The SBA has proposed rules to enable contractors to file protests with the SBA Office of Hearings and Appeals challenging the SDVOSB or VOSB status of a company included in the VA’s CVE VetBiz database. The same set of proposed rules would allow a contractor to appeal to OHA if the VA denies the contractor’s application for inclusion in the CVE database, or cancels an existing verification.
The proposed rules, once finalized, will offer important new protections for SDVOSBs and VOSBs and are the first official step in implementing Congress’s mandate that the SBA and VA consolidate their SDVOSB eligibility requirements.
The SBA’s proposed regulations were published in the Federal Register on September 28, 2017. The proposed rules fall into two broad categories: CVE protests and CVE appeals.
CVE Protests – Proposed Rules
The SBA proposes to give OHA jurisdiction to decide SDVOSB and VOSB eligibility protests for VA procurements. These rules don’t apply to SDVOSB protests for non-VA procurements, which will continue to be evaluated under the SBA’s existing rules.
Here are some of the highlights of the SBA’s proposed rules governing CVE Protests:
- Who can file CVE Protests? The proposed rules allow “the Secretary of the VA, or his/her designee” to file what the SBA calls a “CVE Protest.” Additionally, if a small business is awarded a VA contract, “the contracting officer or an offeror” can file a CVE Protest.
- When are CVE Protests due? The VA can file a CVE Protest at any time. If a protest is filed in connection with a VA contract, “[a]n offeror must file a CVE Protest within five business days of notification of the apparent awardee’s identity.” A contracting officer, on the other hand, “may file a CVE Protest at any time during the life of the VA contract.”
- Where are CVE Protests filed? Protests by private parties must be filed with the appropriate contracting officer, who will refer the protest to OHA. Contracting officers and the VA may file protests directly with OHA.
- What are the contents of a CVE Protest? A CVE Protest “must be in writing.” While there is no required format, the protest must contain the solicitation or contract number, if applicable, the name and contact information and signature of the protester and/or its attorney, and pecific allegations supported by credible evidence that the [protested] concern does not meet the eligibility requirements for inclusion in the CVE database.” OHA will dismiss a protest that fails to meet this “specificity” threshold.
For those familiar with the SBA’s size, SDVOSB and WOSB protest processes, these rules will look rather familiar. Most of the proposed rules for the CVE Protest process don’t vary too much from that of SBA’s other protest processes. Perhaps the most significant difference is that CVE Protests will be decided directly by OHA rather than another SBA office. Under current law, size protests are decided by SBA Area Offices; WOSB and non-VA SDVOSB protests are decided by the SBA’s Director of Government Contracting. OHA serves an appellate function for these protests but will decide CVE Protests directly.
CVE Database Appeals – Proposed Rules
For years, veteran-owned firms have complained that they cannot appeal to an administrative judge if their CVE application is denied or cancelled. The SBA’s proposed rules would allow those companies to appeal directly to OHA.
Here are some highlights of the SBA’s proposal for CVE Appeals:
- Who can file a CVE Appeal? According to the proposed rule, “[a] concern that has been denied verification of its CVE status or has had its CVE status cancelled may appeal the denial or cancellation to OHA.”
What Happens Next
Don’t lose sight of the fact that these are proposed rules, not final rules. Until the rules become final, contractors won’t be able to file CVE Protests or CVE Appeals with OHA. And, of course, the final rules may vary from the proposed versions.
The public is invited to comment on the proposed rules. Comments are due by October 30, 2017. To comment, follow the instructions at the beginning of the Federal Register entry.