status denial is quorum language in a company's bylaws that gives passive control to non-veteran board members.  This is a function, in this author's opinion, of a misreading of the law.  SDVOSB status denial letters will often cite 38 CFR 74.4(f)(2) for the proposition that quorum language in a company's bylaws cannot allow for passive control by not Veteran board members.  However, the CVE's reasoning is legally flawed, because 38 CFR § 74.4(f)(1)(ii) states:

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Topics: Government Procurement, sdvosb, CVE denial, CVE status denial, SBA protests, SDVOSB attorney, sdvosb certification, SDVOSB status, SDVOSB status denial, service disabled veteran owned business, service disabled veteran owned small business, CVE-Center for Verification and Eligibility, veteran control, veteran owned business, veteran owner control

Denied for Inclusion in Vetbiz database-Request for Reconsideration

Posted by Joseph Whitcomb on Nov 25, 2013 11:35:12 PM

Were you denied inclusion in the Vetbiz Database? Try a "Request for reconsideration"

38 CFR 74.13 asks "Can an applicant ask CVE [Center for Verification and Eligibility] to reconsider its initial decision to deny an application?" The answer is yes.  If CVE denies your firm's inclusion in the Vetbiz database, submitting "request for reconsideration" to the director of the  Center for Verification and Evaluation is the next step.  Many times the reasons for your firm was denied inclusion in the Vetbiz database may not  make sense.  You have operated in good faith and gone to great pains to make sure your company satisfies the CVE's posted requirements.  However, quorum language in your bylaws or the fact that you live in a community property state and are married can lead to your applications denial.  Many people have argued in vain that the application process is unnecessarily complicated and does more to hurt deserving veterans than prevent fraudulent certifications, but for now, this is the system we are stuck with.

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Topics: Bid Protests, Government Procurement, sdvosb, CVE certification, CVE denial, SDVOSB attorney, sdvosb certification, SDVOSB denial, SDVOSB lawyer, SDVOSB status, SDVOSB status denial, SDVOSB Status protest, service disabled veteran owned business, service disabled veteran owned small business, CVE-Center for Verification and Eligibility, veteran control, veteran owned business, veteran owner control

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