In a brief filed with the Supreme Court on September 29, 2015 in the case Kingdomware Technologies, Inc. v. United States, 14-916, the government abandoned the restrictive interpretation of the 2006 Veterans Act that it pressed before the U.S. Court of Appeals for the Federal Circuit (background on the case may be found here). The 2006 Veterans Act requires that the VA prioritize competitive bidding by veteran-owned small businesses, but the VA has for years declined to follow that mandate to the full extent Congress required. In briefing before various courts, including the Supreme Court, the government had for several years (and as recently as May 1, 2015) contended that the VA was allowed to limit competitive bidding by veteran-owned small businesses for VA contracts, but the government has now – six weeks before oral argument before the Supreme Court – abandoned that position. Instead, the government now contends that VA “orders” that may be filled through the Federal Supply Schedule should be excluded from mandatory competitive bidding, while VA “contracts” should not.
This surprising turn of events shows that the government’s position remains in flux after years of attempting to justify the VA’s restrictive interpretation of the 2006 Veterans Act. The Court will likely examine closely the government’s new position and its reasons for abandoning its prior one. At minimum, the government’s abandonment of its prior position casts doubt on the VA’s current practice of refusing to submit contracts for competitive bidding by veteran-owned small businesses when such bidding would lead the VA to exceed its goals for doing business with veterans. If the VA follows the interpretation adopted by government’s brief, veteran-owned small businesses should have greater opportunities to offer competitive bids for VA contracts. The government’s new argument – that the competitive bidding requirements of the 2006 Veterans Act should not apply to “orders” – will be addressed by the Supreme Court when it hears oral argument on November 9, 2015.
Duane Morris LLP represents as amicus curiae a coalition of veteran-owned small businesses and organizations that urge the Supreme Court to reverse the narrow interpretation of the 2006 Veterans Act and restore the broader contracting opportunities for veteran-owned small businesses that the 2006 Veterans Act intended. A copy of the government’s brief is here. A copy of Duane Morris’s amicus brief may be found here.
– Luke P. McLoughlin is an associate in the Trial Group in the Philadelphia office of Duane Morris LLP and a member of the firm’s Appellate Practice Group. Kristina Caggiano Kelly is an associate in the Intellectual Property Group in the Washington, D.C. office of Duane Morris LLP and a member of the firm’s Appellate Practice Group.