SmallGovCon & Koprince McCall Pottroff LLC Announce the 8(a) Contractors’ Toolkit

To keep federal contractors apprised of recent decisions affecting the 8(a) Program, we are launching the 8(a) Contractors’ Toolkit. The goal is to provide relevant and useful information for government contractors about eligibility, contract requirements, and best practices. We are here to help federal contractors navigate the rapidly changing waters of the 8(a) Program.

Check back regularly as we cover various topics bearing on federal contractors currently participating in or hoping to gain entry into the 8(a) Program. We will regularly and promptly update the site to keep our readers informed of all updates, clarifications, and guidance regarding the 8(a) Program, as they are released.

We understand that things may feel a bit uncertain and overly complex in the 8(a) Program at this time. Our greatest hope is that this collection of specific information on the current changes to the 8(a) Program and social disadvantage narratives will guide contractors in drafting their narratives, but we are also here to help anyone who needs assistance. More information is available at this link.

If you are needing legal assistance, please reach out at info@koprince.com or call 785-200-8919.

8(a) Social Disadvantage Narratives: What SBA is Looking For–Now, From ALL Individually-Owned 8(a) Applicants and Participants

Writing a social disadvantage narrative for application to SBA’s 8(a) Business Development Program has always been an arduous undertaking–to say the least. And up until a recent Federal District Court decision (which we blogged on here), only a small portion of 8(a) Program applicants had to submit this time-consuming, highly personal, difficult task. But now (as discussed in the above-linked blog and in this blog on SBA’s recent actions in response to the decision), this requirement is being expanded to all individual applicants that haven’t already provided a social disadvantage narrative. You can read much more about SBA’s implementation of this here. But essentially, you will need to write a social disadvantage narrative if you are an individually-owned1 8(a) applicant or program participant who is trying to get into the 8(a) Program or already in the 8(a) Program–even if you were planning to or already had relied on the rebuttable presumption of social disadvantage (which SBA can no longer use).

Fortunately, we have been drafting these narratives for a long time now, meticulously studying and utilizing: (i) SBA’s rules, policies, and guidance on social disadvantage narratives (recent guidance can be found here); (ii) SBA’s feedback on individual narratives; and (iii) SBA’s Office of Hearings and Appeals (OHA) decisions covering the SBA’s initial appealed decisions on applicants’ social disadvantage eligibility–as well as OHA’s final decisions on the appeals. So, while SBA’s current regulations and guidance can guide your pen, they are certainly not the only source of helpful information out there. Let’s take a look at some SBA guidance and recommendations based on SBA’s actual decisions that may increase your chances for success.

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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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