8(a) | The Contracting Education Academy

October 4, 2016 By AMK

D.C. Circuit upholds constitutionality of SBA’s 8(a) program

Last month, in Rothe Development, Inc. v. Department of Defense, the D.C. Circuit upheld the constitutionality of the Small Business Administration (“SBA”) 8(a) program by rejecting arguments that the Small Business Act contains an unconstitutional classification based on race.

8a-decision-sept-2016 The goal of the SBA’s 8(a) program is to expand government contracting opportunities to small business owners. Under the Small Business Act, the SBA enters into contracts with other federal agencies, which the SBA then subcontracts to eligible small businesses to compete for subcontracts in a sheltered market. Businesses owned by “socially and economically disadvantaged” individuals are eligible to participate in the 8(a) program.

Per the statute, socially disadvantaged individuals are those “who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities.”

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/09/d-c-circuit-upholds-constitutionality-sbas-8a-program/

September 28, 2016 By AMK

The thin legal case for affirmative action in contracting

Affirmative action in government contracting is alive — barely.

On September 9, 2016, a federal appeals court upheld a Small Business Administration program that gives advantages to people who have suffered racial discrimination, reasoning that the law as written doesn’t discriminate on the basis of race, because anyone can be the target of racial bias. The decision, which is based on paper-thin legal logic, is an attempt to keep remediation-based affirmative action from disappearing altogether. It may be too little, too late.

The program, known as 8(a) after the section of the Small Business Act in which it appears, gives a preference in government contracting to small businesses owned by “socially and economically disadvantaged” individuals. The law defines the socially disadvantaged as people “who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities.”

If this sounds like race-based affirmative action, that’s because it is. The SBA regulations implementing the law create a presumption that any member of racial minority has been subject to bias. Unless the presumption is overcome by evidence that the business owner hasn’t suffered discrimination — a pretty unlikely scenario — the program functions to give minority business owners an advantage.

Back in the day, the racial preference wouldn’t have been a legal problem. The original theory of affirmative action was precisely to remedy past discrimination by giving an advantage to those who had suffered its effects, namely racial minorities.

Keep reading this article at: https://www.bloomberg.com/view/articles/2016-09-13/the-thin-legal-case-for-affirmative-action-in-contracting

April 14, 2016 By AMK

SBA gets 8(a) applications right only 37% of the time in sample by OIG

The Small Business Administration (SBA) is failing to adequately screen the eligibility of small businesses applying for the federal government’s longest-standing contract preference program.

In an examination of applications for the 8(a) Program by the SBA’s Inspector General, 30 of 48 applicants did not meet one or more areas of eligibility,

The Office of Inspector General’s (OIG’s) Audit Report 16-13, SBA’s 8(a) Business Development Program Eligibility, presents the results of the OIG’s audit of the 8(a) Program. The 8(a) Program provides economically and socially disadvantaged, small business owners with business development assistance and preference-based Federal contracts.

SBA’s Director of the Office of Certification and Eligibility (OCE) and the Associate Administrator for Business Development (AA/BD) gathered additional information for 18 firms and, based on this information, approved the firms into the 8(a) Program. However, for the remaining 30 firms, the AA/BD approved the firms without full documentation in the agency’s Business Development Management Information System (BDMIS) on how all areas of concern regarding eligibility raised by lower-level reviewers were resolved. As a result, it was not clear whether these 30 firms should have been approved into the 8(a) Program.

During the past year within SBA, the 8(a) Program has experienced a change in leadership, identified an aggressive growth plan for the coming years, began testing a streamlined application process, and shifted responsibilities for continuing eligibility reviews. In its report to SBA leadership, the OIG encourages management to ensure the documentation supporting 8(a) Program application approvals is maintained in a method ensuring clear eligibility of the applicant.

The OIG made two specific recommendations to improve SBA’s eligibility determination process for the 8(a) Program:

Update policy to require the AA/BD and OCE’s director to clearly document their justification for approving or denying applicants into the 8(a) Program, particularly when those decisions differed from lower-level recommendations.
Provide documentation on how eligibility concerns raised by lower-level reviewers were resolved for the 30 firms not documented in BDMIS by April 11, 2016.

A copy of the full report by the SBA’s OIG can be found here: https://www.sba.gov/sites/default/files/oig/16-13_SBAs_8a_Business_Development_Program_Eligibility.pdf

October 30, 2015 By AMK

SBA watchdog warns of IT security risks, poor data in contracting goals

The Small Business Administration (SBA) has made solid headway in addressing most of its 10 major management and performance challenges, but took a step backward on information technology security, its inspector general reported.

SBA also falls short in verifying data and toughening enforcement to curb the number of large companies that improperly win contracts intended for small businesses, according to a report and score card released Oct. 15.

Noting that recent governmentwide security breaches have “heightened the importance of continuously monitoring networks and software applications,” the IG and an external auditor identified IT security “weaknesses when on-boarding and separating SBA personnel,” the report said. The agency lost ground over the past year in implementing such recommendations as reporting IT security weaknesses, segregating duty controls and assuring that “access controls are in place and operating effectively, and contractors are not granted system access until they have obtained the required background investigations and/or security clearances.”

On the SBA-led governmentwide effort to award 23 percent of all prime contracts to qualified small businesses, the score card provides ammunition to outside critics who argue that too many large firms are siphoning off contract set-asides.

Keep reading this article at: http://www.govexec.com/oversight/2015/10/sba-watchdog-warns-it-security-risks-poor-data-contracting-goals/122919

April 2, 2015 By AMK

Push is on for analysis of approval process required of 8(a) Native American sole-source contracts

Alaskan Congressman Don Young is enlisting a bipartisan group in the House of Representatives to urge Secretary of Defense Ash Carter to swiftly and diligently complete a Department of Defense (DOD) study examining the negative impacts of Section 811 of the Fiscal Year 2010 National Defense Authorization Act (NDAA) on Native community owned contractors.

“The 8(a) program has been extremely successful in creating an efficient and cost effective contracting option for the government while supporting economic opportunity for some of the most disadvantaged and underemployed populations in the nation,” said Congressman Young. “Since Senator Stevens left the Senate, Native contractors have been under constant attack. Section 811 was snuck into the 2010 NDAA negotiations by the Senate, and ever since then I have repeatedly heard about the confusion, difficulty and damage this Act has caused to our Native contractors.”

Section 811 requires that any 8(a) Native American sole-source contract, in excess of $20 million, go through an overly burdensome approval process. While the measure was sold as a “good governance” provision and did not prohibit or discourage the awarding of such contracts, this heightened scrutiny, not required for any other contractors, has had a chilling effect for contracts.

Keep reading this article at: http://alaska-native-news.com/young-pushes-for-analysis-on-negative-impacts-of-section-811-on-native-owned-contractors-16415

Last month, in Rothe Development, Inc. v. Department of Defense, the D.C. Circuit upheld the constitutionality of the Small Business Administration (“SBA”) 8(a) program by rejecting arguments that the Small Business Act contains an unconstitutional classification based on race.

Affirmative action in government contracting is alive — barely.

The Small Business Administration (SBA) is failing to adequately screen the eligibility of small businesses applying for the federal government’s longest-standing contract preference program.

The Small Business Administration (SBA) has made solid headway in addressing most of its 10 major management and performance challenges, but took a step backward on information technology security, its inspector general reported.

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