The Small Business Administration (SBA) recently made significant changes to the requirements for establishing socially disadvantaged status in the 8(a) Business Development Program. The SBA 8(a) program, which has been in operation since 1978, provides participating small businesses with training, technical assistance, and contracting opportunities through set-aside and sole-source awards. The recent changes to the program were prompted by a July 2023 court ruling that found that the SBA's previous practice of presuming social disadvantage for certain racial and ethnic groups was unconstitutional.
The case that prompted the change stems from a lawsuit filed by Ultima, a small business government contractor based in Tennessee owned by a non-Hispanic White woman ineligible for 8(a) contracts. The U.S. District Court for the Eastern District of Tennessee ruled in her favor and overturned the SBA’s use of presumed racial and ethnic disadvantage to qualify applicants. The opinion relies partly on the Supreme Court's recent ruling striking down affirmative action in college admissions.
The new requirements mandate all 8(a) participants whose eligibility would have relied upon the presumption of social disadvantage due to their belonging to historically marginalized groups to submit a narrative about their personal social disadvantages. The narrative should explain how the individual has experienced significant obstacles to success in business, education, or employment due to their race, ethnicity, gender, or other factors.
The changes to the 8(a) program's social disadvantage requirements are a significant development for small businesses seeking to participate and, for some, a barrier. It will be interesting to see how this change affects interest in the program and federal contracting, which is already perceived as challenging by small businesses.
New 8(a) applications have been temporarily suspended while the SBA reviews the new requirements. Businesses in the program are urged to prepare a social disadvantage narrative to remain eligible for future awards.
Here are some of the elements required for the social disadvantage narrative:
In our increasingly multicultural society, we must ensure that socially and economically disadvantaged businesses have a fair shot at winning federal procurement contracts and that the process to do so remains accessible to all. This is essential to leveling the playing field and creating a more equitable economy.
The SBA has been a crucial partner to small businesses in their efforts to compete and grow. That commitment was reiterated recently by SBA Administrator Isabella Casillas Guzman who said, “…the SBA and Biden-Harris Administration remain committed to supporting this crucial program and the small business owners who have helped drive America’s strong economic growth.”
We hope the SBA reopens the registration process soon so that the program's benefits continue to be extended to those who have faced significant obstacles due to their race, ethnicity, gender, or other factors.