SBA Update On 8(a) Program In Light Of Ultima Decision

In a webinar sponsored by the National 8(a) Association, the U.S. Small Business Administration's (SBA) Associate General Counsel for Procurement Law John Klein provided an update on SBA's implementation of the recent Ultima decision. The U.S. District Court for the Eastern District of Tennessee held that the SBA's and U.S. Department of Agriculture's (USDA) use of a "rebuttable presumption" of social disadvantage for certain minority groups to qualify for inclusion in the SBA's 8(a) Business Development Program (the 8(a) Program) violates the Fifth Amendment's Due Process Clause.

SBA has taken the position that the Ultima ruling only applies to individually owned firms that relied on membership in a presumptively socially disadvantaged group to establish their 8(a) eligibility. Thus, any new applications or applications currently pending with SBA - even if they were submitted before the Ultima ruling - that relied upon the rebuttable presumption will now have to