Tribes and ANCs Are Not DEI: Key Takeaways from the 2026 NSBGCA Conference

Holland & Knight participated in the National Small Business Government Contractors Association (NSBGCA, formerly the National 8(a) Association) 2026 Alaska Regional Conference held June 8-10, 2026, in Anchorage, Alaska. The sold-out event featured senior officials from the U.S. Small Business Administration (SBA), executive branch procurement officials and hundreds of federal contractors.

The meeting provided significant insights on timely issues – particularly in these fast-changing times in procurement and SBA policy. Here are a few key highlights and takeaways.

Entity-Owned Firm Participation in Federal Procurement Is Not DEI

Current administration policies aimed at rooting out what it has identified as illegal diversity, equity and inclusion (DEI) programs have raised many questions, particularly whether programs benefiting contractors owned by Tribes, Alaska Native Corporations (ANCs) and Native Hawaiian Organizations (NHOs) (collectively, Entity-owned firms) qualify as DEI. Senior SBA officials confirmed at the general session on June 9, 2026, that the answer is a definitive "No" – consistent with a history of similar confirmations from this administration.

On this same point, on May 28, 2026, the Under Secretary of the Department of War (DOW) issued letters to Sens. Dan Sullivan (R-Alaska) and Lisa Murkowski (R-Alaska) regarding ANC and Tribe participation in SBA's 8(a) Business Development Program (the 8(a) Program).

The DOW letter states that "as SBA has already acknowledged, participation by federally recognized tribes and Alaska Native Corporations in federal programs is grounded in their political status as Native Americans, not DEI initiatives." This position follows SBA's May 2025 guidance and aligns with positions taken by other federal agencies, including the U.S. Department of Agriculture (USDA), U.S. Department of the Interior (DOI), U.S. Department of Health and Human Services (HHS) and U.S. Department of Housing and Urban Development (HUD). These positions reflect the long-standing government-to-government relationship that distinguishes Indian Tribes and ANCs from race-based programs.

SBA's and DOW's positions are consistent with the 8(a) Program's history of supporting community-based organizations through its "Entity-owned" component – separate and distinct from the individually owned side of the Program. The Entity-owned component traces its origins to 1981 legislation that created a place for Community Development Corporations. The U.S. Congress expanded this community-facing component in 1986 to include ANCs and Tribes and in 1988 to include NHOs. As SBA officials acknowledged at the conference, SBA regulations impose different eligibility and participation requirements for Entity-owned firms than those applying to individually owned firms.

The DOW letter – sent on behalf of the DOW Secretary in response to the senators' inquiries – states that to meet the "threats of today and tomorrow," DOW is "examining every facet, capability, process and strategy, including the 8(a) program, which when utilized correctly can increase competition among defense contractors and the lethality of our Warfighters." The letter adds that "[t]he Department respects and will continue to operate within the legal foundation of the 8(a) program."

SBA's statements and the DOW letter are significant on several fronts. First, questions have abounded regarding the scope Executive Order (EO) 14398 (March 26, 2026), "Addressing DEI Discrimination by Federal Contractors" (the DEI EO), and the Federal Acquisition Regulation (FAR) Deviation it prescribes. (See Holland & Knight's previous alert, "New Executive Order Targets 'DEI Discrimination' by Federal Contractors," March 31, 2026.) The DOW letter reinforces that entity-owned participation in federal programs – including the 8(a) Program – is not DEI. Accordingly, Entity-owned firms' participation in federal procurements, including 8(a) procurements, does not violate the DEI EO or related FAR clause.

Second, SBA's statements and the DOW letter confirm that large businesses may continue to subcontract with Entity-owned firms to meet their small business subcontracting plan requirements without violating the DEI EO.

SBA Rulemaking

At the general session on June 9, 20206, senior SBA officials foreshadowed the proposed rule published June 11, 2026, that would remove the presumption of social disadvantage from the individually owned side of the 8(a) Program. (See Holland & Knight's previous blog, "SBA Proposes Rollback of Social Disadvantage Presumption in 8(a) Program," June 10, 2026.)

Beyond the proposed rule's text and accompanying Federal Register notice, SBA officials presented important context. They noted that even after SBA adopted a new social disadvantage "narrative" requirement following a 2023 U.S. District Court for the Eastern District of Tennessee ruling that the social disadvantage presumption was unconstitutional, the agency had concerns that narratives were not being "done correctly." Officials also highlighted a significant change: Whereas 8(a) firms and applicants previously had to provide a "narrative," the proposed rule requires a "certification" – carrying significant consequences for false statements, including under the False Statements Accountability Act and False Claims Act. SBA officials emphasized that any discriminatory behavior must have been imposed by an entity in the U.S.; discrimination experienced elsewhere does not count.

Finally, senior SBA officials noted that an earlier proposed rule posted on the Office of Information and Regulatory Affairs (OIRA) docket on February 20, 2026, is not moving forward "any time soon." Though never made public, that rule was believed to be far-reaching, concerning other aspects of the 8(a) Program including the Entity-owned side.

FAR Overhaul and Impacts on the 8(a) and Other Small Business Programs

SBA officials discussed the Revolutionary Federal Acquisition Regulation Overhaul (RFO), noting that certain provisions of the RFO run afoul of the statutory requirements of the Small Business Act. During the June 10, 2026, general session, the speakers explored these issues in detail:

• the RFO's requirement to use competitive 8(a) awards versus sole source 8(a) awards, which conflicts with provisions of the Small Business Act
• the RFO's stated preference for Governmentwide Acquisition Contracts, which lacks statutory basis and potentially conflicts with anti-bundling and anti-consolidation requirements
• removal from FAR Part 10 of the requirement for contracting officers to consider small business participation when conducting market research
• removal from FAR Part 6 of express references to statutory provisions expressly authorizing the use of various SBA programs, including the 8(a) Program

The RFO is making its way through the formal rulemaking process. RFO Parts 6 and 10 were recently cleared by OIRA, meaning they could be published in the Federal Register for notice and comment at any time.

Administration of the 8(a) Program Going Forward

SBA officials provided important updates regarding their efforts to restore "guardrails" to the 8(a) Program. They highlighted more thorough reviews of annual updates and screening for compliance issues, including failure to submit required information or meet economic disadvantage thresholds applicable to individually owned firms.

Suspensions and Terminations

On the individual economic disadvantage issue, SBA reported that 342 suspensions were issued. As of recently, 150 suspensions had been lifted, and 130 firms voluntarily withdrew.

SBA also reported on the impacts of its December 2025 data call in which all 8(a) Program participants were required to produce three years of financial documents for review. SBA noted that about 1,000 firms did not respond by the January 19, 2026, deadline, and 628 firms still had not responded by late February. Between 400 and 500 proposed terminations were issued in April 2026, with 32 appeals filed by the May 26, 2026, deadline.

8(a) Applications and SBA Staffing

Conference participants noted that SBA has not approved an 8(a) application since August 15, 2025. In a typical year, SBA approves 400 to 500 applications. SBA officials stated they had concerns about admitting new entrants into a "flawed" program. Though no express commitments were made at the conference as to when – or if – approvals would resume, SBA's actions, including heightened scrutiny of 8(a) participants, numerous suspensions and terminations, and its proposed rule on social disadvantage, may clear a path for processing to resume.

Although not discussed at the conference, SBA recently offered early retirement packages to its Business Opportunity Specialists, the frontline employees who serve as the primary interface with 8(a) participants. It is unclear how further staffing reductions – following already significant cuts – will affect the Program going forward, but there is concern these changes will cause additional delays.

Looking Ahead

The landscape for small business government contractors, particularly those in the 8(a) Program and Entity-owned firms, continues to evolve rapidly. Between ongoing rulemaking, the FAR Overhaul, DEI-related guidance, and significant changes to SBA staffing and program administration, contractors should stay vigilant. Holland & Knight will continue to monitor these developments and provide updates. For questions about how these changes may affect your business or federal procurement participation, please contact the authors.