“The VA’s January 4  letter took the position that where FSS procedures are used and an SDVOSB is not an FSS contract holder, the SDVOSB is not entitled to any preference under the 2006 VA Act.”
GAO’s 2012 Report to Congress
Aldevra and Kingdomware continue to protest VA solicitations where SDVOSBs are not considered first in contracting priority. There have been 23 sustained GAO decisions to date. This means GAO agrees with SDVOSB companies that the VA should consider SDVOSBs first. This does not mean that an SDVOSB wins a specified contract, but GAO agrees that, according to PL 109-461, SDVOSB must be considered first. It means that SDVOSB are being denied billions in potential contract opportunities. According to VA, executive branch agencies are not mandated to obey GAO’s recommendations.
In addition, VA no longer submits a complete agency report to GAO in response to protests and, in several cases, purchases items regardless of the fact that the requirement is being protested. GAO general counsel reported these issues to the chairmen and ranking members of eight Congressional committees in March 2012 with no response from the Congressional Committees.
Most recently, a VA agency report indicated it would not consider SDVOSBs first even in open market small business set asides. This is new since previously the issue was about SDVOSBs before GSA schedules. GAO says it is not the enforcer. It’s up to Congress to pass a new law, the White House to enforce the existing law, or Federal Court to uphold it.
This November 13 letter responds to the requirements of the Competition in Contracting Act of 1984. Each instance in which a federal agency did not fully implement a GAO recommendation must be reported to Congress. Including internal distribution (agency-to-agency), the following Congressional Committees received a copy of the November 13, 2012 letter:
U.S. Senate Committees: Appropriations, Armed Services, Homeland Security and Governmental Affairs, Small Business and Entrepreneurship. House of Representative Committees included: Appropriations, Armed Services, Oversight and Government Reform, and Small Business.
In a separate letter dated March 30, 2012, GAO recommended that the VA re-solicit contract opportunities protested by Kingdomware Technologies, Aldevra, and Crosstown Courier Service, Inc.
As explained in the March 30 letter, GAO sustained the protests finding that the VA’s use of General Services Administration Federal Supply Schedule (FSS) procedures, without first considering whether two or more service-disabled veteran-owned small business (SDVOSB) or veteran-owned small business (VOSB) concerns were capable of meeting the agency’s requirements at a reasonable price, was contrary to the Veterans Benefits, Health Care, and Information Technology Act of 2006,38 U.S.C. §§ 8127-8128 (2006).
“Since the three occurrences prior to March 30, 2012, twenty-three protests have been filed by Aldevra and Kingdomware Technologies, raising the same issue reported in March 30. GAO sustained these protests as well, essentially repeating the analysis from prior decisions addressing the issue.”
Read the full GAO report: http://www.gao.gov/assets/650/649957.pdf
Nov. 29: News Alert: Court of Federal Claims sustains VA Claims that VetsFirst legislation is not applicable to FSS purchases.