[Federal Register Volume 78, Number 189 (Monday, September 30, 2013)]
[Rules and Regulations]
[Pages 59861-59866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-23759]
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Part 819
RIN 2900-AM92
VA Acquisition Regulation: Service-Disabled Veteran-Owned and
Veteran-Owned Small Business Status Protests
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is amending its
adjudication procedures for Service-Disabled Veteran-Owned Small
Businesses (SDVOSB) and Veteran-Owned Small Businesses (VOSB) status
protests, to provide that VA's Director, Center for Veterans Enterprise
(CVE), shall initially adjudicate SDVOSB and VOSB status protests, and
to provide that protested businesses, if they are denied status, may
appeal to VA's Executive Director, Office of Small and Disadvantaged
Business Utilization (OSDBU). Additionally, VA amends the title of CVE
from the Center for Veterans Enterprise to the Center for Verification
and Evaluation, to more appropriately represent the function of this
office.
DATES: Effective Date: This interim final rule is effective September
30, 2013.
Comment Date: Comments must be received on or before November 29,
2013.
ADDRESSES: Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to Director, Regulation
Policy and Management (02REG), Department of Veterans Affairs, 810
Vermont
[[Page 59862]]
Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-
9026. Comments should indicate that they are submitted in response to
``RIN 2900-AM92-VA Acquisition Regulation: Service-Disabled Veteran-
Owned and Veteran-Owned Small Business Status Protests.'' Copies of
comments received will be available for public inspection in the Office
of Regulation Policy and Management, Room 1068, between the hours of
8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays).
Please call (202) 461-4902 for an appointment. (This is not a toll-free
number.) In addition, during the comment period, comments are available
online through the Federal Docket Management System at http://www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: Cheryl Duckett-Moody, Senior
Procurement Analysis (003A2A), Department of Veterans Affairs, 810
Vermont Avenue NW., Washington, DC 20420, (202) 632-5319. (This is not
a toll free number.)
SUPPLEMENTARY INFORMATION: In a final rule with request for comments
published in the Federal Register on December 8, 2009 (74 FR 64619), VA
revised 48 CFR parts 802, 804, 808, 809, 810, 813, 815, 817, 819, 828,
and 852 to implement portions of the Veterans Benefits, Health Care,
and Information Technology Act of 2006 and Executive Order 13360, which
provide opportunities for SDVOSBs and VOSBs to increase their Federal
contracting and subcontracting. VA solicited comments on an interim
provision included in the final rule, which amended regulations
governing SDVOSB and VOSB status protests to provide that the U.S.
Small Business Administration (SBA) would be utilized to consider and
decide VA SDVOSB and VOSB status protests. This required VA and SBA to
execute an interagency agreement pursuant to the Economy Act (31 U.S.C.
1535). Because negotiations of the interagency agreement had not been
finalized at the time the final rule was published, the interim
provision included in the final rule provided that VA's Executive
Director, OSDBU, would consider and decide SDVOSB and VOSB status
protests. This interim provision was necessary because, without an
SDVOSB/VOSB status protest resolution process in place for acquisitions
under this authority, performance of any contract award that was
challenged would have been suspended and would have deprived VA and
Veterans of necessary services and/or supplies.
Since the issuance of the final rule with request for comments, VA
has reconsidered reaching an interagency agreement with SBA to review
and decide status protests and subsequently determined that SDVOSB and
VOSB status protest adjudication shall remain within VA. Therefore, VA
is issuing this interim final rule to remove from VA Acquisition
Regulation (VAAR) 819.307(a) (or 48 CFR 819.307(a)) references to an
interagency agreement between VA and SBA to handle SDVOSB and VOSB
status protests outside VA. Moreover, in the first sentence of
paragraph (a), the word ``eligible'' is removed as the use of this term
is premature because the Director or Executive Director could find the
SDVOSB or VOSB ineligible as a result of the status protest.
Additionally, we reorganized VAAR 819.307 for ease of readability and
clarity.
This revised decision is based on the unique statutory requirements
that VA must meet pursuant to the SDVOSB/VOSB set-aside acquisition
authority at 38 U.S.C. 8127 and 8128. For example, VA's statutory
authority has an exception where surviving spouses of certain service-
disabled Veterans may remain qualified as owners of SDVOSBs, which is
not present in the government-wide SDVOSB set-aside authority program
at 15 U.S.C. 657f. In contrast, SBA adjudicates only SDVOSB status
protests pursuant to the separate Government-wide SDVOSB set-aside
authority. Moreover, VA has developed expertise over the last 2 years
in adjudicating SDVOSB and VOSB verification examinations and status
protests. VA's current interim SDVOSB and VOSB status protest processes
and procedures have mainly proved effective, and VA now has the
infrastructure and experience to address and resolve future SDVOSB and
VOSB status protests. However, VA is revising the current interim
process in this interim final rule to provide that VA's Director of CVE
shall initially adjudicate SDVOSB and VOSB status protests and to
provide that either the protesting party or the protested business may
appeal the Director of CVE decision to the Executive Director of OSDBU.
VA provided a 30-day comment period for the interim provision
included in the final rule, which ended on January 7, 2010. VA received
one comment regarding paragraph (b) of VAAR 819.307, ``SDVOSB/VOSB
Small Business Status Protests.'' Under the interim provision included
in the final rule, VAAR 819.307(b) provides that, if an SDVOSB/VOSB
status protest is sustained after VA has already awarded a contract, VA
will proceed with the award but the VA contracting officer cannot count
the award as an award to an SDVOSB or VOSB and the concern cannot
submit another offer as an SDVOSB or VOSB on a future SDVOSB or VOSB
procurement ``unless it demonstrates to VA that it has overcome the
reasons for the determination of ineligibility.'' The commenter stated
that allowing an award to proceed rather than terminating it following
a successful status protest rewards fraudulent actions by letting the
award stand; overlooks the lack of diligence by the contracting
officer; disregards case law indicating contract awards resulting from
fraudulent representation are considered void ab initio, so the
contractor forfeits the contract; and ignores that the award of a
fraudulently obtained contract set-aside for SDVOSBs and VOSBs is no
different than any other Federal contract. The commenter also stated
that allowing a fraudulently obtained contract to proceed will
discourage companies from submitting protests as there is no recourse
for them on a contract they may have won, if the status protest is
sustained and the fraudulent contractor becomes ineligible from future
procurements. The commenter suggested the following: (1) if a contract
is won by submitting fraudulent information, the contract award should
be overturned and re-solicited or awarded to the next qualified bidder,
and (2) VA should require contracting officers to issue a letter of
intent to award, so companies may have the opportunity to protest prior
to contract award.
We agree with the commenter and have revised the regulation to add
VAAR 819.307(h) to state that when an SDVOSB or VOSB status protest is
sustained after the award of a contract, the contract shall be deemed
to be void ab initio and the contracting officer shall cancel the
contract and award the contract to the next eligible SDVOSB or VOSB in
line for the award. Additionally, the ineligible SDVOSB or VOSB firm is
precluded from submitting another offer as an SDVOSB or VOSB on a
future SDVOSB or VOSB set-aside procurement under VAAR part 819, unless
it successfully appeals the determination of the Director, CVE, to the
Executive Director, OSDBU, or unless it applies for and receives
verified SDVOSB or VOSB status in accordance with 38 CFR part 74.
As to the commenter's second issue, regarding notification of
apparently successful offers, this was already addressed previously in
current VAAR 819.307(c)(2) and remains in the revised regulation at
819.307(c) where it provides that an interested party must submit its
status protest to the contracting officer by close of business
[[Page 59863]]
on the fifth business day after bid opening (in sealed bid
acquisitions) or by close of business on the fifth business day after
notification by the contracting officer of the apparently successful
offeror (in negotiated acquisitions). Therefore, we make no changes
based on this comment.
In promulgating this regulation to establish more detailed SDVOSB
and VOSB status protest procedures, VA has largely adopted procedures
equivalent to Federal Acquisition Regulation (FAR) 19.306 (or 48 CFR
19.306) associated with protesting a firm's status as a Historically
Underutilized Business Zone (HUBZone) small business concern and FAR
19.307 for SDVOSB status protests for the Government-wide SDVOSB set-
aside program established by 15 U.S.C. 657f. First, with respect to who
may file a VA SDVOSB or VOSB status protest, revised VAAR 819.307(b)
provides that either a contracting officer or an interested party may
protest the apparently successful offeror's SDVOSB or VOSB status.
Further, VA defines ``interested party'' for the purpose of filing a
status protest as an actual offeror whose direct economic interest
would be affected by the award of a contract or by the failure to award
a contract. This is consistent with FAR 19.307(a) except that SBA
cannot raise a VA SDVOSB or VOSB status protest since this is a title
38 program.
The regulation further establishes in revised VAAR 819.307(c) that,
except for premature status protests, the contracting officer must
forward to the Director, CVE, any status protest received. This is
because the Director, CVE, subject to appeal to the Executive Director,
OSDBU, shall determine the timeliness of a status protest. The
contracting officer can determine if a status protest is premature
because that means the contracting officer has not yet opened bids or
made a decision as to the apparently successful offeror upon which to
raise a challenge. This is consistent with FAR 19.307(e). Revised
819.307(c) further provides that any assertions that a protested
concern is not an SDVOSB or VOSB concern, without setting forth
specific facts or allegations, are insufficient. This is consistent
with FAR 19.307(g). A status protest may only raise a challenge to an
apparently successful offeror's SDVOSB or VOSB status by disputing the
Veteran or service-disabled Veteran status of the individual owner(s)
of the concern, or ownership and/or control of the concern by a Veteran
or service-disabled Veteran.''
Upon receipt of the status protest, the regulation further provides
at new VAAR 819.307(d) that the Director, CVE, will notify the
protester and the contracting officer of the date the status protest
was received by CVE and whether the status protest will be decided on
the merits or dismissed on jurisdictional grounds for lack of
timeliness or specificity. This is consistent with FAR 19.307(g) where,
for SBA status protests, SBA officials notify the protester and the
contracting officer of the receipt of the protest and whether it will
be processed or dismissed for lack of timeliness or specificity. If the
status protest is decided on the merits, the regulation provides in new
819.307(e) that the Director, CVE, will determine the SDVOSB or VOSB
status of the protested concern based on the totality of the
circumstances within 21 business days after receipt of the status
protest. A totality of the circumstances standard is appropriate
because, as the integrity of the SDVOSB/VOSB set-aside program is
paramount, this permits the Director, CVE, to consider facts or issues
not specifically raised by the protesting party that impact the SDVOSB/
VOSB status and compliance with 38 CFR Part 74 of the protested party.
If the Director, CVE, does not contact the contracting officer within
21 business days, the contracting officer may award the contract to the
apparently successful offeror, unless the contracting officer has
granted the Director, CVE, an extension. The contracting officer may
award the contract after receipt of a status protest if the contracting
officer determines in writing that an award must be made to protect the
public interest. The contracting officer shall document this
determination for the contract file. These provisions are equivalent to
those contained in FAR 19.307(h) except to the extent that VA has
determined VA requires 21 business days in lieu of 15 business days to
decide a status protest based on available agency resources.
The regulation provides at new VAAR 819.307(f) that a decision on
the merits by the Director, CVE, that is based on the failure to meet
the Veteran or service-disabled Veteran status of the individual
owner(s) of the concern as defined in 38 CFR 74.1 is not subject to an
appeal to the Executive Director, OSDBU, and is a final decision since
Director, CVE exercises no independent discretion with respect to this
question. VA's Veterans Benefits Administration (VBA), not OSDBU, is
the entity within the Department responsible for determinations of
individual Veteran or service-disabled Veteran status. Director, CVE
relies exclusively on currently valid individual Veterans' eligibility
determinations rendered by VBA or, in some cases, disability
determinations of the Department of Defense pursuant to 38 CFR 74.1
(definition service-disabled Veteran)''.
Upon rendering a decision, new VAAR 819.307(g) provides that the
Director, CVE, will notify the contracting officer, the protester, and
the protested concern of its determination. The decision is effective
immediately and is final unless overturned on appeal by the Executive
Director, OSDBU. The determination may be sent by mail, commercial
carrier, facsimile transmission, or other electronic means. This is
consistent with FAR 19.307(i) where, for SBA status protests, SBA
officials notify the protester and the contracting officer of the
determination and that it is effective immediately and final unless
overturned on appeal.
In order to provide an additional layer of due process, new VAAR
819.307(i) provides that, except for a decision based upon an
allegation of failure to meet the Veteran or service-disabled Veteran
status of the individual owner(s) of the apparently successful offeror,
the Director, CVE, status protest decision may be appealed.The
protester or the protested SDVOSB or VOSB concern may file an appeal of
the status protest determination with the Executive Director, OSDBU.
The determination to retain the appeal process within VA OSDBU is a
policy determination but it is consistent with the government-wide
HUBZone status protest process set forth in FAR 19.306(m) wherein
status protests are submitted to SBA's Associate Administrator for the
HUBZone Program, who issues initial decisions, and appeals are filed
with and determined by SBA's Associate Deputy Administrator for
Government Contracting and 8(a) Business Development. Within VA, the
Director, CVE, and the Executive Director, OSDBU, are the two most
senior officials with the necessary expertise on SDVOSB and VOSB status
examinations to make proper determinations.
The Executive Director must receive the appeal no later than 5
business days after the date of receipt of the status protest
determination. This is consistent with FAR 19.306(j), with respect to
HUBZone status protest appeals. The Executive Director will dismiss any
appeal received after the 5-day period. ``Filing'' means a document is
received by the Executive Director by 5:30 p.m., Eastern Standard Time,
on that day. Documents may be filed by hand delivery, mail, commercial
carrier, or facsimile transmission. Hand delivery
[[Page 59864]]
and other means of delivery may not be practicable during certain
periods due to, for example, security concerns or equipment failures.
The filing party bears the risk that the delivery method chosen will
not result in timely receipt by the Executive Director, OSDBU. Appeals
are to be submitted to: Executive Director, OSDBU (00VE), U.S.
Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC
20420.
New VAAR 819.307(j) sets forth that any appeal must meet the
following criteria. The appeal must be in writing. The appeal must
identify the status protest determination being appealed and also must
set forth a full and specific statement as to why the decision was
based on clear error of fact or law. This is consistent with FAR
19.306(k) with respect to HUBZone status protest appeals and 13 CFR
134.508 with respect to SDVOSB status protest appeals at SBA's Office
of Hearing and Appeals.
New VAAR 819.307(k) requires that the party appealing the
determination must provide notice of the appeal to the contracting
officer. In order to avoid a piecemeal presentation of the relevant
issues and frivolous appeals, 819.307(k) also establishes that the
Executive Director will decide all appeals solely on a review of the
evidence in the written protest file, arguments made in the appeal
petition and response(s) filed thereto. These provisions are consistent
with FAR 19.306(l) with respect to HUBZone status protest appeals and
13 CFR 134.512 with respect to SDVOSB status protest appeals at SBA's
Office of Hearing and Appeals.
New VAAR 819.307(l) provides that the Executive Director will make
a decision on the appeal within 10 business days of the receipt of the
appeal, if practicable, and will base the decision only on the
information and documentation in the protest record as supplemented by
the appeal. The Executive Director will provide a copy of the decision
to the contracting officer and the protested SDVOSB or VOSB concern.
The Executive Director's decision, if received before the award, will
apply to the pending acquisition. If the Executive Director's decision
is received after the award, the contracting officer may terminate the
contract or not exercise the next option (i.e., the contract will end
once the contract term expires). This policy determination weighs the
needs of the agency and the public interest against the due process
rights of an interested party and is consistent with the government-
wide HUBZone status protest process where the Director of HUB issues an
initial decision and a higher level SBA official issues the appellate
decision and when SBA's Office of Hearing and Appeals issues a decision
in an SDVOSB status protest appeal after a contract has been awarded.
See FAR 19.306(m); 13 CFR 125.27(g)(2)(iii). If the appeal is decided
in favor of the appealing party after the contract is awarded, the
contracting officer is given the business discretion to terminate the
contract or not exercise the next option because, due to the passage of
time, the costs of a termination and disruption of services for the
benefit of veterans or a construction project may be so extensive as to
outweigh the programmatic issues of ensuring an award is made to a
valid veteran small business. The Executive Director's decision is the
final decision. The decision may be sent by mail, commercial carrier,
facsimile transmission, or other electronic means. This process is
essentially consistent with the method for appeals related to SBA's
HUBZone status protest process set forth in FAR 19.306(m) except that
VA has determined that VA requires 10 business days in lieu of 5
business days to decide an appeal due to VA's available administrative
resources.
Finally, a technical change would re-designate VA's Center for
Veterans' Enterprise as the Center for Verification and Evaluation to
more accurately reflect the mission of this office which is to
determine the status of SDVOSBs and VOSBs with respect to VA's SDVOSB/
VOSB set-aside acquisition program established by 38 U.S.C. 8127.
Administrative Procedure Act
This document revises VAAR 819.307, ``SDVOSB/VOSB Small Business
Status Protests,'' the interim provision included in the final rule on
which we requested comments. In the interim provision, VA provided that
the Executive Director, OSDBU, shall consider and decide SDVOSB and
VOSB status protests until VA and SBA executed an interagency agreement
for SBA to consider and decide SDVOSB and VOSB status protests. For the
reasons stated above, we have determined that SDVOSB and VOSB status
protests shall remain within VA. Therefore, we are revising the interim
provision to provide that the Director, CVE, shall initially adjudicate
SDVOSB and VOSB status protests and to provide that either the
protester or the protested business may appeal the Director, CVE,
decision to the Executive Director, OSDBU.
Good cause exists for the agency to include this change in an
interim final rule to make a change to the interim provision that is
essential for this contracting program to function so as not to deprive
VA and veterans of necessary services and supplies and to provide
immediately appropriate due process by authorizing an administrative
appeal process on initial status protest decisions. The current interim
process does not authorize an administrative appeal at the agency
level, which has been criticized in Miles Construction, LLC v. United
States, 108 Fed. Cl. 792 (2013), as not providing a party adequate due
process and the opportunity to be heard at a meaningful time in a
meaningful manner. Thus, delay in the implementation of this rulemaking
would be contrary to the public interest. VA hereby solicits comments
on this regulatory amendment.
Regulatory Flexibility Act
The Secretary hereby certifies that this interim final rule will
not have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. The final arbiter of VA SDVOSB and VOSB status protests
remains the Executive Director, OSDBU, as previously promulgated. The
main change is that the Secretary has determined that SBA should not be
involved in VA SDVOSB or VOSB status protests because these status
protests are solely associated with title 38 SDVOSB and VOSB set-aside
acquisitions where SDVOSB or VOSB status is to be determined by the
Secretary pursuant to 38 U.S.C. 8127(f). On this basis, the Secretary
certifies that the adoption of this interim final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. Therefore, under 5 U.S.C. 605(b), this rulemaking is exempt from
the initial and final regulatory flexibility analysis requirements of
sections 603 and 604.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995, at 2 U.S.C. 1532,
requires that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in an expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This interim final rule will have no such
effect on State, local, and tribal governments, or on the private
sector.
[[Page 59865]]
Paperwork Reduction Act
This interim final rule contains no collections of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 12866 (Regulatory Planning and Review) defines a
``significant regulatory action'' requiring review by the Office of
Management and Budget (OMB), unless OMB waives such review, as ``any
regulatory action that is likely to result in a rule that may: (1) Have
an annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities; (2)
Create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency; (3) Materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (4) Raise novel legal
or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in this Executive Order.''
The economic, interagency, budgetary, legal, and policy
implications of this regulatory action have been examined, and it has
been determined not to be a significant regulatory action under
Executive Order 12866. VA's impact analysis can be found as a
supporting document at http://www.regulations.gov, usually within 48
hours after the rulemaking document is published. Additionally, a copy
of the rulemaking and its impact analysis are available on VA's Web
site at http://www1.va.gov/orpm/, by following the link for ``VA
Regulations Published.''
Catalog of Federal Domestic Assistance
There is no Catalog of Federal Domestic Assistance number or title
for this program.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. Jose D.
Riojas, Chief of Staff, approved this document on September 13, 2013,
for publication.
List of Subjects in 48 CFR Part 819
Administrative practice and procedure, Government procurement,
Reporting and recordkeeping requirements, Small businesses, Veterans.
Dated: September 25, 2013.
Robert C. McFetridge,
Director, Office of Regulation Policy and Management, Office of the
General Counsel, Department of Veterans Affairs.
For the reasons set forth in the preamble, the Department of
Veterans Affairs amends 48 CFR part 819 as follows:
PART 819--SMALL BUSINESS PROGRAMS
0
1. The authority citation for part 819 continues to read as follows:
Authority: 38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c) and (d); 48
CFR 1.301-1.304; and 15 U.S.C. 637(d)(4)(e).
Subpart 819.3--Determination of Small Business Status for Small
Business Programs
0
2. Revise 819.307 to read as follows:
819.307 SDVOSB/VOSB Small Business Status Protests.
(a) All protests relating to whether a Service-Disabled Veteran-
Owned Small Business (SDVOSB) or Veteran-Owned Small Business (VOSB) is
a ``small'' business for the purposes of any Federal program are
subject to 13 CFR part 121 and must be filed in accordance with that
part. SDVOSB and VOSB status shall be determined in accordance with 38
CFR part 74.
(b) A contracting officer or an interested party may protest the
apparently successful offeror's SDVOSB or VOSB status. ``Interested
party'' for the purpose of filing a status protest is an actual offeror
whose direct economic interest would be affected by the award of a
contract or by the failure to award a contract.
(c) All status protests shall be in writing and shall state all
specific grounds for the protest. Assertions that a protested concern
is not an SDVOSB or VOSB concern, without setting forth specific facts
or allegations, are insufficient. An interested party must submit its
status protest to the contracting officer by close of business on the
fifth business day after bid opening (in sealed bid acquisitions) or by
close of business on the fifth business day after notification by the
contracting officer of the apparently successful offeror (in negotiated
acquisitions). An interested party must deliver their protest in
person, by electronic mail, by facsimile, by express delivery service,
or by the U.S. Postal Service within the applicable time period to the
contracting officer. Any status protest received after these time
limits is untimely. Any status protest received prior to bid opening or
notification of intended award, whichever applies, is premature and
shall be returned to the protester. Except for premature status
protests, the contracting officer must forward to the Director, Center
for Verification and Evaluation (CVE), any status protest received.
(d) The Director, CVE, will notify the protester and the
contracting officer of the date the status protest was received by CVE
and whether the status protest will be processed or dismissed for lack
of timeliness or specificity.
(e) The Director, CVE, will determine the SDVOSB or VOSB status of
the protested concern based upon the totality of circumstances within
21 business days after receipt of the status protest. If the Director,
CVE, does not contact the contracting officer within 21 business days,
the contracting officer may award the contract to the apparently
successful offeror, unless the contracting officer has granted the
Director, CVE, an extension. The contracting officer may award the
contract after receipt of a status protest if the contracting officer
determines in writing that an award must be made to protect the public
interest. The contracting officer shall document this determination for
the contract file.
(f) A denial decision by the Director, CVE, that is based on the
failure to meet any service-disabled Veteran or Veteran criterion as
defined in 38 CFR 74.1 is not subject to an appeal to the Executive
Director, Office of Small and Disadvantaged Business Utilization
(OSDBU), and is a final decision.
(g) The Director, CVE, will notify the contracting officer, the
protester, and the protested concern of its determination. The
determination is
[[Page 59866]]
effective immediately and is final unless overturned on appeal by the
Executive Director, OSDBU. The determination may be sent by mail,
commercial carrier, facsimile transmission, or other electronic means.
(h) If the Director, CVE, sustains an SDVOSB or VOSB status protest
and the contract has already been awarded, then the awarded contract
shall be deemed void ab initio and the contracting officer shall
rescind the contract and award the contract to the next SDVOSB or VOSB
in line for the award. The ineligible SDVOSB or VOSB concern shall not
be permitted to submit another offer as a SDVOSB or VOSB on a future
SDVOSB or VOSB procurement under this part, unless it successfully
appeals the determination of the Director, CVE, to the Executive
Director, OSDBU, or unless it applies for and receives verified SDVOSB
or VOSB status in accordance with 38 CFR part 74.
(i) Except as provided in subsection (f), the protestor or the
protested SDVOSB or VOSB concern may file an appeal of the status
protest determination with the Executive Director, OSDBU. The Executive
Director must receive the appeal no later than 5 business days after
the date of receipt of the status protest determination. The Executive
Director will dismiss any appeal received after the 5-day period.
``Filing'' means a document is received by the Executive Director by
5:30 p.m., Eastern Standard Time, on that day. Documents may be filed
by hand delivery, mail, commercial carrier, or facsimile transmission.
Hand delivery and other means of delivery may not be practicable during
certain periods due to, for example, security concerns or equipment
failures. The filing party bears the risk that the delivery method
chosen will not result in timely receipt by the Executive Director,
OSDBU. Submit appeals to: Executive Director, OSDBU (00VE), U.S.
Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC
20420.
(j) The appeal must be in writing. The appeal must identify the
status protest determination being appealed and must set forth a full
and specific statement as to why the decision was based on clear error
of fact or law.
(k) The party appealing the determination must provide notice of
the appeal to the contracting officer. The Executive Director will
decide all appeals under this subpart solely on a review of the
evidence in the written protest file, arguments made in the appeal
petition and response(s) filed thereto.
(l) The Executive Director will make a decision within 10 business
days of the receipt of the appeal, if practicable, and will base the
decision only on the information and documentation in the protest
record as supplemented by the appeal. The Executive Director will
provide a copy of the decision to the contracting officer and the
protested SDVOSB or VOSB concern. The Executive Director's decision, if
received before the award, will apply to the pending acquisition. If
the Executive Director decides in favor of the appealing party and the
decision is received after the award, the contracting officer may
terminate the contract or not exercise the next option. The Executive
Director's decision is the final decision. The decision may be sent by
mail, commercial carrier, facsimile transmission, or other electronic
means.
[FR Doc. 2013-23759 Filed 9-27-13; 8:45 am]
BILLING CODE 8320-01-P