- New rules allow disappointed offerors under a Department of Veterans Affairs (VA) procurement to challenge the Veteran Owned Small Business (VOSB) or Service Disabled Veteran Owned Small Business (SDVOSB) status of an awardee.
- The protest must be filed within five business days of notification of the apparent awardee’s identity.
- SBA’s Office of Hearings and Appeals (OHA) will determine eligibility for inclusion in the Center for Verification and Evaluation (CVE) database as of the date of bid or initial offer, including price, and as of the date the CVE protest is filed.
On March 30, 2018, the Small Business Administration (SBA) finalized rules implementing procedures to protest the eligibility of VOSB/SDVOSB concerns listed in the VA’s CVE database (more popularly referred to as VetBiz). It is important to note that these procedures relate to the award of a VA contract and that non-VA procurement related size protests and SDVOSB status protests continue to be subject to the protest procedures at 13 CFR Part 121 and 125.
Under the new rules, the VA, contracting officers and private contractors can file CVE protests to be heard by the OHA. The regulations will be published at 13 CFR §§ 134.1001 through 134.1013 and include the following key provisions:
- Who may file a CVE Protest? (13 CFR § 134.1002): The Secretary of the VA, his/her designee and, in the case of a small business that is awarded a VA contract, the contracting officer or an offeror.
- Date for determining eligibility (13 CFR § 134.1003(c)): The OHA Judge will determine eligibility for inclusion in the CVE database as of the date of bid or initial offer, including price, and as of the date the CVE protest is filed.
- Commencement of CVE Protests (13 CFR § 134.1004): If a protest is filed in connection with a VA procurement, an offeror must file a CVE Protest within five business days of notification of the apparent awardee’s identity. A contracting officer can file any time during the life of the VA contract while the Secretary of the VA can file at any time.
- Contents of the CVE Protest (13 CFR § 134.1005): A CVE protest must be in writing and include the (1) solicitation or contract number, (2) specific allegations supported by credible evidence that the concern being protested does not meet the eligibility requirements for inclusion in the CVE database, (3) the name, contact information, and signature of the protester or its attorney, and (4) a request for a protective order if the protester intends to seek access to the CVE case file.
- Response Timing (13 CFR § 134.1007(f)): The protested concern, the Director of the CVE, the contracting officer, and any other interested party may respond to a protest or supplemental protest. The response is due no later than 15 days from the date the protest was filed with OHA.
- Standard of review burden of proof (13 CFR § 134.1010): The protested concern has the burden of proving its eligibility by a preponderance of the evidence.
- Basis for decision (13 CFR § 134.1007(g)): The decision will be based primarily on the case file and information provided by the protester, the protested concern, and any other parties. However, the Judge may investigate issues beyond those raised in the protest and may use other information or make requests for additional information.
- Effect of decision (13 CFR § 134.1007(j)): If the protested concern is found eligible the contracting officer may award the contract. If OHA finds the concern ineligible the contracting officer cannot award the contract. If the contract was already awarded then the contracting officer shall deem the contract void ab initio, rescind the award, and award the contract to the next eligible offeror. In addition, the Director of CVE must immediately remove the concern from the CVE database, and the concern may not submit an offer on a future VA procurement until the protested concern reapplies and has been reentered into the CVE database.
- Request for Reconsideration (13 CFR § 134.1013): The decision may not be appealed but the Judge may reconsider upon a showing of an error of fact or law material to the decision or at his or own initiative.
A detailed set of rules of practice for appeals of VA denials and cancellations of verification for inclusion in the VA CVE database are also included in the new regulations at 13 CFR §§134.1101 through 134.1112.
The new rules will go into effect on October 1, 2018, and are published at https://www.regulations.gov/document?D=SBA_FRDOC_0001-0298.
The information presented and contained within this article is provided as general information only, and does not, and is not intended to constitute legal, employment or tax advice. Any opinions expressed within this article are solely the opinion of the featured author(s) and not of Morris, Manning & Martin, LLP.