GovContractPros has learned of a claim filed with the U.S. Court of Federal Claims (“COFC”) by Advanced Simulation Technology, Inc. which challenges the validity of preferences afforded to entity-owned 8(a) participants in federal contracting, i.e. those 8(a) participants that are owned by Tribes, Alaska Native Corporations (“ANCs”), and Native Hawaiian Organizations (“NHOs”). The plaintiffs in the claim assert that the Fifth Amendment’s Equal Protection Clause prohibits discrimination on the basis of race or Tribal status in a way that is untethered from issues of Tribal sovereignty or remedying the effects of past discrimination, including in connection with SBA’s 8(a) preferences for ANCs, Tribes and NHOs.
In the wake of the Ultima decision, which impacted individual-owned 8(a) participants based on a similar legal theory as that articulated by the plaintiff in this case, GCP anticipated that a challenge to Tribal, ANC, and NHO-owned entities was likely to occur. Accordingly, GCP immediately began coordinating efforts with advocates for the Tribal, ANC, and NHO communities to mitigate any impact from Ultima and prepare for the likely challenge to the 8(a) preferences for Tribes, ANCs, and NHOs. Based on those discussions, GovContractPros believes that our Tribal, ANC, and NHO clients are prepared to successfully defend this potential challenge, even where advocacy on the Hill may be required.
More specifically, the plaintiffs in the current COFC case rely on the economic and social disadvantage prongs of the 8(a) program to assert that “Indian preferences” must be tied “Indian lands” to uniquely sovereign interests, or to the special relationship between the federal government and the Indian tribes. GCP believes that the 8(a) preferences for Tribal, ANC, and NHO-owned entities are a discreet program authorized by Congress which recognizes the special relationship between the federal government and the Indian Nations.
Finally, regarding the jurisdictional authority of the COFC to grant relief, under the Tucker Act, GovContractPros believes that any decision rendered by that court must be limited in scope to the particular Navy procurement at issue. In other words, even if the COFC were to rule on the merits of the plaintiff’s 8(a) arguments, an adverse ruling would impact only the Navy’s procurement. No national injunction, such as was the case in Ultima is likely here.
GCP will continue to provide updates to you as the matter is litigated. We also wish to take this opportunity to thank you for trust in us as advocates for the Native 8(a) community as together, we look forward to a timely and favorable outcome in this filing.
If you have any questions about this case, please contact GCP’s Director of Contract Administration Trevor Skelly at Trevor.Skelly@govcontractpros.com.