Nat'l Indus. for the Blind v. Dep't of Veterans Affairs

296 F. Supp. 3d 131
CourtCourt of Appeals for the D.C. Circuit
DecidedNovember 7, 2017
DocketNo. 17–cv–0992 (KBJ)
StatusPublished
Cited by13 cases

This text of 296 F. Supp. 3d 131 (Nat'l Indus. for the Blind v. Dep't of Veterans Affairs) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nat'l Indus. for the Blind v. Dep't of Veterans Affairs, 296 F. Supp. 3d 131 (D.C. Cir. 2017).

Opinion

KETANJI BROWN JACKSON, United States District Judge

On May 30, 2017, the United States Court of Federal Claims resolved a dispute about the procurement policy that Congress intended for the Department of Veterans Affairs ("the VA") to use when deciding whether the products of veteran-owned small businesses will be prioritized over those made by small businesses that employ blind and severely disabled individuals. See PDS Consultants, Inc. v. United States , 132 Fed.Cl. 117 (Fed. Cl. 2017). The Court of Federal Claims held, in essence, that when the VA seeks to procure goods and services, veteran-owned small businesses get preference over those that employ the blind and disabled, see PDS Consultants , 132 Fed.Cl. at 128, and this ruling-which involved the resolution of an apparent conflict between the Javits-Wagner-O'Day Act ("JWOD"), 41 U.S.C. §§ 8501 - 06 (requiring federal agencies to purchase certain items from small businesses that employ blind and disabled individuals), and the Veterans Benefits, Health Care, and Information Technology Act of 2006 ("VBA"), 38 U.S.C. §§ 8127 - 28 (mandating that the VA limit competition for its procurement to veteran-owned small businesses under certain conditions)-is currently on appeal to the Federal Circuit.

In the instant consolidated cases, Plaintiffs National Industries for the Blind, Bosma Industries for the Blind, Winston-Salem Industries for the Blind (collectively, "NIB Plaintiffs") and Plaintiff Alphapointe have brought their own, substantively similar challenges to the VA's procurement practices. (See generally NIB Compl., ECF No. 1; Alphapointe Compl., ECF No. 25.) Before this Court at present is a motion that Defendants VA, VA Secretary David Shulkin, and the United States of America have filed-and that Defendant-Intervenor PDS Consultants ("PDS") supports-requesting a stay of the instant proceedings pending the Federal Circuit's ruling in PDS Consultants . (See Mem. in Supp. of Defs.' Mot. to Stay Proceedings ("Mot. to Stay"), ECF No. 20-1; see also PDS's Resp. in Supp. of Defs.' Mot. to Stay Proceedings ("PDS Stay Br."), ECF No. 29.) Defendants point out that the complaints at issue here raise similar legal issues to those that are now pending in the case before the Federal Circuit, and that the parties overlap; therefore, Defendants request a stay in the interest of judicial efficiency. (See Mot. to Stay at 10; PDS Stay Br. at 3-5.)1 In opposition to the stay motion, Plaintiffs argue, *134among other things, that the instant cases involve claims that are different than those in PDS Consultants , and that the parties are largely distinct; indeed, other than the VA defendants, only two of the five parties in the consolidated matters before this Court are also parties in the Federal Circuit case. (See Pls.' Opp'n to VA's Mot. to Stay Proceedings ("NIB Opp'n"), ECF No. 22, at 4-8; Pl. Alphapointe's Opp'n to Defs.' Mot. to Stay Proceedings ("Alphapointe Opp'n"), ECF No. 28, at 10-12.)

For the reasons explained fully below, this Court has concluded that Defendants' motion to stay the instant proceedings must be DENIED . In short, Defendants have failed to carry their burden of demonstrating that a stay of the instant proceedings is warranted. Moreover, given that the VA is currently implementing the challenged procurement policy and has expressed its intention to continue to do so during the pendency of the Federal Circuit appeal (see Defs.' Notice, ECF No. 42), equitable considerations weigh heavily against the requested stay.

I. BACKGROUND

A. Factual Background

At issue in the present case is the potential tension between two federal statutes that establish certain contracting priorities that the VA must implement when it undertakes procurements for goods or services. (See Alphapointe Compl. ¶¶ 2-4; NIB Compl. ¶¶ 2-3.) The JWOD, which was initially passed in 1938 and was amended in 1971, requires all government agencies (including the VA) to purchase certain products and services from designated nonprofits that employ blind and otherwise severely disabled people. See 41 U.S.C. §§ 8501 - 06. Under the JWOD's statutory scheme, the United States AbilityOne Commission, an independent agency, is charged with maintaining a procurement list, and "[a]n entity of the federal Government intending to procure a product or service on the procurement list ... shall procure the product or service" from a qualified nonprofit on that list. Id. § 8504(a). The AbilityOne Commission also oversees the addition of items to the procurement list (hereinafter called "the AbilityOne List"). See id. § 8503(a). Thus, by statute and regulation, certain designated non-profit manufacturers have long been preferenced with respect to procurements in the government-contracting realm.2

More recently, in 2006, Congress enacted the VBA, which, among other things, established the Veterans First Contracting Program ("VFCP"). The VFCP applies only to procurement by the VA, and requires that agency to set goals for providing contracts to veteran-owned small businesses. See 38 U.S.C. § 8127(a). It also directs the VA to give procurement priority to veteran-owned small businesses under certain conditions. Specifically, before undertaking a procurement, VA contracting officers must conduct an analysis-commonly referred to as the "Rule of Two"-to determine whether there are at least two veteran-owned small businesses capable of performing the work. See id. § 8127(d). If the officer has a "reasonable expectation" that at least two such contractors will submit offers and that "the award can be made at a fair and reasonable price that offers best value to the United States[,]" the VA must limit competition for that contract to veteran-owned small businesses only. Id.

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Bluebook (online)
296 F. Supp. 3d 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/natl-indus-for-the-blind-v-dept-of-veterans-affairs-cadc-2017.