GovContractPros has learned of a claim filed with the U.S. Court of Federal Claims (“COFC”) which challenges the validity preferences afforded to entity-owned 8(a) participants, i.e. Tribally-owned and Alaska Native Corporation (“ANC”) owned 8(a) participants in federal contracting. The plaintiffs in the claim assert that the Fifth Amendment’s Equal Protection Clause prohibits discrimination on the basis of race or Tribal status in a way that is untethered from issues of Tribal sovereignty or remedying the effects of past discrimination, including in connection with SBA’s 8(a) preferences for ANCs and Tribes.

In the wake of the Ultima decision, which impacted individual-owned 8(a) participants based on a similar legal theory as that articulated by the plaintiff in this case, GCP anticipated that a challenge to Tribal and ANC-owned entities was likely to occur.  Accordingly, GCP immediately began coordinating efforts with advocates for the Tribal and ANC communities to mitigate any impact from Ultima as well as prepare for the likely challenge to the 8(a) preferences for Tribes and ANCs.  Based on those discussions, GovContractPros believes that our Tribal and ANC clients are prepared to successfully defend this potential challenge, even where advocacy on the Hill may be required.

More specifically, the plaintiffs in the current COFC case rely on the economic and social disadvantage prongs of the 8(a) program to assert that “Indian preferences” must be tied “Indian lands” to uniquely sovereign interests, or to the special relationship between the federal government and the Indian tribes. GCP believes that the 8(a) preferences for ANC and Tribally-owned entities are a discreet program authorized by Congress which recognizes the special relationship between the federal government and the Indian tribes.

Finally, regarding the jurisdictional authority of the COFC to grant relief, under the Tucker Act, GovContractPros believes that any decision rendered by that court must be limited in scope to the particular Navy procurement at issue. In other words, even if the COFC were to rule on the merits of the plaintiff’s 8(a) arguments, an adverse ruling would impact only the Navy’s procurement. No national injunction, such as was the case in Ultima is likely here.

GovContractPros will continue to provide updates to you as the matter is litigated.  We also wish to take this opportunity to thank you for trusting us as advocates for Tribal Nation as together, we look forward to a timely and favorable outcome in this filing.