SDVOSB | The Contracting Education Academy

March 18, 2021 By cs

‘Rule of Two’ must be analyzed before ‘any’ acquisition

The Court of Federal Claims (COFC) recently affirmed that agencies are required to apply the “Rule of Two” to all federal acquisitions in its decision of Tolliver Grp., Inc. v. United States.

Further, agencies must give a reasonable explanation supported by factual evidence when canceling solicitations. The decision ensures that small businesses will continue to have robust access to

The two solicitations at issue in this case were for the procurement of training staff for a field artillery school located in Fort Sill, Oklahoma. Both solicitations were set-aside for service-disabled veteran-owned small businesses (SDVOSBs). After the Army awarded the contracts to two SDVOSBs, a third SDVOSB bidder protested the awards, alleging deficiencies in the Army’s evaluation of various factors.

The Army issued Notices of Corrective Action for both contracts, stating that it would cancel both awards, “[r]e-evaluate the requirement and acquisition strategy to ensure that it accurately reflects the Army’s current need,” and either cancel or amend the solicitations. The Army’s internal memorandums indicate that part of the rationale for revisiting the solicitations was because the Army now had a new multiple award indefinite delivery indefinite quantity (MAIDIQ) contract vehicle that encompassed the scope of the two solicitations at issue.

Using a MAIDIQ allows the government to select several possible vendors for an agency to rely on, then ask that small group of vendors to bid against one another to complete each separate task; giving the government a competitive price for each task without initiating a new contract competition and all that it would demand of contracting officers. While the Army initially intended the MAIDIQ to be a small business set-aside, the Army determined, after conducting market research, that given the breadth of the MAIDIQ’s anticipated scope of work, none of the small business proposals could meet the requirements.

On September 13, 2018, the Army issued the MAIDIQ Solicitation as a full and open competition. Five businesses were awarded the MAIDIQ contract, none of which qualified as a small business.

Keep reading this article at: https://www.mondaq.com/unitedstates/government-contracts-procurement-ppp/1037100/cofc-rule-of-two-must-be-analyzed-before-any-acquisition

January 14, 2021 By cs

COFC confirms ‘rule of two’ analysis applies before agency decides to utilize a multiple-award vehicle

The U.S. Court of Federal Claims (COFC) issued a decision on Nov. 30, 2020 that supported the Small Business Administration’s position regarding the Rule of Two analysis requirements for government acquisitions.

The central question surrounding the case was whether the U.S. Army could cancel a Federal Acquisition Regulation (FAR) Part 8 service-disabled veteran-owned small business (SDVOSB) set-aside procurement under the General Services Administration’s Federal Supply Schedule (FSS) and move the requirement to a multiple-award indefinite-delivery, indefinite-quantity (MAIDIQ) contract vehicle that the plaintiff, The Tolliver Group, Inc. (Tolliver), did not hold.

In its protest, Tolliver argued, in part, that the Army’s actions violated the Rule of Two because the agency was required to determine whether two or more small businesses were capable of performing the requirement prior to choosing to put the procurement on the MAIDIQ contract.

The COFC’s decision confirms that the Rule of Two analysis applies before an agency elects to procure a requirement from a multiple-award contract (MAC) vehicle under FAR Part 16.5.

The Rule of Two requires contracting officers to set aside any acquisition over the simplified acquisition threshold for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns and (2) the award will be made at fair market prices.

In Tolliver, the Army argued that a Rule of Two analysis was not required because—according the Small Business Jobs Act, as implemented in 15 U.S.C. § 644(r)—federal agencies have the discretion to issue MACs without first conducting a Rule of Two analysis to determine whether it should be set aside for small businesses.

Keep reading this article at: https://www.jdsupra.com/legalnews/cofc-confirms-rule-of-two-analysis-83418/

December 18, 2020 By cs

Court of Appeals issues important decision on application of False Claims Act to set-aside contracts

On December 3, 2020, the United States Court of Appeals for the Second Circuit issued its decision in United States v. Strock, a ruling that will significantly strengthen the hand of the government, and of qui tam whistleblowers, in False Claims Act cases against companies awarded government set-aside contracts but do not meet the requirements of the particular set-aside.

The contracts at issue in Strock were set aside for service-disabled, veteran-owned small businesses (SDVOSBs).

Still, the Court’s reasoning also applies to other types of set-aside contracts, such as small business, women-owned small business, or HUBZone set-asides. This decision should hearten whistleblowers who have information about fraud in government contracting set-aside programs.

The Facts Of United States v. Strock

The government sued Strock Contracting, its owner Lee Strock, and one of Strock’s employees. The government alleged that Strock set up a new company called Veteran Enterprises Company (VECO) to bid on SDVOSB-reserved contracts from the Army, Air Force, and Veterans Administration. Strock, however, was not a disabled veteran. Instead, he recruited another individual, a disabled veteran named Terry Anderson.

Keep reading this article at: https://www.natlawreview.com/article/court-appeals-issues-important-decision-application-false-claims-act-to-set-aside

Read the full decision in this case at: https://www.ca2.uscourts.gov/decisions/isysquery/36dc4bcd-69b0-4890-b0e2-56e98757e39f/3/doc/19-4331_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/36dc4bcd-69b0-4890-b0e2-56e98757e39f/3/hilite/

July 17, 2020 By cs

Former HR official steered sole-source $5 million training contract to friends, VA’s IG says

A former top human resources executive at the Department of Veterans Affairs improperly steered a contract to benefit two of his friends, the agency’s inspector general found in a recent report.

Peter Shelby, who briefly served as VA’s assistant secretary for human resources and administration, violated ethics laws and abused his position to award a $5 million contract to two friends.

The contract “resulted entirely in waste,” James Mitchell, VA’s acting assistant inspector general, said.

The contract was for leadership development and training for VA employees and applicant assessment tools. Shelby was friendly with the owner of the service-disabled veteran-owned small business that received the $5 million contract. He was also friends with the vice president of Blanchard, one of the subcontractors on the project, who had endorsed Shelby for the assistant secretary position back in 2017.

According to the IG, Shelby directed his staff to pursue a contract with the small business under a specific VA sole-source authority, which allows the department, under limited circumstances, to avoid the usual competitive bidding procedures. But in this case, those authorities were misused to benefit Shelby and the preferred small business, the IG said.

Keep reading this article at: https://federalnewsnetwork.com/veterans-affairs/2020/07/former-va-chco-steered-5m-training-and-development-contract-to-friends-ig-says/

March 6, 2020 By cs

Contracting official sentenced to 18 months in federal prison for role in bribery scheme to rig VA contracts

U.S. Department of Veterans Affairs official Dwane Nevins has been sentenced to serve 18 months in federal prison, followed by three years of supervised release, for corruption offenses. He took cash bribes and then extorted undercover small business owners so that he could have his “Christmas.”

We first reported on the allegations against Nevins in September 2018. Then, in January of this year, we reported on the sentencing of a businessman who conspired with Nevins. Sentencing of one more individual in this case is scheduled later this month.

According to Court records, Dwane Nevins — a small business specialist at the VA’s Network Contracting Office in Colorado — agreed to take bribes offered by co-defendants Robert Revis, Anthony Bueno, and an undercover FBI agent to help them manipulate the process for bidding on federal contracts with the VA.

Revis and Bueno, working with Nevins, agreed to submit fraudulent bids from service-disabled-veteran-owned small businesses under contract with their consulting company so that federal contracts would be set aside for only those companies. As Bueno put it, the conspirators would then “own all the dogs on the track.”
Nevins, Bueno and Revis worked to conceal the nature of the bribe payments by either kicking back to Nevins a portion of the payments made to their consulting company, or by asking their consulting company’s clients to pay Nevins for sham training classes related to federal contracting. At one of those sham trainings in Las Vegas, Nevada, Nevins accepted a $4,500 cash bribe from the undercover FBI agent.

After complaining about not being paid by Revis and Bueno for his participation in the scheme, Nevins used his official position at the VA to extort approximately $10,000 from an undercover FBI agent, telling the agent that “the train don’t go without me. You know what I mean? I’m the engine. I’m the caboose. I’m the engine room.” Nevins also told the undercover FBI agent “this is a business and businessmen need to get paid . . . . so I can have my Christmas, you know what I’m saying?”

Anthony Bueno was previously sentenced in this case to 30 months imprisonment. He was also sentenced to 63 months imprisonment for his role in a separately indicted wire fraud scheme in which he used false representations about investment opportunities to take over a million dollars from several victims.

Robert Revis pleaded guilty in April 2019 to an Information charging him with a single count of supplementing the salary of a federal official. His sentencing hearing is scheduled for March 2, 2020.

Source: https://www.justice.gov/usao-co/pr/former-veterans-affairs-official-sentenced-18-months-federal-prison-role-bribery-scheme

The Court of Federal Claims (COFC) recently affirmed that agencies are required to apply the “Rule of Two” to all federal acquisitions in its decision of Tolliver Grp., Inc. v. United States.

The U.S. Court of Federal Claims (COFC) issued a decision on Nov. 30, 2020 that supported the Small Business Administration’s position regarding the Rule of Two analysis requirements for government acquisitions.

The Facts Of United States v. Strock

A former top human resources executive at the Department of Veterans Affairs improperly steered a contract to benefit two of his friends, the agency’s inspector general found in a recent report.

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