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Update: 8(a) Program’s Presumed Class

We are currently evaluating the next steps for 8(a) business development program participants and applicants in light of federal district court’s decision in Ultima Servs. Corp. v. U.S. Dept’ of Agriculture. In Ultima, the court ruled on the 8(a) Program’s presumption of social disadvantage, which is required for admission into the 8(a) Program, and is based on applicant’s race or ethnicity, finding that the rebuttable presumption itself was violative of the Fourteenth Amendment’s Equal Protection Clause as incorporated by the Fifth Amendment.

Importantly, the court did not rule on the validity of the 8(a) Program itself, but rather on the SBA’s procedures for admission which provide for the presumption of social disadvantage. The 8(a) Program remains valid and current participants should expect to see continued utilization of 8(a) set aside procedures for federal requirements. GCP believes it is possible that the district court’s decision may be appealed to the Sixth Circuit Court of Appeals.

GCP is working closely with our resource partners to identify what, if any, steps must be taken by either 8(a) Program participants and/or applicants. While we anticipate little to no impact for current 8(a) Program participants, it is possible that 8(a) applications that may have previously relied on establishing social disadvantage through the rebuttable presumption may be required to provide a narrative within their application which speaks to the applicant’s social disadvantage.

If you have questions or concerns about the court’s decision, please contact us at team@govcontractpros.com.