H.R. 2364, the Investing in Main Street America Act

Stores on Main Street

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The SBIC program is an investment program with a Small Business Administration (SBA) guarantee that increases access to capital for high-growth, start-up businesses.

This provision in the NDAA, H.R. 2364, amends the Small Business Investment Act of 1958 to increase from 5% to 15% of its capital and surplus, the amount a national bank, a member bank of the Federal Reserve System, a nonmember insured bank (to the extent permitted under applicable state law), or a federal savings association may invest in one or more small business investment companies (SBICs), or in any entity established to invest solely in SBICs. The increase is subject to the approval of the appropriate federal banking agency.

The bill will assist small business in obtaining venture capital and private equity (source). Anything we can do to stimulate the flow of more investment from normal capital flows, like banks and chartered SBICs, is definitely a good thing for small businesses. And as you know, that’s the engine of growth that we follow in this blog.

While this may seem a small thing, these SBICs are major players in the growth and financing of small businesses across the country and in “main street” America. And the good news is this is one of those drafted regulations that can be adjusted fairly easily and produce substantial results. Across the board, we’ve actually tripled the funding available for these SBIC entities.


H.R. 2763 – The Small Business Innovation Research and Small Business Technology Transfer Improvements Acts

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One of the things we’re seeing a lot of in the Federal sector right now is an emphasis on innovation and on finding new ways to do things. So, it’s not surprising that the 2018 NDAA addressed this in part.

This provision in the NDAA amends the Small Business Act to require:
• the Small Business Administration’s (SBA’s) annual report on the Small Business Information and Research (SBIR) and Small Business Technology Transfer (STTR) programs to be submitted by December 31, and
• each Federal agency required to establish an SBIR program to submit its annual report on such program by March 30.

H.R. 2763, the Small Business Innovation Research and Small Business Technology Transfer Improvements Act requires (current law authorizes) the Department of Defense (DOD), for any contract under the Commercial Readiness Program with a value of at least $100 million, to:
• establish goals for the transition of Phase III technologies in subcontracting plans, and
• require a prime contractor to report the number and dollar amount of contacts entered into for Phase III SBIR or STTR projects.

The NDAA also authorizes all agencies participating in the SBIR program, during FY2018-FY2022, to provide SBIR Phase II awards for a project to a small business concern without regard to whether such concern was provided a Phase I award for such project.

This is important because the funding now can go to organizations, especially small businesses. This is a new proviso and gives agencies far more flexibility in awarding innovative technologies even a direct Phase II award.

The provision changes the temporary pilot program that a covered agency may establish for the allocation of SBIR and STTR program funds for awards for technology development, testing, evaluation, and commercialization assistance for SBIR and STTR phase II technologies, or to support the progress of research, research and development, and commercialization conducted under such programs to phase III, to a permanent Civilian Agency Commercialization Readiness Program.

It also extends until September 30, 2022, the deadline until which the SBA shall allow each agency required to conduct an SBIR program to use not more than 3% of program funds for administrative, oversight, and contract processing costs.

This provision also calls for greater transparency from the Small Business Administration (SBA) on the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs.


What to Expect From Divided Government

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The voters didn’t quite create a blue wave, although the numbers moving from Republican to Democrat have definitely made the House a very blue-ish territory. Of course the Democrats aren’t any more monolithic than the Republicans were, and pressure from the Democratic left wing, especially leading up to a presidential election, may create interesting reading in the Washington, D.C. bubble.

But what will it mean for us as Federal contractors?

One possibility is that we’ll keep on avoiding the “continuing resolutions” – the last two years we’ve had full budgets and this year we got that in before the new FY started, for the first time in a decade. I’m hoping that we can continue down this path, and give the Federal budget makers and the folks who divide it up and authorize spending, the time to get it done.

I don’t know about your company, but mine has been responding to RFIs and RFPs in the 1st FY quarter like the floodgates have opened, and that’s a good thing, because awards will come in time to actually enjoy the spending for most of a full year.

Another possibility is that we’ll return to those continuing resolutions – this will be bad, but not catastrophic, as solid budgets are in place from the past two years that can be used to move forward.

The thing I fear the most is that there will be paralysis, as the two sides don’t really put running the country first, and will allow the budgets to be taken hostage by the political process. This would be a bad thing, and I certainly hope we’re not headed back there.

Happy Thanksgiving, happy holidays, and we’ll see what the New Year brings.


SDVOSB Eligibility Update Part 2: New SBA Rule Changes Ownership Requirements

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This is a guest post by Matthew Schoonover of SmallGovCon.

As Matthew Schoonover reported in a previous post on this site and at SmallGovCon, the SBA has amended its eligibility rules for SDVOSBs. These rules provide important clarity into SDVOSB eligibility going forward.

He explained how the new rule addresses an ongoing conflict between different standards of control that meant a company could be an SDVOSB under the VA’s regulations, but not the SBA’s.

  • The new rule also makes important changes to the ownership requirements for an SDVOSB. Among them:
    For partnerships, the new rule says that the service-disabled veteran must unconditionally own at least 51% of the aggregate voting interest (rather than at least 51% of every class of partnership interest);
  • The new rule clarifies that the SDVOSB’s service-disabled veteran owners must receive at least 51% of the company’s annual distribution of profits and that the ability to share in profits must be commensurate with the veteran’s ownership interest;
  • The new rule doesn’t count stock held by ESOPs in the 51% ownership requirement—but only for a “publicly owned business,” which doesn’t apply to the vast majority of SDVOSBs;
  • Community property laws will be disregarded in determining compliance with the 51% ownership requirement, a welcome change for veterans living in certain states, who have long been forced to ask their spouses to sign legal documents disclaiming their community property rights;
  • The new rule says that that veterans must be able to overcome any supermajority voting requirements and requires verified SDVOSBs to inform the VA of any new supermajority voting requirements adopted after verification;
  • The veteran holding the company’s highest officer position generally must be the highest compensated under the new rule—a requirement that’s existed in the VA regulations for many years, but not the SBA’s old regulations; and
  • The new rule essentially adopts the VA’s surviving spouse ownership regulation, which allows the veteran’s spouse to take ownership of the SDVOSB upon the veteran’s passing (if certain requirements are met).

If some of these provisions sound familiar, it’s because many of the “new” SBA rules are similar to, or in some cases essentially identical to, existing VA regulations. For some veterans, who may have hoped that using the SBA’s regulations would eliminate some of the more cumbersome VA requirements, the SBA’s adoption of these requirements may be disappointing.

But all-in-all, these new rules bring important clarity to the SBA’s SDVOSB ownership and control requirements. While we can certainly quibble with some of the substantive requirements, it’s important for everyone to understand exactly what a program like the SDVOSB program allows (and doesn’t allow). The SBA’s SDVOSB regulations have long been rather vague—so vague, in fact, that in some cases the SBA’s own Administrative Judges have resorted to using the 8(a) Program regulations to evaluate certain aspects of SDVOSB compliance. Whether one agrees or disagrees with a particular requirement, it’s better to know that it exists, instead of being caught off guard during a protest, when a contract is at stake.

One thing I didn’t directly see addressed, however, is the SBA’s prohibition on rights of first refusal for the veteran’s ownership interest. It’s possible that the “extraordinary action” of allowing a new equity stakeholder would cover a standard right of first refusal, but it would be best to see how the SBA interprets this rule before jumping to conclusions. As Steve noted in his post earlier this week, SDVOSBs and VOSBs should continue to be leery against including any right of first refusal in their ownership documents.

One final note: as Steve wrote about back in April, SDVOSBs and VOSBs have new protest and appeal rights, which also kick in October 1. Among those rights, if a company’s SDVOSB verification application is denied, or its verified status is cancelled, the company can appeal to the SBA’s Office of Hearings and Appeals.

We’ll keep you posted on the implementation and interpretation of these new regulations. In the interim, please give us a call if you have questions about SDVOSB eligibility.

This article was originally published at http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/new-sba-rule/ and was reprinted with permission.


SDVOSB Eligibility Update Part 1: SBA Issues New Rule That Addresses Differing Standards of Control

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This is a guest post by Matthew Schoonover of SmallGovCon.

In an earlier post, Steve updated SmallGovCon readers on a very important SDVOSB eligibility change: beginning October 1, the VA will begin using the SBA’s eligibility rules to verify SDVOSBs and VOSBs.

The SBA has now followed suit—in a final rule published September 28, 2018, the SBA has amended its eligibility rules for SDVOSBs. These rules provide important clarity into SDVOSB eligibility going forward.

Let’s take a look at some of the most important changes.

The first change that jumped out at me was the SBA’s new definition of “extraordinary circumstances.” By way of background, SmallGovCon readers know that the VA and the SBA have long had differing standards of control—in some cases, the SBA required that a service-disabled veteran exercise absolute control over the SDVOSB, while the VA recognized that non-veteran owners should have a say over some matters in the business. This conflict meant that a company could be an SDVOSB under the VA’s regulations, but not the SBA’s.

The new SBA rules try to bring consistency to this mess. It should come as no surprise, however, that the new rule specifies that service-disabled veterans must control the company’s “daily business operations,” and defines that term as including, “but not limited to, the marketing, production, sales and administrative functions of the firm, as well as the supervision of the executive team, and the implementation of policies.” But the SBA has included a new provision (at 13 C.F.R. § 125.13(m)) that allows non-service disabled veterans to have a say over certain “extraordinary actions.” The new rules set out five—and only five—of these extraordinary actions:

1. Adding a new equity stakeholder;
2. Dissolution of the company;
3. Sale of the company;
4. The merger of the company; and
5. Company declaring bankruptcy.

Other than in the case of these five actions, the SBA’s rules still require the service-disabled veteran to control the company.

Exercising this control, the new SBA rules require that the service-disabled veteran work at the company during normal business hours. Importantly, however, the SBA has not included a full-time devotion requirement, meaning that, in theory, the veteran can have outside engagements, so long as the veteran is able to control the company’s management and daily business operations. But if the veteran is not able to work at the company during its normal business hours, there is a rebuttable presumption that the veteran is not actually in control.

The SBA would also prefer it if the veteran worked close to the company’s headquarters or jobsites. If the veteran “is not located within a reasonable commute” to the company, there’s a rebuttable presumption that he or she does not control the firm.

Under the new rule, various examples are given of circumstances that may cause the SBA or VA to find that the veteran doesn’t satisfy the unconditional control requirement, including cases where the SDVOSB has business relationships “with non-service-disabled veteran individuals or entities which cause such dependence that the applicant or concern cannot exercise independent business judgment without great economic risk.”

The new rule also makes important changes to the ownership requirements for an SDVOSB. We’ll look at these in a follow-up post, or you can read the full post now at SmallGovCon.


VA Using SBA SDVOSB Eligibility Rules As Of October 1, 2018

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This is a guest post by Steven Koprince of SmallGovCon.

The VA will begin using the SBA’s eligibility rules to verify SDVOSBs and VOSBs beginning October 1, 2018.

In a final rule published today in the Federal Register, the VA confirms that the SBA’s eligibility requirements will apply beginning next week–but in my eyes, one very important question remains unanswered.

As regular SmallGovCon readers know, the differences between the government’s two SDVOSB programs have caused major headaches for veterans. Because the two sets of regulations have different eligibility requirements, a company may be an eligible SDVOSB under one set of rules, but not the other.

In 2016, Congress addressed the problem. As part of the 2017 NDAA, Congress directed the VA to verify SDVOSBs and VOSBs using the SBA’s regulatory definitions regarding small business status, ownership, and control. Congress told the SBA and VA to work together to develop joint regulations governing SDVOSB and VOSB eligibility. The VA published a proposed rule earlier this year to eliminate its separate SDVOSB and VOSB eligibility requirements.

Now the VA has issued a final rule, set to take effect in just one week on October 1. The final rule broadly reiterates that the VA is eliminating its separate SDVOSB and VOSB eligibility requirements because “regulations relating to and clarifying ownership and control are no longer the responsibility of VA.” Instead, in verifying SDVOSBs and VOSBs, the VA will use the SBA’s eligibility rules set forth in 13 C.F.R. part 125.

The VA’s final rule answers a few questions from the public about the change. Among the VA’s answers:

  • Despite a common misconception, this final rule does not move the verification process from the VA to the SBA. The final rule states, “[a]lthough the authority to issue regulations setting forth the ownership and control criteria for SDVOSBs and VOSBs now rests with the Administrator of the SBA, the [VA] is still charged with verifying that each applicant complies with those regulatory provisions prior to granting verified status and including the applicant in the VA list of verified firms.”
  • The “VA and SBA will treat joint ventures the same way,” applying the SBA’s regulatory criteria. This is important because the VA currently does not treat joint ventures the same way as the SBA. Although the VA largely defers to the SBA’s joint venture rules, the VA has been requiring SDVOSB joint ventures to demonstrate that the SDVOSB managing venturer will receive at least 51% of the joint venture’s profits. This conflicts with the SBA’s current regulation, which allows the SDVOSB managing venturer to receive as little as 40% of the joint venture’s profits, depending on how the joint venturers split work.
  • Persons “found guilty of, or found to be involved in criminally related matters or debarment proceedings” will be immediately removed from the VetBiz database. Additionally, owing outstanding taxes and unresolved debts to “governmental entities outside of the Federal government” may be disqualifying, but won’t lead to an automatic cancellation.

As you may recall, the SBA proposed to revise its own SDVOSB regulations earlier this year. These proposed rules, when finalized, would apply to both the VA and SBA. The VA’s final rule indicates that the SBA’s final rule also will take effect on October 1. “VA and the SBA believe a single date on which all of the changes go into effect is the most effective path for implementation,” the VA writes. As I sit here today on September 24, I haven’t seen the SBA’s final rule yet, but I assume it will be published any moment. We’ll blog about it on SmallGovCon when that happens.

By consolidating the eligibility requirements for SDVOSBs and VOSBs, the SBA and VA will eliminate a lot of confusion. In that sense, these changes are good news. But I’m concerned about one important item that wasn’t raised in the VA’s response–that is, what happens to currently verified companies who no longer meet the eligibility requirements? In other words, what happens to companies that were verified under the VA’s “old” rules, but won’t qualify as SDVOSBs under the SBA’s “new” rules?

Remember, many companies were verified as SDVOSBs and VOSBs based on the VA’s eligibility requirements, which (until October 1) aren’t identical to the SBA’s. Perhaps most notably, the VA has long permitted companies to use reasonable “right of first refusal” provisions in their corporate governing documents. The SBA, on the other hand, has deemed such provisions impermissible–a position that a federal judge called “draconian and perverse,” but nonetheless within the SBA’s broad discretion.

As I read the SBA’s proposed rules, anyway, the SBA hasn’t changed its position on this issue. And while it sounds wonky, it’s actually very important: right of first refusal provisions are commonplace in operating agreements, bylaws, and shareholders’ agreements prepared by good corporate counsel. It’s a virtual certainty that hundreds, if not thousands, of verified SDVOSBs and VOSBs have such provisions in their governing documents.

Are these companies now vulnerable to protest? Will the VA CVE propose them all for cancellation? Are they somehow grandfathered in? (I highly doubt that, but I suppose you never know). It’s a very important question and I hope one that the SBA and VA will answer soon.

My colleagues and I will keep you posted.

Update (September 28, 2018): The SBA has published its SDVOSB final rule, available here.

This post originally appeared at http://smallgovcon.com/service-disabled-veteran-owned-small-businesses/va-will-use-sba-sdvosb-eligibility-rules-starting-october-1-2018/ and was reprinted with permission.


H.R. 4754, the Change Order Transparency for Federal Contractors

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Amends the Small Business Act to provide prospective construction contractors with information about an agency’s policies on the administration of change orders to allow such contractors to make informed business decisions regarding the pricing of bids or proposals. This legislation is meant “to help businesses plan by increasing transparency on federal construction projects.”

While this seems simple, be aware that since there’s a LOT of construction work done for the Federal Government, this bill really adds to the potential for success by small businesses.

A change order is a document signed by both contractor and customer, and is used to record an amendment to your original construction contract. It usually contains:

• A revised scope of work (usually an addition to the original agreement)
• Pricing for the new work
• Additional modifications, e.g., an extended delivery schedule to accommodate new scope of work

We know that change orders happen all the time, and we want to be sure that small businesses which may not be able to wait or retool, can also continue to work and be successful in this field.

“Many times, small contractors are already cash strapped, U.S. Rep. Steve Chabot (R-OH), chairman of the U.S. House Small Business Committee noted, so major construction changes that result in delayed payments can put them out of business. ‘H.R. 4754 safeguards these contractors and requires agencies to publish their change order process up front, in their solicitations, so they have all of the information they need that can affect their bottom line,’ he said.” (Source)

We don’t write as often about construction projects in this blog; we write about services because that is what we know. But the reality is, a LOT of money is spent on construction so take heed, small businesses, this means YOU.


H.R. 2333, the Small Business Investment Opportunity Act

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This bill amends the Small Business Investment Act of 1958 to increase the maximum amount of outstanding leverage (i.e., borrowing power) made available to any licensed small business investment company from $150 million to $175 million. This bill was signed into law on June 21, 2018.

According to a press release from the Small Business Investor Alliance (SBIA), “Small Business Investment Companies (SBICs) are highly regulated private equity funds that invest exclusively in domestic small businesses. Created in 1958, the small businesses backed by SBICs have created 3 million new jobs and supported an additional 6.5 million jobs, according to a recent Library of Congress study.

The individual fund limit was last raised in 2009 to $150 million; the current push to $175 million keeps pace with inflation and increases the amount of capital fund managers can deploy to small businesses nationwide.”

While this may not seem like much, remember that many of the small businesses that are being invested in by these funds are fairly small, and the investments are correspondingly small. Also, it is worth remembering that these SBICs are not singular companies, but multiple entities that are available for small business investment start-up capital.

This is a case of Congress remembering that small businesses are the engine of job growth, and although larger businesses create numbers, this is how the economy grows.

If you’re looking for investment capital, particularly if your business model seeks outside capital, these SBICs are a good alternative to private equity or even outside investors.


House Small Business Committee Calls for a Status Update on FAR Revision of Limitations on Subcontracting

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This post was reprinted from the PilieroMazza Weekly Report for September 21, 2018.

Last week, House Small Business Committee Chairman Steve Chabot and Ranking Member Nydia Velázquez sent a letter to the acting administrator of the Office of Federal Procurement Policy requesting a status update of Federal Acquisition Regulation Case Number 2016-011, titled “Revision of Limitations on Subcontracting.”

Section 1651 of Public Law 112-239, the National Defense Authorization Act for Fiscal Year 2013 (2013 NDAA), made significant changes to the limitations on federal subcontracting, which were reflected in corresponding regulations made by the Small Business Administration (SBA) on May 31, 2016.

Section 1651 of the 2013 NDAA and SBA regulations require that the limitations on subcontracting for full or partial small business set-aside contracts, HUBZone contracts, 8(a) contracts, service-disabled veteran-owned small business contracts, women-owned small business, and economically disadvantaged women-owned small business contracts be evaluated based on the amount paid by the federal government, rather than the previously used cost of labor, or cost of manufacturing calculation.

Significantly, the 2013 NDAA and SBA regulations exclude from the limitations on subcontracting the work performed by first-tier subcontractors that are considered “similarly situated entities.” It has been 6 years since the 2013 NDAA was signed into law and Congress has respectfully requested a status update and timeline. You can find the article here.


H.R. 2056, the Microloan Modernization Act

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The SBA’s Microloan Program is designed to provide small amounts of capital across a broad spectrum of small businesses mostly owned by low-income individuals. Think of businesses that can be started for a 25-50k sum, and this is where the SBA gets the lending authority, as those borrowers may have less collateral.

H.R. 2056 amends the Small Business Act to increase from $5 million to $6 million the total amount of loans outstanding and committed to any particular intermediary (excluding outstanding grants) from the SBA business loan and investment fund for the remaining years of the intermediary’s participation in the program.

There is some complicated terminology in this aspect, but basically an intermediary is a lending agency (like a bank). So the amount each lending intermediary can have outstanding is increased, which allows for more loans. Yay! More loans means more businesses start up.

SBA-designated microloan intermediary lenders may expend up to 50% (currently, 25%) of the intensive marketing, management, and technical assistance grant funds they receive from the SBA to provide information and technical assistance to small business concerns that are their prospective borrowers.

This provision allows funds to be set aside for essential help and consulting to these borrowers in cases where they need assistance getting started with basics like marketing, management, or technical assistance. Yay again, because this allows for more recipients to get more assistance, and that’s always a good thing.

The SBA shall:

  • compare the operations of a representative sample of eligible intermediaries that participate in the microloan program and of eligible intermediaries that do not,
  • study the reasons why the latter do not participate,
  • recommend how to encourage increased participation by intermediaries in the microloan program, and
  • recommend how to decrease the associated costs for intermediary participation.

The Government Accountability Office shall evaluate:

  • SBA oversight of the microloan program, including oversight of participating intermediaries; and
  • the specific processes the SBA uses to ensure program compliance by participating intermediaries and overall microloan program performance.

These two sections basically set up studies (this is a very typical action in the world of the NDAA). The SBA shall study what’s working and some things that Congress felt might not be working, and the GAO shall study the SBA’s processes. These are good things, as long as the studies get done and published. There are no deadlines or due dates here, something I wish would get added in more often.

This may not seem like much, but this is the engine of people leaving low-income situations by starting up their own businesses. YAY – more and more good!


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