Washington, D.C. – Pending before the U.S. District Court for the Eastern District of Tennessee, Ultima Servs. Corp. v. U.S. Dep't of Agric. questioned whether the rebuttable presumption violated Ultima Services Corporation guarantee of equal protection at the Small Business Administration (SBA) and the U.S. Department of Agriculture (USDA) as required by law when awarding 8(a) contracts to certain individually owned minority businesses.
On July 19, 2023, Judge Corker ruled in favor of Ultima Services Corporation. Following the ruling, the SBA paused all applications for 8(a) participants. Later, providing clarity for Native entity-owned businesses, on August 21, 2023, the SBA sent letters to each business stating that the Ultima decision does not impact their participation in the 8(a) Program as they are not subject to the rebuttable presumption.
Arguing that the SBA had not met the Judge’s order regarding rebuttable presumption, the Ultima Services Corporation expanded their request for relief on September 15, 2023, to include a pause in 8(a) participation for three NAICS Codes – 541611 (Administrative Management and General Management Consulting Services), 561110 (Office Administrative Services), and 561320 (Temporary Help Services).
On September 29, 2023, SBA responded, stating that the relief requested by Ultima Services Corporation was outside the scope of the case and could result in harm to 8(a) participants that are not impacted by this case.
In the October 6, 2023, response to the SBA and an Amicus Brief filed by the Tunica-Biloxi Tribe of Louisiana and National Center for American Indian Enterprise Development the Ultima Services Corporation again requested relief barring 8(a) contract awards to the administrative and technical support NAICS Codes.
“The SBA has correctly and repeatedly stood by their statement that Native Entity Owned Businesses are not impacted by this case,” stated Quinton Carroll, Executive Director of the Native American Contractors Association. “NACA commends the SBA for its unwavering support of the 8(a) Program and the actions it has taken to ensure that the Program remains beneficial for all 8(a) participants now and into the future.”
For decades, participation in the SBA 8(a) Program has promoted economic development opportunities for Native communities throughout the U.S. The Program allows our Tribes, Alaska Native Corporations, and Native Hawaiian Organizations to create meaningful employment opportunities for their members and surrounding neighbors, diversify their economies, and invest and provide much-needed support and services in their communities,” stated Quinton Carroll.
The U.S. District Court for the Eastern District of Tennessee is expected to issue a final decision on Ultima Servs. Corp. v. U.S. Dep't of Agric. in the coming weeks. The U.S. Department of Justice (DOJ) will have 60 days to appeal the decision. NACA continues to monitor the status of the case, engage with SBA on its position and will provide further updates following the final decision.
NACA exists for Tribes, Native Hawaiian Organizations, and Alaska Native Corporations to collaboratively protect contracting rights and access to business development through advocacy and education. Specifically, NACA works with its members, federal agencies, Congress, and allies to make federal contracting and opportunities available to qualified Native business and by ensuring that member interests are represented in policy and legislative proposals. To become a member of NACA or for additional information about NACA events and activities, please contact us at email@example.com.