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Constitutionality Of SDB Preference Still Undecided

Jul.12.2005

Expressing some frustration, the Federal Circuit in Rothe Dev. Corp. v. Dep't of Def. (June 28, 2005, http://fedcir.gov/opinions/04-1552.pdf) remanded to the district court a second time for a determination of whether the latest enactment of the small disadvantaged business evaluation preference is constitutional, despite the price percentage bonus currently being suspended. The Federal Circuit repeated that the district court must apply strict scrutiny and must review evidence as to what Congress considered in establishing the preference.

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Frederick (Rick) W. Claybrook Jr.
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