ULTIMA SERVS. CORP., Plaintiff, v. U.S. DEP'T OF AGRIC., et al., Defendants., 2:20-CV-00041-DCLC-CRW, July 19,2023.

Court's Conclusion:  

Quote

The Court DECLARES that Defendants' use of the rebuttable presumption violates Ultima's Fifth Amendment right to equal protection of the law. 

SBA Releases Interim Guidance to 8(a) Program Participants in Light of Ultima Servs. Corp. v. Dep’t of Ag. ruling.

In this instance Ultima apparently performed well and quickly hit contract ceilings.  Instead of working out something with Ultima, USDA tried unsuccessfully initially to award an 8(a) contract.  When that didn’t work, they tried a different SBA office with another company.  Probably a smarter course of action is modifying Ultima’s two contracts to increase the ceilings and keep the performance period unchanged.  That likely better suits the USDA program office customers as well.

Addressing this issue and obtaining a solid resolution will be challenging for SBA.  Unless the decision gets overturned in an appeal, SBA will face a huge increase and complexity with application workload.

 Half of their 'interim guidance' is a political campaign commercial.

SBA suspended new 8(a) applications and is notifying existing 8(a) contractors that were previously accepted through the “rebuttable presumption” process they must submit narratives demonstrating socioeconomic disadvantage.  Isn’t that creating a new rule that is subject to the rule making process and public notification comment periods?  

I don't know but here is A Guide to the Rulemaking Process by the Federal Register.  

After reading the Federal Registers Guide, it seems like the revised application consideration process is a new rule to me.

From what I read from a few sources, SBA is urging 8(a) contracts previously approved through the “Rebuttal Presumption” to submit a narrative quickly.  The priority for SBA review is considering first those firms with new contracts pending.  Unless SBA has thought this out well and have definitive criteria to fairly and equitably evaluate the narratives, they are setting themselves up for criticism.

On today's WIFCON front page, there is a link to CAAC Letter 2023-04 (CAAC Consultation to Issue a Class Deviation From the Federal Acquisition Regulation (FAR) Regarding the Small Business Administration (SBA) Memorandum, “Impact of Recent Court Decision (Ultima Servs. Corp. v. Dep’t of Ag. (E.D. Tenn.)) on the use of the 8(a) Program”).