Hogan Lovells Amicus Brief Influenced Supreme Court Win for Veteran-Owned Small Businesses
17 June 2016
WASHINGTON, 17 June 2016 —The U.S. Supreme Court reached a unanimous decision in Kingdomware Technologies Inc. v. U.S., favoring the software developer and veteran-owned small business. The ruling was partly influenced by a Hogan Lovells LLP amicus brief.
The Supreme Court ruled that a law requiring the U.S. Department of Veterans Affairs to give preference to veteran-owned small businesses for procurements extends to all competitive VA acquisitions, without exception, as long those businesses can meet the "rule of two." This is the requirement that the two veteran-owned small businesses bidding on the contract offer a “fair and reasonable” price - per the Veterans Benefits, Health Care, and Information Technology Act of 2006.
Hogan Lovells’ team leader C. Peter Dungan, acting as the Counsel of Record, and his team directly challenged the practices of the VA in the amicus brief referenced in the opinion Justice Clarence Thomas delivered.
The Hogan Lovells amicus brief stated, “Although originally established to simplify rudimentary purchases, the FSS program has become something much more,” and argued further that, “now, a vast majority of expenditures made against FSS contracts do not involve basic products.” The brief listed examples in which the VA had used the FSS system for large multi-million dollar procurements instead of turning to veteran-owned small businesses per federal law.
The Court unanimously overturned the earlier ruling of a Federal Circuit panel, and held that “Rule of Two” analysis must be applied for all VA contracts—which include orders under FSS contracts--independent of whether or not the VA was meeting its goals for awards of contracts to veteran-owned business.
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