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Acquisition Policy Flash! 23-17

What's Changed?

Class Deviation from the Federal Acquisition Regulation (FAR) Regarding the Small Business Administration (SBA) Memorandum on the Verification of Eligibility for the 8(a) Program

Purpose: To inform the VA acquisition workforce that in accordance with FAR 1.404 and as authorized by the Civilian Agency Acquisition Council letter 2023-04, dated August 25, 2023, a class deviation is issued to implement the SBA Memorandum dated August 18, 2023 providing guidance to agencies on the process for issuing awards under the 8(a) Business Development Program (8(a) Program) in light of the injunction put in place by a recent court decision (Ultima Servs. Corp. v. Dep’t of Ag., No. 20-cv-0041 (E.D. Tenn.)).

FAR Parts Referenced: FAR part 19.

Effective Date: September 14, 2023.

Background: On July 19, 2023, the United States District Court for the Eastern District of Tennessee enjoined SBA “from using the rebuttable presumption of social disadvantage in administering” the 8(a) Business Development Program (8(a) Program). The rebuttable presumption assumes, unless there is evidence to the contrary, that members of certain racial and ethnic groups qualify as socially disadvantaged within the meaning of the 8(a) Program requirements. The injunction specifically affects 8(a) Program participants that are “individual-owned small businesses which used the rebuttable presumption of social disadvantage to establish eligibility.” The injunction does not affect 8(a) Program participants that are “individual-owned small businesses which did not use the rebuttable presumption of social disadvantage,” or “entity-owned small businesses,” such as businesses that are owned by Indian tribes, Alaska Native Corporations, Native Hawaiian Organizations, or Community Development Corporations. SBA must make an affirmative determination that the individual upon whom eligibility is based has established personal social disadvantage without the presumption. When required, SBA will make their affirmative determination of eligibility as a part of the offer and acceptance process.

Applicability: The deviation applies to new 8(a) awards, orders, and actions as further detailed in the deviation.

Action Required: Contracting officers shall comply with the attached class deviation to implement the required changes.

Additional Information: Direct any questions to the Office of Acquisition and Logistics (003A), Procurement Policy and Warrant Management Service (003A2A) at va.procurement.policy@va.gov.

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