Regulation

ELECTRONIC CODE OF FEDERAL REGULATIONS
e-CFR data is current as of January 25, 2018
Title 13 → Chapter I → Part 124 → Subpart A → §124.112
Title 13: Business Credit and Assistance
PART 124—8(a) BUSINESS DEVELOPMENT/SMALL DISADVANTAGED BUSINESS STATUS DETERMINATIONS
Subpart A—8(a) Business Development
§124.112 What criteria must a business meet to remain eligible to participate in the 8(a) BD program?
(a) Standards. In order for a concern (except those owned by Indian tribes, ANCs, Native Hawaiian Organizations or
CDCs) to remain eligible for 8(a) BD program participation, it must continue to meet all eligibility criteria contained in §124.101
through §124.108. For concerns owned by Indian tribes, ANCs, Native Hawaiian Organizations or CDCs to remain eligible, they
must meet the criteria set forth in this §124.112 to the extent that they are not inconsistent with §124.109, §124.110 and
§124.111, respectively. The concern must inform SBA in writing of any changes in circumstances which would adversely affect
its program eligibility, especially economic disadvantage and ownership and control. Any concern that fails to meet the eligibility
requirements after being admitted to the program will be subject to termination or early graduation under §§124.302 through
124.304, as appropriate.
(b) Submissions supporting continued eligibility. As part of an annual review, each Participant must annually submit to the
servicing district office the following:
(1) A certification that it meets the 8(a) BD program eligibility requirements as set forth in §124.101 through §124.108 and
paragraph (a) of this section;
(2) A certification that there have been no changed circumstances which could adversely affect the Participant's program
eligibility. If the Participant is unable to provide such certification, the Participant must inform SBA of any changes and provide
relevant supporting documentation.
(3) Personal financial information for each disadvantaged owner;
(4) A record from each individual claiming disadvantaged status regarding the transfer of assets for less than fair market
value to any immediate family member, or to a trust any beneficiary of which is an immediate family member, within two years of
the date of the annual review. The record must provide the name of the recipient(s) and family relationship, and the difference
between the fair market value of the asset transferred and the value received by the disadvantaged individual.
(5) A record of all payments, compensation, and distributions (including loans, advances, salaries and dividends) made by
the Participant to each of its owners, officers or directors, or to any person or entity affiliated with such individuals;
(6) If it is an approved protégé, a narrative report detailing the contracts it has had with its mentor and benefits it has
received from the mentor/protégé relationship. See §124.520(b)(4) for additional annual requirements;
(7) A listing of any fees paid to agents or representatives to assist the Participant in obtaining or seeking to obtain a
Federal contract;
(8) A report for each 8(a) contract performed during the year explaining how the performance of work requirements are
being met for the contract, including any 8(a) contracts performed as a joint venture; and
(9) Such other information as SBA may deem necessary. For other required annual submissions, see §§124.601 through
124.603.
(c) Eligibility reviews. (1) Upon receipt of specific and credible information alleging that a Participant no longer meets the
eligibility requirements for continued program eligibility, SBA will review the concern's eligibility for continued participation in the
program.
(2) Sufficient reasons for SBA to conclude that a socially disadvantaged individual is no longer economically disadvantaged
include, but are not limited to, excessive withdrawals of funds or other assets withdrawn from the concern by its owners, or
substantial personal assets, income or net worth of any disadvantaged owner. SBA may also consider access by the Participant

firm to a significant new source of capital or loans since the financial condition of the Participant is considered in evaluating the
disadvantaged individual's economic status.
(d) Excessive withdrawals. (1) The term withdrawal includes, but is not limited to, the following: Cash dividends;
distributions in excess of amounts needed to pay S Corporation, LLC or partnership taxes; cash and property withdrawals;
payments to immediate family members not employed by the Participant; bonuses to officers; and investments on behalf of an
owner. Although officers' salaries are generally not considered withdrawals for purposes of this paragraph, SBA will count those
salaries as withdrawals where SBA believes that a firm is attempting to circumvent the excessive withdrawal limitations through
the payment of officers' salaries. SBA will look at the totality of the circumstances in determining whether to include any specific
amount as a withdrawal under this paragraph.
(2) If SBA determines that funds or assets have been excessively withdrawn from the Participant for the personal benefit of
one or more owners or managers, or any person or entity affiliated with such owners or managers, and such withdrawal was
detrimental to the achievement of the targets, objectives, and goals contained in the Participant's business plan, SBA may:
(i) Initiate termination proceedings under §§124.303 and 124.304 where the withdrawals detrimentally affect the
achievement of the Participant's targets, objectives and goals set forth in its business plan, or its overall business development;
(ii) Initiate early graduation proceedings under §§124.302 and 124.303 where the withdrawals do not adversely affect the
Participant's business development; or
(iii) Require an appropriate reinvestment of funds or other assets, as well as any other actions SBA deems necessary to
counteract the detrimental effects of the withdrawals, as a condition of the Participant maintaining program eligibility.
(3) Withdrawals are excessive if in the aggregate during any fiscal year of the Participant they exceed (i) $250,000 for firms
with sales up to $1,000,000; (ii) $300,000 for firms with sales between $1,000,000 and $2,000,000; and (iii) $400,000 for firms
with sales exceeding $2,000,000.
(4) The fact that a concern's net worth has increased despite withdrawals that are deemed excessive will not preclude SBA
from determining that such withdrawals were detrimental to the attainment of the concern's business objectives or to its overall
business development.
(5) The excessive withdrawal analysis does not apply to Participants owned by Tribes, ANCs, NHOs, or CDCs where a
withdrawal is made for the benefit of the Tribe, ANC, NHO, CDC or the native or shareholder community. It does, however,
apply to withdrawals from a firm owned by a Tribe, ANC, NHO, or CDC that do not benefit the relevant entity or community.
Thus, if funds or assets are withdrawn from an entity-owned Participant for the benefit of a non-disadvantaged manager or
owner that exceed the withdrawal thresholds, SBA may find that withdrawal to be excessive. For example, a $1,000,000 payout
to a non-disadvantaged manager would be deemed an excessive withdrawal.
(e) Change in primary industry classification. (1) A Participant may request that the primary industry classification contained
in its business plan be changed by filing such a request with its servicing SBA district office. SBA will grant such a request
where the Participant can demonstrate that the majority of its total revenues during a three-year period have evolved from one
NAICS code to another.
(2) SBA may change the primary industry classification contained in a Participant's business plan where the greatest
portion of the Participant's total revenues during the Participant's last three completed fiscal years has evolved from one NAICS
code to another. As part of its annual review, SBA will consider whether the primary NAICS code contained in a Participant's
business plan continues to be appropriate.
(i) Where SBA believes that the primary industry classification contained in a Participant's business plan does not match
the Participant's actual revenues over the Participant's most recently completed three fiscal years, SBA may notify the
Participant of its intent to change the Participant's primary industry classification and afford the Participant the opportunity to
respond.
(ii) A Participant may challenge SBA's intent to change its primary industry classification by demonstrating why it believes
the primary industry classification contained in its business plan continues to be appropriate, despite an increase in revenues in
a secondary NAICS code beyond those received in its designated primary industry classification. The Participant should
identify: All non-federal work that it has performed in its primary NAICS code; any efforts it has made and any plans it has to
make to receive contracts to obtain contracts in its primary NAICS code; all contracts that it was awarded that it believes could
have been classified under its primary NAICS code, but which a contracting officer assigned another reasonable NAICS code;
and any other information that it believes has a bearing on why its primary NAICS code should not be changed despite
performing more work in another NAICS code.

(iii) As long as the Participant provides a reasonable explanation as to why the identified primary NAICS code continues to
be its primary NAICS code, SBA will not change the Participant's primary NAICS code.
(iv) Where an SBA change in the primary NAICS code of an entity-owned firm results in the entity having two Participants
with the same primary NAICS code, the second, newer Participant will not be able to receive any 8(a) contracts in the six-digit
NAICS code that is the primary NAICS code of the first, older Participant for a period of time equal to two years after the first
Participant leaves the 8(a) BD program.
(f) Graduation determination. As part of the final annual review performed by SBA prior to the expiration of a Participant's
nine-year program term, SBA will determine if the Participant has met the targets, objectives and goals set forth in its business
plan and, thus, whether the Participant will be considered to have graduated from the 8(a) BD program at the expiration of its
program term. A firm that has not met the targets, objectives and goals set forth in its business plan at the end of its nine-year
term in the 8(a) BD program will not be considered to have graduated from the 8(a) BD program, but rather to have merely
completed its program term.
[63 FR 35739, June 30, 1998, as amended at 76 FR 8257, Feb. 11, 2011; 77 FR 28237, May 14, 2012; 81 FR 48581, July 25, 2016; 81
FR 71983, Oct. 19, 2016]
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