Comment on FR Doc # 2026-11765

Statutory and FAR Framework SBA Cannot ignore SBA; cannot treat SBA-2026-0133 as a narrow paperwork correction. The Small Business Act, the FAR, and SBA’s own 8(a) regulations operate together. They do not support a two-tiered system where individually owned firms carry the burden of constitutional reform while entity-owned firms remain insulated from comparable program-integrity review. The Small Business Act exists to aid, counsel, assist, and protect small businesses; preserve free competitive enterprise; and ensure that a fair proportion of federal contracts are placed with small business concerns. See 15 U.S.C. § 631. That purpose is not satisfied when small businesses are counted, certified, listed on vehicles, or used in participation statistics without meaningful access to actual awards. The 8(a) program is governed by 15 U.S.C. 637(a). Under 15 U.S.C. 637(a)(4)(A), eligibility includes concerns owned by socially and economically disadvantaged individuals, economically disadvantaged Indian tribes or tribal subsidiaries, and economically disadvantaged Native Hawaiian Organizations. Alaska Native Corporations are included through 15 U.S.C. § 637(a)(13), and Community Development Corporations through 42 U.S.C. 9815(a)(2). SBA cites these pathways but does not explain why entity-owned firms should be insulated from comparable control, eligibility, anti-pass-through, competitive-impact, and program-integrity reviews. That omission matters. SBA also relies on 15 U.S.C. 634(b)(6), which gives the Agency authority to prescribe regulations necessary to carry out the Small Business Act. SBA states that this authority includes ensuring that only eligible firms participate and that SBA programs are not subverted. If that is the standard, SBA cannot apply that authority only to individually owned firms while excluding entity-owned firms operating in the same 8(a) ecosystem. FAR Part 19 reinforces the issue. FAR 19.201 requires the maximum practicable opportunities for small business concerns. FAR 19.502-2 reflects the Rule of Two. FAR Subpart 19.8 governs 8(a) contracting as a procurement access system tied to eligibility, competition, responsibility, and performance. FAR 16.505 is also central because modern federal spending increasingly occurs through task orders and delivery orders under multiple-award IDIQ vehicles. If the Rule of Two is not enforced at the order level, small businesses may be counted at the vehicle level but excluded where the dollars are awarded. Let's continue with the intentional marginalization. So, the SBA acknowledges that Ultima enjoined the Agency from using the rebuttable presumption in administering the 8(a) program. SBA also states that, since Ultima, it has made social disadvantage determinations under the non-presumptive standard. Yet SBA now proposes to remove the presumption only for small businesses owned and controlled by individuals while expressly leaving tribes, ANCs, NHOs, and CDCs unaffected. SBA wants to use the constitutional weight of Ultima to justify reform, then stop the reform where entity-owned firms begin, REALLY??? The court did not hold that entity-owned firms are immune from program-integrity review, control review, performance-of-work review, subcontracting-limit review, affiliation, etc. FAR Part 19 does not permit 8(a) access without accountability. FAR Part 16 does not support claiming increased participation while task-order access remains restricted. The legal question is direct: if the 8(a) program must be aligned with constitutional and statutory requirements, why is SBA aligning only the individually owned side of the program? If individually owned firms must prove individualized harm, why are entity-owned firms not required to prove their continued 8(a) participation does not materially harm individually owned firms through award concentration, vehicle dominance, pass-through structures, mentor-protégé leverage, joint-venture control issues, or diminished access to task orders and delivery orders? The proposed rule defines “material harm” as loss of access to or diminished opportunities related to economic advancement. SBA should apply that concept to the structure of the program itself. When individually owned small businesses lose opportunity because awards are concentrated through entity-owned firms, large multiple-award vehicles, and order-level exclusions, that is material harm in the procurement marketplace. SBA must reconcile SBA-2026-0133 with 15 U.S.C. §§ 631, 634(b)(6), 637(a), 637(a)(4), 637(a)(5), 637(a)(13), 42 U.S.C.9815(a)(2), FAR 16.505, FAR 19.201, FAR 19.502-2, and FAR Subpart 19.8. The final rule should not proceed unless SBA addresses entity-owned firms directly. Entity-owned advantages within the 8(a) program should be eliminated unless the SBA justifies them through public data, constitutional analysis, statutory analysis, FAR-based competitive-impact review, & audit findings. Respectfully, LS