SBA’s 8(a) Program Inquisition: What’re Your Options?

Not long ago, I wrote about my concerns with SBA’s commitment to the 8(a) Program under the Trump Administration. Unfortunately, SBA confirmed those concerns on a Friday afternoon in early December, when it wrote to every 8(a) Participant demanding the production of a trove of documents about their participation in the 8(a) Program. SBA’s rationale? “Years of credible concerns that the program designed to serve ‘socially and economically disadvantaged’ businesses has become a vehicle for institutionalized abuse at taxpayer expense.”

That’s stunning language from an agency that once championed this great program. And to me, SBA’s framing gives away the game: no matter what the agency finds (or doesn’t find) as part of its inquisition, it’ll use those results to destroy the 8(a) Program.

So what can you do?

Before diving into the options, let’s get something out of the way. This post is not legal advice (nor are any of the other posts on GovConBrief, for that matter). The assessment of how your company should respond to SBA’s inquisition is fact-specific and should involve a careful consideration of the associated risks and benefits. We’re happy to discuss these issues with you.

But, as I see it, there are two ways to respond to SBA’s letter.

First, and most obvious, provide the requested documents. Or, at least, the subset of those documents that apply to your business. Compliance may be difficult, as some of the requests are nonsensical (either in their construction or as they apply to the Program). It’s therefore prudent to include a cover letter that why any documents have not been provided, as well as to explain any issues that might raise compliance concerns. 

Second, provide SBA with good faith objections to producing any documents. 

Objecting to the inquisition is not without risks. SBA generally can require that 8(a) Participants provide the agency with reports and information relating to their time in the Program. Generally, though, the agency’s ability comes through the annual review or program examination processes, or in response to particularized allegations of noncompliance, not through some Programwide document demand. And though SBA has also threatened termination from the Program for not responding, the agency’s regulations only allow for termination in the event of a pattern of failure to provide required information.

Even still, objecting to the request might not be enough. Some companies might consider suing SBA to enjoin the enforcement of the document demands against them. And although this would be a hill to climb, we’ve identified a legal basis for raising such a challenge that, if successful, could prevent SBA from penalizing a company for noncompliance.

To be clear, objecting to the demand isn’t to say that a company believes it has something to hide. There are good reasons why a company might not want to hand over sensitive internal documents to an agency that is already (wrongly) convinced that 8(a) Participants are fraudsters. And some of the documents it requests have little relation to a company’s 8(a) eligibility. Under the circumstances, it’s hard to believe that SBA will view any documents it receives charitably.

There’s no one-size-fits-all answer as to the best way to respond. For some companies, providing a fulsome response to the demands might be best. For others, asking a judge to enjoin SBA’s inquisition might be better.

No matter how your company chooses to respond, it should act quickly. SBA’s updated response deadline is January 19, 2026.

If you’d like to discuss how to best respond to SBA’s inquisition, please give me a call.