Federal judge enjoins use of presumed racial disadvantage in SBA contracting program

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The Wednesday ruling from Judge Clifton L. Corker of the U.S. District Court for the Eastern District of Tennessee enjoined the small business agency and the Department of Agriculture — both defendants in the case — from using a “rebuttable presumption of social disadvantage” in the SBA’s business development program known as “8(a).”

Emily W. Murphy, a senior fellow at the Greg and Camille Baroni Center for Government Contracting at George Mason University, said if the ruling stands, current participants in the program will likely have to prove their disadvantage.

If the injunction is going to remedy harm against Ultima, which is challenging how the program is being administered in favor of those currently in the 8(a) program, “it would suggest it has to apply to current participants,” said Murphy, former administrator of the General Services Administration and a former SBA contracting official.

While the opinion could be appealed, she said the administration will likely have to weigh the risks of such an action in the current legal environment. The SBA and DOJ are going to have to figure out how to maneuver through that because the ruling comes as the federal government is in its fourth quarter, where a majority of spending takes place, Murphy said.

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