5 Things You Should Know: 8(a) Program Eligibility

In a recent post, I discussed the basics about SBA’s 8(a) Business Development Program. This follow-up posts discusses 8(a) eligibility requirements in greater detail.

To qualify for the 8(a) Program, a firm must be a small business that is unconditionally owned and controlled by one or more socially- and economically-disadvantaged individuals who are of good character and citizens of the United States and that demonstrates a potential for success.

What does this really mean? Here are five things you should know about 8(a) Program eligibility.

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8(a) Program: Will Supreme Court Take Rothe’s Constitutionality Case?

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.

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8(a) Program Survives Court Challenge–But Battle Could Continue

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.

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8(a) Program: SBA Final Rule Makes Important Changes

The 8(a) Program regulations will undergo some significant changes as part of the major final rule recently released by the SBA, and effective August 24, 2016.

Here at SmallGovCon, we’ve already covered big changes to the SDVOSB Program and HUBZone Program brought about by the new SBA rule.  But the 8(a) program is affected by the new rule too, and important changes involving eligibility, the application process, sole source awards, NHOs, and more will kick in later this month.

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8(a) Program: Accent, Lack of English Proficiency Not Evidence of Bias

A Bulgarian immigrant’s thick accent and lack of English proficiency were not evidence of bias, and did not support the immigrant’s 8(a) Program application.

In a recent 8(a) Program decision, the SBA Office of Hearings and Appeals expressed sympathy for the language difficulties many immigrants face, but held that such difficulties, by themselves, do not constitute evidence of “social disadvantage” for 8(a) Program purposes because the 8(a) Program requires a showing of bias or prejudice.

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Women 8(a) Applicants Don’t Need “Smoking Gun” Evidence Of Bias, Says SBA OHA

A woman does not need to provide the SBA with “smoking gun” evidence of bias in order to be considered socially disadvantaged for purposes of her company’s application to the 8(a) program.

In a recent decision, the SBA Office of Hearings and Appeals sharply criticized the SBA’s evaluation of a woman-owned small business’s 8(a) application, holding that the SBA had improperly discounted evidence of bias, needlessly demanded that the woman provide irrelevant details, and made several other errors.

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After Successful 8(a) Appeal, Company Gains 8(a) Certification

Last month, I wrote about the successful 8(a) program appeal filed by Gearhart Construction Services.  In its decision, SBA OHA held that the SBA had misevaluated Gearhart on the “social disadvantage” factor, including by holding Gearhart to a too-high standard of proof.  SBA OHA ordered the SBA to correct its errors and take another look at Gearhart’s application.

Now I can report that Gearhart’s story has a happy ending.  On April 11, the SBA notified Gearhart that it had been admitted to the 8(a) program.  SBA OHA then dismissed Gearhart’s appeal as moot, because Gearhart and achieved its goal.

Sometimes, gaining admission to the 8(a) program requires tenacity and a continued belief in one’s case, even when the SBA’s 8(a) office has repeatedly denied the application.  Gearhart’s perseverance paid off, and the company now has nine years to reap the rewards.