Certification and Competition, Don’t Move the Goal Posts

Office of Federal Procurement Policy Administrator Joe Jordan recently got some much needed feedback on the debate about insourcing and outsourcing, and how those decision are being made. However, the insourcing versus outsourcing issue is not just external to the government.

A recent trend seems to be developing where Contracting Officers are inserting VetBiz verification requirements in Service Disabled Veteran Owned Small Business (SDVOSB) set-aside solicitations. The Air Force and the Federal Aviation Administration (FAA) have done this recently, and this trend is happening all too often. I have seen this requirement before, and I do not understand how this can be legal, given that the FAR does not require VetBiz certification, nor does the Small Business Administration (SBA) for SDVOSB certification. This is a requirement for Veterans Affairs (VA) and the VA ONLY, yet I believe this trend will continue until someone stands up and brings this to the attention of the proper entity to rule on this seemingly illegal requirement.

A company called 347 Construction Group brought this up in a recent protest, but it was done through the  SBA. The SBA’s Office of Hearings and Appeals (OHA) shot down the protest in their decision, and noted:

…Bid protest allegations must be raised at the U.S. Government Accountability Office (GAO) or other similar forums, not at OHA…

…OHA lacks jurisdiction to decide whether the Air Force properly excluded Appellant from the competition…

Firstly, it drives me crazy when small businesses don’t understand fundamental contracting actives like filing deadlines to file a protest, but it goes to a bigger issue of feeding the beast of perception by some in government and large primes that small businesses lack the general education of being government contractors.

This requirement was also a great example of what pre-award protests are for, since this requirement should have never made it into the final solicitation to begin with. This requirement is unduly restrictive to competition, and SBA allows self-certification. Those are the facts, and the Air Force should have been held accountable for changing the goal posts and the rules, but 347 blew it.

More importantly, why on Earth did 347 “protest” to the SBA? Again, they lacked the knowledge they needed to take the proper corrective actions. You can read all about it in FAR Subpart 15.5, Preaward, Award, and Postaward Notifications, Protests, and Mistakes. However, a simple Google search on “protesting a federal contract” would include dozens of sites that would have helped guide 347.

I certainly understand the intent of the Air Force and FAA in wanting to ensure legitimate SDVOSB companies win their contracts, but this is not how it should be done. The current process at the VA in certifying veteran and service-disabled companies is challenging to say the least, with a 50% rejection rate, a myriad of bureaucracy and landmines, and an ocean of paperwork to prove legitimacy that makes one think the contractors that are working for VA are being paid by the page. Things are improving, but have a long way to go.

This is an unfortunate issue, and one that I hope gets corrected by standardized processes for all socioeconomic designations to be properly certified by the SBA, much like the 8(a) program. However, I do not think the VA program I working. The VA should instead work on their backlog of claims for our veterans, not getting into a program they have no business being in to begin with. That is what the SBA should be doing.