It’s the moment many have been waiting for–SBA has reopened its Certify portal to new applicants seeking admission into the 8(a) Business Development Program. SBA closed the portal to all new 8(a) Program applicants in early August 2023, following a decision from the Federal District Court of the Eastern District of Tennessee that took away applicant’s presumption of social disadvantage for certain designated groups. This resulted in all 8(a) participants being required to submit a social disadvantage narrative. To address this issue, SBA opened Certify bit by bit to current participants who had not previously submitted a social disadvantage narrative, prioritizing current 8(a) participants with pending awards followed by current 8(a) participants without pending awards. Now, SBA has opened Certify to new applicants that wish to apply for participation in the 8(a) Program who now must demonstrate their social disadvantage.
This very sudden change has had a lot of effects on both current participants and applicants, and has created a plethora of questions and frustrations. At this point, all participants and applicants must prove their basis for social disadvantage prior to award of a contract or acceptance into the program. We blogged on what makes a good social disadvantage narrative back in August. SBA also has a wealth of information you can access for guidance.
In the past, some 8(a) applicants had to submit a social disadvantage narrative. If you believe you have already submitted a social disadvantage narrative, you should check your information in Certify or reach out to your Business Opportunity Specialist for confirmation. SBA has been clear that participants who initially were admitted into the program with an approved social disadvantage narrative will not be required to submit a second narrative. It is always best to check if you are unsure. All narratives, whether from an applicant or participant, must be submitted through Certify.
Format for SDN
Going forward, every individual applicant for the 8(a) Program must prove their social disadvantage, but apparently now means there is an option to do so via a method other than submitting a narrative. SBA states that the 8(a) Program application has been updated to include “a plain language fillable questionnaire for applicants to identify social disadvantage.” Interestingly, it then states that “[f]irms continue to have the option to prepare a social disadvantage narrative and upload it directly to Certify.” At first glance, this language suggests that a narrative is not required. Thankfully, the Certify Help Desk Database does clarify. In Certify, the applicant has the option to submit a written social disadvantage narrative or complete a new section titled “Experiences that have affected your business.” Within this new section, applicants are instructed to fill in fields that describe the event that affected your business including:
- What happened?
- How did this situation affect opportunities to start of expand your business?
- Which of the following contributed to the discrimination in the situation?
- When did it happen?
- Where did it happen?
- Who contributed to the discrimination.
These questions align with the guidance that SBA has given to current participants as far as what needs to be included in a narrative for it to be successful. And, if you take the option to fill out the “Experiences that have affected your business” form instead of submitting a formal narrative, you will still be required to fill this information out for two different experiences. The standard for social disadvantage—chronic, substantial, and has occurred within American society—applies to proving disadvantage whether by a narrative or form.
As a side note, this process has no effect on the annual review process. If you are a current participant with a social disadvantage narrative pending review, and your annual review is due, complete the annual review. It is a requirement of continued 8(a) Program participation, and there are no extensions due to pending narratives.
It will be interesting to see how this all works out in the end as there is still ongoing litigation regarding the case at the heart of this issue (the Ultima Services Corp. decision). For more information, view all of KMP’s 8(a) Program information in our 8(a) Toolkit.
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