OHA Ruling Shows Danger in Proposed SBA Rule By Jon Williams As the saying goes, unless you have been living under a rock, then you know that SBA recently proposed new rules to create a mentor-protégé program for all small businesses. Less well known, however, is a provision included with the proposed mentor-protégé rules that would dramatically alter how applicants in non-designated groups qualify for the 8(a) Program. SBA is seeking to change the rules for establishing social disadvantage so the agency could reject a claim of social disadvantage if SBA believes the applicant has not sufficiently rebutted an alternate theory by SBA for the claimed discrimination.
In our comments to the proposed rule, we opposed this change because we believe it would unfairly increase the evidentiary burden for applicants. It will also create a slippery slope that will make it much easier for SBA reviewers to reject what an applicant has offered to show social disadvantage, even when the information is uncontroverted.