Transcript Document

U.S. Small Business Administration
Service Disabled Veteran Owned Small
Business Procurement Program Issues
January 13, 2010
Authorities
Public Law 106-50 - The Veteran's Entrepreneurship and
Development Act of 1999
Public Law 108-183 – The Veterans Benefits Act of 2003
SBA Final Rule – 70 FR 14523 (March 23, 2005)
3% Government-wide goal for Prime and Subcontract Awards
to SDVOSB concerns
Code of Federal Regulations (CFR) 13
C.F.R. § 125.8-125.10).
The purpose of the service-disabled veteran-owned
small business concern procurement program is to
provide procuring agencies with the authority to set
acquisitions aside for exclusive competition among
service-disabled veteran-owned small business
concerns, as well as the authority to make sole source
awards to service-disabled veteran-owned small
business concerns if certain conditions are met.
Qualifications of a Service-Disabled
Veteran (SDV)
•
A Service-Disabled Veteran is a person who served in the active
military, naval, or air service, and who was discharged or released
under conditions other than dishonorable, and whose disability
was incurred or aggravated in line of duty in the active military,
naval, or air service.
•
A veteran with a 0 to 100% disability rating is eligible to selfrepresent as a Service-Disabled Veteran for federal contracting
purposes
•
The Veterans Benefits Act of 2003 that established restricted
contracting in Federal procurement for Service-Disabled VeteranOwned Small Business Concerns (SDVOSBC) did not require a
formal process to certify concerns as SDVO.
•
SDVOSBC is self-certification for Federal contracts.
•
SBA is the coordinating entity for veteran contracting
advocacy for the Federal Government and the adjudicating
agency.
•
Disability Adjudication through VA and DOD records i.e.
DD-214 or a Claim Adjudication Letter issued by the VA.
•
VA maintains a data base of companies it has verified as
SDVO for its internal contracting programs but other
agencies are not granted access. The VA and SBA are
currently seeking an agreement granting wider access and to
resolve the certification issue.
•
VA now has its own statutory Vet and SDVet small business
set-aside program that differs from other agencies.
Issues with Protest
•
Requirements of the program
•
51% Unconditionally owned by SDVOSB
•
Management and daily business operation controlled by SDVOSB
•
Joint Ventures are allowed (13 CFR 125.15(b))
•
An SDVOSB may joint venture with one or more other small business
concerns. (sometimes protest filers do not know specifics of JV)
•
The SDVOSB must manage the venture and an SDVO SBC employee must
be the project manager.
•
SBA does not admin the contract, so we have no way of verifying actual
contract performance and management issues.
Subcontracting Limitations (13 CFR
125.6(b))
• Services – 50% labor spent on SDVOSBC personnel
• Supplies – 50% labor performed by SDVOSB
• General Construction – 15% labor spent on SDVOSB personnel
• Special Trade Construction – 25% of labor spent on SDVOSB
personnel
• Verification is through certified payrolls by the contracting
officer.
• JV must also meet Limitation on Subcontracting requirements
• Non-Manufacturers (13 CFR 121.406(b)) – SDVOSB cannot
exceed 500 employees. End item must be manufactured by a
SB?
How does a joint venture qualify as a
SDVOSB ?
•
A joint venture’s ability to qualify as an SDVOSB
primarily centers on control of the joint venture.
The SDVOSB must be the managing venture, an
employee of the SDVOSB must be the project
manager, 51% of the net profits of the joint venture
must go to the SDVOSB.
•
(See 13 C.F.R. §125.15 (b)).
When will SBA accept an SDVO SBC
protest?
•
SBA will consider an SDVOSBC protest only if the
protester presents credible evidence that the concern is not
fifty-one percent (51%) owned/controlled, by a veteran
with a service connected disability. (See 13 C.F.R.
§125.26).
•
Contracting Officer is an interested party for purposes of
filing SDVOSB status protests. (See 13 C.F.R. §
125.25(e)).
SBA Timeline for SDVOSB
Protest
SBA has fifteen (15) working days to render a decision after
receipt of a protest. The SBA may request an extension
from the Contracting Officer if more time is needed. See 13
C.F.R. §125.127 (c)).
When is a SDVO SBC eligible for
an Award?
In order to be eligible for award of an SDVO SBC
set-aside contract, a firm must represent at the time
of its offer that it is an eligible SDVO SBC. (See
FAR §52.219-1 and §52.219-27).
When is a SDVO SBC eligible for
an Award?
• The Contracting Officer has the authority to reject an offeror
based on his or her own SDVO status determination SDVO status
protests are decided by the SBA Director for Government
Contracting
• However, a solicitation may require bidders to provide proof that
the veteran owner possesses a service-connected disability that has
been recognized by a cognizant authority (e.g., a copy of the
veteran’s DD-214 or a claim adjudication letter from the
Department of Veterans Affairs) along with their proposals. When a
bidder fails to provide such proof, a Contracting Officer may reject
a bid as non-responsive. (See 13 C.F.R. § 125.8. and 13 C.F.R.
§125.8-125.10).
Protests and Appeals
•What can be Protested:
• SDVOSB Status
• Size Status.
•Status and size protest are filed separately with
the Contracting Officer (CO) or SBA.
• Who may Protest:
• SBA or Contracting
• Any Interested Party.
•When are protests submitted:
• By COB on the 5th Business Day;
• Sealed Bid: Later than that: Untimely
• Where are Protests Submitted:
•To the Contracting Officer
• How are Protest Submitted?
•In writing.
Protests and Appeals (Cont)
•Appeals
•Interested parties may appeal the protest determination
• Appeals are submitted to SBA’s Office of Hearings and
Appeals
• Due 10 days after receipt of protest determination
• Appeals are filed in accordance with 13 CFR 134.501
• Decision within 15 business days of close of record