On October 6, 2023, Ultima Services Corporation submitted a reply brief in the ongoing Ultima Services Corp. v. U.S. Dept. of Agriculture case (Case No. 2:20-cv-00041). In this filing, Ultima maintained its position seeking an injunction against the award of 8(a) contracts within the administrative and technical support industry.

Ultima’s latest brief reiterated its request for a complete prohibition on awarding 8(a) contracts in the administrative and technical support sector, including contracts awarded to 8(a) entities owned by Alaska Native Corporations and Tribes. Additionally, Ultima introduced a footnote in which it questioned the basis for contracting advantages provided to Alaska Native Corporations within the 8(a) program, suggesting a racial classification in their eligibility criteria.

To recap, on July 20, 2023, the District Court issued an injunction against the Small Business Administration (SBA) from applying the rebuttable presumption of social disadvantage based on specific racial and ethnic classifications. On September 15, 2023, Ultima submitted a motion requesting various actions, including restraining the SBA from applying a less stringent standard for establishing social disadvantage, halting the exercise of options or issuance of task orders under existing 8(a) contracts benefiting from the presumption, appointing a monitor for reviewing social disadvantage narratives, and prohibiting the award of 8(a) contracts in the administrative and technical support industry.

In response to Ultima’s motion, on September 29, 2023, the federal government argued against these requests, contending that the SBA was applying the same standard for evaluating social disadvantage as before the injunction. The government also asserted that the exercise of options and issuance of task orders for existing 8(a) contracts did not require SBA approval and thus were not subject to the District Court’s injunction. Additionally, the federal government highlighted the overbroad impact of Ultima’s request, affecting 8(a) participants who did not benefit from the presumption of social disadvantage.

On the same date, September 29, 2023, the National Center for American Indian Enterprise Development (NCAIED) and the Tunica-Biloxi Tribe of Louisiana submitted an amicus brief opposing Ultima’s request to prohibit the award of 8(a) contracts in the administrative and technical support industry. They echoed the federal government’s arguments and emphasized that Alaska Native Corporations and Tribes were not reliant on the presumption of social disadvantage, and any advantages they received in the 8(a) program stemmed from political rather than racial classifications.

In its most recent filing on October 6, 2023, Ultima persisted in seeking a court order to prevent the award of 8(a) contracts in the administrative and technical support industry. Ultima argued that equitable relief was necessary to address the alleged discrimination, referencing a previous case, DynaLantic v. Dep’t of Defense, in which the Department of Defense was barred from using the 8(a) program in the military simulation industry.

Ultima also addressed the impact on 8(a) participants, asserting that the burden of such an injunction was justified to remedy discrimination. Ultima argued that 8(a) entities could still compete for contracts without any unfair advantage.

Furthermore, Ultima expressed concerns about the SBA’s process for evaluating social disadvantage narratives, claiming that it did not provide the same level of scrutiny as applied to those not benefiting from the presumption.

Finally, Ultima challenged the federal government’s position that the exercise of options and issuance of task orders on existing 8(a) contracts were not covered by the District Court’s injunction, arguing that these actions effectively utilized the presumption of social disadvantage.

The District Court has not yet scheduled a hearing on Ultima’s motion, and the case continues to evolve.

Please note that this article provides a summary of legal proceedings and does not constitute legal advice. For legal counsel tailored to your specific situation, consult with an attorney.