Here We Go Again: Another Aldevra-Style GAO Protest Sustained–Is a Court Resolution Looming?

Kids love repetition.  Even though my daughter isn’t 10 months old yet, some of her favorite games involve doing the same thing over and over.  For instance, she throws a toy.  I pick it up and give it back to her.  She throws it again.  And so on.  She finds this hilarious, whereas I find the whole thing funny just because she’s so adorable (I admit to a bit of bias).

Repetition is also the name of the game in the GAO’s standoff with the VA over the VA’s refusal to set-aside procurements for SDVOSBs before procuring goods and services under the Federal Supply Schedule.  The GAO recently sustained yet another bid protest, holding that the VA had improperly awarded a contract to a non-SDVOSB, even though 20 or more SDVOSBs were capable of doing the work.  But before long, the showdown between the GAO and the VA may end, because one SDVOSB seems to have taken the matter to the U.S. Court of Federal Claims, which–unlike the GAO–has the power to compel the VA to put “Veterans First.”

The GAO’s decision in Kingdomware Technologies, B-406507 (May 30, 2012), should sound familiar to those who have been following this battle.  In the Kingdomware case, the GAO awarded a contract to a non-SDVOSB under the Schedule, even though the VA’s own market research indicated that at least 20 SDVOSBs could perform the work.  Kingdomware Technologies, a SDVOSB, filed a GAO bid protest, alleging that the procurement was improper.

In a very brief decision, the GAO sustained the protest.  It held that the issues were similar to those discussed at greater length in Aldevra, B-406205 (Mar. 14, 2012).  The GAO wrote that under the Veterans Benefits, Health Care, and Information Technology Act of 2006, the VA was required to consider whether the procurement could be set-aside for SDVOSBs before using the Schedule.  And, because the VA’s own market research indicated that many SDVOSBs were capable of performing the work, the GAO stated that “on the record presented, it appears that [a] set-aside should have occurred.”

The GAO recommended that the VA cancel the contract to the non-SDVOSB firm and issue a set-aside solicitation.  Of course, no one expects that to occur–the VA’s continuing refusal to follow the GAO’s recommendations in this regard is the source of the ongoing battle.

However, here’s where things get interesting.  It appears that Kingdomware has filed a bid protest with the U.S. Court of Federal Claims.  I don’t have any inside information about the case, but my best guess is that it is a challenge to another VA decision to forego a SDVOSB set-aside in favor of using the Schedule.  If this is the case, and the judge rules in Kingdomware’s favor, the battle between the GAO and the VA will take a very interesting turn.  Unlike the GAO, the Court has the power to issue an injunction forcing the VA to prioritize set-asides for SDVOSBs ahead of Schedule contracts.

I will be watching this one closely, and crossing my fingers for a good decision.  Unlike a good game of throw-the-toy, there is nothing funny to SDVOSBs about the VA’s repeated refusal to prioritize set-asides.

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