Following the U.S. District Court for the Eastern District of Tennessee’s recent decision, which impacts the 8(a) Business Development Program’s administration criteria, the Small Business Administration (SBA) released interim guidelines. The challenge now facing the program lies in ensuring that eligibility criteria remain true to its mission while adhering to the court’s mandate.

Navigating the New Guidance

Considering the ruling, the SBA released interim guidance on Friday, August 18, 2023. The guidance, among other things, mandates that most current 8(a) participants must complete and submit a social disadvantage narrative. In other words, a company who is presently an 8(a) participant and whose eligibility is based upon an individual’s membership in a previously deemed socially disadvantaged group must now re-submit information to establish personal social disadvantage based upon other grounds.

Though, the requirement to submit a social disadvantage narrative will not apply to (a) companies whose qualifying owner established social disadvantage by a preponderance of the evidence on grounds other than membership in a presumed socially disadvantaged group; or (b) entity owned firms, such as firms owned by Indian tribes, Alaska Native corporations, etc.

The guidelines indicate that current participants of the 8(a) program should have received direct communication from the SBA on August 21, 2023, detailing any additional information requirements to maintain program involvement.

Conclusion

The 8(a) program has consistently demonstrated its value over the years, standing as a testament to the federal government’s dedication to promoting equity in procurement. The recent court ruling, and subsequent SBA interim guidance reflect a dynamic landscape for federal contracting. But one thing remains constant: the unwavering commitment to making government contracting more inclusive, competitive, and reflective of America’s diverse business landscape.

While the pathway for the 8(a) program might have experienced a twist, its destination—a prosperous, inclusive federal contracting environment—remains unchanged.

This is Part 2 in a Three-Part Series on the 8(a) Program Controversy.

If you have questions about the 8(a) program or other federal contract, reach out to Harrison Clinton at (703) 526-5587 or hclinton@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.