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34 lawmakers aim to preserve VA’s AbilityOne procurementsCourt said vet-owned firms have priority over AbilityOneNearly two dozen lawmakers in Congress are urging the Veterans Affairs Dept. to uphold mandatory purchases from AbilityOne non-profits with severely disabled workers. The non-competitive procurements had been in effect for many decades until a recent court ruling. The 34 lawmakers wrote to VA Secretary Robert Wilkie on July 11 asking that the VA continue to honor AbilityOne requirements. Their efforts are being opposed by advocates for veteran small business owners, who are rallying support for maintaining the VA’s “Vets First” top-priority preferences for contracts with small firms owned by veterans, and especially service-disabled veterans. Those priorities were set in a 2006 law. The drive to safeguard AbilityOne at the VA threatens the veterans’ preferences, Scott Denniston, executive direct of the National Veteran Small Business Coalition, wrote in an action alert to members on Aug. 17. “This is a blatant attack on Vets First,” Denniston wrote. But some of the lawmakers contend Congress inadvertently wrote apparently conflicting laws. Sen. Thom Tillis, R-NC, called the situation an “unintended consequence” of the laws in a statement to the Winston-Salem Journal. Meanwhile, the 34 lawmakers say they want to protect both AbilityOne and Vets First. “Both programs are important,” they wrote in the letter to Wilkie. The letter was signed by eight senators and 26 representatives in Congress (see full list). Court decision The conflict has been spurred by an October 2018 decision by the U.S. Court of Appeals for the Federal Circuit. The case was brought by a service-disabled veteran business owner as a protest against a VA contract awarded to an AbilityOne nonprofit employing blind workers to make eyeglasses for the VA. The veteran said the contract should have been awarded to his firm. The court ruled that the VA must give top priority to small businesses owned by veterans and service-disabled veterans, even for items on the AbilityOne list. The 2006 law giving veterans top priority in contracting at the VA takes precedence over the 1938 law that created AbilityOne, the court ruled. The judges said they considered Congress’ intentions in authorizing the law establishing Vets First and its legislative history. The judges also said that they were guided by two principles: one, that more recent laws generally take precedence over older laws, because lawmakers are assumed to be aware of the older laws, and two, that specific laws, affecting VA only, usually should take precedence over more general laws affecting the entire federal government. Cancelled contracts The court’s decision has resulted in the imminent cancellations of several AbilityOne contracts for items such as eyeglasses and flags at the VA. In Winston-Salem, NC, IFB Solutions Inc. has a longstanding contract, set to expire on Aug. 31, to provide VA with prescription eyeglasses made by blind and disabled workers, some of them veterans. The IFB has filed a protest with the Government Accountability Office. IFB’s other AbilityOne VA contracts, affecting 90 jobs with disabled workers, expire in the next two months. In Huntsville, AL, a factory has been making flags for the VA for 25 years, and two dozen disabled people are facing layoffs now that the contract has been canceled. The VA told the Winston-Salem Journal that it is abiding by the laws and “if Congress wants to change the federal laws it has set that govern this process, it can choose to do so.”” Arguments on both sides The lawmakers who want to safeguard AbilityOne at the VA stated in their letter that they have concerns regarding VA’s interpretation of the laws. Their recommendation is that the VA fulfill the AbilityOne mandate first, and for the remaining contracts, apply the Rule of Two to determine if the procurement should be set aside for service-disabled veteran-owned small businesses (SDVOSBs). “Our expectation is that the VA will cease attempting to take away any current AbilityOne Procurement List contracts...as that is not consistent with the intent of Congress,” the lawmakers’ July 11 letter stated. Denniston, representing the veterans group, wrote in a members’ newsletter that there is “genuine jeopardy” to the VA’s set-asides for veterans from the lawmakers’ efforts to protect AbilityOne. Denniston described the lawmakers’ letter to Wilkie as “alarming,” contending that the letter “effectively asks the VA to break the law.”
More information:
US Court of Appeals decision: https://bit.ly/2yE7MYG
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