By Charles Lucy & John Scorsine
In a dramatic election day decision, the Court of Appeals for the Federal Circuit (CAFC) has ruled 10 USC § 2323, Contract Goal for Small Disadvantaged Businesses and Certain Institutions of Higher Education, unconstitutional, casting a shadow over many longstanding federal contract preference programs.1 Among other things, the statute created a 5% goal for federal contract awards to various entities, primarily small business concerns owned and controlled by socially and economically disadvantaged individuals. In addition to declaring the current version of 10 USC § 2323 facially unconstitutional, the Court’s opinion enjoins the application of the statute to federal procurement activity covered by the statute.
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