On October 17, 2018, the Court of Appeals for the Federal Circuit ruled that the VA’s “Rule of Two” applies to all goods and services procured by the VA, even items that are otherwise required to be procured from a nonprofit agency for the blind or significantly disabled under the Javits-Wagner-O’Day Act (“JWOD”). Under JWOD, a 15 member body appointed by the President, including one representative from the VA, creates a list of products and services that are produced by non-profit entities that are operated in the interest of, or employ, individuals who are blind or significantly disabled. JWOD generally requires that federal agencies must purchase products on this list from designated nonprofits.
The Court of Appeals for the Federal Circuit affirmed a lower court ruling that the Rule of Two under the Veterans First Contracting Program governs, even for products that are on the JWOD list:
Thus, where a product or service is on the List and ordinarily would result in the contract being awarded to a nonprofit qualified under the JWOD, the VBA unambiguously demands that priority be given to veteran-owned small businesses. While we are mindful of Appellants’ policy arguments, we must give effect to the policy choices made by Congress . We find that by passing the VBA, Congress increased employment opportunities for veteran-owned businesses in a narrow category of circumstances, while leaving intact significant mechanisms to protect such opportunities for the disabled.
PDS Consultants, Inc. v. United States, Court of Appeals for the Federal Circuit (October 17, 2018)
