Update: Federal Appeals Court Rules Against SDB and 8(a) Goals


You may recall (see November 10, 2008 post by Elizabeth Newell), the United States Court of Appeals for the Federal Circuit held that 10 U.S.C. § 2323, which sets a goal that the Department of Defense (DOD) should award five percent of its yearly contract dollars to small disadvantaged businesses, is unconstitutional on its face. In a lengthy decision, the court concluded that the statute violates the guaranteed right to due process under the Fifth Amendment of the U.S. Constitution because it fails to provide equal protection under the law.

Well, the court also gave Congress a roadmap for correcting its error by stating the following: “Thus, if Congress reenacts Section 1207 again before it is set to expire in 2009-as Congress is free to do-we cannot now predict, nor do we intend to prejudge, whether any such new enactment will be supported by a ‘strong basis in evidence.'”

We are predicting a lifeline will be thrown to SDBs by Congress… stay tuned

1 comment
  1. Hank Wilfong said:

    It is indeed a “lifeline”, that the Court threw to Congress. In effect The Court said “If you do your proper due diligence, this thing will stand the strict scrutiny required by law. Refresh your predicates and it’ll be okay.”

    Now, Congress, you heard what the Court said. Do the right thing..

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