On October 16, 2017, the U.S. Supreme Court denied the petition for a writ of certiorari filed by Rothe Development, Inc. in
Rothe Development, Inc. v. Department of Defense & Small Business Administration. Rothe, a non-minority-owned federal contractor, challenged the SBA’s 8(a) Program, a program which gives benefits to small business concerns owned and controlled by socially and economically disadvantaged individuals. Rothe alleged that the statutory basis of the 8(a) Program denies it, a company not owned or controlled by socially and economically disadvantaged individuals, equal protection of the law, in violation of the equal protection component of the Due Process Clause of the Fifth Amendment. Specifically, Rothe alleged that it could not compete on equal footing with companies owned by minorities. Rothe effectively undermined the program and brought the long standing dispute regarding the entire validity of the 8(a) Program to the forefront of the Federal courts.
The denial of certiorari is a huge win for the 8(a) Program and 8(a) Participants. This means that the decision rendered by the U.S. Court of Appeals for the District of Columbia Circuit, which upheld the constitutionality of the 8(a) Program, is the final decision on this matter, at least in the eyes of the courts for the time being. SBA, 8(a) Participants, and those considering applying to the 8(a) Program should be confident in the Program’s existence and the benefits the Program brings not only to the Government, but to companies owned and controlled by socially and economically disadvantaged individuals. And, despite there previously being some hesitation by Government buyers in considering whether or not to set-aside and award contracts to 8(a) Participants, contracting officers and agencies should and will continue to take advantage of setting contracts aside for 8(a) Participants, to foster growth for the Government and companies participating in the Program.
Although it is unclear what challenges the 8(a) Program will face down the road, particularly in the arena of Congressional or Administration action, for now and for the foreseeable future, this is an important victory for 8(a) Participants. Companies should feel secure in the Program’s continuation and the Government’s ability to set-aside and award contracts to 8(a) Participants.
