The SBA lacks authority to determine whether a company is an eligible service-disabled veteran-owned small business for purposes of a VA SDVOSB set-aside procurement.
In a recent decision, the SBA Office of Hearings and Appeals confirmed that the SBA lacks such authority, which is reserved solely for the VA’s Office of Small & Disadvantaged Business Utilization.
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.
The VA is proposing a major overhaul to its SDVOSB program regulations–including the rules governing ownership and control.
In a proposed rule released today, the VA is seeking to “find an appropriate balance between preventing fraud in the Veterans First Contracting Program and providing a process that would make it easier for more VOSBs to become verified.” And while the proposal isn’t perfect, it looks like a step in the right direction.
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.
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.
In Kingdomware Technologies, Inc. v. United States, the U.S. Supreme Court will answer a critical question: does the VA have to prioritize SDVOSBs and VOSBs in federal contracting?
As SmallGovCon readers know, I have been critical of the VA’s contention that it need not prioritize SDVOSBs and VOSBs. Now, I have gone a step further. Together with my colleagues at Koprince Law LLC, I have filed an amicus brief with the U.S. Supreme Court, asking the Court to overturn the lower court’s decision and rule in favor of veterans.
Want to read our full amicus brief? Glad you asked–just click here.
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.