On June 29th, 2023, in a historic move, the Supreme Court of the United States struck down affirmative action programs by a vote of 6-3. It appears this decision will have impacts on other areas regarding government programs currently in place, as evident in a recent court case in July concerning the SBA 8(a) program. A federal Judge in Tennessee ruled against the SBA’s use of racial and ethnic disadvantages as a qualification for the program in the case Ultima Servs. Corp. v. U.S. Dept. of Agriculture on July 19th 2023. In a previous post you can read more about the SBA 8(a) program. Below, we explore how the program could potentially change.

How Does the Supreme Court Ruling Affect 8 (a) Current and New Applicants?

The SBA issued new guidance requirements for 8(a) applicants on August 18th. In order to abide by the ruling issued in August that challenged and put on hold the use of rebuttable presumption of social disadvantage as part of the application process, the SBA is now requiring that all 8(a) participants whose eligibility depended on the presumption of social disadvantage now fill out a social disaster narrative. This can be found on the SBA website and is a very user-friendly form to be completed and returned to the SBA.

If you are currently a participant in the 8(a) program and want to receive new contracts 8(a) contracts, you must submit your information through the SBA website Certify.sba.gov. Once the information is submitted, the SBA will make a determination on whether the participant has established the criteria for personal social disadvantage.

Ultimately, this decision could open the program to a wider pool of contractors by providing individuals the opportunity to argue their status as a part of a socially and economically disadvantaged group. Similarly, it may make it more difficult for others to provide a preponderance of evidence of being disadvantaged regardless of whether they are a member of a presumed group or not.

The SBA is still open for business and is encouraging current applicants to continue submitting their annual reviews and eligibility materials to the SBA, however, new applicants will need to wait until the temporary suspension is lifted. Interested applicants should take this time to gather documents and evidence, so they are prepared with the program is opened again. There is a scheduled hearing on August 31st to discuss further guidance.

Coley has over 20 years’ experience helping contractors accelerate success in government contracting. Our expert consultants, and FedMap coaches support contractors’ understanding of all the requirements to remain compliant and win more government business. For any additional questions, contact Coley at hello@coleygsa.com, by phone at 210-402-6766, or schedule a call at a time convenient for you. In addition, you can visit FedMap and join the online community which serves many qualifying 8(a) businesses.

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