Two reasons invalidating legislature

Note: The algorithm tries reconstruct a spelling for the new word after generating its pronunciation, and sometimes this spelling isn't quite right.If you're able to read IPA you'll find a more accurate pronunciation in the "Pronunciation" column on the right.As a result, Crosstown argues that the contracting officer lacked a valid basis to conclude that prices quoted by SDVOSBs would not be fair and reasonable because that determination was based on the defective IGCE. Where the nonmanufacturing rule applies to a procurement and the agencys market research fails to consider whether the firms identified in the market research can comply with the rule, the market research is unreasonable. As shown above, the VA Acts Rule of Two has two prongs. Under these circumstances, we will not question her judgment that the dual requirements of the VA Acts Rule of Two were not met. The agency did further market research by reviewing the websites of SDVOSB firms with the relevant NAICS code to investigate whether these firms perform valet parking services. 8127, and the VAs implementing regulations, VA Acquisition Regulation Supplement (VAAR), 48 C. See AR, Tab 4, Market Research Report, at 1-2; Tab 5, Minnesota Market Research. The phrase explains the purpose for the mandate, which is to meet the goals established under subsection (a); however, the phrase does not create an exception to the mandate. Despite this lack of rulemaking, the VA now claims blanket discretion to define the scope of procurements to which the statutory mandate applies. With respect to the VAs previously-raised argument that our Office should defer to its 2009 rulemaking that stated that the FAR language in Part 19 applies to the SDVOSB set-aside program created by the VA Act, the VAs conclusions in that rulemaking were refuted by the express language of the FAR section upon which the VA relies. (Aldevra, B-406205, Mar 14, 2012) (pdf) The VA contends that Kingdomware has not been prejudiced by the agency's corrective action because the protester had the opportunity to submit a quotation in response to the revised FSS solicitation and chose not to do so. The VA also argues that, because the protester did not submit a quotation, it is not an interested party to further challenge the procurement. Under the Competition in Contracting Act of 1984, 31 U. Kingdomware also timely objected to the VA's proposed corrective action, arguing that in accordance with the 2006 VA Act the VA was required to perform market research to determine whether an SDVOSB set-aside was appropriate. In sum, consistent with our decision in Aldvera, we conclude that the 2006 VA Act requires that the agency make a determination whether an acquisition should be set aside for SDVOSB concerns prior to conducting a procurement using FSS procedures. The VA argues that the IGCE was based on the price of the incumbent contract, which was awarded in June 2017 and which required payment of SCA wages. Triad Isotopes, Inc., B-411360, July 16, 2015, 2015 CPD 220 at 7. First, there must be a reasonable expectation that at least two SDVOSBs will submit an offer (or, in the case here, a quotation). The record supports the contracting officers finding regarding the common ownership of Aero Sage and Sage Care. (Aero Sage LLC B-414314, B-414314.2: May 5, 2017) The protester argues that the sole-source award to ARG Tactical, an SDVOSB, is unlawful[because] the requirement could be satisfied through an order under the [FSS]. The agency states that the Veterans Benefit Act of 2003 and implementing regulations provide a contracting officer with the discretion to issue an SDVOSB sole-source award. In addition, the agency reasonably considered the fact that two SDVOSBs had previously been unable to perform the incumbent contract. Under the Veterans Benefits, Health Care, and Information Technology Act of 2006, 38 U. The CO also considered the procurement history for the incumbent, small business set-aside contract. The agency explains that it did not set aside the solicitation for the incumbent contract, or a similar procurement for courier services in Iowa, for SDVOSB concerns because the pricing received from SDVOSB concerns in response to those solicitations exceeded the independent government estimate by an average of 212% and 163%, respectively. Additionally, the VA was concerned that awarding the contract to a SDVOSB concern not located in Minnesota could result in excessive subcontracting in violation of the limitation on subcontracting provisions at FAR clause 52.219‑27(d) and VAAR clause 852.219-10(c). Under these circumstances, we find the VAs market research and set-aside determination to be reasonable. In addition, the exceptions set out in subsections (b) and (c) of section 8127 use the discretionary term may, in contrast to subsection (d)s use of the mandatory term shall. See Aldevra, supra, at 5 (explaining that FAR subpart 19.14--the only subpart within FAR Part 19 that addresses set-asides for SDVOSBs--implements the requirements of the Veterans Benefit Act of 2003, which applies government-wide, and not the 2006 VA Act, which applies only to VA procurements). 8128(a)--a separate subsection of the VA Act, which provides, in its entirely, as follows:(a) Contracting priority.--In procuring goods and services pursuant to a contracting preference under this title or any other provision of law, the Secretary [of the VA] shall give priority to a small business concern owned and controlled by veterans, if such business concern also meets the requirements of that contracting preference.38 U. Where, as here, the protester is challenging the terms of the solicitation, and the remedy sought is the opportunity to compete under a revised solicitation, the protester is an interested party, even if it did not submit a quotation or offer. (Kingdomware Technologies, B-405727, December 19, 2011) (pdf) MICCI argues that because it offered a lower price than Seawolf, the [Department of Veterans Affairs] VA was required under the class deviation to VAAR sect. sections 3551-3556 (2006), only an "interested party" may protest a federal procurement.

While we wait for COAH or the Legislature to act, we will be working on guidance for our clients on questions such as: If you would like to discuss these or other questions concerning the Supreme Court decision, or any related issue, please contact Guliet Hirsch, Partner in Archer’s Land Use, Environmental Permitting and Compliance Group, at (908) 788-9700 or [email protected]: This client advisory is for general information purposes only. 8127(d); Veterans Administration Acquisition Regulation (VAAR) 819.7005(a). First, the firm alleges that DLAs market research was incomplete and improper and that DLA artificially restricted its research to Wisconsin-capable companies. Agencies can rely on the expectation of price competition to satisfy the fair-market-price requirement. Our Office has established that the determination of whether there is a reasonable expectation of receiving offers from two or more SDVOSBs that are capable of performing the required work is a matter of informed business judgment within the contracting officers discretion that we will not disturb absent a showing that it was unreasonable. 15, 2015, 2015 CPD 128 at 3; Crosstown Courier Serv., Inc., B-410936, March 12, 2015, 2015 CPD 107 at 4. Although the protester lists other websites and databases that it contends the agency should have searched, Comments at 1-2, the protester has not shown the agencys research here to be unreasonable in light of the discretion afforded to contracting officers. 403 (holding that small business concern, which had been determined to be other than small by the Small Business Administration (SBA), was not an interested party to challenge award of a small business set-aside contract, notwithstanding a pending appeal with SBA). (MICCI Imaging Construction Company, Inc., B-405654, November 28, 2011) (pdf) Kingdomware contends that the agency failed to determine whether this acquisition was suitable for an SDVOSB set-aside and, as a result, the agency improperly competed the requirement on an "unrestricted" basis. In this regard, Kingdomware argues that the agency failed to comply with FAR sect. First, Kingdomware objects to the solicitation's reference to the MOBIS schedule. Second, Kingdomware objects to the requirement that the emergency notification service include a capability to notify and receive responses through social media, such as Instant Messenger, Facebook, and Twitter. Kingdomware contends that this requirement amounts to a government endorsement of the use of social media by federal employees during work, and that such a requirement is unnecessary because emergency notifications and responses "could [occur] directly through the emergency notification solution." Id. The agency, however, maintains that the error did not prejudice Kingdomware because the solicitation was sent only to vendors that hold GSA Schedule 70 contracts--including Kingdomware-- and because the agency received no vendor questions regarding the reference. With respect to the solicitation's social media notification capability requirement, the agency responds that the requirement reflects the agency's need to quickly alert staff as to a potential emergency in a broad range of formats. The social media format is necessary, the agency explains, in the event that problems arise with other communication formats, such as when cellular telephone service is disrupted or overloaded. Aero Sage challenges DLAs decision not to conduct this procurement as an SDVOSB set‑aside on two principal grounds. Second, Aero Sage alleges that it was improper for the contracting officer to decide that Aero Sage and Sage Care did not satisfy the VA Acts Rule of Two because they are owned by the same individual. In this regard, DLA describes the different types of market research the contracting officer performed, including her search in VAs VIP database for SDVOSBs registered in Wisconsin under the applicable NAICS code. With regard to the decision to limit the VIP database research to firms registered in Wisconsin, DLA points out that the procurement involved a small dollar value and a near-immediate delivery schedule. We believe it was reasonable for the contracting officer to posit that a firm whose service area did not include Wisconsin would not be expected to submit an offer for a purchase at this dollar level of approximately ,000. With regard to the contracting officers conclusion that due to common ownership, Aero Sage and Sage Care did not meet the VA Acts Rule of Two requirements, the SBA commented as follows: [D]uring a typical Rule of Two determination, an agency determines whether there is a reasonable expectation that the contract will be awarded at a fair market price. Given these facts, we do not find it unreasonable for the agency to determine that it lacked a reasonable expectation of receiving offers from two or more SDVOSBs and award would be made a fair and reasonable price. We first address the allegation regarding the sufficiency of DLAs market research. The agency considered the geographic location of each of these companies--Texas, Virginia, Pennsylvania, North Carolina, and South Carolina--and concluded that given their distance from the site of performance, there was not a reasonable expectation of receiving offers from two or more SDVOSB firms that would be capable of performing the required work at a reasonable price. Kingdomware asserts that the solicitation is defective in two other respects. Under the Veterans First Contracting Program, the VA has authority to award contracts using other than full and open competition (including set-aside procurements and sole-source awards) in certain circumstances. Starlight Corp., Inc., supra; Mountain West Helicopters, LLC; Trans Aero, Ltd., B‑408150, B‑408150.2, July 1, 2013, 2013 CPD 152 at 3. Here, as explained below, Walker does not show that the VA unreasonably determined that it would receive offers from two or more SDVOSB firms at fair and reasonable prices. Some of the firms identified in those searches were found to be unable to provide the required equipment. Walker has not provided a reasonable basis on which to question the agencys assertion that competition between these two SDVOSB firms will not result in award being made at a reasonable price. The nonmanufacturer rule provides that the offer of a nonmanufacturer small business concern can be considered, provided, among other things, that the small business concern represents that it will supply the product of a domestic small business manufacturer or processor, or that a waiver of this requirement is granted by the SBA. Commonwealth Home Health Care, Inc., B‑400163, July 24, 2008, 2008 CPD 140 at 3. Because a decision whether to set aside a procurement is a matter of business judgment within the contracting officers discretion, our review generally is limited to ascertaining whether that official abused his or her discretion. 22, 2008, 2008 CPD 232 at 3; Viro Med Labs., B‑298931, Dec. The VA asserts that the statute reflects the intent of Congress to give the VA as much flexibility as possible in procuring prosthetic appliances, which are uniquely sensitive and personal to the needs of the individual veteran. For the same reason, we also find no merit to the protesters contention that the VA violated VA Acquisition Regulation 806.302-5 (directing the contracting officer to cite 38 U. (Charlie Mike Prosthetics; Half Milers Rule, LLC, B-409389, B-409389.2: Mar 10, 2014) (pdf)Kingdomware Technologies, of Waldorf, Maryland, a service-disabled veteran-owned small business (SDVOSB), requests reconsideration of our decision in Kingdomware Technologies, B-407232, Sept. We will not question an agency's set aside determination where the record shows that the evidence before the contracting officer was adequate to support the reasonableness of the conclusion that small business competition reasonably could be expected. Further, in making set-aside decisions, agencies need not make actual determinations of responsibility or decisions tantamount to determinations of responsibility; rather, they need only make an informed business judgment that there is a reasonable expectation of receiving acceptably priced offers from small business concerns that are capable of performing the contract. The agencys market research included a review of the prior acquisition history and searches of the VA Western States Consortium blanket purchase agreement website, the National Acquisition Center contract catalog, and the General Services Administrations website. In addition, the agency posted a sources sought notice, conducted a search on Vetbiz.gov, and emailed ninety-one vendors found on with information about the procurement. Walker asserts that the agencys market research failed to consider whether an SDVOSB concern would meet the limitation on subcontracting rule and whether an SDVOSB nonmanufacturer would be providing the product of an SDVOSB concern. Here, the agency incorporated by reference FAR clause 52.219-27, Notice of Service Disabled Veteran-Owned Small Business Set Aside, and assigned NAICS code 334510, Electromedical and Electrotherapeutic Apparatus Manufacturing, to the RFQ. In making set-aside decisions, agencies need not make actual determinations of responsibility or decisions tantamount to determinations of responsibility; rather, they need only make an informed business judgment that there is a reasonable expectation of receiving acceptably priced offers from small business concerns that are capable of performing the contract. 20, 2006, 2007 CPD 4 at 3-4; Information Ventures, Inc., B‑279924, Aug. We will not question an agencys small business determination where the record shows that the evidence before the contracting officer was adequate to support the reasonableness of the conclusion that small business competition reasonably could be expected. Here, the agencys set-aside determination is unobjectionable. The VA states that, moreover, while this specific authority exempts this procurement from any set-aside requirements, the VAs decision not to set-aside the procurement for SDVOSBs was also supported by the agencys conclusion that it did not have a reasonable expectation of receiving fair market offers from at least two SDVOSBs. 17, 2012, in which we dismissed a protest challenging the award of task order No.

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Specifically, the VA Act, together with VAs implementing regulations, require VA to set aside acquisitions for SDVOSBs whenever it is determined that there is a reasonable expectation that offers will be received from at least two SDVOSBs and that award can be made at a fair and reasonable price. The VA Act also requires that agencies procuring goods or services on behalf of VA--such as DLA here--must comply with the VA Act Rule of Two to the maximum extent feasible. See In and Out Valet Co., supra; Crosstown Courier Serv., Inc., B-410936, supra. However, an agency may not issue an SDVOSB sole-source (or set-aside) award if the procurement would otherwise be made using Federal Prison Industries (18 U. Finally, the agency also considered the procurement history of this requirement. We read these statements to reflect a congressional expectation that the VA generally will conduct procurements with the purpose of meeting the SDVOSB and VOSB participation goals. In support of its position that the solicitation should have been set aside for SDVOSBs, Kingdomware also relies on FAR sect. 38.101(e)--both of which pertain to FSS purchasing--provide that FAR part 19 does not apply to orders placed against FSS contracts. 19.502-1(b), which pertains to small business set-aside requirements, also provides that FAR part 19 set-aside requirements do not apply to FSS purchases.

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