Avoid Losing Government Contracts in SBA Size Protests, Or Criminal Liability for Violating SBA affiliation Rules.
SBA Affiliation Rules have been relaxed in recent years. However, more and more small businesses are being investigated by the Department of Justice and SBA OIG. Even through understanding the people make mistakes, more and more convictions are occurring. Does your teaming agreements, joint venture and prime-subcontractor relationships avoid exposure under SBA affiliation rules?
Many small businesses that are doing business with the federal government have probably heard of SBA affiliation rules but never really pay attention to them. The reality is that it can be a very dangerous weapon when your competition files a small business-size protest to the SBA alleging ostensible subcontractor affiliation with other entities based on your NAICS code. What does all of this mean? The shocking reality is that your company forfeit the contract if your competition wins in an SBA size protest.
As a small business receiving federal government contracts, grants, loans, etc., you must comply with certain federal small business and SBA affiliation rules. This is an ongoing requirement for each NAICS code. As a sub issue to the overshadowing affiliation rules, the Ostensible Subcontractor Rule is one of many instances where the SBA can find that your company is affiliated with another subcontractor or teaming partner.
SBA Affiliation Definition and Affiliate Meaning Under 13 CFR 121.103.
What does affiliate mean under SBA regulations? According to the SBA website, affiliation exists when a company controls or has the power to control another or when a third party (or parties) controls or has the power to control both businesses when selling products or services to the government. Control between affiliates may arise through ownership, management, or other relationships or interactions between the parties. SBA affiliation rules can be seen in 13 CFR1.103.
In a nutshell, SBA regulations governing affiliation promote arms-length business transactions when government contracts are awarded. The awarded company must be in total control of the contract and its own business. It cannot be perceived as a ‘front’ for gaining federal government contracts and allowing other ineligible companies to control the action and money.
- Affiliation definition translates to having a company that either performs the primary and vital parts of the contract or a company where the prime is unusually reliant or controls the small business prime.
- If you are deemed to be an SBA affiliated business, you can lose the entire contract. Depending on the facts, you may find yourself under government investigation or facing criminal charges.
However, there is a multitude of cases where SBA OHA has interpreted various facts to reach a legal decision about the government affiliation meaning of a targeted company. For example, Contractual relationships or economic dependency have become a hot topic in recent small business size protest litigation.
- Given the reality that commercial business formations and investments take various forms, a small business that has various management roles in third-party companies, or ownership in other companies must be extremely careful not to fall prey to the brutal SBA’s business affiliation definition.
Why is Affiliation an Important Issue in Federal Government Contracting?
Awarded contracts are frequently taken away because your company no longer meets the small business legal definition. Your competitor will often initiate a small business size protest and claim that your company is affiliated with another business. This can be with a teaming partner or subcontractor, or even a large business. Such arrangements can violate the SBA affiliation regulations and Ostensible Subcontractor Rule. SBA determines whether an entity qualifies as a small business concern by counting its receipts, employees, or another measure including those of all its domestic and foreign affiliates, regardless of whether the affiliates are organized for profit. 13 CFR 121.103(a)(6).
SBA Affiliation and Relevance to Business Control
Under the SBA affiliation rules, affiliation cues of control may arise through ownership, management, or other relationships or interactions between the two companies. Individual relationships can also impact how the SBA views the entire situation. These are serious issues that you must carefully review when contemplating business relationships with other government contractors.
Business control may be affirmative or negative: The SBA affiliation rule take into account the relevant facts and analyze negative control by looking at situations where for example a minority shareholder has the ability, under the concern’s charter, by-laws, or shareholder’s agreement, to prevent a quorum or otherwise block action by the board of directors or shareholders. SBA will consider the totality of the circumstances when determining whether affiliation exists and may find that a small business concern is ostensibly affiliated based on the totality of the circumstances even though no single factor alone may be sufficient to constitute affiliation.
Small Business Affiliation with another company is based on the power to control, whether exercised or not. Such factors as common ownership, common management, and identity of interest (often found in members of the same family), among others, are indicators of affiliation. The power to control exists when a party or parties have 50 percent or more ownership. It may also exist with considerably less than 50 percent ownership by contractual arrangement or when one or more parties own a large share compared to other parties. Affiliated business concerns need not be in the same line of business. The calculation of a concern’s size includes the employees or receipts of all affiliates.
- Awardees must prove prime management of the project from the onset.
- Failure to do would increase the chances of losing the bid protest.
What Happens When the SBA Finds Affiliation Between Two Companies?
Once the SBA decides that affiliation exists, it will count the receipts/ employees, or another measure of size for the concern whose size is at issue and then combine it with the receipts, number of employees, or another measure of size for all of its domestic and foreign affiliate companies, regardless of whether the affiliates are organized for profit.
SBA Affiliation and Criminal liability for small business subcontracting fraud: Many of the criminal cases brought by the Department of Justice stem from affiliation between companies. Thus, leading to government contract fraud and criminal charges that all stem from the underlying business relationship between the companies. See example of case where large business was found liable for subcontractor fraud.
New Small Business Affiliation Rules
Under the new SBA affiliation rules, and in the case of a solicitation for a bundled contract, a small business contractor may enter into a Small Business Teaming Arrangement with one or more small business subcontractors and submit an offer as a small concern without regard to small business affiliation rules and being ostensibly affiliated, so long as each team member is small for the size standard assigned to the contract or subcontract.
Under the new rules, the SBA has also relaxed your company’s ability to enter into teaming agreements and small business joint ventures without fear of affiliation. However, in situations where your company violates the limitations on subcontracting rule, a terrible result is still possible. Government contractors should make sure that their business relationships are above-board before the competition sets out to attack them in a small business size protest.
Do Government SBA Affiliation Rules Apply When You Acquire a Business? If a concern has acquired an affiliate or been acquired as an affiliate during the applicable period of measurement or before the date on which it self-certified as small, the annual receipts used in determining size status include the receipts of the acquired or acquiring concern. This aggregation applies for the entire period of measurement, not just the period after the affiliation arose.
However, if a concern has acquired a segregable division of another business concern during the applicable period of measurement or before the date on which it self-certified as small, the annual receipts used in determining size status do not include the receipts of the acquired division prior to the acquisition. Read about 8a Program Size Determination & SBA Non-Manufacturer Rule. SBA affiliated business decisions can have grave consequences for a business. If your company faces such a dilemma, you may want to seek an experienced SBA affiliation lawyer.
How Can You Avoid Affiliation?
The application for SBA affiliation is not an easy one. Even the SBA sometimes fails to apply its own regulations. A few common ways to avoid affiliation include (1) making sure that other business owners and partners cannot outvote you in business decisions; (2) making sure that all subcontractor personnel including its managers have to report and get approval from your managers and supervisors; (3) Make sure that you clearly identify where your company is in charge of the primary and vital parts of the contract.
Does Your Company Violate the SBA Ostensible Definition – 13 CFR 121.103
SBA affiliate definition: The “ostensible subcontractor” rule provides that when a subcontractor is actually performing the primary and vital requirements of the contract, or when the prime contractor is unusually reliant upon the subcontractor, it means that the two firms are affiliated for purposes of the procurement at issue. 13 CFR 121.103(h)(4). Being affiliated can mean that the agency may ultimately have to take away the awarded contract.
An ostensible subcontractor in federal contracting is a named subcontractor in your bid that is not a similarly situated entity, defined in 13 CFR 125.1, and performs primary and vital requirements of a contract, or of an order, or is a subcontractor upon which the prime contractor is unusually reliant.”
Under SBA affiliation rules and government contracting law, your company, as the prime contractor can be deemed affiliated with your subcontractor if the subcontractor is determined to be an ostensible subcontractor and is not a similarly situated entity. In that case, SBA will treat the prime and subcontractor as joint venturers, which requires that the entities be affiliated. The SBA will find that a subcontractor is an ostensible subcontractor when the subcontractor is not a similarly situated entity and:
(1) the subcontractor performs the primary and vital requirements of a contract, or of an order under a multiple award schedule contract; or
(2) the prime contractor is unusually reliant on the subcontractor.
Intent of Ostensible Subcontractor Rule
Under SBA affiliation regulations, meeting the SBA ostensible subcontractor business affiliation definition can cause pain for a government contractor that finally receives a contract after hard work and using resources to get the result.
What does ostensible mean also includes knowing that it is defined to prevent other than small firms (large businesses) from forming relationships with small firms to evade SBA’s size requirements? Size Appeal of Fischer Business Solutions, LLC, SBA No. SIZ-5075. When investigating business relationships between the prime contractors and the subcontractor’s firm, the SBA will examine all aspects of the business relationship including the terms of the proposal and any agreements between the firms to see whether the relationship between a prime contractor and a subcontractor violates the ostensible subcontractor affiliation. See OHA Appeals & SBA Affiliation Rules Identity of Interest 13 CFR 121.103 & 13 CFR 121.301.
Despite the SBA’s new rules that minimize the possibility of business affiliation definition between ostensible subcontractors and prime contractors, the crust of the SBA’s size protest investigation looks to see whether the subcontractor is performing the primary and vital contract requirements are those associated with the principal purpose of the acquisition. See also Signs of Being Under Investigation (Federal)
Can You Avoid SBA Affiliation Liability?
There are some avenues that your company can pursue given the new rules. However, it is critical to assess the situation when you contemplate bidding on federal government contracts. Having experienced SBA affiliation lawyers that can assess your specific situation and provide suggestions and guidance can be extremely beneficial. Here are a couple things to consider when you decide to move forward.
- Look for small business subcontractors that are similarly situated entities.
- Avoid subcontracting agreements with the incumbent (unless you carefully consider what the SBA looks for when you enter such relationships)
- Make sure your bid shows that you are not violating the limitations on subcontracting rules.
- You should also dive into whether the control is actual or apparent (ability to control or negative control can lead to disastrous results)
- Find out if your company is in violation of the ostensible subcontractor rule
Clues that Your Company May be at Risk of Violating SBA Affiliation Regulations
- If you are a small business that owns, manages or in some fashion performs with, other businesses.
- Your spouse or other family member owns or manages another business
- If your company is a newly-formed entity
- If you are the awardee and have relied on the incumbent contractor’s employees or past performance
- If you rely on another company to perform the primary and important aspects of the awarded contract.
Get Immediate Help from Experienced SBA Affiliation Lawyers
Watson & Associates are experienced SBA affiliation rule lawyers. We frequently represent small businesses to file or defend against allegations in SBA size protest litigation. We also provide SBA consulting services for firms that need an overall audit and report of their business relationships and teaming / joint venture arrangements. For additional help or representation in an ongoing SBA size protest case about the SBA affiliation, or whether you are an affiliate under the SBA ostensible subcontractor guidelines, call Watson & Associates, LLC government small business lawyers and SBA attorneys at 1-866-601-5518 for a Free Initial Consultation. Speak with Theodore Watson.