A protest challenging a company’s status as a service-disabled veteran-owned small business is not the same as a protest challenging other aspects of an agency’s award decision (such as the evaluation of the protester’s proposal)–and these differences can determine whether a protest is timely and correctly filed.
In a recent case, the SBA Office of Hearings and Appeals provided some clarity on key differences between SDVOSB protests and bid protests, including important limits on the SBA’s jurisdiction.
The Supreme Court will decide the Kingdomware SDVOSB/VOSB case on its merits after all. According to the Supreme Court’s just-released calendar, the Court will hear oral argument in Kingdomware Technologies v. United States on February 22, 2016.
The Supreme Court’s decision is good news for SDVOSBs and VOSBs, which got a bit of a scare when the Supreme Court abruptly yanked the case from its docket in November. But after Kingdomware and the VA filed briefs agreeing that the case should not be dismissed on a technicality, the Court has decided to move ahead.
I plan to be in the Supreme Court for oral argument on the 22nd, and will update SmallGovCon later that day with my take on the proceedings.
The SBA lacks authority to determine whether a company is an eligible service-disabled veteran-owned small business for purposes of a VA SDVOSB set-aside procurement.
In a recent decision, the SBA Office of Hearings and Appeals confirmed that the SBA lacks such authority, which is reserved solely for the VA’s Office of Small & Disadvantaged Business Utilization.
The VA and Kingdomware Technologies Inc. haven’t agreed on much in recent years, but in briefs filed with the Supreme Court on November 20, 2015, they agree on one thing: the pending Kingdomware Supreme Court case is not moot.
Hopefully, the fact that neither party wants the case dismissed on a technicality will help convince the Court to decide Kingdomware on the merits.
The VA is proposing a major overhaul to its SDVOSB program regulations–including the rules governing ownership and control.
In a proposed rule released today, the VA is seeking to “find an appropriate balance between preventing fraud in the Veterans First Contracting Program and providing a process that would make it easier for more VOSBs to become verified.” And while the proposal isn’t perfect, it looks like a step in the right direction.
The Kingdomware SDVOSB/VOSB Supreme Court case, which had been scheduled for an oral argument on Monday November 9, is suddenly in a state of limbo. In an order issued today, the Supreme Court yanked the case from its docket. The Court directed the parties to submit briefs on whether the contracts in question have been fully performed, and if so, whether full performance renders the case moot.
For Kingdomware and veteran-owned companies everywhere, this is extremely troubling news. If the Court believes that the case is moot, it will be dismissed–meaning that Kingdomware would lose the war without even getting its day in court.
Briefs from both sides are due November 20, and each side may reply by December 1. I will keep you posted.
In a stunning development in the Kingdomware SDVOSB/VOSB Supreme Court case, the Government has abandoned the argument that the statutory preference for veteran-owned companies applies only if the VA has not met its SDVOSB or VOSB contracting goals.
Although this argument was hotly debated, it was successful both at the Court of Federal Claims and again at the Federal Circuit. But now, just weeks away from oral arguments, the Government’s Supreme Court brief jettisons the Government’s own previously successful argument in favor of an entirely different rationale for refusing to honor the statutory SDVOSB and VOSB preferences.
The last-minute, wholesale substitution of arguments doesn’t say much for the Government’s confidence in its case. And on the merits, the Government’s new argument is no better than the one it has abruptly abandoned.