Transcript ENTER PRESENTATION TITLE HERE

Small Business Administration
Office of Investment
SBIR Size Regs
Overview of Proposed Rules
Implementing SBIR/STTR Reauthorization
Size Rule
Policy Directive
 Modification of broader size
regulations that affect all SBA
programs, specifically for SBIR
 SBA policy that guides how
agencies should administer the
program
 Focus: size, affiliation, ownership  Focus: set asides, managing
and control
fraud/waste/abuse
commercialization, admin funding,
 Timing
streamlining the program, etc
• Proposed rule – May 15
 Target timing: June 30, 2012
• Statutory deadline for final rule
December 31, 2012
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Small Business Administration
Proposed Rule: Background
On May 15, SBA issued a proposed rule that in implementing the
statutory requirements of the programs
• Seeks to simplify and streamline the current ownership
and affiliation criteria for the SBIR and STTR programs
• Provides a clear set of guidelines for small businesses to
understand and bright-line tests by which small
businesses can easily determine whether they meet the
ownership, size and affiliation requirements of the programs
• Addresses the unique needs of the SBIR program,
avoiding a one-size-fits all approach to size regulations
• Protects the integrity of the program as a small business
program
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Small Business Administration
Proposed Rule: Public Input
 Abbreviated time frame to issue a proposed rule
 Agency was unable to conduct public outreach prior to
drafting and issuing this proposed rule
 Now: 60 day public comment period
• Soliciting public comments on the proposed rule
• Conducting public outreach sessions following publication
of the rule, such as webinars and town hall meetings
with SBA Office of Advocacy, to gather additional input on
these statutory provisions and SBA’s proposed
implementation
• Go to www.regulations.gov (RIN 3245-AG46) to make comments
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Small Business Administration
Focus for Today’s Meeting
Key Provisions
1. Ownership and Control
2. Domestic ownership
 Statutory
requirements
3. Affiliation
 Other
considerations
4. Time of Eligibility
5. Other
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For each
Small Business Administration
 Proposed Rule
 Questions
Ownership and Control
Reauthorization Act provision
 § 5107 of the SBIR/STTR Reauthorization Act
permits participation by firms that are majority
owned by multiple venture capital operating
companies (VCOCs), hedge funds, or private
equity firms, with limitations
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Small Business Administration
Ownership and Control
Considerations
 SBA’s current regulations, 13 C.F.R. § 121.702
• State that an SBIR awardee must be a business concern that is at
least 51% owned and controlled by U.S. citizens or permanent
resident aliens or at least 51% owned and controlled by another
business that is at least 51% owned and controlled by U.S. citizens
or permanent resident aliens.
 § 5107 of the SBIR/STTR Reauthorization Act (permitting firms owned
by VCOCs, hedge funds and private equity firms to participate in
program)
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Small Business Administration
Ownership and Control
Proposed Rule (13 C.F.R. § 121.702)
An SBIR or STTR applicant must:
 Be a concern which is more than 50%
• Directly owned and controlled by one or more individuals who are
citizens of the United States or permanent resident aliens in the United
States, or by domestic business concerns; or
• Owned by multiple domestic business concerns that are venture
capital operating companies, hedge funds, private equity firms, or any
combination of these domestic business concerns; and
 No single venture capital operating company, hedge fund, or
private equity firm may own more than 50% of the SBIR or STTR
applicant.
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Small Business Administration
Ownership and Control
Basis for Proposed Rule
 In implementing the statute, we attempt to provide clarity to small businesses
on the types of ownership structure that are eligible for the programs.
 The requirement that the SBIR and STTR participant must be more than 50%
owned by U.S. citizens, permanent resident aliens or domestic business
concerns ensures that the applicants are domestic-owned small businesses.
 It addresses statutory requirement permitting participation by small businesses
that are majority owned by multiple VCOCs, hedge funds and private equity
firms, subject to the statutory limitations for each agency.
 It provides a straight-forward and simplified method for determining eligibility,
within the parameters of the statutory changes.
 Specifics on “Quota” addressed in Policy Directive
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Small Business Administration
Examples
Individual and Large Firm
Ownership
Domestic
Individuals
(80%)
Owned by Another
Small Business
Small
Businessb
(51%)
Large Firm
(20%)
Small
Business
Small
Businessa
Minority Stake Multiple VC Ownership
VCa
(20%)
VCb
(20%)
Small
Business
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Small Business Administration
VCc
(20%)
Majority VC Owned –
Not Okay
VCa
(51%)
VCb
(20%)
Small
Business
Ownership and Control
Request for Comments
 Does the eligibility criteria meets the statutory purpose of the programs
with respect to domestic ownership of the applicant?
 Does the eligibility criteria meet the statutory purpose of the programs
with respect to ownership by other-than-small businesses?
 Should the rule address other issues besides the above with respect to
ownership?
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Small Business Administration
Domestic Business Concern
Reauthorization Act provision
 § 5107(c)(3)(A) of the SBIR/STTR
Reauthorization Act states that SBA shall consider
certain criteria when determining whether the:
• SBIR/STTR applicant is a domestic business concern
• SBIR/STTR applicant is majority owned by domestic
business concerns (or individuals that are U.S. citizens)
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Small Business Administration
Domestic Business Concern
Considerations
 SBA’s current regulations, 13 C.F.R. § 121.105 defines the term “business concern
or concern” to mean one that is
• For profit,
• Has a place of business located in the United States, and
• Which operates primarily within the United States or which makes a significant
contribution to the U.S. economy through payment of taxes or use of American
products, materials or labor.

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Department of Defense Federal Acquisition Regulations Supplement (DFARS), 48
C.F.R. § 225.003 defines the term "domestic concern" to mean a concern
•
Incorporated in the United States (including a subsidiary that is incorporated in
the United States, even if the parent corporation is a foreign concern) or
•
An unincorporated concern having its principal place of business in the United
States.
Small Business Administration
Domestic Business Concern
Proposed Rule (13 C.F.R. § 121.701)
 Domestic business concern means a business entity
(including a venture capital operating company, hedge
fund, or private equity firm) organized for profit; with a place
of business located in the United States; which operates
primarily within the United States or which makes a
significant contribution to the U.S. economy through
payment of taxes or use of American products, materials or
labor; and created or organized in the United States, or
under the law of the United States or of any State.
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Small Business Administration
Domestic Business Concern
Basis for Proposed Rule
 SBA adopted its current definition of “domestic business concern” and added
that the domestic business concern must also be created or organized in the
United States, or under the law of the United States or of any State.
 SBA did not propose the DFARS definition because we do not believe it is
sufficiently restrictive – the DFARS definition does not appear to require an
incorporated concern to have a place of business in the United States.
 SBA believes that proposed definition not only meets statutory requirements set
forth in the Act but is straightforward and easy to understand, has generally
been utilized for SBA’s programs for many years, and has ensured that
domestic small business concerns receive the benefits of SBA’s programs.
 SBA believes that small businesses can certify vis a vis their eligibility for the
program without undue additional burden and complexity.
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Small Business Administration
Domestic Business Concern
Request for Comments
 Should SBA require that more than 50% of the domestic business concern
be either directly or indirectly owned by U.S. citizens, permanent resident
aliens, or domestic corporations, partnerships or limited liability
companies?
 Should definition include additional criteria to ensure that the business is
truly a domestic concern?
 Should SBA adopt the more simplified definition of domestic concern used
in the DFARS?
 Are there other definitions, particularly in place at other federal agencies,
that SBA should consider?
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Small Business Administration
Affiliation: Overview
Employees
Company X
Lenders
400
Investors
Power to
Control
Small
Business
Small
Business
Suppliers
Licensees/
Licensors
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Affiliation
Customers
Small Business Administration
125
-----525
Affiliation
Reauthorization Act provision
 § 5107(c)(3)(D) of the SBIR/STTR
Reauthorization Act sets forth an outline for
affiliation with respect to those applicants that
are majority owned by VCOCs, hedge funds, or
private equity firms, as well as any other
business that the VCOC, hedge fund, or private
equity firm has financed
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Small Business Administration
Affiliation
Proposed Rule (13 C.F.R. § 121.702(c))
1. Affiliation based on stock ownership
2. Affiliation arising under stock options, convertible securities, and
agreements to merge
3. Affiliation based on common management
4. Affiliation based on identity of interest
5. Affiliation based on the newly organized concern rule
6. Affiliation based on joint ventures
7. Affiliation based on the ostensible subcontractor rule
8. Affiliation based on license agreements
9. Affiliation based on portfolio companies
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Small Business Administration
Affiliation
Basis for Proposed Rule
 In seeking to implement the statute and its requirements for new affiliation rules
around VCOCs, SBA sought to create simple, bright-line tests for SBIR and STTR
applicants to apply when determining eligibility with respect to size and affiliation.
 Certain affiliation principles are not necessarily applicable to SBIR or STTR
applicants as a result of the general business structure and purpose of such
business concerns.
• SBA’s proposed rule explains that where an SBIR or STTR applicant’s voting
stock is widely held, or two or more persons hold large blocks of voting stock
but no one person owns more than 50% of the stock, then the board of
directors controls the applicant.
• SBA believes that in these two instances (minority holdings are equal in size
and voting stock is widely held), the investments are diffused and for purposes
of the SBIR and STTR programs, control would rest with the board of directors
since it is that body that is truly running the business.
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Small Business Administration
Checklist 1
Illustrative
DISCLAIMER: The following is an example of a type of “checklist” that SBA is considering using
to assist small businesses in understanding its eligibility rules. This “checklist” should not be
used at this time by a small business to determine eligibility for the program.
Size:
 Applicant, along with all of its affiliates, has less than 500 employees. (See Affiliation
Checklist for help in determining whether the applicant has any affiliates.)
Eligibility:
 Applicant is not more than 50% owned by a single VCOC, hedge fund or private equity
firm.
Applicant is either:
More than 50% directly owned and controlled by one or more U.S. citizens,
permanent resident aliens, or domestic business concerns; or
More than 50% owned by multiple domestic business concerns that are VCOCs,
hedge funds, or private equity firms.
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Small Business Administration
Checklist 2
Illustrative
DISCLAIMER: The following is an example of a type of “checklist” that SBA is considering using to assist small businesses in understanding its affiliation rules. This “checklist”
does not include all of the current types of affiliation and should not be used by a small business to determine affiliation.
Affiliation: The Applicant will include the employees of the affiliates when determining whether the Applicant has less than 500
employees. If you can check all of the following, then the applicant may NOT be affiliated with another business.
 A business, entity, or individual does not own more than 50% of the applicant’s voting stock, or have the right to own more than
50% via stock options or convertible securities.
 The applicant does not have an agreement to merge with another company.
 The CEO, President, Managing Partner or Managing Member of the applicant does not control the management of one or more
other businesses.
 A single board member who controls the board of the applicant does not control the board or management of another business.
 The applicant does not have a joint venture with another entity for this application.
 The applicant’s owners and managers do not have any family members with identical or substantially identical business
interests.
 The applicant does not substantially depend on another business e.g. for a disproportionately large percentage of revenue or for
non-market-rate financing.
 The applicant will not subcontract out a material amount of the project and will not be unusually reliant on a subcontractor for the
SBIR/STTR award.
 If a license is involved, the applicant has a license agreement for a product or trademark that allows the applicant the right to
profit and bear any risk of loss associated with the license.
 The applicant’s officers, directors, principal stockholders, managing members or key employees are not former officers,
directors, principal stockholders, managing members or key employees of a different company that is in the same or related
industry as the applicant, and which furnishes the applicant with contracts, financial or technical assistance, indemnification on
bonds, or facilities.
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Small Business Administration
Affiliation
Request for Comments
 Did SBA create a bright line test for determining affiliation? What specific parts
need more clarity? Are there other suggestions on specific ways to draw “bright
lines” for material issues?
 Should SBA retain the current affiliation rule with respect to minority stock
holdings and if so, should we should set forth a specific threshold by which we
will find control and therefore affiliation (e.g., if a person owns 33% or more of
the company) in order to create a bright-line test for applicants?
 Should SBA find affiliation if two or three persons or businesses collectively
own more than 50% of the applicant, and the same two or three persons or
businesses collectively own more than 50% of any other company or entity?
 The proposed rule presumes affiliation based on an identity of interest between
business concerns that are economically dependent through contractual or
other arrangements. Because it is not clear how often these types of situations
arise for SBIR and STTR applicants, should SBA retain this rule for purposes
of the SBIR and STTR programs?
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Small Business Administration
Time of Eligibility
Reauthorization Act provisions
 § 5143 of the Reauthorization Act states that SBA is to require each
applicant for and small business concern that receives funding under
the program certify it is in compliance with the program requirements.
 § 5143 of the Reauthorization Act states that SBA shall consult with
the Council of Inspectors General on Integrity and Efficiency when
developing procedures and requirements for the certification.
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Small Business Administration
Time of Eligibility
Considerations
 SBA’s current regulations at 13 C.F.R. § 121.702 and 121.704
• For the SBIR Program, state that size and eligibility are determined
at the time of award for both Phase I and Phase II awards.
 SBA’s current regulations at 13 C.F.R. § 121.404
• For government contracting programs, size is determined at the
time the business submits its initial offer, including price.
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Small Business Administration
Time of Eligibility
Proposed Rule (13 C.F.R. § 121.704)
 The size and eligibility status of a concern for the
purpose of a funding agreement under the SBIR and
STTR programs is determined as of the date the
concern submits a written self-certification that it is
small and meets the eligibility requirements of the
program to the Federal agency as part of its initial
proposal (or other formal response) to a Phase I or
Phase II SBIR or STTR announcement or solicitation
and at the time of award.
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Small Business Administration
Time of Eligibility
Basis for Proposed Rule
 Requiring the applicant to be eligible at the time of offer is a date certain
– the small business knows when it will submit an offer and can
determine with some accuracy whether it will be small at that time.
 Would ensure that only eligible small businesses are considered for
award. Agencies would not review a proposal from a business that is
not eligible and may never become eligible.
 Did not believe it is costly or difficult for an individual to start a sole
proprietorship or company prior to submitting an offer.
 Certifications at the time of application and award may be a useful
mechanism to reduce fraud, waste and abuse in the program.
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Small Business Administration
Time of Eligibility
Request for Comments
 What impact would this change have on the program, if
any?
 Is it a burden to have a small business certify its
eligibility at the time it submits an application in
response to the SBIR or STTR solicitation or
announcement and at the time of award?
 Other?
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Small Business Administration
STTR
Considerations
 Statutory provisions relating to majority ownership of
VCOCs, affiliation, relate specifically to the SBIR program
 § 5104 permits SBIR Phase I awardee to receive STTR
Phase II award, and vice versa
 Complexity of having differing rules for the two programs
Proposed rule
 Apply same size, eligibility rules for STTR as SBIR
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Small Business Administration