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 Adm inistrative Item s Please mute your microphone or telephone Do NOT place us on hold If you are viewing as a group in
Application of Vets First per SCOTUS Decision
July 2016
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VA A Act ct Bid P Protest t wi with th G GAO Court o t of f Federa ral Claim laims S Suit it Federa ral Circuit t Appeal al Suprem eme e Court rt Decis isio ion
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disabled (SD) and other Veteran-owned small businesses (VOSB).
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.”
contracts for contracts below specific dollar amounts.
SDVOSB to be verified and listed in VIP database.
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(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.
unlawfully, but VA declined to follow the GAO’s nonbinding recommendation, holding that “rule of two” did not apply to FSS.
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– 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.
capricious, or contrary to law.
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Federal Claims.
judgment, holding that VA need not perform a VOSB Rule of Two analysis for every contract, as long as the annual goals are met.
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U.S. Supreme Court (SCOTUS).
– 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.
– “…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.”
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VA organization that will be the end user of a contracting requirement. A program
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
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.
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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
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.
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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.
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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.
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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.
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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.
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Opportunities
throughout the process
research as part of recommendation
Office on formal market research requests
with Procurement Integrity
Market Research Memo and 2268
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True False
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
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.
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the Rule of Two applies.
VIP must be searched again before evaluation and finally before making award to determine whether offerors are eligible for award.
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True False
Firms listed in VIP have met all of the eligibility requirements and have been considered verified in accordance with 38 U.S.C.§ 8127. However, firms may not necessarily be small business concerns under all NAICS listed in VIP. As companies grow or expand into new fields, they may exceed the NAICS size standards. Therefore, it is important that the contracting officer verify that an otherwise eligible firm meets the size standard applicable to the NAICS used for the particular procurement. Contracting officers should verify the size standard in System for Award Management (SAM).
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Sources, dated May 2016, is rescinded.
mandatory with a priority over other existing contract vehicles.
Contracting Program to include Federal Supply Schedule awards.
AbilityOne Procurement List*
*Note: 38 U.S.C 8128 provides VA the ability to prioritize SDVOSB/VOSB over Federal Prison Industry for supplies.
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True False
1) Old Policy: VAAR 808.002-70, per class deviation dated May 5, 2016, includes VA prime- vendor, national and VA FSS contracts as mandatory sources. There is no VAAR 808.004 to address non-mandatory sources. There is no current VAAR subpart 808.4 language implementing the Veterans First Contracting Program to the Federal Supply Schedules. 2) New Policy: This class deviation rescinds the class deviation for VAAR 808.002-70 dated May 5, 2016, and moves VA mandatory contract vehicles to VAAR 808.004-70 as non-mandatory, while retaining priority over other existing contract vehicles. This class deviation adds VAAR 808.002, 808.004-70, 808.405-70, 808.405-2 and 808.405-70 to fully implement the Veterans First Contracting Program as it relates to VAAR part 808, Required Sources of Supplies and Services including the Federal Supply Schedules.
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True False
FPI is listed as a mandatory source for supplies via FAR 8.002 and VAAR 808.002. However, the VA has been given the authority to not buy supplies from FPI that are available and set-aside for SDVOSB/VOSBs without a waiver from FPI in accordance with 38 U.S.C. 8128. This is outlined in VAAR 808.6. If a supply is available from SDVOSB
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185 self-certified SDVOSBs
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SDVOSB/VOSB contracting program at the Department of Veterans Affairs, June 22, 2016.
Required Sources of Supplies and Services, and 808.002, Priorities for Use of Government Supply Sources, May 10, 2016.
U.S.C. Sections 8127 and 8128, enacted as part of the Veterans Benefits, Health Care and Information Technology Act of 2006.
Class Deviation or the PPM as reflected in Attachment 1, paragraph 7.
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True False
The contracting officer's determination to make a sole source award is a business decision wholly within the discretion of the contracting officer. To ensure that opportunities are available to the broadest number of verified SDVOSBs, this authority is to be used judiciously and only when in the best interest of the Government. The first choice should always be competition unless a justification for other than “authorized or required by statute” exists. Contracts awarded using this authority shall be supported by a written justification and approval described in FAR 6.303 and 6.304.
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True False
manufacturer”) must meet the requirements in FAR 19.102(f) to receive a benefit under the Veterans First Contracting Program.
Limitations on Subcontracting clauses—VAAR 852.219-10, VA Notice of Total Service-Disabled Veteran-Owned Small Business Set-Aside, or VAAR 852.219-11,VA Notice of Total Veteran- Owned Small Business Set-Aside, respectively.
SDVOSB or VOSB distributors, the contracting officer is responsible for preparing a request for waiver of the non-manufacturer rule, if needed, and the expected value exceeds the simplified acquisition threshold.
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Document Document and document Document, document, document! All of the above
VIP & small in SAM) and capable (provide goods and services, fair and reasonable price, best value) SDVOSBs or VOSBs.
no longer mandatory.
required by statute.”
determining a source’s capability up front.
new process, and acquisitions will take longer to award.
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E-mail: VA.Procurement.Policy@va.gov Telephone: (202) 632-5288
E-mail: OSDBUAcqSupport@va.gov Telephone: (202) 632-5378
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