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SBA Corrections to the Veteran-Owned Small Business Federal Contracting Program effective 7/3/2023

VOSBs and SDVOSBs...important corrections by SBA will be published on July 3rd that are applicable to the Veteran-Owned Small Business Federal Contracting Program rule published on 11/29/2022. The corrections--

➡️ Revise the definition of “Applicant” to reference Veteran Small Business Certification Program (VetCert) instead of the SBA’s self-certification program.

➡️ Remove “or a valid disability determination from the Department of Defense” as proof of service-disabled veteran status from the definition of “Service-disabled veteran.” By law, SBA is required to verify the status of a veteran or service-disabled veteran with the Department of Veteran Affairs and cannot accept documentation from the DoD as evidence of status.

➡️ Establish that SBA may request additional documentation at any time during the eligibility determination process and that an applicant’s failure to respond is grounds for denial. If SBA requests additional documentation which the applicant fails to submit in a timely manner or the information is incomplete, that applicant has not met its burden of proof. SBA inadvertently omitted the process by which SBA may deny certification. In such cases, SBA may make an adverse inference that missing information would result in a finding of ineligibility and may deny certification. While adverse inference is currently used by VetCert and SBA’s other contracting certification programs, the final rule failed to adequately describe the process in § 128.302(c).

➡️ Amend § 128.401(a) to clarify that a firm must be certified at the time of offer on a VOSB or SDVOSB contract.

➡️ Correct internal citations in the joint venture regulations at § 128.402.

➡️ Revise part 134, subpart J, regarding VOSB and SDVOSB status protests heard by SBA’s Office of Hearing and Appeals (OHA) to:

(a) Include a sentence that addresses specificity requirements that are included in other SBA contracting programs and previously used by SBA’s SDVOSB self-certification program in part 125. The revision adds back that omitted sentence to § 134.1005(a)(2).

(b) Correct § 134.1007(j)(1) to remove references to the outdated process for VOSB and SDVOSB status protests.

(c) Amend § 134.1007(j)(2) so that, when an ineligible firm has been awarded a contract, the agency shall terminate the contract unless the contracting officer has made a written determination that termination is not in the best interests of the Government. The final rule had included an approach that was not equivalent to SBA's other programs and inconsistent with SBA’s intent for VetCert status protest.

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