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Federal Market Intelligence for Small Business |
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News analysis:Supreme Court divided in small biz caseKingdomware gets day in courtThe long-awaited Supreme Court oral arguments for a landmark small business federal contracting case finally took place on Feb. 22, leaving the impression among many observers that the justices are split on how to rule in the case. The Kingdomware Technologies v. United States dispute gained additional publicity in recent weeks because it was to be the very first case to be heard by the court since the death of Justice Antonin Scalia on Feb. 13. Scalia’s death also made it the first case in recent years to be heard by eight justices instead of nine, leading to speculation about what would happen if the court reaches a 4-4 tie. The lawsuit involves a disagreement over the scope of the Veterans Affairs Department’s duty to consider service-disabled veteran-owned small businesses in contracting. Congress ordered the VA to create strong preferences for those veterans in a 2006 law. Kingdomware believes that those preferences should be in effect for each and every contract. But the VA says if that is the case it would have a devastating effect on providing care to veterans. The VA claims that Federal Supply Schedule task orders are exempt. If the court reaches a 4-4 split decision, the lower court’s decision is likely to stand. Alternatively, the justices may decide to rehear the case after a ninth justice is confirmed. Justice Ruth Bader Ginsburg suggested another alternative during the hearing: sending the case back to the lower court to rule specifically on the VA’s claim that FSS contracts are exempt. The lower court, while deciding in favor of the VA, had not explicitly considered that argument. “So you're putting us in a position of being a court of first view in a rather dense area,” Ginsburg said at the hearing. “This court usually does not do that. It likes to know...what other judges have thought about it.” Justice Anthony Kennedy also seemed persuaded by that idea. The justices gave the impression they may not be knowledgeable about the fine points of federal contracting, Steven Koprince, an attorney who has endorsed Kingdomware’s position, wrote on his blog. “Supreme Court Justices are asked to rule in cases stretching across the entire field of law, and they cannot possibly be experts in all legal fields. Some of that lack of expertise was on display today,” Koprince wrote, adding that the court appeared divided. Amy Howe, a legal writer for SCOTUSblog, also saw no clear majority opinion emerging at the hearing. “After 58 minutes of oral argument, there was no clear winner in the case. If anything, the Justices seemed to be trying to decide which side’s rule was more palatable – or, perhaps, less unpalatable,” Howe wrote.
More Information: SCOTUSblog http://goo.gl/vzfQdB
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