Month: July 2017

8(a) Certification and Community Property Laws

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§124.104   Who is economically disadvantaged?

(2) When married, an individual claiming economic disadvantage must submit separate financial information for his or her spouse, unless the individual and the spouse are legally separated. SBA will consider a spouse’s financial situation in determining an individual’s access to credit and capital where the spouse has a role in the business (e.g., an officer, employee or director) or has lent money to, provided credit support to, or guaranteed a loan of the business. SBA does not take into consideration community property laws when determining economic disadvantage.

This means that both the applicant (individual claiming disadvantage) and his or her spouse must submit a separate Personal Financial Statement during the 8(a) Application process, unless:

They are legally separated.

and;

The SBA will not split all assets and liabilities 50/50 unless they are jointly owned or there is a pre and/or post nuptial agreement that details which assets are held by one individual or another, separately.

§124.105   What does it mean to be unconditionally owned by one or more disadvantaged individuals?

(k) Community property laws given effect. In determining ownership interests when an owner resides in any of the community property states or territories of the United States (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Puerto Rico, Texas, Washington and Wisconsin), SBA considers applicable state community property laws. If only one spouse claims disadvantaged status, that spouse’s ownership interest will be considered unconditionally held only to the extent it is vested by the community property laws. A transfer or relinquishment of interest by the non-disadvantaged spouse may be necessary in some cases to establish eligibility.

This means that the applicant (individual claiming disadvantage) and their spouse must execute a community property transmutation agreement to ensure that they have transferred or relinquished the proper percentage of ownership held within the applicant firm so that the applicant has unconditional ownership of the applicant firm that is applying for the 8(a) Program.

If you need a template to prepare an acceptable Community Property Transmutation Agreement, please visit our shop that contains a template for purchase.

Tips on finding 8(a) contract opportunities

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The federal government is the largest buyer in the world, but how do you know what agency will buy what you sell?

What do government agencies buy and where to locate opportunities?

The federal government buys everything from office supplies to missiles. No matter what your product or services are, chances are there is a federal agency that buys it. But you can’t sell your products or services to the federal government if you don’t know which federal agencies are buying and what their needs are.

Here are some tips for finding 8(a) contract opportunities:

  • The federal government operates an online service called SAM.gov. This single entry, government wide Web site, announces available business opportunities and is a powerful tool to help you become successful in government contracting.

You can narrow down your search for 8(a) set-aside contract opportunities or set-up an account to automatically receive targeted opportunities via email. We suggest that you specifically look for 8(a) opportunities that are in the pre-solicitation or sources sought phase as most of the other phases are too far along in the procurement process already.

Agencies use a variety of means for purchasing items. 8(a) firms should become familiar with how those buying offices advertise these requirements and then monitor them closely. Most government agencies have common purchasing needs. The government can realize economies of scale by centralizing the purchasing of certain types of products or services.

  • Visit the https://sam.gov/content/opportunities. It contains every federal procurement that has ever taken place.  You can search and find out which federal agency is buying your products or services, the names of your competitors who were awarded past contracts, their dollar value, location, NAICS code and more.
  • Visit the USASpending.gov web site. USAspending.gov is the official source for spending data for the U.S. Government. Its mission is to show the American public what the federal government spends every year and how it spends the money. You can follow the money from the Congressional appropriations to the federal agencies and down to local communities and businesses.

Once you have an idea of who you can sell your products and services to, your local Procurement Technical Assistance Centers (PTACs) (http://www.aptac-us.org/) may offer workshops for small businesses to acquire a basic understanding of the federal government procurement process. Some locations also offer services such as matching a firm’s capabilities with federal solicitations advertised in FedBizOpps, information on subcontracting opportunities, one-to-one technical assistance in completing bid packages and other paperwork, etc.

When Will the Agency Buy It Again?

As stated above, most agencies publish procurement forecasts on their web sites. Procurement forecasts are wish lists of proposed contract opportunities that may or may not come to fruition. Procurement history may be more reliable. If they’ve been buying it for years, they may continue to buy it. You may want to try to identify knowledgeable officials at the buying agency and then ask for their opinions. But again, their information may be subject to change. Much of what an agency buys depends on their budget. You should also develop a good rapport with buying agency officials.

One of the most important things that you have to do next is to convince the buying agency that they should buy from you. If the buying agency is using a competitive procurement process, why should it consider using 8(a) procedures? You must show that your business is competent, capable and reasonably priced. Make it in the buying agency’s best interests to contract with you.

If the buying agency is currently using 8(a) procedures, why should it contract with you and not some other 8(a) firm? How will you provide better service, better quality or better prices? What is it that you can do to either solve the buying agency’s problems, or prevent problems from occurring, or provide insight into problem solving more than any other firm? Show them what you bring to the table.

Selling to the federal government is not that much different from selling to the private sector. It all comes down to marketing. Your 8(a) status is a marketing tool that allows you to get your foot in the door at buying agencies, but you must use the tool wisely. Unless you have an unlimited marketing budget and personnel, you will have to decide which and how many agencies to target. Realistically, an 8(a) company can effectively market only three, four, or at most, five agencies. Which agencies you decide to market will depend on the factors discussed above.

8(a) Certification Tip – Your primary NAICS code and what’s reported on the business tax returns.

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When you apply for the SBA 8(a) Program you must report to the SBA what your primary NAICS (North American Industry Classification System) code is.

Your primary NAICS code is defined as the six digit code in which your business earned its largest segment of revenue, in the most recently completed fiscal year. To get 8(a) certified you typically must have earned your largest segment of revenue in your primary NAICS code for at least the last two fiscal years. If your business has not earned the largest segment of revenue in the primary NAICS code reported to the SBA for the last two fiscal years you will need to apply with a 2 year waiver.

To determine the primary NAICS code for your business you can visit our blog post titled “How to Determine your Primary NAICS Code” for detailed instructions.

The primary NAICS code for your business must also match what is reported on your business tax returns otherwise the SBA will assume that the business does not meet the two years in business requirement.

If your primary NAICS code is different that what is reported on your filed business tax returns, and the NAICS code reported on the business tax returns is incorrect you must:

Submit a letter of explanation to SBA, as part of your 8(a) Application, from your CPA or tax preparer regarding the business activity code and service listed on the filed business tax returns vs what NAICS code that should have been reported on them. This letter will save you 15-30 days of processing by the SBA.

Need assistance with your 8(a) Application? With 15 years and over 3,000 successful applications under our belt, we can assure you that no matter which option you choose, Cloveer will work harder and faster to get your business SBA 8a certified.  Contact us today at 813-333-5800 or visiting our website at cloveer.com to discover what Cloveer can do for you.

Stock Certificates and Ledger Guide: What you need to provide and tips for compliance.

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Our Stock/Membership and Ledger Guide will assist in the preparation and 100% completion of your Stock or Membership Certificates and Ledger for your SBA 8(a) Application. This downloadable guide is $150.00. Click on the Buy Now button below to purchase the guide and download now. This guide will not only show you how to properly prepare your Stock/Membership Certificates and Ledger but will save you countless hours of trying to figure out how to be compliant with these SBA 8(a) application requirements and possible endless back and forth or long delays of the processing of your 8(a) application by the SBA. The guide includes the following information:

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  • Who needs to provide Stock/Membership Certificates and Ledger within the SBA 8(a) Application documentation.

Detailed tips for compliance including:

  • What to do if you have never prepared the required Stock/Membership Certificates and ledger in the past.
  • How to ensure they are completed properly so they correspond with the ownership information presented to the SBA.
  • What to do if you have lost any previous issued  Stock/Membership Certificates.
  • How to properly complete every area of the Stock/Membership Certificates and Ledger  to alleviate any questions by the SBA.

8(a) Certification: Family members with ownership in another business. What do I need to know and provide?

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When you apply for the 8(a) Program the SBA will ask if you have any immediate family members who have ownership in a business. Why? 13 C.F.R 121.103(f) defines that the SBA may find affiliation on an identity of interest between individuals or business, including family members.

Immediate family member is defined as father, mother, husband, brother, sister, grandfather, grandmother, grandson, grand-daughter, father-in-law, and mother-in-law.

If you do have an immediate family member that has ownership interest in any other business, and you conduct business with it, you must provide the following documentation to the SBA:

The above must be supplied if any immediate family member, any owner of more than 10%, any director, any officer has ownership in any other business entity.

  1. SBA Form 355 (listing each firm as an alleged affiliate);
  2. Interim year to date financial statements, as well as number of employees;
  3. Three most recently filed business tax returns, including all schedules, attachments, and proof of tax paid;
  4. If the firm is a corp, provide:
    – Articles of incorporation and by-laws;
    – The last two years of  shareholder meeting minutes showing the election of the board of directors;
    – The last two years of board of director meeting minutes showing the election of the officers;
    – Stock certificates and ledger;
    – Assumed/fictitious name registration, if dba name is used;
    –     Copies of cert of good standing if your firm is a foreign firm; and;
    – Any buy/sell agreements, stock transfer agreements, etc.
    If the firm is a LLC, provide:
    – Articles of organization and operating agreement;
    – Assumed/fictitious name registration, if a dba name is used;
    – Certificate of good standing; and
    – Any buy/sell agreements, stock transfer agreements, etc.If the firm is a sole prop, provide:
    – Assumed/fictitious name registration.If the firm is a partnership, provide:
    – Partnership agreement;
    – Official filings with the state; and
    – Assumed/fictitious name registration, if a dba name is used.

Why do they require this information?
The SBA requires the above information to determine if any affiliation exists between the 8(a) Applicant firm and any other business that your family member owns.

Need assistance with your 8(a) Application? With 20 years and over 3,000 successful applications under our belt, we can assure you that no matter which option you choose, Cloveer will work harder and faster to get your business SBA 8a certified.  Contact us today at 813-333-5800 or visit our website at www.cloveer.com to discover what Cloveer can do for you.

8(a) Certification: Ownership or outside work in any other business can be a certification show stopper!

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The applicant(s) for 8(a) Certification must devote full-time to the business that is applying for the 8(a) Program with no outside employment. This means that they must generally work at least 40 hours a week during the normal hours of operation of the business that is applying for the 8(a) Program.

If the applicant(s) have an ownership or are an officer, director or partner  in any other business, other than the business that is applying for the 8(a) Program, the SBA may very well deny your 8(a) Application.

Why?

As stated above, you must devote full-time during the normal hours of operation of the business. If you have ownership or are an officer, director or partner in another business the SBA will likely conclude that you are not devoting full-time to the applicant business even if you do not devote any hours to the operation of this other business.

How to overcome this potential show-stopper?

a. You can dissolve this other business and provide evidence of dissolution to the SBA during the application review process.

b. You can formally resign your officer, director or partner position in this other business and provide evidence of resignation.

b. You can sell your ownership in this other business. The sale must take place at fair market value and you must be able to provide proof of the sale and a copy of any proceeds you might receive. Be sure to factor in any funds you receive as a result of this sale. You must also resign all positions you held in this other business and provide proof of this resignation.

What if the other business is just a business for holding real estate?

If the other business is just for holding real estate and you can prove this to the SBA, you can most likely keep your ownership in this other business since this other business is solely for the purpose of holding and/or protecting you ownership interest in the properties that it holds.

Need assistance with your 8(a) Application? With 20 years and over 3,000 successful applications under our belt, we can assure you that no matter which option you choose, Cloveer will work harder and faster to get your business SBA 8a certified.  Contact us today at 813-333-5800 or visit our website at www.cloveer.com to discover what Cloveer can do for you.