On September 16, 2026, the U.S. District Court for the Eastern District of Tennessee issued its final order in Ultima Services Corp. v. U.S. Department of Agriculture, closing the case that has shaped the 8(a) Business Development Program since 2023. The court denied Ultima’s request for an injunction barring the use of the 8(a) program in the administrative and technical support industry, denied Ultima’s remaining requests for relief as moot, and directed the clerk to close the case.

Entity-owned 8(a) participants, including firms owned by Alaska Native Corporations (ANCs), Indian Tribes, and Native Hawaiian Organizations (NHOs), were not affected by the rebuttable presumption that gave rise to this litigation and remain unaffected by this final order.

Background: How We Got Here

Ultima Services Corporation, an incumbent contractor that lost a follow-on procurement to an 8(a) set-aside, sued the USDA and the Small Business Administration (SBA), alleging that the 8(a) program’s rebuttable presumption of social disadvantage for members of certain racial and ethnic groups violated the Fifth Amendment’s equal protection guarantee.

On July 19, 2023, the district court agreed, holding that the SBA’s use of the rebuttable presumption of social disadvantage in administering the 8(a) program was unconstitutional, and enjoined the SBA from using it.

Critically, from the outset, the injunction applied only to individually owned 8(a) firms that relied on the presumption. The SBA’s own guidance to federal contracting officers confirmed that entity-owned 8(a) participants (Tribes, ANCs, NHOs, and Community Development Corporations) do not establish eligibility through the individual rebuttable presumption and were not covered by the injunction, so their applications and contract awards could proceed as usual.

Ultima’s Attempt to Expand the Injunction to an Industry-Wide Ban

Not satisfied with the individual relief it had won, Ultima asked the court in September and October 2023 for much broader relief, including an order completely barring the award of any 8(a) contracts in the administrative and technical support industry, for an indefinite period. Ultima’s brief explicitly sought to include ANC- and Tribally-owned 8(a) firms within that industry-wide bar, notwithstanding that those entities never relied on, and were not implicated by, the constitutional violation the court had found.

The federal government opposed this request, arguing that an industry-wide ban would sweep in entity-owned participants, including Tribes and ANCs, that never relied on the presumption and were not responsible for, or affected by, the constitutional violation at issue, and that such relief would exceed the scope of Ultima’s actual injury.

The Final Order: Industry-Wide Ban Denied, Case Closed

The court did not rule on the industry-ban request in 2023. It reserved the question and, after the SBA subsequently repealed the rebuttable presumption by regulation and the government advised Congress it would no longer defend the presumption as constitutional, the court asked the parties to brief whether any further remedy remained necessary.

On September 16, 2026, the court issued its final memorandum opinion and order. The court denied Ultima’s motion for additional equitable relief in its entirety, as moot, including the request to bar SBA’s use of the 8(a) program in the administrative and technical support industry.

The court reasoned that Ultima’s request for an industry-wide bar was prospective relief that required a showing of likely future injury, and that the constitutional injury identified in 2023, the race-based barrier created by the rebuttable presumption, had been fully and definitively remedied: first by the 2023 injunction, and then by the SBA’s formal repeal of the presumption through notice-and-comment rulemaking, effective September 10, 2026. The court held that “the playing field is now definitively level,” and that Ultima may apply to the 8(a) program on the same terms as any other applicant, with no other constitutional defect in the program identified by the court.

The court also denied Ultima’s other pending requests, including for a monitor over SBA’s social disadvantage determinations or public disclosure of social disadvantage narratives, and for constraints on the exercise of options or modifications to existing 8(a) contracts, finding each request moot because the challenged conduct and processes no longer exist.

The court confirmed that its original July 19, 2023 injunction against the rebuttable presumption remains in force, though it is now superseded in practical effect by SBA’s regulatory repeal of the presumption itself.

What This Means for ANCs, Tribes, and NHOs

No industry-wide restriction on 8(a) contracting. The most direct threat this litigation posed to entity-owned 8(a) participants, a court order barring any 8(a) awards in the administrative and technical support industry (which would have applied to NAICS codes covering administrative management consulting, office administrative services, and temporary help services, among others), did not materialize. ANC-, Tribally-, and NHO-owned 8(a) firms may continue to compete for and receive 8(a) contracts in these industries without regard to this litigation.

Entity-owned eligibility was never at issue and remains untouched. Throughout the litigation, the SBA, the Department of Justice, and the amici all took the position, unopposed by the court, that entity-owned 8(a) eligibility does not depend on the individual rebuttable presumption and rests instead on independent statutory grounds. The SBA’s final rule implementing the court’s 2023 ruling, effective September 10, 2026, confirms this in express terms: it applies only to individually owned firms and “does not in any way amend or affect the eligibility of entity-owned small businesses (i.e., those owned by tribes, Alaska Native Corporations, Native Hawaiian Organizations, or Community Development Corporations).”

The individually owned side of the program will look different, and may become more competitive. Separately from this ruling, the SBA’s new social disadvantage test for individually owned firms is considerably more permissive than the presumption it replaced, potentially expanding the pool of individually owned 8(a) applicants. This does not change entity-owned eligibility, but it may affect the competitive landscape for set-aside opportunities in industries where entity-owned and individually owned 8(a) firms compete, and may affect the value of small disadvantaged business subcontracting credit that primes have historically obtained through entity-owned participants.

Looking Ahead

This order closes the Ultima litigation, but it does not close the broader conversation about the 8(a) program’s constitutional footing.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.