The July 19 Ultima ruling threw the 8(a) program into tumult after the U.S. District Court for the Eastern District of Tennessee found the program's rebuttable presumption mechanism, used to find social disadvantage, in violation of the Fourteenth Amendment's Equal Protection Clause.
Following the ruling, in an attempt to resolve confusion, the Small Business Administration (SBA) issued interim guidance providing that those participants "whose program eligibility is based upon one or more individuals who relied upon the presumption of social disadvantage to establish their individual social disadvantage" must submit a narrative to maintain eligibility in the program.
The change requires all current 8(a) participants who established social disadvantage using the rebuttable presumption mechanism to complete a social disadvantage narrative to reestablish their social disadvantage. Those 8(a) firms with a pending 8(a) award were required to obtain SBA approval of their narratives within as little as five days, but the other 8(a) firms without pending awards were told to await further instructions. Read more about the ruling and SBA interim guidance in our previous GovCon & Trade blog post from August 23.
SBA has since released Certify Help Desk Guidance, which delineates the technical process for active 8(a) participants to submit their social disadvantage narratives.
This announcement reflects the next step in SBA's implementation of the Ultima decision. With the help desk now live, to reestablish social disadvantage and best position yourself for future 8(a) awards, we recommend the relevant 8(a) participants finish drafting their narratives and move toward submission.
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