As many veteran-owned small businesses know, the infamous Kingdomware case has been removed from the Supreme Court’s (the “Court”) docket, with the instruction that the parties file briefs with the Court to explain why it should hear the case given that the contracts at issue have already been performed. That’s because the Court won’t hear cases that are “moot” – ones where it doesn’t matter how it rules because there’s no longer a case or controversy at issue.
I’ve blogged about Kingdomware several times before, so here’s the really abbreviated version of the case’s history:
The Kingdomware saga began with a slew of GAO rulings in 2012 that berated the VA for not following its mandate in the Veterans Benefits, Health Care, and Information Technology Act of 2006 (the “Act”).
The Act provides that before using Federal Supply Schedule (FSS) procedures, a contracting officer must determine whether he has a reasonable expectation that: 1) two or more service-disabled veteran-owned small businesses (SDVOSBs) will submit offers; and 2) the award can be made at a fair and reasonable price. If the answer is “yes,” the award must be set aside for SDVOSBs. (38 U.S.C. 8 127(d)(2006)). The idea is to maximize awards to SDVOSBs, as a purpose of the Act is to protect veteran businesses.
Long story short, the VA decided that despite this provision under the Act, it wasn’t required to set aside awards off the FSS for SDVOSBs, awarded to non-SDVOSBs, and got beaten down by the GAO (that’s a legal term). See Kingdomware Technologies, Inc., B-406507 (May 30, 2012); Aldevra, B-406331 (April 20, 2012). The VA then won before the U.S. Court of Federal Claims, and again at the district court level. The Court then granted cert to hear the case.
Everything seemed to be moving along smoothly, but then, on November 4 the Court ordered the parties to file briefs addressing whether the case is moot given that the contracts at issue have been fully performed. (You can access the briefs here).
Interestingly, the parties presented a united front in arguing that the case is not moot, and the Court should hear it. In briefs that were fairly similar, counsel for both sides noted that though the specific contracts at issue have expired, contractors on future procurements will be affected. Disputes over government contracts are a paradigmatic example of controversies capable of repetition, yet evading review, particularly the types of contracts likely to elicit bids from small businesses like Kingdomware.
As pointed out in Kingdomware’s brief, SDVOSBs have contested the VA’s interpretation of 38 U.S.C. § 8127 for nearly a decade. During that time— including the three and a half years that this suit has been pending—Kingdomware and other SDVOSBs have repeatedly been deprived of the chance to compete on the terms Congress intended for a large number of VA contracts. As set forth in the brief: “Accordingly, this case represents the veteran-owned small business community’s best and likely only realistic hope of securing review from this Court to force the VA to comply with the law. The question presented urgently requires an answer from this Court.”
The Court will soon rule on whether the case will move forward, but given the parties’ united front, one thing appears certain: this case is one turkey that isn’t cooked.
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Doesn’t the Department of Veterans Affairs exist for the Veterans? And if so, would we not see the Department leading the charge not only within but with other agencies in support of contracting with Veteran Owned Small Businesses? Anything less would be inconsistent with the mission of the Department. A need for back to basic concepts, oversight, and sound leadership of the Department screams loud.
I keep remembering that old VA adage, “Deny until they die.” It seems that the Supreme Court has heard it too, and they agreed. How pathetic, but not surprising.