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Posted on Monday, October 15, 2012

Should 8(a) Contractors Be Worried About An “Unconstitutional” 8(a) Solicitation?

In a decision that will surely be appealed and take years to resolve, a Federal District Court in Washington, DC has concluded that the Small Business Administration’s 8(a) program for small disadvantaged businesses is unconstitutional when the Navy tried to use it in a procurement involving the flight simulator and training industry.

Specifically, the Navy violated a small business’s rights under the 5th Amendment to the U.S. Constitution that guarantees the right to equal protection under the law and due process.  By excluding DynaLantic Corp., a non-disadvantaged vendor, from competing for the work, the Navy violated DynaLantic’s constitutional rights.

Despite the outcome in this case, an 8(a) contractor need not be worried about immediate, significant changes to the 8(a) program. The decision dealt with only one industry. More significant, perhaps, to advocates of the 8(a) program was the court’s conclusion that the SBA’s 8(a) program was constitutional in general. DynaLantic won its case because the government had no data proving discrimination in that one industry, the flight simulator and training industry.

Author Terrence O’Connor is the Director of Government Contracts for the Washington, DC regional business law firm of Berenzweig Leonard,LLP.  He can be reached at toconnor@BerenzweigLaw.com.

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