Supreme Court Review 2017/2018 TERM

Issue:  38 U.S.C. ยง 8127(d)

Kingdomware Technologies, Inc. v. United States



The Veterans Benefits, Health Care, and Information Technology Act of 2006 provides that contracting officers at the Department of Veterans Affairs “shall award” contracts on the basis of competition restricted to small businesses owned by veterans whenever 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.” 38 U.S.C. § 8127(d). The Federal Circuit, however, relied on a prefatory clause in the statute to limit the application of this mandate to situations in which the Department believes that applying it is necessary to meet the goals that the Department establishes for contracting with veteran-owned small businesses.

The question presented is:
Whether the Federal Circuit erred in construing 38 U.S.C. § 8127(d)’s mandatory set-aside restricting competition for Department of Veterans Affairs’ contracts to veteran-owned small businesses as discretionary.


Decided June 16, 2016 HOLDING

This Court has jurisdiction to reach the merits of this case. Fora federal court to have Article III jurisdiction “an actual controversy must exist . . . through all stages of the litigation.” Here, no court is capable of granting petitioner relief initially sought in the complaint because the short-term FSS contracts have been completed by other contractors. However, the controversy is “‘capable of repetition, yet evading review.’” The procurements were fully performed in less than two years after they were awarded, and it is reasonable to expect that the Government will refuse to apply the Rule of Two in a future bid by Kingdomware. Section 8127(d)’s contracting procedures are mandatory and apply to all of the Department’s contracting determinations.

Agree image Justice Sotomayor
Agree Sotomayor
Agree image Justice Breyer
Agree Breyer
Author image Justice Thomas
Author Thomas
Recused image Justice Scalia
Recused Scalia
Agree image Chief Justice Roberts
Agree Roberts
Agree image Justice Kennedy
Agree Kennedy
Agree image Justice Ginsburg
Agree Ginsburg
Agree image Justice Alito
Agree Alito
Agree image Justice Kagan
Agree Kagan

THOMAS, J., delivered the opinion for a unanimous Court.

Text of Opinion
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Removed from Oral Argument Calendar

NOVEMBER 4, 2015

This case is removed from the argument calendar for Monday, November 9, 2015. The parties are directed to file supplemental briefs addressing the following question: "Whether the Department of Veterans Affairs procurements at issue in this case have been fully performed, and if so, whether the case is moot."


United States Court of Appeals for the District of Columbia Circuit
Decided June 3, 2014
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