8(a) court case heats up

NACA, conservatives weigh in

A longstanding small business owner’s court case challenging the Small Business Administration’s 8(a) program’s constitutional basis is back in the news as several groups recently have filed advocacy briefs for each side.

The case of Rothe Development Inc. vs. the U.S. Department of Defense is currently pending at the District of Columbia Circuit Court. Rothe, the small business plaintiff, filed the lawsuit alleging that the 8(a) program’s preferences for disadvantaged minorities are unconstitutional. A judge for the U.S. District Court for the District of Columbia ruled in June that 8(a) was constitutional. Rothe subsequently appealed to the Circuit Court.

In the most recent development, the Native American Contractors Association (NACA) trade group announced it is leading a coalition of tribal governments and businesses that filed a legal brief defending the 8(a) program.

“In the current appeal, Rothe seeks to elminate the 8(a) Program entirely, disregarding the government-to-government relationship the U.S. has with Native Americans,” NACA wrote in a press release. “Rothe raises unfounded legal arguments that would devastate Native American communities.”

NACA’s action followed a brief submitted by four little-known politically conservative groups, including the Mountain States Legal Foundation and the Pacific Legal Foundation, backing Rothe..

“In public contracting, race-neutral measures are always available to eradicate discimination,” Ralph Kasarda, author of the conservatives’ brief, told Law360. “The government could use preferences based on size and economic disadvantage, or ensure that all contracts are awarded to the lowest responsible bidder.”

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