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.

As you may recall, shortly before the Supreme Court was to hear oral argument earlier this month, the Court issued an order removing the case from its docket.  The Court asked 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.

Well, those briefs are in–and Kingdomware and the United States agree that the case is not moot.

In its well-written brief, Kingdomware argues that, even assuming that the contracts have been fully performed, the case fits into a mootness exception for disputes “capable of repetition” while “evading review.”  In other words, Kingdomware argues, the contracts in question here (primarily low-dollar, short-duration GSA Schedule orders) are too short in duration to still be ongoing by the time a new case were to be litigated all the way to the Supreme Court.  Additionally, Kingdomware contends, the injury at the heart of its case–the VA’s decision to order from the GSA Schedule without applying the “rule of two” preference–is likely to be repeated.

I think Kingdomware has it exactly right.  As Kingdomware argues, it is virtually certain that the VA will continue to disregard the “rule of two” unless the Court rules against the VA on the merits.  After all, the VA has taken this approach for several years, and even took the highly unusual step of ignoring multiple GAO recommendations that the VA apply the “rule of two” before buying from the Schedule.

And as far as “evading review” goes, Kingdomware is correct that most GSA Schedule orders will be fully completed by the time a case winds its way to the Supreme Court.  Even assuming the protester skips the GAO and begins its case at the Court of Federal Claims, it would likely take several years for a similar case to make it to the Supreme Court.  After all, it has been almost three years since the Court of Federal Claims denied Kingdomware’s initial protest (and undoubtedly considerably longer since that initial protest was filed).

The basic government contracting framework also supports Kingdomware’s position.  Even an order with a potential duration of five years or longer is not certain to be ongoing several years after award.  In most cases, the Government has almost unfettered discretion to choose not to exercise an option or to terminate a contract for convenience.  In other words, if an ongoing order is necessary for the Court to take up the merits of the case, the VA would be able to prevent the Court from hearing the case: once the case reached the Court’s docket, the VA could simply decline to exercise the next option, or terminate the order for convenience.  I can’t imagine that the Supreme Court would interpret its jurisdictional rules to allow for such gamesmanship.

The good news is that the VA doesn’t want Kingdomware to be dismissed as moot.  In its brief, the United States flatly states that “[t]his case is not moot . . ..”  The United States agrees with Kingdomware that the case fits within the exception for “disputes that are ‘capable of repetition, yet evading review.'”  The VA states that the orders at issue in the case are typically of short duration.  And, while these orders may include options to extend the period of performance, “a disappointed bidder cannot know in advance whether the VA will ultimately exercise an option to extend the period of performance.”

Kingdomware and the United States each have until December 1 to file briefs responding to the other party’s arguments.  However, since both sides agree that the case is not moot, I do not expect many fireworks in these briefs.  Hopefully, the Supreme Court will confirm that the case will continue, and resume the process of deciding the scope of the VA’s statutory preferences for veteran-owned companies.  As always, I will keep you posted.

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