COFC: Kingdomware not dispositive

Much has been made, in govconland at least, of the Supreme Court’s findings in Kingdomware, in which the court found that the Veterans Benefits, Health Care, and Information Technology Act of 2006 required the application of the “rule of two” to GSA Schedule orders. The act, which applies only to the VA, requires the department to set aside contracts for veteran-owned businesses when two or more could perform at fair and reasonable prices (the so-called rule of two).

In Great Southern Engineering v. U.S. and K.S. Ware & Associates, the plaintiff, GSE, argues a NASA solicitation that considers an IDIQ contract and its task orders as one “project” for purposes of past performance violates the Supremes’ decision that task orders are contracts.

Not so fast, says the Court of Federal Claims. What makes a Schedule order a contract? “A Federal Supply Schedule order creates obligations to pay for and deliver goods between the agency and the contractor.” Generally, task orders create the same obligations. However, the Supreme Court “held that the agency’s interpretation did not warrant deference because a statute, not an agency decision, was the subject of interpretation.”

“The protest currently before the Court does not involve an FSS order and NASA is not subject to the Act at issue in Kingdomware” (the Veterans-First legislation). “The interpretative issue in this case involves a solicitation, not a statutory provision….In short, Kingdomware is not dispositive” and “does not stand for the general proposition that all task orders are considered contracts as a matter of law.”