The End Of The Line: Federal Circuit Dismisses The Veterans Contracting Group SDVOSB Appeal As Moot

Mitchell Bashur and Amy L. Fuentes are attorneys in Holland & Knight's Tysons office

On Nov. 20, 2018, the U.S. Court of Appeals for the Federal Circuit seemingly ended the Veterans Contracting Group line of cases. As a refresher, in those cases, the contractor challenged the U.S. Small Business Administration's (SBA) determination that it was an ineligible Service Disabled Veteran Owned Small Business (SDVOSB) and the U.S. Department of Veterans Affairs' (VA) reciprocal removal from its SDVOSB database. The Federal Circuit dismissed the appeal as moot, noting that under the new SDVOSB regulations effective Oct. 1, 2018, the two sets of regulations are now uniform. While non-precedential in nature, the Federal Circuit's decision also raises questions of the consequential nature of the newly promulgated regulations for decisions currently pending before courts and administrative forums.

By way of background, the Veterans Contracting Group line of cases highlight some of the many conflicts that existed between the SBA and VA rules prior to the release of new rules by each respective agency in October 2018. The decisions are also demonstrative of the consequential results for contractors due to the previous split between the regulations. In these lines of cases, the contractor received several conflicting decisions, often over facially slight differences between the regulations on ownership and "unconditional ownership" requirements. The Federal Circuit's decision in Veterans Contracting Group v. United States et. al, No. 2018-1410 (Fed. Cir. Nov. 20, 2018) will likely become the final voice in the matter, and seemingly puts an end to appeals and differing opinions over these regulations—at least for the contractor.

The Federal Circuit determined that the appeal was moot as it related to the contractor's challenge to SBA Office of Hearings and Appeals' alleged improper reliance on, and improper application of, the standard for unconditional ownership pronounced in Wexford Grp. Int'l...