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Return to Article: Court decision voids major small business contracting law

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  I work at an 8a company and we are not looking for set-asides without winning the business evenly first at the quote/bid level. Big biz does not always have lower costs, fairly often they don't. There are many ways to win as a small company. I hope the actions of a few don't cost us the program, it;s a good thing to have for all 8A owners.

  David Tremblay Posted February 19, 2009 10:06 PM
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  I hope they find it unconstitutional. With a company of 2 people, we cannot handle any large contracts and we are not even allowed to bid on most small contracts, due to being the wrong race or gender. Many times I am subcontracted by a larger and financially stable company, because they do not know what they are doing.

  I just don't see how anyone cannot see how this is discrimination.

  Dave Posted January 26, 2009 1:43 PM
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  I have always argued the fact that to be truly equal we must use other criteria for evaluating people (in this case companies); vice by the color of their skin. All small businesses should be considered on their financial status only in considering their disadvantaged status. There are many minority companies who demand set-asides because of their racial status. . . and by no means are these individuals financially strapped in any manner. There are many small companies out there who would qualify as disadvantaged if race was not an issue; but financial standing was. We are all striving here in America to all be the same, and judged as such. Perhaps this ruling will allow that dream to come to pass. If all business were evaluated on their size, dollar value, and abilities alone, the 8(a) status would have a different meaning now wouldn't it. It is time to stop the racial labeling and get on with business. It is the only way that America will be completely equal.

  Lynn Y. Moon Posted November 17, 2008 1:19 PM
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  Sadly, what was intended for good has turned bad. These set-asides were created for the reasons many of the people posting have stated. However, as a Contracting Officer, I have seen that what this has turned into is merely companies acting as "fronts". They come in stating how we "must" award to them because they are 8(a) or SDVOSB only to find out that once the contract is awarded, we never see or hear from them again.. only their "partner", the large firm who used the 8(a) or SDVOSB to get the award, at a higher price to the taxpayer (after all, the "front" has to get their cut too).

  Sadly Posted November 12, 2008 9:51 AM
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  Today is Veterans Day - we have this day for a reason. As an officer of a Service Disabled Veteran Owned Small Business, I take exception to this ruling. I believe part of the original spirit of this legislation was to provide opportunities for Service Disabled Vets to establish a business whereby they can support themselves and their families in contracting with the Federal Government. This is not a handout as some imply. The business must be won and the product delivered on time at a very competitive price. Our margins are very thin - no one that I know with this classification is getting rich. Just putting groceries on the table. I think this is better than a hand out all the way around. How many vets are homeless and on the street? If it were not for Vets, we wouldn't have the freedom to say what we are here today. Service Disabled Vets gave even more and for the rest of their lives! Dont slam a Vet - Thank a Vet! Stop by a veterans hospital some day and look around at those being helped there. AFTER you do that, then come back and tell me that you think it's unfair for them to have this opportunity.

  Jim D Posted November 11, 2008 5:17 PM
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  This is, of course, the right decision, but the anti-Constitutional forces are strong and with one of their own recently being elected president, it won't hold.

  Arjay Posted November 10, 2008 10:22 PM
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  This ruling is particularly disappointing for veteran and service-disabled veteran owned businesses, who should proudly accept these set-asides as benefits conferred in exchange for past services rendered. Veteran business owners have often devoted significant portions of their most productive years to the government. Many enter the corporate While these laws are not necessary for resourceful veterans to succeed, they were a good and appropriate gesture from a grateful public.

  Derek Swanson Posted November 10, 2008 3:01 PM
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  Bigotry is right! Minorities can certainly claim "disadvantage" when we see the owners and all the executives of major corporations and business are of one decent and favor seniority. How many places have seen where the director's children are all employed? SEVERAL! Including, some of the biggest names in the industry. Is that not unconstitutional? We all know in this business it's who you know and not what you know and how good you can do the job! Maybe the ignorance is based on being unaware of how difficult it is to establish a business when you are a minority in this "free" country. Try to see it from the other perspective! Our fathers and grandfathers never had the opportunity to work as executives for such businesses and that is a huge disadvantage to us! We were unable to have years of building a successful business because we were discriminated against and that absolutely should give us the right to be seen as having a disadvantage!

  As far as the 5% goals are concerned for Small Disadvantaged Businesses, they are just about NEVER met in most cases and overlooked by the Government all the time anyways! Change in reality has never occurred. Only better excuses and better ways to make them legal have been implemented.

  Sara Posted November 10, 2008 11:47 AM
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  The timing on this decision presents some very interesting possibilities for the Congress and the new Administration. Given our current economic challenges, one could argue there will be millions of small businesses, of all ethic and gender ownership, that would meet the economic disadvantaged rule of the current 8(a) business development program administered by the Small Business Administration (SBA) This presents an opportunity for Congress, the SBA and the new Administration to look at the Government's procurement policies and small, disadvantaged, service disabled veteran-owned and women-owned contracting policies and put in place a program that would be open to all small businesses that would meet the economic disadvantaged status of the current 8(a)program. All current programs would be replaced with one small business developement program, the 8(a) business development program. All small businesses would be eligible to participate if they meet the economic disadvantaged criteria of the current 8(a) program. In this way, you will have one central small disadvantaged business development program that would be administered by the SBA and implemented by the government's procurement professionals without all the current confusion of court cases, and regulations that hinder the procurement community from doing their job...awarding contracts to qualified contractors. This would also provide the flexibility of having federal agencies manage their acquisition planning processes to achieve the statutory Major Procurement Preference Goals (MPPG), administered by the SBA, of 5% for Service Disabled Veteran-owned, Women-owned and HUB-zone small businesses. These MPPG goals have never been met by the government.

  Joe Capuano/Small Business Advocate Posted November 8, 2008 3:06 AM
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  All I can say is GOOD

  dan m ketter Posted November 7, 2008 7:41 PM
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  So based on some of the previous comments, let's go ahead and rescind all of the SBA Assistance Programs including those for Veterans (who deserve the support) and those for victims of natural disasters or communities hard hit by loss of industry (HUBZone). Yeah, that's a great idea.

  Guy Timberlake Posted November 7, 2008 3:29 PM
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  It's no surprise to see bigotry alive and well and hiding under comments with no last names (Jim and Art, not Helen). They must have left the sheets in the laundry.

  Not that I have an opinion

  Mark Amtower Posted November 7, 2008 3:25 PM
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  This will not impact women owned businesses. That is if they still earn only 77 cents to every dollar earned by men.

  cwmcpa Posted November 7, 2008 2:26 PM
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  What has been overlooked and conveniently ignored in the process is that there is only one group that has EARNED the right to preferential treatment and that is Veteran and Service Disabled Veteran Owned Businesses. Because this was only a goal,it was like the Ten Suggestions rather than the Ten Commandments when it came to responsibility for insuring a Veteran preference. I sincerely hope that this decision is not an excuse to further minimize Veterans preference in government procurement of goods and services.

  Frederick Scheffler Posted November 7, 2008 11:02 AM
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  "David Lesar's Halliburton was the sixth-largest federal contractor in fiscal 2005, with $6.1 billion in federal contracts, based on contracting data..." Google is your friend.

  Helen Posted November 7, 2008 10:33 AM
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  With Obama achieving status as the most powerful man in the world, minorities cannot claim "disadvantaged" status anymore.

  Jim Posted November 7, 2008 9:24 AM
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  Finally, a court articulating what most of us have been thinking for years, "There are no good reasons for 8(a)set-asides to exist in government contracting." If such reasons existed historically, they have long ago evaporated. We just had a woman running for Vice President and as a nation we elected a Black man as President. Race does not matter. Contracts should only be awarded based upon merit. The entire 8(a) program is unconstitutional.

  John Gunner Posted November 7, 2008 9:10 AM
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  This is a step in the right direction. Now if we can get rid of all of the set-asides imposed on Fed/DoD contracts the taxpayers will get better value for their tax dollars. One missed point. Too often 'figure heads' are used to qualify for the various set-aside status where no real disadvantage exists. Gaming the system has been the status quo for decades. Let the free makets prevail.

  Art Posted November 7, 2008 8:59 AM
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  The following corrections are needed:

  1. Xavier Rodriguez was the district court judge who was reversed, not the author of the Federal Circuit's opinion.

  2. As far as the overlap with 8(a)/SBD under the Small Business Act, this ruling should stop DoD and only DoD from using ANY racial preferences, because it has always been DoD's position that this statute, 10 U.S.C. 2323, is the way Congress intended to address preferences through DoD, and not through the SBA Act. The government has taken that position in this case and in the Dynalantic case. The SBA Act does not provide a "fallback" for DoD; Congress addressed DoD once and it was through this statute. The Dynalantic case may address whether 8(a) is constitutional, because the government claims in that case that, at least for DoD, the evidence supporting the statute is the same.

  3. The PEA has been suspended since 1999, though it is a hotly contested issue whether or not DoD contracting officers have ever stopped using it and putting it in solicitations like they were supposed to.

  Corrections please Posted November 7, 2008 12:03 AM