In a crushing blow to SDVOSBs, the U.S. Court of Appeals for the Federal Circuit has denied the appeal of a lower court decision allowing the VA to procure goods and services using the Federal Supply Schedule without first considering whether SDVOSBs can satisfy the requirement.
Rejecting well-stated objections by a dissenting judge, a two-judge majority held that the purpose of the “Veterans First” rule is to ensure that the VA meets its SDVOSB goals, and that so long as the VA meets its SDVOS goals, it is free to procure services and supplies from the Federal Supply Schedule without first considering a SDVOSB procurement.
The VA is not required to prioritize SDVOSB set-asides when it obtains prosthetic appliances and related services, according to the GAO.
In a recent bid protest decision, the GAO held that a specific statutory exemption allows the VA to procure prosthetic appliances and related services in whatever manner the VA deems best, without regard to the ordinary requirement that the VA prioritize SDVOSB acquisitions.
In this week’s SmallGovCon Week In Review, the American Legion asks an appellate court to overturn the infamous Kingdomware SDVOSB decision, the Office of Management and Budget prepares for a potential government shutdown, a blogger writes that despite new rules, small subcontractors may be mistreated by large primes, and much more.
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.