On January 31, 2025 Strategic Growth Partners Small Business Advisory led a webinar discussing the various executive orders that have been handed down over the first two weeks of the new Presidential Administration. Many of these executive orders impact small businesses so we held an urgent webinar to share important updates and help small business leaders make sense of the current federal contracting landscape. We were asked many more questions than we had time to cover on the call, so we are sharing the most common questions we received but were not able to address on the call below. 

Are you saying that companies will not be able to have affirmative action programs? 

The new Executive Order 14145 signed by President Trump on January 20, 2025, among other things, revokes a previous executive order that created the most common affirmative action obligations for employers who qualify as covered federal contractors or subcontractors. This Executive Order 141145 does not apply to actions by employers with regard to veterans and those with disabilities.  However, we believe that the Administration may push for an additional representation to be added to the FAR and included in SAM.gov registrations and annual recertifications for federal contractors, which does contain an affirmative representation regarding the same. Any such addition would be made available for public notice and comment in the Federal Register. 
 

Should I remove reference to our WOSB certification on our SAM and GSA? 

No. Many webinar participants raised concerns about their status as women owned small businesses. As a reminder, the WOSB Program, set forth in section 8(m) of the Small Business Act, 15 U.S.C. 637(m), authorizes federal contracting officers to restrict competition to eligible Women-Owned Small Businesses (WOSBs) or Economically Disadvantaged Women-Owned Small Businesses (EDWOSBs) for federal contracts in certain industries. Section 8(m) establishes criteria for the WOSB Program, including the eligibility and contract requirements for the program. In other words, these programs are defined and protected by statute as does WOSB goaling dollars. Furthermore, WOSBs must be identified as such in order to make award of contracts in SAM.gov. At this time, we do not recommend that WOSBs or EDWOSBs remove their certifications. 
 

How does it impact The Buy Indian Act? 

The executive orders discussed during the SGP SB Advisory webinar do not impact the Buy Indian Act. The Buy India Act (25 USC 47) is a statutory authority that authorizes the Secretary of the Interior to give preference to Indian-owned providers when contracting for goods and services. The Buy Indian Act applies to the Departments of the Interior and Health and Human Services. Recognizing this statutory authority supersedes any executive orders, SGP SB Advisory expects the Departments of Interior and Health and Human Services to continue to rely on this authority. Looking forward, SGP SB Advisory believes that the newly confirmed Secretary of the Interior, former North Dakota Governor Doug Burgum, will be an advocate for Indian-owned enterprises. 
 

Are there similar Part 49 Termination for Convenience regs applicable to grants that may be impacted by any of these EO’s? 

The FAR does not cover grants, however, the government may terminate a grant “if an award no longer effectuates the program goals or agency priorities” pursuant to 2 CFR 200.340. Given the broad scope of the executive orders, grants will likely be terminated using this authority. 

Would stop work orders be issued in the case of a modification of contracts considered partial DEI? 

Contracting officers are currently pursuing stop work orders and have been instructed to terminate contracts which provide for DEI, DEIA, and environmental justice services. Terminations may either be complete or partial terminations.  Terminations of this work, whether the termination is partial or complete should be pursued by contracting officers as a termination pursuant to FAR Part 49 and the application clauses. These terminations should not be pursued as “bilateral modifications.” SGP SB Advisory recommends that contractors carefully review any documentation or modifications offered by the government, especially those which include a release of claims. Please contact us for assistance with these matters.    

What about being grandfathered into certifications? 

Many participants expressed concern about either their current SBA certifications or their pending certifications with the SBA. If you are a small business currently contemplating applications to SBA socio-economic certification programs including 8(a), HUBZone, SDVOSB/VOSB, and WOSB/EDWOSB, we recommend continuing to pursue these certifications. Each of these certifications are statutory programs that require either congressional legislation to modify or regulatory changes subject to public notice and comment. Participants in these programs are better suited to make a “reliance” argument for continued awards based on their participation and ongoing certification in these programs. 

Where can we find the proposed 8(a) legislation John is referring to? Is there a bill number that can be looked up? 

The bills introduced in the 118th Congress proposing to essentially gut the 8(a) Program were H.R.10216 and S.5366, introduced by Rep. Glenn Grothman (R-WI-6) and Sen. Mike Lee (R-UT), respectively, each one short-titled as the “Ending Racism in Government Contracting Act.” These bills did not receive further consideration after being referred to committees when the 118th Congress adjourned, so they would need to be reintroduced to receive further consideration in the 119th Congress. However, we expect these bills to be reintroduced in some form, given the appetite to eliminate programs viewed by the new administration as “DEI” programs. 

Is this administration able to suspend or terminate the 8(a) program in any constitutional way? Can they just refuse to spend the money or maintain the staff?  

Small business set asides are governed by FAR Part 19, and more specifically the “Rule of Two” requires that an acquisition must be set aside for small business contractors if there’s a reasonable expectation of receiving offers from at least two small businesses that are competitive in terms of price, quality, and delivery. The Rule of Two is critical for agencies in meeting their statutory small business goaling requirements. Furthermore, the FAR Council has proposed a rule to make the Rule of Two applicable to Multiple Award Contracts (Federal Register :: Federal Acquisition Regulation: Small Business Participation on Certain Multiple-Award Contracts).  We strongly recommend clients and the marketplace consider public comments in support of this proposed rule. 

Please reach out to the SGP SB Advisory team including Trevor Skelly and Jake Neilson for any additional clarification or support.