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April 25, 2017 By AMK

High court asked to review SBA disadvantaged biz program

An information technology contractor has asked the U.S. Supreme Court to review a D.C. Circuit decision upholding the U.S. Small Business Administration‘s 8(a) program for disadvantaged small businesses, arguing the panel’s majority failed to recognize that the program involves racial classification that requires strict scrutiny.

Rothe Development Inc., a nonminority-owned small business that mostly bids on federal defense contracts, filed a petition for a writ of certiorari after the D.C. Circuit denied panel and full-body rehearings of its split September opinion. In a 2-1 decision, a three-judge panel rejected Rothe’s challenge to the law underpinning the 8(a) program, ruling that the program was not unconstitutionally based on race.

However, in Rothe’s petition, filed on April 13, the contractor argued that until the panel issued its majority decision, Congress, the federal government and the courts had all recognized that the statutory provisions of the program use race-conscious means “to distribute burdens and benefits.” The panel’s assertion that the law implementing the program is race-neutral on its face ignores the plain language of the statute, Rothe said.

“In sum, the statutory provisions of the Section 8(a) program contain a paradigmatic racial classification because they distribute burdens and benefits on the basis of race,” Rothe said. “Because the panel majority’s contrary conclusion and failure to apply strict scrutiny are irreconcilable with the plain language of the provisions and this court’s precedents, review is warranted.”

Keep reading this article at: https://www.law360.com/publicpolicy/articles/914715/high-court-asked-to-review-sba-disadvantaged-biz-program 

Filed Under: Government Contracting News Tagged With: 8(a), IT, race-based, race-conscious, SBA, small business, small disadvantaged business, Supreme Court, technology

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.

8aThe 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

Filed Under: Government Contracting News Tagged With: 8(a), affirmative action, anti-discrimination, discrimination, past discrimination, race-based, SBA, set-aside, small disadvantaged business

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