On January 22, 2026, SBA issued brand new “SBA Guidance” to its Office of Government Contracting and Business Development and its Office of Field Operations via a highly confusing 8(a) Program Mandate. On its Website, SBA labels it “Clarifying Guidance That Race-Based Discrimination is Not Tolerated in the 8(a) Program[,]” and further labels it the “Latest Action” in our Federal Government’s “Year-Long Effort to Dismantle DEI Discrimination, Expose Fraud, and Restore Fairness in Federal Contracting[.]” But no matter SBA’s intent behind it, this guidance does everything but clarify even a single aspect of SBA’s 8(a) Program eligibility rules and social disadvantage requirement.

Regardless of one’s stance on the 8(a) Program, its constitutionality, the current administration, and policies supporting affirmative action and “Diversity, Equity, and Inclusion” (DEI), I think we can all agree on one thing in regard to this new 8(a) Program Mandate. It leaves a lot more questions regarding 8(a) Program eligibility than it answers.

SBA begins this 8(a) Program Mandate with a brief introduction to the 8(a) Program and its underlying statute. It notes, Section 8(a) of the Small Business Act, 15 U.S.C. § 637(a), authorizes a “business development program for small businesses owned and controlled by one or more socially and economically disadvantaged individuals.” Then, it summarizes the 2023 district court decision in Ultima Servs. Corp. b. U.S. Dep’t of Agriculture (a case we blogged on in great detail here), which found SBA’s 8(a) regulatory presumption of social disadvantage unconstitutional.

The 8(a) Program Mandate then states the following:

Consistent with this case and other recent Supreme Court caselaw, the Trump Administration has taken a strong stance against unconstitutional discrimination and unlawful [DEI] policies, including through executive orders in the Administration’s first week.

It cites the Department of Justice’s (DoJ) November 2025 letter to the Speaker of the House, “advising that SBA’s regulations implementing the 8(a) Program are unconstitutional in that they presume an individual is ‘socially disadvantaged’ based solely on his or her membership in certain racial groups[,]” and refusing to “defend the constitutionality of the regulations’ race-based presumption.” And it says, “SBA fully agrees that the presumption of social disadvantage based on enumerated races in its regulations is unconstitutional” in that “large segments of American society were excluded from the presumption and, in practicality, from the program–particularly white Americans.”

In something we’ve been anticipating since the Ultima decision over two years ago, the 8(a) Program Mandate then informs us, “SBA is finalizing regulations to eliminate the unconstitutional presumption and related program guides–which SBA has not used since the beginning of the Trump Administration–and ensure the program complies with applicable law.” It then provides a list of four “current practices” of SBA’s administration of the 8(a) Program that this guidance seeks to clarify, as follows:

1. No applicant to the 8(a) Program shall be denied, nor given any presumptive preference based solely on his or her race. The 8(a) Program should be administered neutrally.
2. SBA will not approve admissions to the program based on the Biden-era “social disadvantage narratives”, nor will SBA utilize in any way or refer applicants to the related “Guide for Demonstrating Social Disadvantage“. Consistent with the SBA’s practice since January 2025, employees in the Office of Government Contracting and Business Development and the Office of Field Operations should not request or consider such “social disadvantage narratives,” nor utilize or encourage applicants to utilize the “Guide for Demonstrating Social Disadvantage.”
3. All employees in the [O]ffice of Government Contracting and Business Development and the Office of Field Operations shall treat all Americans fairly and equally in compliance with President Trump’s Executive Orders 14151 and 14173.
4. When considering whether an individual has suffered social disadvantage, the Office of Government Contracting and Business Development and the Office of Field Operations shall consider, for example, such factors as whether such individual has been the victim of illegal or radical DEI policies or illegal affirmative action policies or has otherwise been the victim of discriminatory practices such as race-based quotas, set asides, or hiring targets, in each case, whether by governmental or non-governmental actors. The Office of Government Contracting and Business Development and the Office of Field Operations shall further consider, for example, whether an individual was formally, or in practice, excluded from SBA’s 8(a) Program while these unconstitutional laws, practices, and policies were in effect.

* * *

As a government contracting law firm that spends extensive time assisting with 8(a) Program applications, we generally appreciate any guidance we can get from the SBA or Federal Government on how to be sure people are complying with the 8(a) eligibility requirements. But this guidance, unfortunately, leaves us with far more questions than it does answers.

Indeed, its anti-DEI and anti-affirmative action bent comes as no surprise. SBA has been issuing social disadvantage narrative guidance and implementing its social disadvantage policies and requirements consistent with such policies ever since the court’s decision in Ultima and injunction regarding SBA’s application of its 8(a) Program eligibility requirements. As part of this, SBA actually expanded its social disadvantage narrative requirement to apply to every existing 8(a) Program participant and applicant.

So, we are especially perplexed by this purportedly “clarifying” guidance on SBA’s purportedly “current” practices, saying SBA’s Offices “should not request or consider such ‘social disadvantage narratives'”–as we’ve heard and seen nothing prior to it indicating the narratives have gone or are going away. Further, the 8(a) Program Mandate leaves us with questions as to what SBA will be doing with current applications for the 8(a) Program–which all necessarily already include social disadvantage narratives; or current participants in the 8(a) Program–which were all subjected to the procedures of submitting and having SBA review and approve these social disadvantage narratives to get in. Nor does it indicate at all what SBA’s plans for review will look going forward.

But they do seem to demonstrate one thing with certainty: clearly there will be a shakeup in how 8(a) Program applications, especially in regard to SBA’s 8(a) social disadvantage policies and requirements, will be handled going forward.

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