By Lydia Wheeler - 02/22/16 12:18 PM EST
The Supreme Court returned to the bench on Monday to hear oral arguments in a case for the first time since the death of Justice Antonin Scalia left the court with an even split of conservatives and liberals.
“We will miss him beyond measure,” Roberts added, noting that a traditional memorial service would be held at the court at an appropriate time.
The justices appeared to be divided during arguments in Monday’s case, which centered on a Maryland-based software company arguments that it should have been given priority as a service-disabled, veteran-owned small business in a Department of Veterans Affairs contract.
Kingdomware Technologies Inc. claims the federal government violated the Veterans Benefits, Healthcare and Information Technology Act of 2006, which requires the VA to set aside contracts for veteran-owned firms if the contracting office expects two or more veteran-owned small businesses to submit bids, a condition known as the “rule of two.”
The government, however, argues that the rule of two does not apply when placing an order with a vendor that has an existing contract under the Federal Supply Schedule (FSS).
Under Kingdomware’s reading on the statute, Justice Stephen Breyer said the VA would be required to buy everything from a veteran-owned small business.
“I’m surprised that Congress meant for everything to be bought from veterans,” he said, pressing Thomas Saunders, the attorney for Kingdomware, to explain how his understanding is incorrect.
Saunders argued that veteran-owned small businesses make up a small percentage of all federal contractors and the government would simply have to check its own database to see if one of those companies held a long-term FSS contract.
Roberts rejected that argument, saying more veterans would be apt to start businesses if guaranteed priority in government contacting.
“Then you shouldn't be telling us that there are only so many veteran-owned businesses because if you prevail, there will be many more times that," he said.
If the justices rule in favor of Kingdomware, Zachary Tripp, assistant to the Solicitor General, argued that the federal government would be blocked from placing orders with vendors that hold pre-existing FSS contracts. He said the mandate to give veteran-owned businesses priority only applies when the VA procures a new contract, and not when it places orders under the FSS.
While Justice Elena Kagan said she understood the government’s policy concerns, she questioned why the 2006 law does not apply.
“You say this is a contract, so end of case,” she said.