Dear Made Marketing Community Members,
We are pleased to provide you with the latest updates on the 8(a) Business Development program as of September 2023. The moment many have eagerly anticipated has arrived - the Small Business Administration (SBA) is once again welcoming new applicants into the 8(a) Business Development Program through its Certify portal. This portal had been temporarily closed to all new 8(a) Program applicants back in early August 2023. This closure was a response to a decision from the Federal District Court of the Eastern District of Tennessee, which removed the presumption of social disadvantage for specific designated groups, thereby necessitating the submission of a social disadvantage narrative for all 8(a) program participants.
In response to this change, the SBA cautiously reopened the Certify portal in a phased manner, initially prioritizing current 8(a) participants with pending awards, followed by those without pending awards, allowing them to submit their social disadvantage narratives.
Now, SBA has extended the reopening of Certify to new applicants interested in joining the 8(a) Program. These new applicants must demonstrate their social disadvantage as part of the application process.
These changes impact both existing participants and prospective applicants.
Please take a moment to review the key information below:
Background on the Decision
On July 19, 2023, the U.S. District Court for the Eastern District of Tennessee issued a ruling in Ultima Servs. Corp. V. Dep’t of Ag. affecting the 8(a) Business Development program. Prior to this ruling, individual Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and Subcontinent Asian Americans applying for the program could establish that they were socially disadvantaged by demonstrating that they held themselves out as a member of one of those designated groups. This practice has been known as using a “rebuttable presumption of social disadvantage” or “presumption of social disadvantage.”
While most 8(a) firms established their 8(a) program eligibility through a presumption of social disadvantage, other 8(a) firms were admitted to the 8(a) program because the qualifying individual owner established social disadvantage by a preponderance of the evidence (i.e. submitted a narrative as part of the original application).
In this ruling, the Court barred SBA from using the presumption of social disadvantage to administer the 8(a) Program.
Under DOJ guidance regarding the Court’s order, SBA is requiring all 8(a) participants who originally relied upon the presumption of social disadvantage in their application to re-establish their 8(a) Program eligibility by completing a social disadvantage narrative.
The 8(a) program remains open for business.
SBA is encouraging its continued use as federal agencies identify small businesses to help meet critical mission needs during the end of the fiscal year, typically a time of increased usage of the program. Agencies can immediately continue to send offer letters to SBA. The Small Business Administration (SBA) has recently made significant updates to the 8(a) Business Development program. These changes aim to improve program integrity and inclusivity.
Guidance and FAQs for Current 8(a) Participants
For current 8(a) program participants, these updates affect different groups:
Participants who previously relied on the presumption of social disadvantage: You may need to provide additional documentation to support your eligibility.
Participants who previously established social disadvantage with a narrative: Similar to the above group, additional documentation may be requested.
Entity-owned 8(a) participants: This includes firms owned by Indian tribes, Alaska Native Corporations, Native Hawaiian Organizations, or Community Development Corporations.
Frequently asked questions for current 8(a) participants can be accessed for further clarification.
Guidance for Current 8(a) Applicants with Applications in Process
If you are an individual-owned firm with an application in progress, please take note of the following:
If you've already initiated your application, you will need to include a social disadvantage narrative for each disadvantaged individual.
If your application has been submitted, it will be returned to you by SBA for additional information, including the social disadvantage narrative.
If you haven't submitted your application yet, you can immediately upload your individual social disadvantage narrative on the Certify.sba.gov system.
Please be aware that, according to existing regulations, 8(a) applicants generally need to establish social disadvantage only once for their program term unless there are ownership or control changes affecting eligibility.
Helpful resources, such as SBA's Guide for Writing a Social Disadvantage Narrative and the SBA's information session webinar on the Social Disadvantage Narrative, are available to assist you through this process.
Guidance for Potential 8(a) Applicants
For those interested in applying to the 8(a) program, SBA has reopened the application process as of September 29, 2023. The application now includes a plain language fillable questionnaire for identifying social disadvantage. Applicants still have the option to prepare a social disadvantage narrative and upload it directly to Certify.
Potential applicants are encouraged to access the Certify Knowledge Base for valuable information and tips on submitting a successful application.
Guidance for Federal Agencies
Federal agencies are encouraged to stay informed by accessing resources available via the OMB Max.gov collaboration site. This site receives daily updates and is the best source for up-to-date information for the federal acquisition workforce.
SBA published guidance to federal agencies on August 18, 2023, and FAQs to aid the federal acquisition workforce community as it implements SBA's guidance.
For additional details and resources, please visit the SBA's OMB Max.gov collaboration page.
We are committed to keeping you informed about these changes and their impact on the 8(a) Business Development program. If you have any questions or require further assistance, please don't hesitate to reach out to us.
Best regards,
Made Marketing