DoD FAR Deviation Addresses 8(a) Social Disadvantage Changes

It’s no secret that the 8(a) federal government contracting world has been in a bit of an upheaval this summer. When the Eastern District of Tennessee published its decision for the Ultima Services Corporation case, small business federal contractors everywhere began scrambling to keep up to date on how various agencies would react. We here at SmallGovCon have been keeping up to date on the developments as they happen. This time, we have more information on how the Ultima Services Corporation case will affect procurements with the Department of Defense, thanks to a new class deviation effective August 24, 2023.

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SBA Webinar Clarifies New Expectations for 8(a) Social Disadvantage Narrative

As you likely know if you have been anywhere around federal government contracting lately, the SBA’s 8(a) Program is in a little bit of an upheaval. Due to a court case we have blogged on, SBA is subject to a court order with how it administers certain aspects of the 8(a) Program and has temporarily suspended new 8(a) Program applications. However, there are many contractors already in the 8(a) Program that SBA is now asking to complete social disadvantage narratives to allow for continued eligibility. SBA held a webinar on August 24, 2023 to discuss what they expect from social disadvantage narratives submitted by these current 8(a) Program participants. What SBA expressed represents a change to how SBA has reviewed social disadvantage in the past. But we are here to walk you through some of these changes.

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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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Podcast: Understanding the 8(a) Lawsuit and Its Impact: Attorney John Holtz Reveals All

John Holtz was recently interviewed by Dr. Kizzy Parks with K. Parks Consulting, Inc. about the current 8(a) Program situation and the pause on applications. Please use this link to access this informative podcast and we invite you to visit YouTube for all of Kizzy Parks podcasts concerning federal government contracting matters.

Top of the Class: 8(a) Early Graduation

The SBA’s 8(a) Business Development Program is the crème de la crème of federal government contracting and there is a high bar to entry for admission. Among other things, individuals that are not a member of one of the recognized groups that is automatically presumed to be socially disadvantaged must prove they were socially disadvantaged throughout their life through what is called a social disadvantage narrative. Beyond that, there are a number of other qualifications, such as being economically disadvantaged, a business’s potential for success, and evidence of good character that must also be met. 13 C.F.R. § 124.101. The process is difficult, and once an individual is admitted, they no doubt want to make the most of it.  

Oftentimes, small businesses that participate in the 8(a) SBA’s Business Development Program remain in the Program for the full 9 years that the SBA allows, which culminates in the small business “graduating” from the program. 13 C.F.R. § 124.302. Sometimes, the business grows so successfully that it no longer meets the qualifications of being small, and thus is required to graduate early from the 8(a) Program. So how exactly does that happen? Read on to find out.  

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Limitations on Subcontracting Part 1: What They Are and How They Apply

Congratulations! Your woman-owned small business (WOSB), Sun Corp, has just been awarded a contract. This particular contract was set aside for WOSBs, meaning only WOSBs may be considered for award. Small Corp is a relatively new company, and you have determined that you will need some help to successfully complete performance of the contract. As luck would have it, you are acquainted with the owner of Moon Corp, and Moon Corp is in the business of doing the exact type of work that Sun Corp needs help with. While diligently reading through the contract prior to its execution, you notice the following language:

Performance of this contract must comply with the subcontracting limitations set forth in FAR 19.505 and 13 C.F.R. § 125.6.

What do you do?

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