On September 15, 2023, Ultima Services Corporation (“Ultima”) filed a motion for additional equitable relief in the ongoing legal case Ultima Services Corp. v. U.S. Dept. of Agriculture (Case No. 2:20-cv-00041). This motion is a response to the District Court’s request for further briefings regarding Ultima’s remaining claims after the court issued a preliminary injunction against the Small Business Administration (SBA) from using the rebuttable presumption of social disadvantage found in 13 CFR 124.103(b) in the context of the SBA’s 8(a) program.

Ultima’s motion requests the following actions from the District Court:

1. Clarify that the preliminary injunction:
– Prohibits the federal government from exercising options or making similar modifications to 8(a) Program contracts with contractors who entered the program based on the rebuttable presumption.
– Prevents the SBA from conducting an abridged or less rigorous review of social disadvantage narratives than was applied under 13 C.F.R. ยง 124.103(c) before the preliminary injunction was issued.

2. Enjoin the federal government from using the 8(a) Program in the administrative and technical support industry, which includes NAICS Codes 541611 (Administrative Management and General Management Consulting Services), 561110 (Office Administrative Services), and 561320 (Temporary Help Services).

3. Either appoint a monitor to review the SBA’s certification of 8(a) participants who previously benefited from the rebuttable presumption or make the narrative essays of social disadvantage (along with the SBA’s determinations) public with redacted identifying information.

4. Immediately and temporarily enjoin the federal government from awarding, completing, modifying, or exercising options on any 8(a) contracts involving 8(a) entities that entered the program based on the rebuttable presumption until the District Court resolves Ultima’s new request for equitable relief.

This motion addresses two main issues: the SBA’s implementation of the preliminary injunction and the potential exclusion of contracts in the administrative and technical support industry from the 8(a) Program.

Regarding the SBA’s implementation of the preliminary injunction, Ultima is concerned that the SBA is avoiding the injunction’s impact by accepting social disadvantage narratives from existing 8(a) contractors without proper scrutiny. Ultima argues that the SBA’s acceptance of these narratives and the continuation of status quo (i.e., no new 8(a) contracts or extensions to 8(a) contracts for entities benefiting from the presumption) would undermine the injunction’s purpose. Ultima also disputes the SBA’s claim that exercising options and awarding contracts announced before the injunction does not invoke the rebuttable presumption found unconstitutional by the District Court.

Ultima takes issue with the SBA’s processing of social disadvantage narratives, arguing that these entities should be subject to the same rigorous standards as other applicants. They request that the District Court issue an additional order requiring the SBA to withhold processing any contracts or options for 8(a) entities that entered the program based on the presumption until they have been determined to be socially disadvantaged.

Additionally, Ultima asks for a monitor to review the SBA’s decisions or make these social disadvantage narratives public (with redacted information) to ensure consistent and equitable review.

Regarding the exclusion of contracts in the administrative and technical support industry from the 8(a) Program, Ultima argues that such exclusion is essential as they claim discrimination resulted in the loss of their contract within this industry. They cite the DynaLantic Corp. v. United States Dep’t of Defense case as precedent for the exclusion of specific industries from the 8(a) Program, asserting that this would not constitute a race-conscious remedy but rather an opportunity for fair competition. Ultima believes that this exclusion would help restore competition in their industry.

Ultima’s request for the exclusion of the 8(a) Program in their industry does not specify the industry’s scope but mentions NAICS Codes 541611, 561110, and 561320 as possible inclusions. Ultima asserts that this action should apply to all 8(a) contracts, potentially affecting 8(a) entities owned by Alaska Native Corporations, Tribes, and Native Hawaiian Organizations.

The government’s response to Ultima’s motion is due on September 29, 2023, and the District Court may order an earlier response due to Ultima’s request for a temporary injunction. 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.

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.