UPDATE: On May 5th, SBA added FAQ #43 extending the safe harbor to May 14, 2020 and stating “SBA intends to provide additional guidance on how it will review the certification prior to May 14, 2020.”
SBA Looking for Some Loans to be Returned
While the Small Business Administration (SBA) and Department of the Treasury have not changed their position, the political winds are howling. Senator Jeanne Shaheen of New Hampshire member of the Small Business Committee stated on CNBC in relation to the Paycheck Protection Program (PPP) that they need to keep businesses that did not need the money as much as others from getting the money. These howling winds have resulted in loan proceeds blowing back to the treasury from companies like Shake Shack ($10M Fox Business reported) and the NBA’s LA Lakers ($4.6M ESPN reported). Both businesses qualified for PPP and certainly have idled/laid off employees that could use paychecks; however, the political view is that they should have sought other sources of funding – if it were needed. “Treasury Secretary Steven Mnuchin told CNBC the government will perform a full audit on any company taking out more than $2 million from the small business loan program” before forgiveness. The CARES Act itself created 3 oversight organizations and funded them: Office of the Special Inspector General for Pandemic Recovery – $25M, Pandemic Response Accountability Committee – $80M, and Congressional Oversight Commission – a blank check, “such sums as may be necessary for any fiscal year.” While the current focus is on “public company with substantial market value and access to capital markets,” we believe contractors with significant continuing contract effort (revenue coming in) are likely to be the next focus area. The SBA Frequently Asked Question 31 below provides that the “borrowers must assess their economic need” and “certify in good faith that their PPP loan request is necessary.” This is a very high bar, for contractors that have not had to idle or lay-off employees, to get over.
On April 23, 2020, the SBA, in consultation with the Department of the Treasury, provided updated guidance to address borrower and lender questions concerning the implementation of the PPP. SBA added Question 31. While the question is targeted at bigger businesses, the “taking into account their current business activity” is likely to get some contractors that have not had to idle workers or who have not had to lay off workers, into trouble. SBA is looking for PPP Loan repayment by May 7, 2020.
- Question: Do businesses owned by large companies with adequate sources of liquidity to support the business’s ongoing operations qualify for a PPP loan?
Answer: In addition to reviewing applicable affiliation rules to determine eligibility, all borrowers must assess their economic need for a PPP loan under the standard established by the CARES Act and the PPP regulations at the time of the loan application. Although the CARES Act suspends the ordinary requirement that borrowers must be unable to obtain credit elsewhere (as defined in section 3(h) of the Small Business Act), borrowers still must certify in good faith that their PPP loan request is necessary. Specifically, before submitting a PPP application, all borrowers should review carefully the required certification that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” Borrowers must make this certification in good faith, taking into account their current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business. For example, it is unlikely that a public company with substantial market value and access to capital markets will be able to make the required certification in good faith, and such a company should be prepared to demonstrate to SBA, upon request, the basis for its certification.
Lenders may rely on a borrower’s certification regarding the necessity of the loan request. Any borrower that applied for a PPP loan prior to the issuance of this guidance and repays the loan in full by May 7, 2020 will be deemed by SBA to have made the required certification in good faith.
DPC Expectation of Reduced Contract Cost from PPP
On April 24, 2020 the Defense Pricing and Contracting (DPC) updated its April 17, 2020 update to the Frequently Asked Questions related to Implementation Guidance for Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. What we thought was going to be a huge rock in the road to navigating the accounting for proceeds from loans under the Payroll Protection Program (PPP) has been broken down substantially. The Defense Pricing and Contracting (DPC) second update included the following question and answer:
Q: Please confirm that neither the FAR Credits provision, FAR 31.201-5, the credit provision in the Allowable Cost and Payment Clause, FAR 52.216- 7(h)(2), nor any other FAR or DFARS provision imposes an obligation on a contractor to credit any amount of a Payroll Protection Program (PPP) loan that is forgiven to any flexibly priced government contract or subcontract. We consider a contractor that has received a PPP loan will use the loan proceeds as it would any other funds in its corporate treasury to pay costs of doing business.
A: We disagree that any PPP loan that has been forgiven can be treated as though it belongs to the company to use as it pleases. FAR 31.201-1, Composition of Total Cost, states that total cost is the sum of the direct and indirect costs allocable to the contract less any allocable credits. Accordingly, to the extent that PPP credits are allocable to costs allowed under a contract, the Government should receive a credit or a reduction in billing for any PPP loans or loan payments that are forgiven. Furthermore, any reimbursements, tax credits, etc. from whatever source that contractors receive for any COVID-19 Paid Leave costs should be treated in a similar manner and disclosed to the government. (Updated: April 24, 2020)
Fortunately, DPC has dropped the previous “regardless of whether the PPP loan is forgiven” statement. We believe this comes into line with the way we would except the PPP loan proceeds to be treated. While in the normal course of Government contract accounting, a loan (the raising of capital) would have no direct impact on the expenses used to develop contract cost. However, in these unusual times, the PPP Loan is not the normal case. The forgivable portion of the PPP loan is based on the contractor using the proceeds to pay for mostly allowable costs that would normally be assigned to contracts; so in this instance, it appears reasonable for the Government to expect an adjustment (reduction) to those same costs.
What to Do
We still believe contractors that have received PPP loans need to be aware of the SBA and DoD positions. Contractors need to carefully consider the planned utilization of PPP loan proceeds and consider whether returning the loan by the May 7, 2020 deadline is appropriate in their specific circumstances. If the contractor has employees that cannot work due to the COVID emergency and the PPP loan proceeds are used to continue to pay these idled employees, it is likely that at least a portion of the loan will be forgiven based on the current interim SBA rule. Remember, the DoD – and likely all of the Federal Government – will expect the contractor to reduce contract costs for the forgiven amount of the PPP loan. It is also likely that additional guidance will be provided in this regard, but as it stands, the expectations provided by SBA is deeply concerning and likely not in line with what most contractors believed when CARES Act was signed into law.
As we discussed at the beginning of this BLOG, the political winds are strong and contractors with other options should consider what is the right path for them, even if they have idled or laid-off employees.
Redstone GCI assists contractors throughout the U.S. and internationally with understanding the Government’s expectations and requirements related to compliance with Government contracting terms and conditions.