As you may recall, we sent out a newsletter a couple of months ago detailing some of the implications of the Supreme Court's decision in Kingdomware Technologies v. U.S. On July 25, 2016, the VA issued a new procurement policy memorandum titled "Implementation of the Veterans First Contracting Program as a Result of the U.S. Supreme Court Decision." This newly minted policy, VA Procurement Policy Memorandum (2016-05) Implementation of the Veterans First Contracting Program as a Result of the U.S. Supreme Court Decision, has far reaching implications.
Implications of Policy Change
Most important, from this writer's prospective, is the change to the VA's policy for "requirements not set aside for verified SDVOSBs/VOSBs under the Veterans First Contracting Program." According to the memorandum, the steps for the contracting officer include:
(i) A review of the original market research and VA Form 2268 shall be accomplished to confirm whether or not the VA Rule of Two was appropriately considered and whether offers are likely to be received fromt wo or more capable and verified SDVOSBs or VOSBs at a fair and reasonable price that offers the best value to the United States.
(ii) If the review finds the VA Rule of Two can be satisfied, an amendment shall be issued that cancels the solicitation.
(iii) Change the set-aside to SDVOSBs/VOSBs, in accordance with the contracting order of priority set forth in VAAR 819.7004 and resolicit.
(iv) However, if this impacts the required need date and results in a situation where unusual and compelling urgency exists to continue with the original acquisition strategy, a justification and approval is required in accordance with FAR 6.303 setting forth the circumstances to be approved in accordance with agency and HCA procedures.
(v) Supporting documentation must be maintained in the contract file in eCMS.
For requirements set aside for SDVOSBs/VOSBs and offers have been received and are currently being evaluated:
(i) Contracting officers shall review the market research conducted and documented to ensure compliance with §8127’s “VA Rule of Two” requirement and that the VIP database has been reviewed.
(ii) Ensure the solicitation included the requirement for offerors to be verified in VIP and evaluation criteria that clearly indicates that unverified SDVOSBs or VOSBs will be considered non-responsive to the requirements of the solicitation. Offers from unverified SDVOSBs or VOSBs are considered deficient and will not be evaluated. If required, issue an amendment to ensure the appropriate language is contained in the solicitation.
(iii) Supporting documentation must be maintained in the contract file in eCMS.
For all new competitive requirements:
a) The contracting officer will review the VIP database to determine if two or more verified SDVOSBs/VOSBs are listed in the NAICS code assigned to the acquisition and are capable of performing the requirements.
b) Appropriate market research shall be further conducted and documented to determine if the SDVOSBs/VOSBs identified are qualified and capable of performing the requirement(s) at fair and reasonable prices.
c) Document results on the VA Form 2268, as well as any required Acquisition Plan and Market Research Report as required by FAR part 7, 10, and VAAR part 807, VAAR part 810, and agency guidance.
d) If the procurement is not set aside for SDVOSBs or VOSBs in accordance with the contracting order of priority as set forth in VAAR 819.7004, submit the VA Form 2268 for review and approval in accordance with the latest OSDBU Small Business Procurement Review Program Policy memorandum.
e) If two or more verified VOSBs are awardees on an existing BPA, Federal Supply Schedule, or existing multiple award IDIQ, the contracting officer may consider setting the procurement aside using that vehicle or other contract vehicles where two or more verified VOSBs are awardees.
f) Ensure the solicitation includes the requirement for offerors to be listed as verified in VIP. Evaluation criteria should clearly indicate that unverified SDVOSBs or VOSBs will be considered non-responsive to the requirements of the solicitation. Offers from unverified SDVOSBs or VOSBs are considered deficient and will not be evaluated. Supporting documentation must be maintained in the contract file in eCMS.
We at WSM believe this policy change will be a game changer for SDVSOB and VOSB companies. We will be keeping an eye on developments and updating you with any relevant changes. Please keep a look out for upcoming newsletters for this information.
For those of you at the NVSBE conference, we hope you do well and that we get a chance to meet. For everyone else, thanks for reading and please let us know how we're doing.