Constitutionality of 8(a) Program Reaffirmed

Earlier this year, a judge of the U.S. District Court for the District of Columbia reaffirmed the facial constitutionality of the 8(a) Program in response to a challenge by a small business owner, and he also rejected an argument that the program is unconstitutional because it violated the “non-delegation” doctrine. The case is Rothe Development, Inc. v. Department of Defense, No. 12-CV-0744, 2015 WL 3536271 (D.D.C. June 5, 2015).

This is the second recent constitutional challenge to the 8(a) Program in the district court. In 2012, Judge Emmett Sullivan rejected a virtually identical argument that the 8(a) Program was a racial classification that violated equal protection rights under the Due Process Clause of the Fifth Amendment of the United States Constitution. DynaLantic Corp. v. U.S. Department of Defense, 885 F. Supp. 2d 237 (D.D.C. 2012). However, in the DynaLantic case, the court also ruled that the 8(a) Program, as applied to DynaLantic’s industry of design manufacture, installation, and support of military and commercial training systems, was constitutional as there was no evidence of racial discrimination within that particular industry. This case ultimately was settled on appeal.

Reportedly, the terms of the settlement were that the government would not make any awards of prime contracts in DynaLantic’s industry under the 8(a) Program for two years. After the two-year period, in order to set aside contracts in DynaLantic’s industry under the 8(a) Program, the government is required to notify and convince the court that it has a strong basis in evidence for reinstating the program. However, in Rothe, the latest case, there is no constitutional challenge to the 8(a) Program as applied to the plaintiff, Rothe Development, Inc. (“Rothe”).

Rothe is a computer services contractor for the Department of Defense. As noted above, its facial constitutional challenge to the 8(a) Program nearly is identical to that in DynaLantic. For its part, the court, following DynaLantic, held that in order to justify invalidating all applications of the 8(a) Program, the plaintiff must satisfy heightened standards in order to prevail. The heightened standards are that either (a) there is no set of circumstances under which the 8(a) Program would be constitutionally valid, or (b) that, as explained in General Electric. Company v. Jackson, 610 F.3d 110, 117 (D.C.Cir.2010), the statute lacks any “plainly legitimate sweep” as there are not “many circumstances” in which “the statute's application would be constitutional[.]” Tacitly, the challengers to the 8(a) Program did not meet these standards.

The court also held that following DynaLantic, to the extent that the 8(a) Program relies on race-conscious criteria it must employ “strict scrutiny” to determine whether its...