The Small Business Administration has become one of the first agencies to explore whether a recent court ruling striking down the legality of the Defense Department's small disadvantaged business program has broader ramifications.
agency officials were assessing the November U.S. Court of Appeals for the Federal Circuit's Rothe Development Corp. v. Department of Defense decision and its potential relevance to the women's program.
"The Rothe decision, issued on Nov. 4, 2008, addressed the standards necessary to support the constitutional validity of certain contracting preference programs."
The Rothe case specifically dealt with Defense's small disadvantaged business program, which allowed for price adjustments to achieve the goal of awarding 5 percent of the department's contracting dollars to small businesses owned by certain minority groups.
Legal experts disagree on the potential significance Rothe could have for other preference programs, particularly those that are not race-based. In the past, the Supreme Court has applied different levels of legal scrutiny to affirmative action programs that are race-based than to those that are gender-based. But that doesn't mean the ruling won't set a broader precedent.
Administration takes first crack at controversial women's procurement program (March 2010)
The Obama administration has stepped in to address a controversial women's procurement program that was mired in rule-making and lawsuits during much of the Bush era.
The Small Business Administration on Tuesday released a proposed rule identifying 83 industries in which women-owned small businesses are underrepresented, a substantial departure from a 2008 proposal that identified only four such industries.
The 2008 rule set off a firestorm of complaints from lawmakers and women's advocates, who accused SBA of choosing the narrowest methodology for determining underrepresentation.