SBA Update: Get Your Social Disadvantage Narrative Ready

As you likely know, there are some major changes going on in the SBA’s 8(a) Business Development Program. And like many, I am sure you have a lot of questions—given the fact that these changes are being implemented right now without a published final rule explaining the details, limitations, and new requirements. While we may not have a rule, we have been closely following any and all SBA guidance on the matter as it has released. And as usual, we are here to pass that valuable information along to you.

On August 17, SBA counsel John Klein provided an important update as part of the National 8(a) Association’s regular update series. The recording will be available soon, so check back on their website if you missed it. A key takeaway is that the SBA will require social disadvantage narratives for all individually-owned entities to establish social disadvantage. But there were some other updates as well.

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8(a) Rule Update: Agencies Can’t Limit 8(a) Competition to Participants with Additional Certifications, SBA Clarifies Bona Fide Place of Business for Construction Contracts

A few months ago, we explored SBA’s new rule that made changes to the 8(a) program, the limitations on subcontracting rules, and the ostensible subcontractor rule. There was another aspect of that new rule that also makes some needed clarification on how contracting officers can limit 8(a) competitions, and we want to briefly explore that here.

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SBA Puts “Temporary Pause” on New 8(a) Program Application Submissions

The SBA’s Office of Government Contracting and Business Development, the office that handles the 8(a) Business Development Program applications, has just confirmed that SBA has “temporarily paused” the submission of new 8(a) Program applications in light of the recent decision by the federal district court of the Eastern District of Tennessee.

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On Deck for SBA Regulations in 2023: Affiliation and WOSB Rule Changes

SBA, like other agencies, publishes a semiannual Regulatory Agenda to provide an update on the various rules it has coming up as well as a timeline for when they will be published or become final. While SBA doesn’t have to meet these timeframes, it’s always good to check in on what SBA has been working on when the final rules will come out. This agenda includes an update on increased size standards, along with some other important rules. Here is a summary of the upcoming rules and what we think could most impact federal contractors. Be sure to comment on these rules if you have an opinions on them.

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Initial Challenge to 8(a) Presumption of Social Disadvantage for Certain Minority Groups Succeeds: What This Means for Now

On July 19, 2023, the federal district court of the Eastern District of Tennessee issued a decision regarding a case involving the rebuttable presumption of social disadvantage in place under the 8(a) Business Development Program. Ultima Servs. Corp. v. U.S. Dep’t of Agric., 220CV00041DCLCCRW, 2023 WL 4633481, at *1 (E.D. Tenn. July 19, 2023). This decision found that this presumption is unconstitutional as it violates the right to equal protection. This, understandably, has caused a great deal of confusion and concern for current and potential 8(a) Program participants. In this post, we will not be providing our opinion on the correctness of the court’s decision (or analyze it from a policy perspective), as we will leave that to attorneys who specialize in constitutional law. Instead, we will go over the decision, what it means, and what it could affect down the road.

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Govology Webinar: An Introduction to Government Small Business Certifications (2023 Update) July 25, 2023, 1:00pm EDT

Steven Koprince, Govology Legal Analyst and retired founder of Koprince McCall Pottroff (and all around cool dude) will be presenting this webinar providing a big-picture overview of small business certifications in the government marketplace. In this webinar, you will learn about various federal small business certification programs, including Small Business Self Certification, Small Disadvantaged Business (SDB) & 8(a), Service-Disabled Veteran-Owned Small Business (SDVOSB), Veteran-Owned Small Business (VOSB), Historically Underutilized Business Zones (HUBZone), Woman-Owned Small Business (WOSB), and Economically Disadvantaged Woman-Owned Small Business (EDWOSB). Steve will also touch on state and local certification programs and provide information on additional training and resources you can use to develop a deeper understanding and get help with any federal, state, and small business certification program. If interested in this informative webinar, please register here.

Back to Basics: Status Protests

In the world of Federal Government Contracting, it often feels like there are 20 different ways that your business or your business’s awards can be protested. In addition to size protests and bid protests (at both GAO and the COFC), there is also what is commonly referred to as a “status protest.” A status protest, while certainly less common than size protests and bid protests, still presents its own unique factors, procedures, and corresponding risks that contractors should be aware of. In this next installment of our Back to Basics series, we will walk you through a status protest and what impact a status protest may have on a federal contractor’s business.

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