Veterans are entitled to have the laws that Congress passes interpreted correctly. The Kingdomware Technologies, Inc. v. United States case, set to be heard by the Supreme Court on February 22, 2016, will determine whether veteran-owned businesses will have the full extent of federal protections Congress intended when it passed the Veterans Benefits, Health Care, and Information Technology Act of 2006 (2006 Veterans Act).
The 2006 Veterans Act was meant to broaden opportunities for veterans to do business with the U.S. Department of Veterans Affairs (VA). Recognizing the unique sacrifices veterans make, and the unique challenges they face upon returning from duty, Congress established a mechanism for competitive bidding before a single government department. Congress enacted the 2006 Veterans Act, and its provision targeted the VA, because prior attempts to bolster veteran-owned small business contracting — by attempting to enhance the awareness of government contracting officers and leverage their discretion — had fallen unacceptably short.
Since the law was enacted, the VA has refused to give the mandatory competitive bidding mechanism its full effect, thereby reducing the opportunities for veteran-owned businesses to support and do business with the VA. The Federal Circuit U.S. Court of Appeals, in a 2-1 decision, endorsed the VA's approach in a misreading of the 2006 Veterans Act. The VA subsequently changed its position before the Supreme Court, but still argues for less competitive bidding than Congress intended. The effect of these mistaken approaches is grave. By essentially reading out the mandatory competitive bidding mechanism of the statute, the Federal Circuit and VA significantly weakened the statutorily protected opportunity of veteran-owned small businesses to do business with the VA.
The competitive bidding mechanism does not apply to all government purchasing, only that by the VA. Changing course from prior legislative attempts, the 2006 Veterans Act moved from a model that simply urged greater opportunities for veterans to one that requires specific action by one department.
The Federal Circuit's decision dismantles the statutory mechanism for veteran-owned small businesses to compete for contracts with the VA and use such competitive opportunities to make inroads in the private sector. A veteran's small business not only benefits directly from competitive bidding when that mechanism leads to a contract, but also indirectly when competitive bidding opens doors to private-sector opportunities. The opportunities afforded by competitive bidding build competency and market presence for veteran-owned small businesses, the benefits of which extend well beyond any one government contract. These opportunities have been substantially and improperly diminished by the VA's misreading of the 2006 Veterans Act and by the misreading by the Federal Circuit.
In recognition of the unique sacrifices veterans make, and the unique challenges they face upon returning home, Congress established not a subsidy, grant, or government-wide guarantee, but simply a mechanism for competitive bidding before one government department uniquely positioned to serve veterans.
Interpreting the 2006 Veterans Act such that it no longer means what it says deprives veteran-owned small businesses of the targeted support Congress intended. The Supreme Court can and should reverse that mistaken interpretation and eliminate its harmful consequences for veterans.
Scott Denniston is executive director of the National Veteran Small Business Coalition, Rick Weidman is chairman of Vet-Force and Keith King is president of the National Veteran Business Development Council. These organizations, other veterans' organizations and numerous veteran-owned businesses have filed amicus curiae briefs before the Supreme Court in support of Kingdomware Technologies. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.