Bid Protest Weekly | BID PROTEST LAWYERS

Kingdomware Technologies – Reconsideration, B-407232.2, December 13, 2012

Link: GAO Decision

Protestor: Kingdomware Technologies

Agency: Department of Veterans Affairs

Disposition: Request Dismissed.


GAO Digest:

In light of actions by the Department of Veterans Affairs (VA) and a recent decision by the U.S. Court of Federal Claims, the Government Accountability Office will no longer hear protests arguing solely that the Veterans Benefits, Health Care, and Information Technology Act of 2006, 38 U.S.C. §§ 8127-28 (2006), requires the VA to consider setting aside a procurement for service-disabled veteran-owned small businesses, or veteran-owned small businesses, before procuring its requirements under the Federal Supply Schedule.

General Counsel PC Highlight:

Kingdomware Technologies requested that the GAO reconsider its decision dismissing Kingdomware’s protest of the award of a task order (and exercise of subsequent option year) to LiveProcess using FSS procedures. Kingdomware argued that the Veterans Benefits, Health Care, and Information Technology Act of 2006 required that the agency consider setting aside the procurement for SDVOSBs. The agency had sole-sourced the task order, and did not post the task order or option exercise on FedBizOpps. Upon learning of the awards, Kingdomware protested. The protest was dismissed, as the GAO concluded that, given the passage of time of more than a year since the initial award, no useful purpose would be served by consideration of the issue.

The GAO dismissed the request for reconsideration of its earlier dismissal, stating that it will no longer hear protests based only on the argument that the VA must consider setting aside procurements for SDVOSBs (or VOSBs) before conducting an unrestricted procurement under the FSS. Given the recent US Court of Federal Claims’ decision that the VA’s interpretation of the 2006 VA Act as allowing the agency to place orders on the FSS without first considering set-asides, and the agency’s advisement to the GAO that it does not intend to follow the GAO’s recommendations stating otherwise, the GAO concluded that protestors pursuing these arguments will not be able to obtain meaningful relief.

The recent decision by the Court of Federal Claims effectively laid to rest the longstanding battle between the VA and the GAO regarding the applicability of the “Vets First” contracting priority under the 2006 VA Act. What was viewed by many as a contracting preference applicable to all VA procurements has been reduced to an optional tool to support the VA’s efforts to reach minimum goals for SDVOSB and VOSB contracts. While the GAO agreed with the veteran community that the VA should be prioritizing contracting with veterans, the VA continuously refused to follow the GAO’s recommendations. SDVOSBs and VOSBs should still seek CVE verification for those opportunities the VA does opt to set aside, but should obtain relevant FSS contracts so as to maximize their opportunities to contract with the VA.