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.
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.
The U.S. Supreme Court has agreed to hear an appeal filed by Kingdomware Technologies, Inc.
News outlets are reporting that the Supreme Court will take on the question of whether the VA’s “Veterans First” rules permit the VA to circumvent SDVOSBs by using the Federal Supply Schedule. The case is an appeal from a 2014 decision of the U.S. Court of Appeals for the Federal Circuit, in which a three-judge panel ruled 2-1 in favor of the VA.
The Supreme Court grants only a small fraction of the petitions for certiorari filed with it, so just getting in the courthouse door is a victory of sorts for Kingdomware.
Much more on the pending Supreme Court case as I get the details.
In a crushing blow to SDVOSBs, the U.S. Court of Appeals for the Federal Circuit has denied the appeal of a lower court decision allowing the VA to procure goods and services using the Federal Supply Schedule without first considering whether SDVOSBs can satisfy the requirement.
Rejecting well-stated objections by a dissenting judge, a two-judge majority held that the purpose of the “Veterans First” rule is to ensure that the VA meets its SDVOSB goals, and that so long as the VA meets its SDVOSB goals, it is free to procure services and supplies from the Federal Supply Schedule without first considering a SDVOSB procurement.
The VA is not required to prioritize SDVOSB set-asides when it obtains prosthetic appliances and related services, according to the GAO.
In a recent bid protest decision, the GAO held that a specific statutory exemption allows the VA to procure prosthetic appliances and related services in whatever manner the VA deems best, without regard to the ordinary requirement that the VA prioritize SDVOSB acquisitions.
Well, that was fast.
A little more than two weeks after the U.S. Court of Federal Claims held that the VA need not consider service-disabled veteran-owned small business set-asides before procuring goods and services using the Federal Supply Schedule, the GAO has ended its long-running dispute with the VA over the same issue.
The GAO’s decision, in a case also involving Kingdomware Technologies, puts a sudden end to a series of GAO cases (known by many as the Aldevra cases) holding that the VA has been acting contrary to the law by failing to consider SDVOSB set-asides before using the Schedule.