This is a guest post by SmallGovCon.
As 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.
The post 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.