Guide to 8(a) Certification

Transcription

1 Guide to 8(a) Certification Jeff P. H. Cazeau Becker & Poliakoff Alhambra Towers, 121 Alhambra Plaza, 10th Floor, Coral Gables, FL

2 Table of Contents Introduction... 2 Copyright and Distribution License... 2 The Different Types Of 8(a) Certification Service Providers What Is The SBA 8(a) Business Development Program?... 4 An Overview of the 8(a) Application Process What Are The Requirements For The 8(a) Certification?... 5 What Are Your Options If Your 8(a) Application Is Denied?... 8 Alternatives To The 8(a) Certification Common 8(a) Certification Questions What if my 8(a) application is denied? Checklist: Questions To Ask Your 8(a) Certification Consultant Recommended Resources What is your fee for preparing my 8(a) application? ***** Special Limited Time Opportunity ***** I would like to offer you a FREE 30 minute completely confidential consultation about your 8a certification. If you would like to take me up on this offer, please call me, Jeff P. H. Cazeau at to schedule your appointment. Page 1

3 Introduction By requesting this guide you have taken an important step on the road to becoming a government contractor and getting your fair share of the billions of dollars of government contracts solicited by Federal, State and Local Governments annually. The purpose of this Guide is to give you an overview of the Small Business Administration s 8(a) Business Development Program. The guide is based on my experience as a government contracts attorney who specializes in preparing 8(a) Applications and defending applicants when their (often self-prepared) applications are denied. Once you ve read and thought about the information contained in this guide, pick up the phone and call me at (305) to schedule a free half-hour consultation. Jeff P. H. Cazeau, Esq. Government Contracts Attorney Becker & Poliakoff Copyright and Distribution License This material is Copyrighted 2014, by Becker & Poliakoff. We reserve all rights, but we also invite you to pass along copies of this document to anyone you think would benefit from it, as long as: 1) You do not change, alter or edit it in any way, and 2) You do not charge any fee or make any commercial use of this information without permission. Page 2

4 The Different Types Of 8(a) Certification Service Providers. If you found our law firm using an internet search engine, then you know that there are many companies offering 8(a) certification application preparation services. Many of these companies are reputable and have spent a considerable amount of time assisting individuals and companies obtain admission to the SBA 8(a) program. There are other companies which are not as reputable. Unfortunately, we get calls all of the time from individuals who hire, consultants and yes, even attorneys who are unfamiliar with the 8(a) program. Often these individuals quote a fee which they either cannot honor or have no intention of honoring. We ve heard of individuals paying as much as $9, and as little as $ to have someone prepare their 8(a) application. In both cases those individuals got nothing in return for their money. In other cases, we have seen clients spend money on consultants who are familiar with some aspects of government contracting but not the 8(a) program. In many cases, these consultants mean well but because they are unfamiliar with the 8(a) program make the same mistakes that you would if you had prepared your application yourself. Our advice is obviously to find yourself a provider who is familiar with the 8(a) program and who has prepared applications in the past. Asking a company for its track record is useful but doesn t always reveal everything about how that company does business. Do you get to speak to the person with the actual knowledge of the program? Are you relegated to speaking to a salesperson? Does the company seem more interested in getting your credit card information than providing you with information? If cost is a factor, there are companies that offer software to help you prepare your application. Although we can t vouch for any other company we have not (to date) received any bad reviews regarding these programs. Another avenue is the SBA itself or other organizations such as SCORE, your local SBA office or PTAC (Procurement Technical Assistance Center). We believe that we offer the best value of all companies that provide SBA 8(a) preparation services. However, even if you don t retain Becker & Poliakoff, we urge you to retain a reputable company to assist you in preparing your 8(a) application. There are many pitfalls in preparing an 8(a) application. If you wish to save time and money it s just better not to try to attempt to prepare it yourself. Page 3

5 What Is The SBA 8(a) Business Development Program? The Small Business Administration (SBA) 8(a) Business Development Program is a federal program designed to give small businesses owned by socially and economically disadvantaged individuals an opportunity to compete for government contracts. The SBA provides the following description of the 8(a) program: The SBA's 8(a) BD Program, named for a section of the Small Business Act, is a business development program created to help small disadvantaged businesses compete in the American economy and access the federal procurement market. Both descriptions of the 8(a) BD program are a good start but they don t even begin to describe all of the advantages that becoming a certified 8(a) business provides. When discussing the 8(a) program I often describe it as the Cadillac of all small business certifications. To understand what that means, it is important to note that the 8(a) program is only one of a myriad federal, state, local and private programs meant to give small, minority and women owned businesses a means to gain access to federal and corporate markets. Typically, these other programs are only open to a designated group, such as women, veterans, ethnic minorities, small businesses etc. Once a company becomes certified through these other programs they become part of a pool of certified companies. The companies in the pool, by becoming certified, are eligible to compete for contracts against other companies in the pool. Similar to other programs, the SBA 8(a) BD program allows certified companies to bid against other certified companies for contracts set-aside for 8(a) firms. However, unlike other programs, the SBA 8(a) BD program allows certified companies to receive sole-source contracts. In other words, an 8(a) certified company can be awarded contracts up to $4,000, for goods and services and $6,500,000 for manufacturing without bidding. Second, 8(a) certified firms can subcontract a significant amount of work to other firms. Third, 8(a) certified firms can be beneficial to larger companies because federal government contracts often contain payment bonuses to primary contractors who use certified firms. Finally, the SBA encourages partnerships between 8(a) firms and other companies through joint ventures and mentor-protégé programs. An Overview of the 8(a) Application Process. Unlike other small business programs, the 8(a) program has a rigorous application process. Applicants are required to fill out numerous forms online. Once the online application is completed, applicants must submit a hard copy version of the application along with supporting documentation. Supporting documentation includes items such as business Page 4

6 records, minutes of meetings, personal and business tax returns, leases, information regarding personal finances, retirement accounts, resumes, and a myriad of other documents. Once the application is submitted, the SBA can do one of three things: grant the certification, deny the certification or request additional information. If the application is granted, then the applicant is admitted into the program. If the application is denied, the applicant can do one of two things: request reconsideration or appeal the denial. If more documentation is requested, the letter the applicant receives from the SBA will typically explain if there are any deadlines for providing the requested documents. In our experience, collecting the necessary documents can take some clients weeks and sometimes months. Once the SBA has received the application, the agency has up to 90 days to make a decision. Each request for documentation restarts the clock. It s not unheard of for the 8(a) BD application to take a year or more to complete solely based on the cycle of requests for additional information and incomplete responses. Hiring a knowledgeable consultant who understands the program and requirements can save you time and money. A consultant, by virtue of the number of applications he or she sees, will be exposed to issues that a person preparing an application for the first time will never see. The fewer time you have to respond to requests for information, the quicker your application will be approved and the sooner you will have the opportunity to obtain government contracts. What Are The Requirements For The 8(a) Certification? Some of the requirements for the 8(a) program are pretty straightforward. However, some requirements are not stated anywhere by the SBA. These requirements arise from decisions made by the Office of Hearing and Appeals and federal courts. Here are sixteen core eligibility requirements for 8(a) applicants: 1. Social disadvantage: In order to meet the social disadvantage requirement you must be a member of one of the following groups: Hispanic American, Asian American, Black American, or Native American If you are not a member of one of the groups listed above, you may still qualify for the 8(a) program if you show that you are a person who has experienced persistent Page 5

7 and chronic discrimination against you on the basis of disability, gender 1, veteran status, race, culture, or some other factor. If you are from one of these nonpresumed groups, then you will have to provide the SBA proof of the discrimination you have faced in American society, education, career, and business. 2. Personal net worth must be under $250K: This personal net worth figure takes into account all of your cash, checking and savings accounts, real estate (except your personal residence), IRAs, 401Ks, stocks, bonds, automobiles, motorcycles, RVs, and other assets. The value of your company is declared on the personal financial statement (SBA Form 413); however, it is not counted towards the personal net worth cap. 3. Annual Salary: The 8(a) applicant must be the highest paid person in the company. His or her annual salary must be reasonable for the industry and reasonable in proportion to the company s annual gross revenue. (In other words, if your company earned only $100K in revenue in 2010 and you took $95K of that money for your salary, you are making what the SBA calls excessive withdrawals from your company, a potential 8(a) application negative. 4. Total Current Market Value of All Assets: The current market value / face value of all of the 8(a) applicant s assets ignoring the liabilities completely must be under $4 million. 5. Personal Income: Personal Income cannot exceed $250,000, averaged over three years. 6. Citizenship: The applicant must prove his or her American citizenship with a birth certificate, passport, or other documentation. 7. Business size: The company must be a small business according to current SBA size standards, which are expressed in terms of either gross revenue (dollars) or staff levels (number of employees). Size standards are set by the SBA according to North American Industrial Classification System (NAICS) codes. Determine your company s primary NAICS code based upon the most recent 12 months of business activity and then look up the corresponding size cap here: 8. Control: A socially and economically disadvantaged person must have full, independent control of the company including both strategic decision-making and 1 Be advised that there are important new rules regarding the type of documentation required to prove social disadvantage by a preponderance of the evidence. In many cases women will be unable to prove social disadvantage on the basis of gender alone. Page 6

8 Page 7 day-to-day operations. This person must hold the highest, most powerful title in the company. 9. Ownership: 51% or more of the company must be owned by one or more socially and economically disadvantaged individuals. Also, quoting the SBA directly, A business can also qualify for the 8(a) BD program if the firm is owned by an Indian tribe, an Alaska Native Corporation (ANC), a Native-Hawaiian Organization (NHO), or a Community Development Corporation (CDC). 10. Contract Performance: The applicant company must have a substantial contract performance history including one contract completed within the most recent 12 months and a balanced portfolio of clients/projects. Over-reliance on any one client (meaning 70 percent or more of gross revenue stemming from just one client) is viewed by the SBA as a significant problem. The only exception to this so-called 70% rule is if the client is the federal government. 11. Age of the Company: The SBA requires that the applicant business have two consecutive federal tax returns on file. If the business does not have the two years worth of tax returns, there is a process to obtain a two year waiver. However, the chances of obtaining the two year are slim. 12. Full time devotion to the applicant firm: Owning of multiple companies or being employed at a full-time job or full-time status as a student will hurt your chances of obtaining certification. The 8(a) applicant must dedicate himself or herself full time to managing the 8(a) firm (during normal operating hours for the industry). 13. Good moral character: Applicants with felony convictions and applicants on parole are not allowed to receive the federal benefit of 8(a) certification. Divulge all past arrests and detainments by police to the SBA, which will in turn validate the information with the FBI. Good moral character is an essential 8(a) program eligibility requirement. 14. No unpaid federal obligations: The applicant firm and all of its owners, officers, directors, managers, bank signatories, and key employees must pay all federal obligations including taxes, student loans, etc. before receiving 8(a) certification. 15. Company financial stability: To the SBA, disadvantaged does not mean destitute. Your company needs to have approximately 3 months worth working capital in its accounts or else it needs to have ample credit and loan resources to help it survive. If your company is struggling to keep open, then most likely you are not a good candidate for the 8(a) program until your company stabilizes. The federal government will only admit a company into the 8(a) program if it believes the

9 company has enough stability, viability, and potential for success to last all 9 years in the program. The SBA also expects your company to have enough resources and finances to perform large federal contracts and expand in response to increasing federal contracting workloads. 16. Affiliations: If any owner, officer, director or key employee was recently employed by another firm, the SBA will deem the other firm to be an affiliate of the applicant firm. An applicant will not be admitted into the 8(a) program if the affiliate firm is owned by a close family member or if the was formerly a participant in the 8(a) program. 2 Even if none of these issues exist, a finding of affiliation can still hurt the applicant s chances since the SBA will treat the affiliated firm and the applicant as one. Therefore, if the combined firm fails to meet any of the other requirements such as size, number of employees, etc. the application will be rejected. What Are Your Options If Your 8(a) Application Is Denied? Generally, the SBA will not immediately deny your application. More often than not, the SBA will request that an applicant provide additional information. However, once the application is complete and the SBA feels that it has enough information, the SBA will either 1) admit you into the program or 2) deny your application. If your application is denied you have two options. First, you may request that the SBA reconsider your application by filing a written request for reconsideration within 45 days after receiving notice that the application was declined. When you request reconsideration the applicant has the burden of overcoming each reason cited in SBA's decision to decline the application. During the reconsideration process, the applicant must provide any additional information and documentation necessary to overcome the reason(s) for the initial decline. If an application is declined after reconsideration, SBA will not accept a new application until twelve (12) months after the date of the final Agency decision on reconsideration. In addition, if an applicant is declined solely on issues of social disadvantage, economic disadvantage, ownership, control, or any combination of these four criteria, the declined applicant may appeal the decline decision to SBA's Office of Hearings and Appeals (OHA). This can happen either after receiving the initial decision to decline the application or after receiving a negative decision on reconsideration. OHA examines the decline decision to determine whether it was arbitrary, capricious, or contrary to law. No new or revised information is considered during the appeal process. 2 It is no longer the case that you will be automatically denied certification if a close family member owns or formerly owned a firm that was admitted into the 8(a) program. If you are in this situation it is important that you contact someone who understands what the rules actually state. Page 8

10 Alternatives To The 8(a) Certification. Despite what some people will tell you, the 8(a) program is not for everyone. Many companies will attempt to sell their services to individuals and companies who are marginally qualified and sometime unqualified for the 8(a) program. Other times the individual or company is not involved in an industry that could benefit from the 8(a) certification. Fortunately, there are many other certifications besides the 8(a) certification. Which certification you ultimately decide to obtain depends on the industry you are in and the type of work you would like to obtain. For example, if you are woman who owns and controls 51% her business, you may consider becoming certified as a Woman Owned Small Business (WOSB) or Economically Disadvantaged Woman Owned Small Business (EDWOSB). The federal government has mandated that 5% of all government contracts must go to womenowned small businesses. Similarly, if you are a service disabled veteran or your business is located in an area designated as a Historically Underutilized Business Zone (HUBZone) you may want to take advantage of the SBA s Service Disabled Veteran Owned Business (SDVOB) or HUBZone programs. Another federally administered certification program is the Disadvantaged Business Enterprise (DBE) program. The DBE certification is available to for-profit business concerns where socially and economically disadvantaged individuals own at least a 51% interest in the company and also control management and daily business operations. The Airport Concessions Disadvantaged Business Enterprise (ACDBE) is a similar certification available to companies that do business in airports. This certification is particularly beneficial to individuals with experience in the restaurant and retail industries. There are other state, local and private entities that will certify your company as a Small Business Enterprise (SBE), a Minority Business Enterprise (MBE), a veteran owned business, woman-owned business etc. Each of the entities that administer those programs has their own process and rules for awarding certification. The best certification for you company really depends on the industry in which your firm competes and the entity that you expect to purchase your product. For example, if you are a general contractor and you have no intention on bidding on government contracts there really is no point in getting your company certified as an 8(a) or DBE since those certifications are meant to assist you in obtaining government contracts. Similarly, getting your company certified by a private entity as a Minority Business Enterprise (MBE) makes little sense if your goal is to obtain a government contract since most government entities do not accept private entity certifications. Page 9

11 The best way to get advice regarding which certification is best for your company is to talk to the various certification entities or to consult with a professional who understands the various programs. Common 8(a) Certification Questions. Q: Do I need to be 8(a) certified in order to do business with the federal government? No. SBA 8(a) certification (or any other certification for that matter) is not a requirement to do business with the federal government. The 8(a) program is a resource for small businesses that seek business development assistance. The program helps to level the playing field by allowing small business to compete for government contracts against similarly situated small businesses. In some cases, certified firms can be awarded contracts without competing. Other benefits of the program include mentoring, procurement assistance, training and other assistance. However, if you don t qualify for the SBA 8(a) certification or other certification you are not precluded from bidding on government contracts. Q: Does getting certified guarantee that I receive a government contract? No. Getting your company certified is only one step towards being awarded a government contract. Once you obtain certification you have to market you company and products to the agencies that buy your service or product. In many cases, we counsel our clients not to get certified because they are not in the position to benefit from the 8(a) Business Development program either because they are too small, too inexperienced or simply do not have the financial strength to undertake an effective marketing program. Q: How long does it take to get certified? It depends. Once the regional Division of Program Certification and Eligibility (DPCE) determines that your application is complete, a final decision regarding 8(a) eligibility is required to be made within 90 days. However, this doesn t take into account the amount of time it will take you to perform all of the steps towards completing your certification application such as determining your NAICS code, obtaining your DUNS number, registering on the CCR, gathering your documents, completing the application, signing and notarizing them where necessary, etc., etc. etc. We have literally met individuals who have procrastinated for years because they simply didn t know where to start. We ve also seen individuals spend months dealing with turning in incomplete applications and dealing with the questions that result. Q: How much does it cost to get certified? If you prepare your application yourself, it shouldn t cost you anything other than your time and effort. However, if you hire a consultant to prepare your application it can cost you several thousand dollars. At Becker & Poliakoff, although we are a law firm, our prices are Page 10

12 competitive with many of the consultants you will find. It is our policy not to take on any client seeking certification unless we independently determine that the application will be successfully or we believe we can successfully appeal a potential denial. Unfortunately, the SBA has ultimately has the final say in deciding whether you meet the requirements of the program. Q: I ve been in business less than two years, can I still obtain 8(a) certification? The rules governing the program require you to be in business for more than two years. You can obtain a waiver if you meet certain criteria. (See our article regarding the 2 year waiver). However, we often counsel our clients not to get a two year waiver. First, they often don t qualify. Second, many times if the business is less than two-years old the company is not in the position to take full advantage of the 8(a) program. Many times we help our clients determine if other alternatives exist that allow them to participate in government contract opportunities without getting the 8(a) certification. This may mean getting the company certified through another program or helping the client team or subcontract with other companies. Q: Will getting 8(a) certified help me get business at the state and local level or from private corporations? It may if the state or local government or private corporation accepts the 8(a) certification as a tool to meet its small business contracting goals. However, in our experience, 8(a) certification is really only accepted at the federal level by those agencies that use the certification to help them meet their small business contracting goal. If your goal is to obtain business at the state or local level or from private corporations there may be other certifications more suitable to helping you reach your goal. At Becker & Poliakoff we pride ourselves on our knowledge of small business certifications and helping our clients choose and apply for the certification that most closely aligns with their goals. Q: Does getting more than one certification (i.e. Service Disabled Veteran Owned Business, Women Owned Small Business, etc.) make me more eligible to get government contracts? In our experience, no. Agencies will not award a contract to your company solely because it is 8(a) certified, women-owned or whatever. Agencies hire firms that provide goods and/or services that they need. If you are 8(a) certified, women or veteran-owned then you also provide the additionally benefit of helping that agency meet its small business contracting goals, but they won t award a contract to your firm for that reason alone. Page 11

13 Q: I m not a minority (veteran or woman) but my wife (or husband) is. Can I make her (or him) the majority owner of the company and get certified? This is a tricky question. First, the 8(a) certification program like most small business certification programs requires that the company be owned and controlled by the person who qualifies the business as an 8(a) firm. Simply handing over 51% ownership to your spouse or anyone else does not give them control of the company as shown in the company s financial and business records. From time to time, we have assisted individuals who have legitimately transferred their business to their spouse or another individual. We have helped the new owners establish control of the company and meet the requirements to obtain certification. Each case is different. If you are in this situation we strongly urge to contact us. Q: Can my 8(a) certification expire? Yes. The SBA 8(a) Business Development program only lasts 9 years. After 9 years the firm graduates from the program and is no longer able to participate as an 8(a) firm. However, your firm can also face early termination or early graduation from the 8(a) program. You will know that a determination to terminate or early graduate your firm has been made by the SBA s Director, Office of Business Development when you receive a Notification of Early Graduation or Termination. Once you receive the Notice you have 45 days to appeal the termination or graduation. If you do not appeal, the termination or graduation becomes the SBA s final decision, effective on the forty-fifth day. We urge any business facing early termination or early graduation to contact us at Becker & Poliakoff to assist you with your appeal. Q: Do I really need to hire a consultant to prepare my 8(a) application? No. But you really should. We work with a number of small, minority business certification programs. For some programs we advise that it s not necessary to retain a consultant or attorney because taking the time to read the instructions is enough. However, the 8(a) program is different. If you only follow the directions and instructions that the SBA provides, your application will be incomplete. We have received calls from individuals who in their second year of applying for the 8(a) program! This is because not only are the instructions provided incomplete, so are the checklists that SBA provides. If you prepare your application without the benefit of someone who knows and understands the program, you won t know what information you are missing until after you ve turned in your application. You will receive a letter from the SBA denying your application and detailing what additional information they require. Even if you provide everything requested in the letter it does not prevent SBA from requesting more information. The cycle of receiving letters from SBA and responding to those letters can add months and sometimes years to your application process. Page 12

14 Q: Why should I hire Becker & Poliakoff to prepare my 8(a) Business Development Program Application? We urge anyone who calls or s us to shop around. We believe that after you ve done your research, you will choose us to prepare your 8(a) application. There are 12 good reasons why you should hire us. 1. We are a law firm that primarily focuses on assisting small, minority and women-owned businesses navigate the, sometimes, complex world of government contracts and small business certifications. We understand the 8(a) program not only from the perspective of one who prepares applications but also as a firm that individuals turn to when things go wrong. Because we know what can go wrong we can help you avoid those pitfalls in the application process. 2. Avoid fraud. The 8(a) certification preparation industry is unregulated. There are many reputable companies in the industry. But there are also unscrupulous individuals who are more than willing to take advantage of you. We hear from individuals all of the time who have paid thousands to have their application prepared and who received little or nothing in return. As members of the Florida and D.C. Bar Associations we are regulated and insured. We will not and cannot promise to provide a service that we can t deliver. 3. Avoid fraud, part II. The preparation of your 8(a) application requires you to provide confidential information about you and your business. Who has access to that information? How is stored? What safeguards are in place to safeguard your information? What recourse do you have if your information is lost or stolen? We are first and foremost a law firm. We routinely handle our clients most confidential matters every day. We have all of the insurance and other measure utilized by a typical law firm to ensure the safety of your confidential information. Moreover, at Becker & Poliakoff, your application is prepared by an attorney. From the moment you speak to us the attorney-client privilege applies. We cannot divulge any information about your or your company to anyone without your approval. When your application is complete and you have been accepted into the program, all of your information including passwords and copies of documents are either returned to you or destroyed. 4. We cannot guarantee results. However, if we determine that you are eligible and we prepare your application we will continue to represent you until you are certified, at no additional cost. Our fee covers your application process from start to finish no matter how long it takes. Our complete policy is covered in our engagement letter. 5. If we determine during your application process that additional documents are required, we can prepare or amend them at no additional cost. We don t supply generic forms that you fill out. We can prepare or amend your Bylaws, Operating Agreements, etc. not only to meet your business needs but to meet SBA requirements. A non-lawyer should never prepare these Page 13

15 important legal documents for you since they have legal implications beyond the 8(a) program. 6. Once you ve obtained your certification, we can continue to help you. We are often retained by clients to assist them in preparation of bid documents, joint venture agreements, teaming agreements, mentor-protégé agreements, business development and other services. Once we know and understand your business we will provide you with leads to government contracts, help you team with other clients and generally help you grow your business. Our goal is always to assist you in developing a successful and profitable business with the hope of continuing to provide you with legal services as your business grows. 7. Even if you don t qualify or are not prepared to apply for the 8(a) program, we are familiar with other federal, state, local and private programs for small, minority and women owned business that can help you grow your business. 8. Unfortunately, things can wrong. We can represent you when they do. After you obtain certification you may become involved in a bid protest, debarment procedures, or size challenge. You become aware of fraud by a competitor. In all of those instances, we can help. 9. We can help you no matter what state you live in. Where we can t assist you because of local bar rules, we have contacts with other lawyers who can assist us in representing you. 10. We are accessible. When you call or us you will speak to an attorney or an attorney will return your call or within 24 hours or less. 11. Our prices are competitive. We recognize that there are less expensive options for the preparation of your 8(a) application. In fact, we often urge potential clients to shop around. Other firms often post their rates on the internet which can give you an idea of what it will cost you to prepare your application. We believe that our fees reflect the amount work we perform on your behalf and which fairly compensates us for the value we deliver. 12. We only take a limited number of cases per month. We receive dozens of calls and s per week from individuals who seek admission into the 8(a) program. Although we charge flat fees that are competitive, the reality is as a law firm we can t represent everyone. Many individuals who contact us do not retain us because they are looking for the cheapest option. Oftentimes, since the cost of an appeal is included in our fees, we will not take on cases that we do not believe will result in an approved application. Finally, since our attorneys, in addition to preparing 8(a) applications, are performing other (more lucrative) legal services it is not in our best interest to take on every case. What this means to those clients we do choose to represent is that you will have a dedicated attorney (not a business advisor or consultant) who understands business law, government procurement processes and Page 14

16 the 8(a) business development program, assisting you in your application process from start to finish. What if my 8(a) application is denied? Your 8(a) application can be denied for countless reasons - - even if you hire a consultant. The letter you receive from the SBA will tell you the reason you were denied, what actions to take or what additional documents you must provide if you disagree with the denial. It is very important at this point to get help. If you prepared the application yourself, it is time to consider retaining someone to assist you. If you retained a consultant to prepare your package they should be able to help you decide what to do next. If they are unable or unwilling to assist you, call or us. We are often retained at this stage of the process by individuals who self-prepared their application as well as those who hired consultants. What you do after you receive your denial letter can be the difference between getting admitted into the program or having to wait a year to reapply. As attorneys, we are familiar not only with the rules and regulations but also the case law that governs the 8(a) program. If you ultimately end up appealing the SBA s decision to deny your application, the administrative judge will limit his or her decision to only the documents in the record (the documents you ve provided to the SBA). At the appellate stage, it is almost impossible to introduce new evidence. Therefore, it is very, very important that you retain someone (like us) who understands the evidence required to meet the standards to help you prepare your response to your denial letter. When we prepare your response we not only think about what the SBA is asking but also what we need to provide so that you are in a position later on to win your appeal. Checklist: Questions To Ask Your 8(a) Certification Consultant 1. How am I protected if my provider doesn t deliver? The 8(a) certification preparation industry is unregulated. There are many reputable companies in the industry. But there are also unscrupulous individuals who are more than willing to take advantage of you. We hear from individuals all of the time who have paid thousands to have their application prepared and who received little or nothing in return. As members of the Florida and D.C. Bar Associations we are regulated and insured. We will not and cannot promise to provide a service that we can t deliver. 2. How will my confidential business and personal information be protected? The preparation of your 8(a) application requires you to provide confidential information about you and your business. Who has access to that information? How it is stored? What safeguards are in place to safeguard your information? What recourse do you have if your Page 15

17 information is lost or stolen? You need to have these questions answered before you hand over your confidential information to any consultant. We are first and foremost a law firm. We routinely handle our clients most confidential matters every day. We have all of the insurance and other measure utilized by a typical law firm to ensure the safety of your confidential information. Moreover, at Becker & Poliakoff, your application is prepared by an attorney. From the moment you speak to us the attorneyclient privilege applies. We cannot divulge any information about your or your company to anyone without your approval. When your application is complete and you have been accepted into the program, all of your information including passwords and copies of documents are either returned to you or destroyed. 3. What happens if my application is denied and I need to file an appeal? While we cannot guarantee results, we do guarantee that if we prepare your application we will handle your denial and/or appeal for free. Our fee covers your application process from start to finish no matter how long it takes. Our complete policy is covered in our engagement letter. With most 8a certification providers you will need to pay an additional fee if your application is denied. The additional fee can range from several hundred to several thousand dollars. 4. Who will prepare the legal documents related to my 8(a) application? If we determine during your application process that additional documents are required, we can prepare them. We do not supply you with generic forms for you fill out. We prepare or amend your Bylaws, Operating Agreements, etc. not only to meet your business needs but to meet SBA requirements. A non-lawyer should never prepare these important legal documents for you since they have legal implications beyond the 8(a) program. Certain documents within your 8(a) application should be completed by a lawyer. Beware of non lawyers who fill out your company s legal documents. 5. What happens after I receive my 8(a) certification? Once you ve obtained your 8(a) certification, we can continue to help you unlike many consultants who only help you fill out your 8(a) certification application. We are often retained by clients to assist them in preparation of bid documents, joint venture agreements, teaming agreements, mentor-protégé agreements, business development and other services. Once we know and understand your business we will provide you with leads to government contracts, help you team with other clients and generally help you grow your business. Our goal is always to assist you in developing a successful and profitable business with the hope of continuing to provide you with legal services as your business grows. Page 16

18 6. What happens if you don t qualify for the 8(a) certification program? Even if you don t qualify or are not prepared to apply for the 8(a) program, we are familiar with other federal, state, local and private programs for small, minority and women owned business that can help you grow your business. 7. What happens if you have problems after receiving your 8(a) certification? Unfortunately, things can go wrong. We can represent you when they do. After you obtain your 8(a) certification you may become involved in a bid protest, debarment procedures, or size challenge. You may become aware of fraud by a competitor. In all of those instances, we can help. Recommended Resources 8(a) Minority and Women-Owned Business Directory sba8a.com This directory lists federally certified minority and women-owned businesses searchable by company name, industry or state. The site is compiled by Business Research Services from government agencies and other sources. Business Matchmaking businessmatchmaking.com Business Matchmaking assists small businesses in accessing public and private sector procurement opportunities by providing direct access to key buyers through face-to-face and online meetings as well as through education, training and counseling. System for Award Management (SAM) sam.gov The System for Award Management (SAM) replaces the Central Contractor Registration System (CCR) as the primary registrant database for companies doing business with the U.S. Government. Data inputted into SAM is collected, validated and disseminated in support of acquisition missions. Dun & Bradstreet Page 17

19 A DUNS number is required for any business the wish to do business with the federal government. D-U-N-S Number assignment is FREE for all businesses required to register with the US Federal government for contracts or grants. FedBizOpps fbo.gov The online entry point for government procurement opportunities over $25,000, this site allows commercial vendors to search for and monitor business opportunities publicized by government buyers. Federal Agency Procurement acquisition.gov/comp/procurement_forecasts/index.html This site includes a searchable database of anticipated procurement opportunities with government agencies. North American Industry Classification System (NAICS) census.gov/eos/www/naics NAICS is the standard used by federal statistical agencies in classifying business establishments for the purpose of collecting, analyzing and publishing statistical data related to the U.S. business economy. Office of Small Business Utilization (OSBU) gsa.gov/sbu OSBU hosts networking sessions and other outreach activities that bring together small business owners and key contracting experts. The office also conducts one-on-one counseling sessions to help firms understand and participate in the government procurement process. Small Business Administration (SBA) sba.gov Page 18

20 The SBA and its resource partners, including Small Business Development Centers, SCORE, Women s Business Centers and Veterans Business Outreach Centers, can provide technical, financial and contracting assistance to small businesses. SBA Size Standards sba.gov/sites/default/files/size_standards_table.pdf This table lists small business size standards matched to industries described in the North American Industry Classification System (NAICS), as modified by the Office of Management and Budget in What is your fee for preparing my 8(a) application? This is usually the first question that we are asked when potential clients reach out to us. (Sometimes it s the only question!) We don t publish or rates online for a variety of reasons. The most obvious reason is that each client is different and each situation is different. A client who needs a two-year waiver, for example, is going to be billed more than a client who does not. We are available to consult with any potential client via or telephone to discuss their particular situation. Consultations are usually 10 to 15 minutes. If we are asked to give advice about a client s particular situation or we run over the allotted time we ask for a small fee which is deducted from any fees when you retain us. To get an idea of what the preparation of an 8(a) application can cost you, search the internet. There are many companies who advertise their rates on the web. Just be careful. Often the fee quoted on the internet is not what you actually pay. Page 19

21 ***** Special Limited Time Opportunity ***** I would like to offer you a FREE 30 minute completely confidential consultation about your 8a certification. If you would like to take me up on this offer, please call me, Jeff P. H. Cazeau at to schedule your appointment. Page 20