# Presentation: 856141

## Service-Disabled Veteran-Owned Small Business Concern Program

- U.S. Small Business Administration
- Office of Federal Contract Assistance for Veteran Business Owners

## 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.

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

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

## 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

- 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

## 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

- 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

##  Adjudication
 Size
 Ownership & Control
 Highest Position Held

-  Adjudication
-  Size
-  Ownership & Control
-  Highest Position Held

## 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)

- 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)

**Notes:**
SBA cannot adjudicate the veterans disability and cannot challenge the VA or DODs decision
Small at the time of contract offer

##  SET-ASIDE EXEMPTIONS
 SET-ASIDES
 SOLE SOURCE
 SIMPLIFIED ACQUISITIONS

-  SET-ASIDE EXEMPTIONS
-  SET-ASIDES
-  SOLE SOURCE
-  SIMPLIFIED ACQUISITIONS

## SET-ASIDE EXEMPTIONS

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

## SET-ASIDE REQUIREMENTS

- A Contracting Officer (CO) may set-aside requirements if:
- The requirement is **not exempted** from SDVO contracting.
- 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.
- There is a reasonable expectation that **at least two** responsible SDVO SBCs will submit offers; and
- The award can be made at a **fair market price**.
- 13 CFR § 125.19/FAR Part 19.1405(a) – (b)

## SOLE SOURCE CONTRACTS

- A CO may award a sole source contract if:
- The requirement is **not exempted** from SDVO contracting and **cannot be set-aside**.
- The CO **does not** have a reasonable expectation that at least two **responsible** SDVO SBCs will submit offers.
- The anticipated award **price** of the contract, including options, will **not exceed**:
- $5.0M for manufacturing requirements
- $3.0M for all other requirements
- Award can be made at a **fair market price**.
- 13 CFR § 125.20/FAR Part 19.1406

## 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

##  LIMITATIONS ON SUBCONTRACTING 
JOINT VENTURES
 NON-MANUFACTURERS 

-  LIMITATIONS ON SUBCONTRACTING
- JOINT VENTURES
-  NON-MANUFACTURERS

## 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)

- 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)

**Notes:**
Prime or Subcontractor SDVO SBC must spend 50% on personnel on the concern’s employees or on the employees of other SDVO SBCs.
At least 50% on the cost of manufacturing supplies or products (not including materials) will be performed by the SDVO SBC prime KR or other SDVO SBCs performing under the contract.
For General Construction, the SDVO SBC must spend at least 15% of the cost of contract performance for personnel on the concern’s employees or the employees of other SDVO SBC performing under the contract.
For Construction by Special Trade Contractors, the SDVO SBC must spend at least 25% of the cost of contract performance for personnel on the concern’s employees or the employees of other SDVO SBC performing under the contract

## 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)

- 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)

## 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)

- 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)

##  WHAT? 
 WHO? 
 WHEN?
 WHERE?
 HOW?

-  WHAT?
-  WHO?
-  WHEN?
-  WHERE?
-  HOW?

**Notes:**
WHAT is a protest? WHO may submit a protest? WHEN are protests submitted? WHERE are protests submitted? HOW are protests submitted? 

## 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

**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

**Notes:**
A protest is a challenge to the apparent successful offeror’s size status or eligibility status. SDVOSB SBC must be 51% owned and controlled by SDV.  If both size and eligibility are challenged, the protests will be processed concurrently.  The size protest will be processed by the nearest Area Office  

## PROTEST PROCEDURES 

**WHO** MAY SUBMIT A PROTEST?
- Sole Source Procurements:
- Small Business Administration
- Contracting Officer
- Competitive Set-Asides:
- Any interested party
- 13 CFR § 125.24

## 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)

## 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)

**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)

## 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)

## 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 Contracting
	U.S. Small Business Administration
	409 Third Street, SW
	Washington DC  20416

	Attn:  Service-Disabled Veteran Status Protest

13 CFR § 125.25(e)

**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 Contracting
- 	U.S. Small Business Administration
- 	409 Third Street, SW
- 	Washington DC  20416
- 	Attn:  Service-Disabled Veteran Status Protest
- 13 CFR § 125.25(e)

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

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

**Notes:**
WHO may submit an appeal? WHERE is an appeal filed? WHEN may an appeal be filed? HOW is an appeal formatted? WHO must an appellant serve? WHEN will the judge issue the decision?

## 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 Clerk*
*	**Office of Hearings and Appeals*
*	**U.S. Small Business Administration*
*	**409 Third Street, SW*
*	**Suite 5900*
*	**Washington DC  20416-0005*
*Phone:  (202) 401-8203*
*FAX:  (202) 205-7059*
- 13 CFR § 134.503

## 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

## 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)

**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)

**Notes:**
The person filing the appeal must provide SBA’s AA/GC and OGC, the CO and the protested concern or protester (depending on who is filing the appeal) a copy of the appeal or OHA will not process the appeal.

## 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 

**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

**Notes:**
Anyone who receives a copy of the appeal has 7 days to provide comments to OHA on the appeal, after the 7 days, the Judge then has 15 days to make the appeal decision.  The Judge’s decision is final and cannot be overturned.

## 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.  

- 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.

## TERESA L.G. LEWIS
409 Third Street, SW
Suite 8100, Mail Code: 6520
Washington DC 20416
Phone:  (202) 619-1424
Fax: (202) 481-5772
E-mail: teresa.lewis@sba.gov

*TERESA L.G. LEWIS*
*409 Third Street, SW*
*Suite 8100, Mail Code: 6520*
*Washington DC 20416*
*Phone:  (202) 619-1424*
*Fax: (202) 481-5772*
*E-mail: teresa.lewis@sba.gov*