SDVOSBs and VOSBs are big winners today, as the Supreme Court unanimously ruled that the VA’s “rule of two” is mandatory, and applies to all VA procurements–including GSA Schedule orders.
The Supreme Court’s decision in Kingdomware Technologies, Inc. v. United States, No. 14-916 (2016) means that the VA will be required to truly put “Veterans First” in all of its procurement actions–which is what Kingdomware, and many veterans’ advocates, have fought for all along.
As the nation pauses to remember Justice Antonin Scalia, SDVOSBs and VOSBs are already asking: what does Justice Scalia’s passing mean for Kingdomware v. United States, which is currently scheduled for oral argument on February 22?
Good question. Here’s what I know now, plus a little speculation to boot.
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.
The VA’s decision not to issue a SDVOSB set-aside was improper because the VA adopted an unreasonably narrow approach to determining whether two or more SDVOSBs were likely to submit proposals.
In a recent bid protest decision, the GAO held that the VA’s narrow market research did not support its set-aside determination. And in so holding, the GAO reaffirmed its position that the VA must put “veterans first” in federal procurements.
Later this year, the Supreme Court will take up the case of Kingdomware Technologies, Inc. v. United States. The Court will decide whether the U.S. Court of Appeals for the Federal Circuit was correct to find that the VA need not give SDVOSBs and VOSBs a contracting preference so long as the VA is meeting its SDVOSB and VOSB goals.
If you follow SmallGovCon, you know my position: I think the Federal Circuit’s ruling was fundamentally flawed. Last week, I spoke with Francis Rose of Federal News Radio about the case. Click here to listen to my interview with Francis, and be sure to tune in to In Depth With Francis Rose weekdays from 4:00 p.m. to 7:00 p.m. Eastern on Federal News Radio.
The government awarded 24.99% of prime contracting dollars to small businesses in Fiscal Year 2014, a sharp increase over the 23.39% figure from 2013.
The SBA’s 2014 Small Business Procurement Scorecard, which was released today, shows that the government beat its 23% goal for the second year running. It wasn’t all good news, though: the government again failed to meet its WOSB and HUBZone goals.
Is the Department of Veterans Affairs required to prioritize service-disabled veteran-owned small businesses (“SDVOSBs”) when it buys supplies and services? That, essentially, will be the question before the Supreme Court when it takes up the case of Kingdomware Technologies, Inc. vs. United States. On June 22, the Supreme Court agreed to hear the case.
The Supreme Court’s decision in Kingdomware will end a long-running battle between the VA and various SDVOSBs, which have accused the VA of creating loopholes to avoid a statutory contracting preference for veterans. Hopefully, the Court will get it right. As a matter of policy and law, the underlying decision of the U.S. Court of Appeals for the Federal Circuit is fundamentally flawed.