Oct 11 2010 GAO Upholds SDVOSB Mandatory Set-Aside Posted by Dr. Earl R Smith II in Set-aside, tags: 8(a), adviser, advisory board, ANC, consulting, director, dr earl r smith, dr earl r smith ii,…

Oct
11
2010

GAO Upholds SDVOSB Mandatory Set-Aside
Posted by Dr. Earl R Smith II in Set-aside, tags: 8(a), adviser, advisory board, ANC, consulting, director, dr earl r smith, dr earl r smith ii, earl r smith ii, earl smith, federal circle, federal contracting, government contractor, managing partner, SBA, service disabled veteran, set-aside, small business, the federal circle, veteran owned, woman owned
A protest to GAO that the VA improperly failed to set-aside architect-engineering services procurements for service-disabled veteran-owned small businesses was sustained because the Veterans Benefits, Health Care, and Information Technology Act of 2006, 38 U.S.C. 8127, commonly known as the Veterans First program, require such set-asides when statutory prerequisites are met. These prerequisites are the expectation that two or more SDVOSBs will submit bids or offers at a reasonable price. As the decision stated

“The sole protest issue is whether the agency was required to set aside these A/E procurements for SDVOSB as be concerns. The protester asserts that the agency’s failure to do so violated the Veterans Benefits, Health Care, and Information Technology Act of 2006, 38 U.S.C. §§ 8127-8128 (Supp. III 2006) (VA Act). In relevant part, 38 U.S.C. §8127(b), captioned “use of restricted competition,” provides as follows:

. . . 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 best value to the United States.

. . . .



We see nothing in the VA act or the VA regulations that exempts A/E procurements from the set-aside requirement. The VAAR does specify three exceptions to the requirement that contracting officers set-aside acquisitions for SDVOSB concerns, but the fact that a procurement is for A/E services is not one of them. In fact, as discussed below, the VA itself offers no defense of its position based on the plain language of the Act or its regulations.”

The protest covered eight sources sought notices. Powerhouse Design Architects & Engineers, Ltd. B-403174 et seq. October 7, 2010. The protests were supported by a friend of SDVOSBs and consultant, Jim Sechrist. The protester was awarded its cost associated with presenting the protests.

I believe that the same rule is true for GSA schedule contracts. There is nothing that exempts GSA schedule contracts from the application of 38 U.S.C. §8127(d) or the VAAR regulations, 48 CFR §819.7005(a), cited by GAO. The authority to send a requirement to GSA for fulfillment under an FSS acquisition is found in Part 8 of FAR , which has no application to acquisitions covered by the Veterans First Program, 38 U.S.C. §8127.

This office is involved with challenging VA’s authority to send requirements to GSA that similarly meet the statutory prerequisites and the VA’s use of sole source awards when the same prerequisites are met.