The continuing legal battle over the constitutionality of the 8(a) program’s “socially disadvantaged” criteria may be on its way to the Supreme Court of the United States.
Last September, we covered the decision of the United States Court of Appeals for the D.C. Circuit in Rothe Development, Inc. v. United States Department of Defense, 836 F.3d 57 (D.C. Cir. 2016), where a two-judge majority of the court concluded the 8(a) program did not violate Rothe’s equal protection rights under the Due Process Clause of the Fifth Amendment by establishing a racial classification.
Now, Rothe has filed a Petition for Writ of Certiorari—a formal request that the Supreme Court review (and overturn) the D.C. Circuit’s decision.
I am back in Kansas, where it is a balmy 39 degrees, after a great trip to Orlando for the National 8(a) Association Small Business Conference.
The weather in Florida was “for real” balmy, as my kids might say–but as tempting as the sunny outdoors was, the convention hall was packed with representatives from 8(a) companies, large primes, government agencies, and others. You know a conference has great content–and great networking–when attendees voluntarily choose the lecture hall over a nearby sun-drenched pool.
The 8(a) Program has survived a major challenge to its constitutionality–but the legal battle over the 8(a) Program’s future may well continue.
On Friday, a two-judge majority of the U.S. Court of Appeals for the D.C. Circuit held that the statute that creates the 8(a) Program is not unconstitutional. While the D.C. Circuit’s decision is a big win for proponents of the 8(a) Program, the limited scope of the ruling–and a sharp dissent from that ruling–signal that the fight over the future of the 8(a) Program may not be over.
It’s been a wild week in the world of federal government contracting. Yesterday the Supreme Court issued two major decisions affecting contractors: Kingdomware Technologies, Inc. v. United States and Universal Health Services v. United States ex rel. Escobar. If you’re a regular SmallGovCon reader, you know that I’ve been following Kingdomware closely for years, and we will have a separate post later today with reaction to Kingdomware from around the country. But Escobar is an important decision too, so don’t miss out on the coverage of that case.
In addition to coverage of Escobar, this week’s SmallGovCon Week In Review features a major new rule prohibiting contractors from discriminating on the basis of sex, GSA adding a new category on IT Schedule 70, the indictment of a former GSA director and many more.
SBA’s regulations provide that an 8(a) program participant that no longer is owned or controlled by socially and economically disadvantaged person can be terminated from the 8(a) program. But the decision to terminate is not one to be made lightly: SBA must make sure that it not only has evidence in support of its termination decision, it must also explain how that evidence demonstrates its conclusions.
This requirement was at issue in a recent court decision that found an SBA 8(a) program termination decision to be based on “numerous erroneous assumptions” and “unsupported conclusions, not substantial evidence.”
The WOSB Program, 8(a) Program, and SBA affiliation rules were all on the agenda during my interview today with government contracts guru Mark Amtower on his popular radio show, Amtower Off-Center.
If you weren’t able to catch the show live, just click here to listen or download the audio from Federal News Radio. And be sure to tune in every week as Mark talks government contracts with movers and shakers from industry and government alike.
Spring seems to have arrived early here in Lawrence, as we have been hovering around the 70-degree mark for over a week now. For me, spring is grilling season, and I’m ready to get a couple racks of ribs on my Big Green Egg this weekend. But who am I kidding–every season is grilling season for me.
While I daydream of smoked baby backs, I haven’t forgotten that if it’s Friday, it’s time for SmallGovCon Week In Review. This week, our government contracting news includes a False Claims Act violation, a major milestone for women-owned business, a constitutional challenge to the 8(a) Program, and much more.