Service-Disabled Veteran-Owned Small Business Concern Program

U.S. Small Business Administration

Office of Federal Contract Assistance for Veteran Business Owners

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PROGRAM HISTORY

The VETERANS ENTREPRENEURSHIP and SMALL BUSINESS DEVELOPMENT ACT of 1999 (PL106-50) established an annual Government-wide goal of not less than 3 percent of the total value of all prime contract and subcontract awards for participation by small business concerns owned and controlled by service-disabled veterans.

The VETERANS BENEFITS ACT (VBA) of 2003 (PL108-183) added, in addition to other provisions, a contracting mechanism to enable agencies to reach the 3% prime contracting goal established in1999.

PROGRAM HISTORY

Public Law 106-50 Public Law 108-183 Interim Final Rule Executive Order 13360 Interim Final Rule – OHA Final Rule

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PROGRAM HISTORY

On May 5, 2004, the SBA issued the Interim Final Rule to implement Section 308 of the VBA of 2003 established a sole source and set-aside procurement program for service-disabled veteran-owned small business concerns (SDVO SBC). Federal Register Vol 69, No. 87, p. 25262

On October 20, 2004, President Bush issued Executive Order 13360 to strengthen opportunities in Federal contracting for Service-Disabled Veteran-Owned Small Business Concerns. Federal Register Vol 69, No. 206, p. 62549

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PROGRAM HISTORY

On February 24, 2005, SBA issued the Interim Final Rule to clarify the Office of Hearings and Appeals (OHA) procedures for protest determination appeals for SDVO SBC status challenges. Federal Register Vol 70, No. 36, p. 8923

On March 23, 2005, SBA issued the Final Rule to amend the Interim Final Rule and clarify several procedures. Federal Register Vol 70, No. 55, p. 14523

PROGRAM ELIGIBILITY REQUIREMENTS

Adjudication Size Ownership & Control Highest Position Held

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ELIGIBILITY REQUIREMENTS

The SDV must have a service-connected disability that has been determined by the Dept of Veterans Affairs or DOD

The SDVO SBC must be small under the NAICS code assigned to the procurement

The SDV must unconditionally own 51% of the SDVO SBC

The SDV must control the management and daily operations of the SDVO SBC

The SDV must hold the highest officer position in the SDVO SBC

13 CFR § § 125.8 – 125.10/FAR Part 19.1403(a) - (b)

TYPES OF CONTRACTS

SET-ASIDE EXEMPTIONS SET-ASIDES SOLE SOURCE SIMPLIFIED ACQUISITIONS

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SET-ASIDE EXEMPTIONS

A contracting activity may not make a requirement available for a SDVO contract if:

1. The requirement would be fulfilled through award to Federal Prison Industries, Inc. or to Javits-Wagner-O’Day Act participating non-profit agencies for the blind and severely disabled.

2. The requirement is currently being performed by an 8(a) participant or SBA has accepted that requirement for performance under the authority of the Section 8(a) Program.

13 CFR § 125.18/FAR Part 19.1404

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SET-ASIDE REQUIREMENTS

A Contracting Officer (CO) may set-aside requirements if:

1. The requirement is not exempted from SDVO contracting.

2. The contracting officer considers setting aside the requirement for 8(a), HUBZone, or SDVO SBC participation before considering setting aside the requirement as a small business set-aside.

4. There is a reasonable expectation that at least two responsible SDVO SBCs will submit offers; and

5. The award can be made at a fair market price.

13 CFR § 125.19/FAR Part 19.1405(a) – (b)

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SOLE SOURCE CONTRACTS

A CO may award a sole source contract if:

1. The requirement is not exempted from SDVO contracting and cannot be set-aside.

2. The CO does not have a reasonable expectation that at least two responsible SDVO SBCs will submit offers.

3. The anticipated award price of the contract, including options, will not exceed:

– $5.0M for manufacturing requirements– $3.0M for all other requirements

4. Award can be made at a fair market price.13 CFR § 125.20/FAR Part 19.1406

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SIMPLIFIED ACQUISITION THRESHOLD

If the requirement is at or below the simplified acquisition

threshold, the CO may set-aside the requirement for

consideration among SDVO SBCs using simplified

acquisition procedures or may award a sole source

contract to an SDVO SBC.

13 CFR § 125.21

ADDITIONAL CONTRACT REQUIREMENTS

LIMITATIONS ON SUBCONTRACTING JOINT VENTURES NON-MANUFACTURERS

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ADDITIONAL CONTRACT REQUIREMENTS

LIMITATIONS ON SUBCONTRACTING– SDVO SBC Prime or Sub-contractor can subcontract for:

SERVICES CONTRACTS (EXCEPT CONSTRUCTION):– 50% of the contract performance incurred for SDVO SBC personnel

SUPPLY CONTRACTS:– 50% of the cost of manufacturing the supplies

GENERAL CONSTRUCTION:– 15% of the contract performance incurred for SDVO SBC personnel

CONSTRUCTION BY SPECIAL TRADE: – 25% of the contract performance incurred for SDVO SBC personnel

13 CFR §125.6(b)

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ADDITIONAL CONTRACT REQUIREMENTS

Joint Ventures

1 or more other small business concern (SBC)

Each SBC is small under the contract’s North American Industry Classification System code

SDVO SBC must manage the venture

JV must perform applicable percentage of work

13 CFR § 125.15(b)/FAR Part 19.1403(c)

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ADDITIONAL CONTRACT REQUIREMENTS

Non-manufacturers

– The SDVO SBC does not exceed 500 employees– Is primarily engaged in the wholesale or retail trade– Sells to the general public and– Supplies the end item of a small business (unless

requirement is waived by the SBA Administrator)

13 CFR § 125.15(c)/FAR Part 19.1403(d)

PROTEST PROCEDURES

WHAT? WHO? WHEN? WHERE? HOW?

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PROTEST PROCEDURES

WHAT IS A PROTEST?

A challenge to either:

– SIZE STATUS, in accordance with 13 CFR § 121

– ELIGIBILITY STATUS, in accordance with 13 CFR § 125 Proof of Adjudication Ownership Control

13 CFR §125.26

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PROTEST PROCEDURES

WHO MAY SUBMIT A PROTEST?Sole Source Procurements:

Small Business AdministrationContracting Officer

Competitive Set-Asides:Any interested party

13 CFR § 125.24

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PROTEST PROCEDURES

WHEN ARE PROTESTS SUBMITTED?– Negotiated Procurements:

By Close of Business on the 5th Business Day after Notification of the Apparent Successful Offeror, no later than 5 p.m. est

Sealed Bid Acquisitions:By Close of Business on the 5th Business Day after Bid

Opening, no later than 5 p.m. est

• Any Protest Submitted After the Time Limits is untimely, unless submitted by the CO or SBA.

• Any Protest Submitted Prior to Bid Opening or Notification is Premature.

13 CFR § 125.25 (d)

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PROTEST PROCEDURES

WHERE ARE PROTESTS SUBMITTED?

– CO or SBA submits protest to SBA Associate Administrator for Government Contracting

– Any Concern that submits an offer submits protest to the Contracting Officer

13 CFR § 125.25(d)

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PROTEST PROCEDURES

HOW ARE PROTEST SUBMITTED?– FORMAT:

In writing Be specific Include information to determine timeliness and standing State contract type, e.g., set-aside or sole source Whether the protested concern was the apparent successful offeror Date protested concern submitted its offer State whether sealed bid or negotiated procurement Due date of offers Date protest was submitted to the CO Notice of intent to award date Date of contract award, if applicable Any additional information SBA may need to assist in making determination

13 CFR §§125.25(b) and (e)

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PROTEST PROCEDURES

HOW ARE PROTEST SUBMITTED?– FILING:

BY FAX:– (202) 205-6390

EXPRESS DELIVERY SERVICE or U.S. MAIL (POSTMARKED WITHIN THE APPLICABLE TIME PERIOD)

– The Associate Administrator for Government ContractingU.S. Small Business Administration409 Third Street, SWWashington DC 20416

Attn: Service-Disabled Veteran Status Protest

13 CFR § 125.25(e)

PROTEST DETERMINATION APPEAL PROCEDURES

WHO?WHERE?WHEN?HOW?WHO?WHEN?

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APPEAL PROCEDURES

WHO MAY SUBMIT AN APPEAL?– The Protested Concern– The Protester– The Respective Contracting Officer

13 CFR § 134.502

WHERE IS AN APPEAL FILED?– SBA Office of Hearings and Appeals

Docketing ClerkOffice of Hearings and AppealsU.S. Small Business Administration409 Third Street, SWSuite 5900Washington DC 20416-0005

Phone: (202) 401-8203 FAX: (202) 205-7059

13 CFR § 134.503

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APPEAL PROCEDURES

WHEN MAY AN APPEAL BE FILED?– Within 10 business days after protest determination is received

HOW IS AN APPEAL FORMATTED?– No Set Format – Must include:

Solicitation or contract number Contracting Officer’s contact information Statement explaining why protest determination is alleged to be based on a

clear error of fact or law, with supporting argument Appellant’s contact information

13 CFR § 134.504

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APPEAL PROCEDURES

WHO MUST AN APPELLANT SERVE?– SBA, AA/GOVERNMENT CONTRACTING– THE RESPECTIVE CONTRACTING OFFICER– THE PROTESTED CONCERN OR THE PROTESTER– SBA, OFFICE OF GENERAL COUNSEL

– 13 CFR § 134.505(b)

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APPEAL PROCEDURES

WHEN WILL THE JUDGE ISSUE THE DECISION?

– Within 15 – 22 days after the appeal is filed Individuals served with an appeal petition has 7 days to

respond

13 CFR § 134.510

ADDITIONAL TRAINING

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ADDITIONAL TRAINING

The Defense Acquisition University (DAU) has developed a similar course, CLC 009, that is available on-line to the general public at the DAU Virtual Campus (http://www.dau.mil/).

It is worth one continuous learning point for contracting personnel.

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ASSISTANT ADMINISTRATOR

Office of Government Contracting 409 Third Street, SW Suite 8100, Mail Code: 6520 Washington DC 20416 Phone: (202) 205-6460