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The Small Business Administration (SBA) has seemingly slipped a noteworthy change into a technical correction published in the Federal Register on March 26, 2018.  Indeed, this “technical correction” actually appears to be an attempt to overturn the impact of a decision that the Office of Hearing and Appeals (OHA) issued in January 2018 – In The Matter of: Analytic Strategies, Inc., No. VET-268 – which held that under SBA’s recertification rules, a SDVOSB maintains its size and socio-economic status for the life of the multiple-award contract unless a contracting officer requests recertification in connection with a specific task order.

As discussed in more detail below, this change creates a degree of uncertainty with respect to a concern’s ability to receive task/delivery orders on a set-aside basis following a recertification of size or status on a contract.

The Recertification Requirement on Set-Asides

When a contract is awarded on a set-aside basis, the contractor is required to recertify as to its size and/or socioeconomic status within thirty days of contract novation, merger, or acquisition.  In other words, following one of the aforementioned events, the contractor must confirm that it is still small or retains the socioeconomic status it claimed for award, or notify the procuring agency that it is other than small or no longer qualifies for the chosen socioeconomic status.  The recertification requirements are generally similar regardless of the program.  See 13 C.F.R. § 121.404(g) (size recert requirement); 13 C.F.R. § 125.18(e)(1) (Service-Disabled Veteran-Owned Small Business (SDVOSB) recert requirement); 13 C.F.R. § 126.601(h)(1) (Historically Underutilized Business Zones (HUBZones) recert requirement); 13 C.F.R. § 127.503(h)(1) (Women-Owned Small Business (WOSB)/ Economically Disadvantaged Women-Owned Small Businesses (EDWOSB) recert requirement).

The Impact of a Recertification on a Set-Aside Contract

If a contractor has to recertify as to its size or socioeconomic status, it generally has been understood that the following occurred:

  • For contracts awarded on a set-aside basis, the contractor can continue to perform and the agency can exercise options, BUT, from that point forward, the agency cannot count the performance towards the agency’s small business and/or relevant status goals.

For multiple award contracts awarded on a set-aside basis:

  1. The contractor can continue to perform existing orders and the agency can continue to exercise options with respect to those orders, and
  2. The contractor can receive new set-aside orders against the contract so long as the contracting officer does not request a new size or status certification in connection with that specific order.

BUT, again, from that point forward, the agency cannot count performance on already-awarded or newly-awarded contracts towards the agency’s small business and/or relevant status goals.

The old version of the SDVOSB recertification requirement states:

(1) A concern that represents itself and qualifies as an SDVO SBC at the time of initial offer (or other formal response to a solicitation), which includes price, including a Multiple Award Contract, is considered an SDVO SBC throughout the life of that contract. This means that if an SDVO SBC is qualified at the time of initial offer for a Multiple Award Contract, then it will be considered an SDVO SBC for each order issued against the contract, unless a contracting officer requests a new SDVO SBC certification in connection with a specific order. Where a concern later fails to qualify as an SDVO SBC, the procuring agency may exercise options and still count the award as an award to an SDVO SBC. However, the following exceptions apply:

  1. Where an SDVO contract is novated to another business concern, the concern that will continue performance on the contract must certify its status as an SDVO SBC to the procuring agency, or inform the procuring agency that it does not qualify as an SDVO SBC, within 30 days of the novation approval. If the concern is not an SDVO SBC, the agency can no longer count the options or orders issued pursuant to the contract, from that point forward, towards its SDVO goals.
  2. Where a concern that is performing an SDVO SBC contract acquires, is acquired by, or merges with another concern and contract novation is not required, the concern must, within 30 days of the transaction becoming final, recertify its SDVO SBC status to the procuring agency, or inform the procuring agency that it no longer qualifies as an SDVO SBC. If the contractor is not an SDVO SBC, the agency can no longer count the options or orders issued pursuant to the contract, from that point forward, towards its SDVO goals. The agency and the contractor must immediately revise all applicable Federal contract databases to reflect the new status.

13 CFR § 125.18(e)(1).

It should be noted, however, that if, following a recertification as other than small or ineligible for the relevant socioeconomic status, a particular contract requires off-ramping or termination, or renders a holder ineligible to compete on future set aside task orders, those opportunity-specific provisions will apply.

This scheme historically has allowed a degree of certainty as to a potential work stream under a multiple award contract, which impacts valuation of small businesses.

SBA Took the Opposite Position In Analytic

In a recent case regarding a task order competition under a One Acquisition Solution for Integrated Services (OASIS) contract, SBA articulated a different position regarding the impact of a SDVOSB recertification.

Specifically, in April 2014, GSA awarded Analytic Strategies, Inc. (Analytic) an OASIS Small Business (SB) Pool I contract.  As part of its proposal submitted in October 2013, Analytic represented itself as an SDVOSB.

In July 2016, a non-veteran owned concern acquired Analytic.  Analytic updated its registration in the System for Award Management to reflect this change, and notified GSA of the change in its status (i.e., that it no longer qualified as an SDVOSB).  The GSA contracting officer responded that Analytic “will still be considered” an SDVOSB for purposes of OASIS orders.

In June 2017, DHS issued a Request for Quotations, which was set aside for SDVOSBs that were OASIS SB Pool I holders.  This RFQ did not request recertification in connection with the order.  DHS ultimately awarded the order to Analytic.  One of the unsuccessful offerors filed a protest, which apparently raised concerns that Analytic misrepresented its socioeconomic status.  GAO subsequently requested SBA’s opinion on GAO’s jurisdiction over this allegation and SBA, in turn, asked GAO to dismiss the allegation.  Thereafter, SBA initiated its own status protest of Analytic in November 2017, arguing that Analytic was no longer an SDVOSB and, thus, not eligible for orders set aside for SDVOSBs following the recertification: “There is no authority permitting a concern that loses [SDVOSB] status after a merger or acquisition to continue to receive [SDVOSB] set-aside orders.”

The SBA Director of Government Contracting (D/GC) agreed and determined that Analytic was not an eligible SDVOSB for the set-aside task order.

OHA Rejected SBA’s Reading of its Regulation in Lieu of a Plain Reading of the Rule

“Appellant maintains the provisions under § 125.18(e)(1)(i-iii) have the limited effect of preventing the procuring agency from counting options and orders issued to unqualified concerns toward its socioeconomic procurement goals. (Id., at 6.) In Appellant’s view, these are not exceptions to the general rule that a concern retains its SDVO SBC status for the life of the contract. (Id.) These provisions come immediately after another rule related to counting as stated in the regulation (i.e., “Where a concern later fails to qualify as an SDVO SBC, the procuring agency may exercise options and still count the award as an award to an SDVO SBC.”) and, therefore, are exceptions to that rule. (Id.) Appellant stresses, the remedy provided in the three exceptions is that “the agency can no longer count the options or orders issued pursuant to the contract, from that point forward, towards it SDVO [SBC] goals,” not that the agency can no longer issue orders. (Id., at 7.)”

Analytic appealed to OHA, arguing that the exceptions under § 125.18(e)(1)(i)-(ii) did not impact the general rule that a concern retains its SDVOSB status for the life of the contract.  According to Analytic, the exceptions only applied to the portion of the rule related to an agency’s ability to count spend against its SDVOSB goal since the exceptions immediately follow that rule.  Analytic argued that there was nothing in the text of the rule suggesting that a recertification as result of an acquisition will render a contractor ineligible to compete for new orders.

SBA disagreed with Analytic’s interpretation of the impact of the exceptions.  According to SBA, the exceptions (e.g., the occurrence of a merger or acquisition) not only impacted an agency’s ability to count spend towards its goals, but also were an exception to the general rule that a concern retains its status for the life of the contract.  Under its interpretation, SBA noted that a contracting officer retains discretion to award other task orders to the concern for which it is eligible (i.e., openly competed, small business set asides where the concern recertifies as small) instead of terminating the contract.  In other words, SBA pointed out that a contractor is not necessarily precluded from winning future task orders, but instead, the preclusion is limited to orders for a particular socioeconomic category for which the concern has already recertified as ineligible.

“SBA disputes Appellant and DHS’ construction of the recertification rule following “however,” arguing the proper construction applies the exceptions following “however” to the entire provision, rather than to solely counting toward procurement goals. SBA argues that counting and consideration are linked. If one of the exceptions following “however” applies, a concern is not considered an SDVO SBC at task order award and a procuring agency cannot claim credit for a task order award to the concern. (Id., at 8.)”

SBA also recognized that its interpretation of “however” in the SDVOSB recertification requirement would impact the requirement across the different programs since “the word ‘however’ appears in the same place in all of its recertification rules, including the small business set aside program.”  (Citing 13 C.F.R. §§ 121.404(g), 121.704(b), 126.601(h), 127.503(h).)

On January 29, 2018, OHA vacated the determination that Analytic did not qualify as an SDVOSB.  In doing so, OHA explained that SBA’s recertification rules state that, if a contractor no longer qualifies as small as a result of a merger or acquisition, the agency cannot count any options or orders made pursuant to the contract moving forward.  An agency can, however, still award those options and orders to the contractor as a set-aside because the regulations do not explicitly preclude it from doing so.

According to OHA, the plain language of the regulation dictated this conclusion—the exceptions for novations, mergers, acquisitions only related to the part of the rule discussing an agency’s ability to count spend against its goals and not to the general rule about when size is determined:

The regulation specifically contemplates that this retention of eligibility extends to Multiple Award Contracts, such as the OASIS SB Pool I contract at issue here. The only exception to this general rule occurs if the contracting officer requests recertification in connection with a specific order. See 13 C.F.R. § 125.18(e)(1). This exception is articulated immediately following the regulation’s statement of the general rule, and there are no other exceptions enumerated at this point in the regulation.

….

The regulation then contains an intervening sentence dictating that when a concern no longer qualifies as an SDVO SBC, a procuring agency may exercise options and still count the award as an award to an SDVO SBC toward meeting the agency’s socioeconomic contracting goals. See id. The regulation plainly contemplates the award of an option or order to a subsequently-unqualified concern, and nonetheless permits the procuring agency to count the option or order toward its socioeconomic goals so long as the concern satisfies the general rule. The regulation then states that “However, the following exceptions apply” and discusses exceptions for novation, merger and negative status determination. See 13 C.F.R. § 125.18(e)(1)(i-iii). For each of these exceptions, the remedy articulated in the regulation is that “the agency can no longer count the options or orders issued pursuant to the contract, from that point forward, toward its SDVO [SBC] goals.” Id.

Thus, OHA found SBA’s interpretation of the recertification rule “flatly contradict[ed] the plain language of § 125.18(e)” as well as “SBA’s application of the similar recertification rule for size status.”  OHA also pointed out that SBA’s intent when promulgating the regulation was “specifically to afford the contracting officer discretion in exercising options and issuing orders to a subsequently-unqualified concern pursuant to an on-going procurement.”  See 78 Fed. Reg. 61114, 61126 (Oct. 2, 2013) (stating “SBA believes that it would be a decision of the contracting agency as to whether and how a business would move to the non-set-aside portion of a multiple award contract if it did not initially submit an offer for the non-set-aside portion”).

SBA’s Revised the Recertification Requirements Seemingly in Response to OHA’s Decision

The SBA’s technical correction requires that the SDVOSB certification (copied in full above) be revised as follows:

Amend § 125.18 by revising the last sentence of paragraph (e)(1) to read as follows:
§ 125.18 What requirements must an SDVO SBC meet to submit an offer on a contract? * * * * *
(e) * * *
(1) * * * However, the following exceptions apply to this paragraph (e)(1):

Less than two months after OHA issued its decision in Analytic, SBA issued the aforementioned “technical correction” to clarify the recertification requirements for each of the socioeconomic programs so that the referenced exceptions would “be applied to the entirety of the preceding paragraph.”  SBA added just four words to each of the recertification requirements, namely that the exception applies to the entirety of the referenced paragraph.

The Impact of the Addition of the Four Words to the Recertification Requirements

The key issue in Analytic was whether the exceptions (regarding novation, acquisition, mergers) applied to both the rule on size/eligibility and on counting in the preceding paragraph or to merely the rule on how the agency can count spend against its goals (which is contained in the sentence immediately preceding the introduction to the exceptions).  In light of the extensive briefing by the parties on how the exceptions should be read and OHA’s rejection of SBA’s reading, it is difficult to read SBA’s “technical corretion” as anything other than a response to OHA clarifying that the exception applies to the entire preceding paragraph as opposed to merely the last sentence (which was OHA’s reading).

Read in this light, should a company recertify as other than small (or that it no longer qualifies for a certain socioeconomic status) following a novation, merger, acquisition or other event, it will be ineligible to compete for orders set-aside under its former size or status.

Questions and Concerns Raised by SBA’s “Technical Correction”

First, SBA’s “technical correction” lacks clarity both as to the reason why SBA issued it and the intended result.  Notwithstanding that it is difficult to read SBA’s revision to the recertification requirements as anything other than a response to OHA (even in light of the lack of any reference to the Analytic case), the revisions are not a model of clarity.  Stated otherwise, SBA could have revised the regulations to expressly prohibit contractors from competing for set-aside task orders for a size or particular socioeconomic category for which the concern has already recertified as ineligible.  Instead, SBA seemingly obscured why it published this “technical correction”—noting only that “[i]t has been brought to SBA’s attention that as drafted, it is not clear which sentence or clause the final sentence is referencing”—as well as its impact.

Second, SBA has not engaged in the expected notice and comment rulemaking.  Indeed, in its decision, OHA twice stressed that it would not allow SBA to revise its regulations by adjudication because such a change to SBA’s regulatory scheme should be subject to “notice and comment rulemaking.”  But, rather than issue a proposed rule for comment, SBA revised the recertification requirements via what it called a “direct final rule,” which would become effective May 25, 2018 assuming SBA received no “significant adverse comment” on or before April 25, 2018.  It would not be surprising to see a challenge to the method by which SBA enacted this change.

Finally, precisely what this “technical correction” means for previously awarded contracts is unclear.  Contractors should expect that recertification provisions, as revised, will apply to new solicitations for contracts issued on or after May 25, 2018.  But, what about task/delivery order solicitations issued after that date under already-awarded multiple award contracts?  SBA states in the rule that the “action does not have retroactive or preemptive effect,” but SBA also deemed this aspect of the rule to be merely a “technical clarification” that aligns the paragraph with SBA’s intent and was “not intended to make any substantive change to the paragraphs.”  This question will linger until we better understand how contracting officers and the SBA will implement the rule come May 25, 2018.

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This week’s episode covers DFARS and SBA Mentor Protégé Program news and is hosted by partner Peter Eyre. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without.

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On July 25, 2016, the SBA published its final rule establishing a government-wide mentor-protégé program for the benefit of all small businesses as protégés.  This widely-anticipated rule, implementing provisions of the Small Business Jobs Act of 2010 and the National Defense Authorization Act for Fiscal Year 2013, provides increased opportunity for small and large businesses to partner with one another.  Effective August 24, 2016, this new program is expected to unleash a flood of new mentor-protégé agreements (MPAs) as well as joint ventures eligible to compete on set-aside procurements, and it could likely result in an increase in the number of set-aside procurements.

Below we discuss the benefits from participating in this program, the requirements for the mentor-protégé agreement (“MPA”), the eligibility criteria for mentors and protégés, and the requirements for joint ventures established pursuant to the MPAs. Given the numerous benefits to participating in this program, including the opportunity to joint venture, the SBA has layered into this final rule the requirement for numerous express certifications of compliance and severe consequences for violation of the SBA’s regulations, MPAs, and/or joint venture agreements.  A separate blog post will address the changes that the SBA is implementing in the final rule to the SBA’s current regulations governing the 8(a) business development (BD) program.

Continue Reading SBA Opens the Floodgates: The Mentor-Protégé Program Expands to All Small Businesses

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In this part of our ongoing series (see Part I, Part II and Part III) on the Small Business Government Contracting and National Defense Authorization Act of 2013 Amendments implementing the National Defense Authorization Act of 2013 (FY2013 NDAA) Amendments, we address the new recertification requirement that is triggered following the merger, sale, or acquisition of a firm that has submitted an offer as a small business concern (SBC).

A concern that represents itself as a small business and qualifies as small at the time of proposal submission is considered to be a small business throughout the life of that contract.  This even applies for Multiple Award Contracts—the SBC is considered small for each order issued against the contract with the same NAICS code and size standard (unless a contracting officer chooses to request a new size certification in connection with a particular order).  In other words, even where a concern grows to be other than small, the procuring agency may exercise options and still count the award as an award to a SBC, unless a recertification requirement has been triggered.

Given the great boon that comes to a firm upon award of a contract where it has qualified as a SBC, the SBA has long sought to set the right balance for what should happen when a small business is involved in a merger, sale, or acquisition. The concern is that if a SBC could submit a proposal with pricing, certify that it is small, and actually qualify on that date of proposal submission as small, should that small business be able to sell itself following proposal submission or contract award to a large business and allow the large business to benefit for up to five years of contract performance as a “small business”?  The SBA’s answer to that is no.  The SBA’s regulations as currently drafted require recertification in certain circumstances following a merger, sale, or acquisition but only once award has already been made.  In the final rule, SBA imposes new recertification requirements aimed at changes that occur within the window between proposal submission and contract award.

Continue Reading The SBA Final Rule Implementing the FY2013 NDAA Part IV: New Recertification Requirement Following Mergers & Acquisitions

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As we have previously addressed, the Small Business Administration’s (SBA) final rule, Small Business Government Contracting and National Defense Authorization Act of 2013 Amendments, has implemented numerous changes to small business contracting contained in the National Defense Authorization Act of 2013 (FY2013 NDAA).  Below we discuss an important change to one affiliation test as well as newly introduced exclusions from affiliation.  On the whole, these changes make it easier for small businesses to work together without risking a finding of affiliation.

Affiliation is a central component of SBA’s regulations: in determining a concern’s size, SBA counts the receipts, employees, or other measure of size of the concern whose size is at issue and all of its affiliates (domestic and foreign).  In other words, these tests and (and exemptions or exclusions) affect whether SBA finds a concern to be small or other than small based on its relationships with other concerns.

Continue Reading The SBA Final Rule Implementing the FY2013 NDAA Part III: What You Need to Know About Affiliation and Joint Ventures

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The Small Business Administration’s (SBA) final rule, Small Business Government Contracting and National Defense Authorization Act of 2013 Amendments, implements changes regarding small business subcontracting plans contained in the National Defense Authorization Act of 2013 (FY2013 NDAA).  We discuss the key changes below.  This rule becomes effective June 30, 2016, but as some of the changes impact the proposal process which can involve planning and team selection months in advance of proposal submission, contractors need to focus on the new requirements now.

Continue Reading The SBA Final Rule Implementing the FY2013 NDAA Part II: The Changes to Small Business Subcontracting Plans Have Immediate Impacts on Small and Large Businesses

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The goal of the limitation on subcontracting requirement is to ensure that a certain amount of work is performed by a small business concern (SBC) when it qualifies for a small business program set-aside or sole source procurement due to its socioeconomic program status. SBA’s final rule, Small Business Government Contracting and National Defense Authorization Act of 2013 Amendments, implements numerous changes to this requirement contained in the National Defense Authorization Act of 2013 (FY2013 NDAA).  This rule becomes effective June 30, 2016. However, changes to the parallel FAR requirements are still needed for regulatory consistency and implementation.

Continue Reading The SBA Final Rule Implementing the FY2013 NDAA Part I: SBA Overhauls the Method for Calculating Compliance with the Limitation on Subcontracting Requirement

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Far too often, investors, including venture capital companies, assume that as long as they do not retain the largest shareholder interest in a company, that they cannot create affiliation problems impacting what is a key to companies’ initial success in government contracting: small business status. Wrong. A recent U.S. Small Business Administration (SBA) Office of Hearings and Appeals (OHA) decision makes this a stark reality, upholding a determination that an apparent awardee in a set-aside procurement is other-than-small based on affiliation arising from its mere 4.16 percent stock ownership interest in another company.

Affiliation Generally
If a contractor has ever thought about certifying its size as small under a particular NAICS code, hopefully they reviewed the SBA regulations on affiliation in advance. The analysis of whether a company is small in size does not start and end with the receipts or number of employees for that company, but is instead considered as a spiderweb of connections with other individuals and entities. In order to determine a concern’s size, SBA counts not only the receipts or employees of the concern but also the receipts or employees of each of the concern’s domestic and foreign affiliates.

Concerns and entities are affiliates of each other when one controls or even has the power to control the other, or a third party or parties controls or has the power to control both. 13 C.F.R. § 121.103(a). In determining affiliation, there are numerous factors that the SBA must consider – including, ownership, management, and previous relationships with or ties to other concerns. SBA’s analysis concerns the totality of the circumstances; the absence of any single factor will not be considered dispositive.
Continue Reading Investors Beware: Minority Ownership Interests Can Create Affiliation and Defeat Small Business Size Status

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On December 29, 2014, the Small Business Administration issued long overdue proposed amendments to its regulations (with 60 days for comments) to implement many of the provisions of the National Defense Authorization Act of 2013 relevant to small business contracting.

Most notable is the complete overhaul of the calculation of the limitations on subcontracting requirement. The amendment proposes a major shift in the way the calculation is performed. The current method requires the prime contractor to be responsible for the specified percentage of cost of performing the contract (with variations depending on whether it is a contract for services, supplies, construction, or specialty trade construction). The amendment proposes shifting the calculation from this cost-based approach to the amount paid to the prime, which must be more than the specified percentage paid to other than “similarly situated” subcontractors. The proposed revision is intended to be easier to calculate, but complexities remain. Continue Reading Significant Changes on the Horizon to Key SBA Regulations, Including the Limitations on Subcontracting

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Recent Changes to the Small Business Administration’s 8(a) Program took effect on March 14, 2011. This is the First major revision to the 8(a) program since 1998. Per the SBA, the goal of the rule changes were to better ensure that the benefits of the SBA flow to the intended recipients and to help prevent waste, fraud, and abuse. Read below for highlights of some of the key changes!

The new changes include additional restrictions on Joint Ventures. The 8(a) partner of the Joint Venture must now perform at least 40% of the work, including those awarded through a mentor-protégé agreement. The previous requirement was only that the small business perform a “significant portion of the work.” In addition, Joint Ventures awarded to an 8(a) firm will not be allowed to win more than 3 contracts during a 2-year period, and cannot subcontract work to a non-8(a) Joint Venture partner. The new rules also hold mentor firms more accountable: mentors who do not provide assistance to their protégés could face consequences ranging from stop-work orders to debarment. New record-keeping provisions will require the protégé firm to submit information reflecting the work breakdown within the Joint Venture.

The new rules also clarify the income & asset determination needed for 8(a) eligibility. For instance, the new rules exclude individual retirement accounts from the strict net worth calculations that are used to determine eligibility for the program. With regard to income requirements, the new rules raise the adjusted gross income to enter into the program from $200,000 to $250,000, and increase the adjusted gross income for continued eligibility for the program from $300,000 to $350,000. The total value of the participant’s assets necessary to enter the program has been raised from $3 million to $4 million, and the total assets necessary for continued eligibility has increased from $4 million to $6 million.

The rule changes limit the type and amount of fees an agent or representative can charge for assisting an 8(a) firm. Specifically, the language of this part of the new rule prohibits unreasonable fees as well as arrangements in which the fees are a percentage of the contract award or revenue.

The new rules also enhance SBA opportunities for military personnel, allowing owners of 8(a) firms called to active military status to elect to be temporarily suspended rather than lose any of their nine-year term in the program.

In addition to some of the items listed above, the new rules primarily focus on reforming and enhancing the transparency of Alaska Native Corporations (ANCs), 8(a) sub-entities that can win sole-source contracts of any size. For the first time, firms owned by ANCs or by Indian tribes, native Hawaiian organizations and community development corporations will be required to report financial benefits flowing back to their communities.  Firms must now submit information relating to: funding of cultural programs, employment assistance, jobs, scholarships, internships, and subsistence activities. (The Final Rule, published in the Federal Register on February 11, 2011, provides an additional six months for the SBA to work with the ANCs to implement these particular provisions.)

The Small Business Administration provides a number of additional resources regarding the rule changes, including the text of the final rule. These are available at:http://www.sba.gov/content/revised-8a-regulations.