Ever since the Supreme Court’s Kingdomware decision was handed down in 2016, an important question has remained: who has priority at the VA for items on the AbilityOne List?
Yesterday, the Federal Circuit Court of Appeals provided the answer. The VA is required to prioritize service-disabled veteran-owned or veteran-owned small businesses when the Rule of Two is met, even when it buys items on the AbilityOne List.
New, consolidated SDVOSB eligibility regulations kicked in on October 1. The new regulations replace the old VA and SBA rules, which provided separate eligibility standards for SDVOSBs.
Veterans have long been confused by the fact that the Government operated two separate SDVOSB programs, each with its own standards. The consolidated rule will eliminate that confusion, and that’s a very good thing. There are also several other pieces of the new SDVOSB eligibility rule that veterans should like–but also some that aren’t so great, or that require further clarification as to how they’ll be applied.
My colleague Matt Schoonover provided a broader overview of the new regulations earlier last week. Now it’s time for me to get on my soapbox. Without further ado, here’s my list of the good, bad, and the downright ugly from the new SDVOSB regulations.
Despite a longstanding and very common misconception, the VA’s SDVOSB verification requirement doesn’t apply to non-VA SDVOSB contracts.
As the SBA Office of Hearings and Appeals recently reiterated, it was “simply not correct” to believe that a company was required to be verified in VetBiz to be awarded a non-VA SDVOSB contract.
A protester contending that the VA violated the “rule of two” by failing to set-aside a solicitation for SDVOSBs must present sufficient facts to indicate that the VA should have had a reasonable expectation of receiving two or more offers from SDVOSBs at fair and reasonable prices.
In a recent decision, the Court of Federal Claims dismissed a rule of two challenge because, according to the Court, the protester only identified one SDVOSB–itself–that was likely to submit an offer at a fair and reasonable price.
The VA has released an Acquisition Policy Flash providing guidance to VA Contracting Officers on implementing the U.S. Supreme Court’s decision in Kingdomware Technologies, Inc. v. United States.
The Policy Flash suggests that the VA is, in fact, moving quickly to implement the Kingdomware decision–and if that’s the case, it is good news for SDVOSBs and VOSBs.
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.
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.