Well, that was fast.
A little more than two weeks after the U.S. Court of Federal Claims held that the VA need not consider service-disabled veteran-owned small business set-asides before procuring goods and services using the Federal Supply Schedule, the GAO has ended its long-running dispute with the VA over the same issue.
The GAO’s decision, in a case also involving Kingdomware Technologies, puts a sudden end to a series of GAO cases (known by many as the Aldevra cases) holding that the VA has been acting contrary to the law by failing to consider SDVOSB set-asides before using the Schedule.
As I briefly reported last night, in a crushing blow to service-disabled veteran-owned small businesses, the U.S. Court of Federal Claims has overturned the GAO’s Aldevra decisions.
Judge Nancy Firestone, ruling in Kingdomware Technologies, Inc. v. The United States, No. 12-173C (Nov. 27, 2012), held that the VA reasonably interpreted the Veterans Benefits, Health Care, and Information Technology Act of 2006 as not requiring consideration of a SDVOSB set-aside before the VA procures goods and services under the Federal Supply Schedule. For SDVOSBs, the Kingdomware Technologies ruling means that the VA’s much-ballyhooed “Veterans First” acquisition policy means little more than “Veterans First (If We Feel Like It).”
VetLikeMe, a publication advocating for service-disabled veteran-owned small businesses, is reporting tonight that the U.S. Court of Federal Claims has ruled in favor of the VA in a decision essentially overturning the GAO’s Aldevra line of cases.
The court’s decision, issued by Judge Nancy Firestone, has not yet appeared on the Court of Federal Claims’ website, but I have seen a copy of the ruling and can confirm VetLikeMe’s report.
In the decision, Judge Firestone holds that the VA need not consider a set-aside for service-disabled veteran-owned small businesses before procuring supplies or services under the Federal Supply Schedule. Judge Firestone’s ruling essentially reverses more than a year’s worth of GAO decisions holding that the VA had violated the law by using FSS procedures without first considering SDVOSB set-asides.
More tomorrow on this crushing legal blow to SDVOSBs.
Contractors filed 2,475 GAO bid protests in Fiscal Year 2012, a five percent increase from the prior year, according to the GAO’s annual bid protest report to Congress. The GAO’s annual report indicated that “sustain” decisions were up slightly from the prior year, while the overall “effectiveness rate” of protests–a combination of sustain decisions and agency corrective actions–held steady at 42%.
Meanwhile, the VA was the only procuring agency to ignore GAO recommendations–something the VA did repeatedly in the Aldevra line of cases.
The U.S. Department of Veterans Affairs’ award of a contract to a small business under simplified acquisition procedures was improper because it appeared that a number of service-disabled veteran-owned small businesses could have filed the requirement, according to a recent GAO bid protest decision.
Unlike the ongoing Aldevra cases, in which the VA has purposefully continued making awards to non-SDVOSBs under the Federal Supply Schedule in the face of repeated GAO decisions stating that the practice is illegal, the GAO’s decision in GAO Protest of Phoenix Environmental Design, Inc., B-407104 (Oct. 26, 2012), suggests that the VA simply did not understand how the agency’s own set-aside rules are supposed to work, at least in the context of a simplified acquisition.
The standoff between the VA and the GAO over the VA’s use of the Federal Supply Schedule without putting “Veterans First” continues. This week, Michigan-based Aldevra–the SDVOSB company at the center of the battle–won another bid protest at the GAO.
The original Rocky was popular with audiences and critics alike, rating as the highest-grossing film of 1976 and picking up three Oscars, including Best Picture. But by the time the franchise reached Rocky V in 1990, the ongoing sequels had become something of a joke. In a Washington Post review, critic Desson Howe opened with: “Moments after that brutal bout with Dolph Lundgren in “Rocky IV” — and you did watch “Rocky IV,” didn’t you? — Sly Stallone mistakes his wife for his dead boxing coach. This is not a good sign, even for the Rockster.”
Like the Rocky series, the fight between Aldevra and the VA keeps spawning sequels. For service-disabled veteran-owned small businesses, the good news is that Aldevra has won yet another GAO bid protest, challenging the VA’s refusal to consider a SDVOSB set-aside before procuring equipment from the GSA Schedule. The bad news is that the sequels keep coming, with no sign that the VA will back down.