September 28, 2020

Volume X, Number 272

September 25, 2020

Subscribe to Latest Legal News and Analysis

Supreme Court’s Kingdomware Decision Puts Government Contracts at Center of Legal Universe

Let’s face it, government contracting is not always at the center of the legal universe. In fact, there are probably some lawyers and clients out there who have no interactions at all with government contracts. But in the middle of June 2016, government contracts were front and center and the subject of two unanimous U.S. Supreme Court decisions. Today, we briefly address one of those decisions, Kingdomware Technologies, Inc. v. United States, 579 U.S. ___ (2016).

US Surpreme Court

In Kingdomware, the Supreme Court ruled that the Department of Veterans Affairs (VA) was required to follow the “Rule of Two” and award contracts to veteran-owned small businesses (VOSB) regardless of the contracting vehicle selected. Judge Thomas spoke for the Court and succinctly explained the Rule of Two as a requirement that the VA “shall award” contracts to VOSBs when there is “a ‘reasonable expectation’ that two or more such businesses will bid for the contract at ‘a fair and reasonable price that offers best value to the United States.’”

This decision could have a profound effect on VOSBs and all contractors that deal with the VA. There may be some VA needs that can only be satisfied by large businesses. You never know. But after Kingdomware, all VOSBs should be on notice that all VA requirements must first be offered to them. They should be on the lookout for contract actions to large businesses and should take measures to protect their rights under the law. Those measures include asking appropriate questions in the pre-proposal phase of procurements and filing pre-award bid protests, if necessary.

Every year, the VA spends billions of dollars to purchase goods and services ranging from IT to construction. After Kingdomware, virtually all of that spending should go to VOSBs. VA’s mandate goes back to the words first spoken by Abraham Lincoln and captured in the VA’s motto: “to care for him who shall have borne the battle, and for his widow and his orphan.” In our view, by requiring and ensuring that VA contracting dollars go to VOSBs, the Kingdomware decision is a win-win: VOSBs should get more business and the VA should meet its mandate to help all veterans.

Copyright Holland & Hart LLP 1995-2020.National Law Review, Volume VI, Number 169


About this Author

Charles R. Lucy, Federal Regulatory Litigator, Holland Hart, law firm
Of Counsel

Mr. Lucy brings more than 30 years of experience in federal regulatory, business, and litigation experience, as well as technical experience in federal/state procurement and acquisition matters, bid protests, contract disputes act appeals, government contract audits and fiscal law issues, commercial space law, university/government technology transfer programs, homeland defense, and small business government contracting.

Mr. Lucy has lectured at numerous conferences and seminars in Europe, the Pacific, and the United States. Topics have included...

michael maloney, holland hart, bid protest lawyer, government contracts attorney
Of Counsel

Michael D. Maloney is Of Counsel in the Washington, D.C. office representing clients in all phases of government contracts and disputes in a wide array of industries. A seasoned litigator with over 25 years in private practice, Mr. Maloney strategically advises clients how and where to pursue complex bid protest matters before the Government Accountability Office, the Court of Federal Claims and other federal courts, or directly to the administering federal agency. He also counsels clients on federal, state, and local procurement compliance, guiding clients through the labyrinth of statutes and regulations, and advises contract awardees how to successfully administer contracts, correctly calculate and submit requests for payment, and when necessary, pursue and resolve payment claim disputes.

Mr. Maloney's extensive government contracts experience ranges from representation of clients in national security matters involving Department of Defense, Department of Energy, and intelligence community procurements to information technology purchasing and services contracts and Federal Emergency Management Agency and Department of Health and Human Services procurements. Mr. Maloney also counsels clients on trade secrets and privacy laws and represents clients in complex civil litigation including actions to protect clients' trade secrets and to enforce privacy laws.