Historically Under-utilized Business Zones Mini-Primer - Bespoke Business Development

HUBZone Mini-Primer 1/3

The HUBZone program is designed to help small businesses — in certain urban, rural, BRAC, Indian reservation, and difficult development areas outside the U.S. mainland – to gain access to federal procurement opportunities. HUBZone areas or HUBZone designations are typically areas of low median household incomes or high unemployment, or both.

This mini-primer is about helping firms to better understand what HUBZone designations are, how they are determined, where they are located and how to find them.

–2 Introduction

This mini-primer is about helping firms to better understand what HUBZone designations are, how they are determined, where they are located and how to find them.

–3 Program Purpose

But first, and importantly, the HUBZone program has one purpose: to help small businesses in both urban and rural communities.

It provides federal contracting assistance to qualified small firms located in historically underutilized business zones — or HUBZones — to increase employment opportunities, stimulate capital investment in those areas, and empower communities through economic leveraging.

–4 What is a HUBZone Designation?

So, what is a HUBZone designation? It is a geographical location identified and designated by the SBA as an area that is and has been historically underutilized by businesses.

–5 Determining HUBZone Designations – SBA’s Role

SBA uses information and data from multiple federal sources to determine HUBZone designated status. Such federal agencies include the U.S. Bureau of Labor Statistics, Department of Defense, Department of Housing and Urban Development, Bureau of Indian Affairs and the U.S. Census Bureau.

The way SBA uses this data to determine HUBZone areas is established by law. The agency does not have the authority to decide, without supporting data that a particular area should or should not be a designated HUBZone. This is an important distinction.

–6 How Do You Find HUBZone Designated Areas?

How do you find a HUBZone designated area or determine if a location is in a HUBZone?

SBA has created an electronic tool – HUBZone Maps – where you can insert the address and zip code of a specific location (or its coordinates) to determine if that location is in a HUBZone.

At you convenience, return to this –or the resource section at the end of the course and use the hyperlink to access the HUBZone Maps, page. This page will help you determine if your business location and employees are located within a HUBZone area.

You can access the interactive maps from this page, but be sure to check the notice on the landing page for areas that have not been incorporated into the map yet.

–7 Types of HUBZone Designations

There are four types of HUBZone designations. They are: qualified census tract; qualified nonmetropolitan county; qualified Indian reservation; and, qualified base closure area. Each of these designation types is explained in the following.

–8 Qualified Census Tract (QCT)

A census tract is a statistical subdivision of counties that may include a few neighborhoods in a city or, in rural areas, may include several towns. Tracts generally have populations that range in size between 1,200 and 8,000 people.

The Department of Housing and Urban Development is responsible for designating Qualified Census Tracts or QCTs for purposes of the statutorily established Low-Income Housing Tax Credit program. To qualify under this program, a census tract must either: demonstrate a poverty rate of at least 25 percent; or 50 percent or more of its householders must have incomes below 60 percent of the area median household income.

It is important to note, the Low Income Tax Credit program, which is driven by statute, imposes limits on the number of census tracts an area can have. As such, it is possible for a tract to meet one or both of the above criteria, but not be designated as a QCT.

–9 Qualified Nonmetropolitan County (QNMC)

Only counties in nonmetropolitan areas may be eligible for HUBZone designated status.

In order for a nonmetropolitan county to qualify: the median household income in the county must be less than 80% of the nonmetropolitan state median household income, or the unemployment rate in the county must be at least 140% of either the national or state unemployment rate, or the county is

classified as a Difficult Development Area, as designated by HUD within Alaska, Hawaii, or any territory or possession of the United States, outside of the 48 contiguous states.

–10 Qualified Indian Reservation

Indian lands in areas within the boundaries of an Indian reservation may qualify as a HUBZone area.

Trust lands acquired by an Indian reservation or tribe after December 21, 2000, do not qualify as HUBZones, unless they are part of a former Reservation, or they are contiguous to areas that were trust lands prior to December 21, 2000.

–11 Qualified Base Closure (QBC)

Certain base closure areas may qualify as HUBZone designated areas.

A base closure area is defined as the lands within the boundaries of a military installation that was closed. Such an area can be designated as a HUBZone for a period of 5 years, beginning on the official date of the base closure and ending the same date, five years later.

–12 Redesignated Area

A redesignated area qualifies for a limited time as a HUBZone area. This is an important distinction.

If or when a tract or county ceases to meet the qualifications for HUBZone status, due to changes in income, unemployment, or poverty data, it becomes a redesignated area. As a redesignated area, it qualifies as a HUBZone designated area for a period of three years.

Importantly, when a tract or county is redesignated, its status in the HUBZone maps reflects the sunset date of the redesignation.

–13 Redesignated Area – Example

In this example, Catron County, New Mexico is redesignated until October 2015, which means it ceased to be qualified in 2012.

As such, on or after October 1, 2015, all certified HUBZone small businesses whose principal office is located in Catron County, NM will be proposed for decertification.

–14 Knowledge Review – Question

Question: All of the colors in the noted HUBZone map legend indicate an area that is a HUBZone, except for one — which is it?

–15 Knowledge Review – Answer

Ok, so that was a pretty easy question. The answer is: gray indicates a non-qualified county where there is no qualified or redesignated census tract, Indian Land, or base closure area and thus, is not a HUBZone area.

–16 How Often Do HUBZones Change?

HUBZone designations are not static. They change based on a variety of data. Indian lands and base closure areas can change frequently or as necessary. Nonmetropolitan counties are reviewed and can change multiple times a year. Census tracts are updated every five years, when HUD releases a notice to that effect in the federal register. The last update to qualified census tracts was in October of 2012.

–17 Resources and Tools

There are some very powerful resources and tools available to assist you to better understand the HUBZone program, and more specifically, HUBZone designations. Use these resources – highlighted in the following slides — to learn, discover and expand your understanding.

–18 HUBZone Statute

The HUBZone program was established by the authority 15 U.S.C. 632(a), as amended in the Small Business Act. Take a look at the law.

–19 HUBZone Regulations

Regulations governing the HUBZone program are located in 13 CFR Parts 126.100 to 126.900. –20 HUBZone Maps

SBA’s HUBZone maps tool is a powerful resource. Use it to check the HUBZone status of a particular location and/or use the landing page of the tool to download relevant spreadsheets, pdfs, and other information.

–21 eMail Alerts

Sign up for eMail Alerts to be notified when there is a map change. This is a helpful feature and excellent resource for learning about designation changes.

–22 HUBZone Designation FAQs

Review SBA’s frequently asked questions, specific to designations and the HUBZone program. –23 Geocoding Toolkit

Use this geocoding toolkit if you have trouble finding an address. –24 SBA/HUBZone Website

SBA’s website is a comprehensive and excellent source of current information about the HUBZone program. Check it out.

–25 GC Classroom

The agency’s online Government Contracting Classroom features a number free training courses about government contracting and several are specific to the HUBZone program.

HUBZone Mini-Primer 2/3

The HUBZone program is designed to help small businesses — in certain urban, rural, BRAC, Indian reservation, and difficult development areas outside the U.S. mainland – to gain access to federal procurement opportunities. HUBZone areas or HUBZone designations are typically areas of low median household incomes or high unemployment, or both.

This mini-primer is about HUBZone Eligibility Requirements, specifically principal office, employee and residency requirements. It is the second module in a series of Mini-Primers about the HUBZone Program. See the Government Contracting Classroomfor more training options.

–2 Introduction

This mini-primer is designed to help firms to better understand HUBZone eligibility requirements, specifically, requirements that pertain to the location of the firm’s principal office and requirements concerning the firm’s employees.

–3 Program Purpose

But first, and importantly, the HUBZone program has one purpose: to help small businesses in both urban and rural communities.

–4 How the Program Works

The U.S. Small Business Administration regulates and implements the HUBZone program. As such, SBA determines which businesses are eligible for the program, maintains a listing of qualified HUBZone small businesses that can be used by federal agencies to fulfill procurement needs and adjudicates protests of eligibility regarding HUBZone contracts.

Status protests are those that deal with compliance of the principal office, 35% employee HUBZone residency and/or ownership and control requirements. Size protests are handled by another SBA office.

–5 Eligibility Requirements

To be eligible for the HUBZone program a business must meet specific criteria.

That is: it must be a small business by SBA standards and, if applicable, together with affiliates it must also be a small business; it must be directly owned and controlled by at least 51% U.S. citizens or a community development corporation, an agricultural cooperative, or an Indian tribe; its principal office must be located within a designated HUBZone, which includes lands considered “Indian country” and military facilities closed by the Base Realignment and Closure Act; and, at least 35% of its employees must reside in a HUBZone.

–6 Training Focus

The focus of this training is to review principal office location requirements and requirements surrounding the “35 percent rule.” These requirements are often misunderstood. In fact, some 85 percent of the firms initially declined for HUBZone certification, or decertified after being approved were declined or decertified because of a misunderstanding or misinterpretation of the principal office location and/or employee residency requirements.

To understand these two important eligibility tenets, the requirements concerning who is considered a HUBZone employee must be clearly understood.

–7 Employees

Topic Divide – Requirements concerning employees.

–8 Who are Considered HUBZone Firm Employees? Who are considered HUBZone firm employees?

Under HUBZone regulatory guidelines, the term “employee” means all individuals employed on a full- time, part-time, or other basis, so long as that individual works a minimum of 40 hours per month. This includes temporary employees and co-employed employees working under a professional employer organization agreement.

Volunteers are not considered employees. However, the following individuals are not volunteers and need to be counted as employees: those who have a deferred compensation agreement or receive in- kind compensation; and, those who have an ownership interest in and work for the HUBZone firm a minimum of 40 hours per month, even if they do not receive any compensation.

So, if an owner receives compensation but only works 20 hours per month, that owner will not be considered as an employee, even if the owner gets paid for the work. SBA has developed a series of Frequently Asked Questions – referenced in the noted hyperlink – that answer questions such as: How should I count an employee who is on leave at the time my firm is being reviewed for HUBZone compliance? Or, how do I count seasonal employees? Many other questions are also considered.

This FAQ resource, as well as the regulatory reference, can be very helpful. –9 Employee / Independent Contractor

When is an independent contractor considered an employee?

SBA will consider the totality of the circumstances, including criteria used by the IRS for Federal income tax purposes and those set forth in SBA’s Size Policy Statement No. 1, in determining whether individuals are employees of a concern.

Regardless of whether your firm labels an individual an independent contractor, you must still determine if that individual should be treated as an employee for the purpose of determining the firm’s HUBZone eligibility. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor. No one factor stands alone in making this determination. Factors which are relevant in one situation may not be relevant in another.

The IRS website has good resources to help you evaluate if the individual should be considered as an employee. Use the referenced hyperlinks at your convenience.

Here is an important rule of thumb: When in doubt as to whether to count an individual as an employee

. . . Count that person toward the total employee count.

–10 Employee – Example 1

Let’s consider an example. Example 1.

ABC, Inc. engages Betty Jones on a 1099 basis from March 2013 through August 2013.

Ms. Jones performed many duties: including contracts management; bid and proposal support; was responsible for coordinating task orders with ABC, Inc. customers, including understanding customer needs and developing the appropriate technical solution, and acting as a liaison with ABC customers to ensure the smooth delivery of products and services.

Betty did not have a signed consulting agreement with the ABC company and performed much of her responsibilities from home. She did not have any other clients and she logged her work hours into ABC’s payroll system. Further, among other things, Ms. Jones had an email address issued from ABC, Inc.

–11 Is Betty and Employee?

– Answer Example 1 Is Betty Jones an employee? The answer is yes.

Considering the totality of the circumstances, she would be considered an employee.

–12 Employee – Example 2

ABC, Inc. engages Steve Smith on a 1099 basis to perform bookkeeping services. Mr. Smith has a signed contract with ABC that specifies the work to be performed, cost and delivery schedule for deliverables. He performs his work from his home in Providence, RI, has three other clients besides ABC, and at the end of each month, Mr. Smith issues his monthly invoice for the services performed to ABC.

He also has his own business cards and e-mail address.

–13 Is Steve an Employee? – Answer Example 2

Is Steve Smith an employee? The answer is no.

Considering the totality of the circumstances, he would not be considered an employee.

–14 Employee – Example 3

HUBZone Contractor A, Inc. has an employee named Sue Smith who gets paid only on a commission basis. How much she gets paid is tied to her monthly sales volume. Sue works about 160 hours per month.

–15 Is Sue an Employee?

– Answer Example 3 Is Sue Smith an employee? The answer is yes.

Sue is considered an employee because she is expecting to receive compensation.

–16 Principal Office Requirements

Topic Divide – Principal office requirements.

–17 Principal Office – Defined

Ok…. So, regarding the principal office, we know from earlier in this presentation that the principal office must be located in a designated HUBZone. However, and this is important, it must also be the location where the greatest number of the firm’s employees – at any one location – perform their work.

When determining if a firm meets the principal office requirement, it must be clearly demonstrated that the largest number of employees – meeting the definition of an employee – perform their work at the location deemed as the principal office. In this accounting, employees who may come to the principal office to pick up their work orders but then they go to work in job sites, would not be counted as employees who work in the principal office.

Again, and importantly, in determining where the greatest number of employees who work at any one location perform their work — the definition of the term employee, — as discussed previously, must be considered and appropriately applied.

–18 More Clarity – Principal Office

The firm’s headquarters does not have to be its “principal office”. This is an important distinction.

A firm can have multiple locations that it leases or owns and still meet the principal office requirement if the office that is located in a HUBZone has the greatest number of its employees performing their work there.

–19 Are PO Requirements Satisfied? – Example 1

Let’s consider our first example. Does Company B, Inc. meet the principal office requirement? Company B, Inc. is a small IT services company. It’s headquarters is located in an urban area that is not a designated HUBZone, according to the map. The two owners and an administrative support person spend the majority of their work hours at the headquarters location.

Across the street, in a qualified census tract, there is a government facility where 6 engineers, employed by Company B, perform contract specific work.

Further, the owners and the administration team all live in a HUBZone a few miles away. Of the six employees at the government site, one of them is part time and works only 20 hours every week. Further, only one of the six employees who works at the government site lives in a HUBZone.

–20 Company B – Answer Example 1

Company B, Inc. does not meet the principal office requirement. This is why…

When evaluating the principal office requirement, where employees live, is not relevant. What matters is where the greatest number of employees – at any one location – perform their work. In this example, most of Company B’s employees work at the government site. The government site is considered a job site and as such the employees who work there cannot be counted towards the principal office calculation.

So, that leaves 3 employees who work in the firm’s only office, which is not in a HUBZone. Remember, when analyzing the principal office, the 35% rule is not applicable.

–21 Are PO Requirements Met?

– Example 2 Does XYZ, Inc. meet the principal office requirement?

The XYZ company executed a 6 month contract to obtain: management of mail, faxes and couriers; a receptionist to answer calls in the company name; and, 40 hours per month of complimentary use of a private office for one person. XYZ, Inc. has two employees, the owner and an administrative assistant. In addition, the owner works 160 hours per month from home, which is not in a HUBZone and the administrative assistant works 40 hours per month from the firm’s office.

The XYZ company does not have any job sites.

–22 XYZ, Inc. – Answer Example 2

The answer is no.

XYZ, Inc. has 2 offices, one in a HUBZone where the administrative assistant works and the other office is the owner’s home. As such there is no greater number of employees working at the HUBZone location. It is important to note, that the agreement for the office use was for 40 hours per month for one person.

So, even if the owner was to decide to no longer work from home and move her work to the new office space, the agreement would need to be amended to properly reflect the increase of monthly hours and the number of people working from that location.

–23 35 Percent Rule

– HUBZone Residency Requirement Topic Divide – HUBZone residency requirement, the 35% rule.

–24 HUBZone Residency Requirement

Ok, so we have talked about employees and principal office requirements.

Now, let’s take a closer look at the HUBZone residency requirement, that at least 35% of the firm’s employees must reside in a HUBZone.

–25 HUBZone 35% Rule

–Example 1

Does Company J, Inc. meet the 35% requirement?

Company J is a small IT services company where: its headquarters is located in an urban area that is not a HUBZone; two owners and an administrative support person spend the majority of their work hours at headquarters; across the street, in a qualified census tract, is a government facility where 6 engineers perform contract specific work for the company; owners and the administration support person all live in a HUBZone a few miles away; six employees work at the government site – one of them is part time and works only 20 hours every week; and, only one of the six employees who works at the government site lives in a HUBZone.

–26 – Answer HUBZone 35% Rule

– Example 1 Does Company J meet the 35% requirement? YES.

Remember, when determining if a firm meets the 35% employee HUBZone residency requirement, where employees work – does not need be considered.

HUBZone Mini-Primer 3/3

The HUBZone program is designed to help small businesses — in certain urban, rural, BRAC, Indian reservation, and difficult development areas outside the U.S. mainland – to gain access to federal procurement opportunities. HUBZone areas or HUBZone designations are typically areas of low median household incomes or high unemployment, or both.

This mini-primer is about understanding HUBZone status protests. It is the third module in a series of Mini-Primers about the HUBZone Program. See the Government Contracting Classroomfor more training options.

–2 Introduction

–3 Program Purpose

But first, and importantly, the HUBZone program has one purpose: to help small businesses in both urban and rural communities.

–4 How the Program Works

–5 Contents

–6 HUBZone Status Protests

Topic Divide — HUBZone status protests.

–7 What is a HUBZone Status Protest?

Simply stated, a HUBZone status protest is a challenge to the award or proposed award of a contract to a company who allegedly misrepresented itself as a certified HUBZone firm, eligible for a specific contract award.

HUBZone status protests are one of the ways in which the government ensures that only qualified HUBZone companies gain access to HUBZone contracting preferences.

–8 Under What Circumstances?

If a company wins an award through any of these mechanisms, its HUBZone status may be protested: sole source awards; set-aside awards, including partial set-asides, to HUBZone firms; awards to HUBZone firms through full and open competition after a price evaluation preference is applied; awards based on a reserve for HUBZone firms in a solicitation for a Multiple Award Contract; or, orders set-aside for HUBZone firms against a Multiple Award Contract, which had been awarded in full and open competition.

It is important to note, a protest alleging that a company is not small, is considered a size protest. Such protests are not processed by the HUBZone office. The process for submitting a size protest is outlined in 13 CFR 121.1001.

–9 For What Reasons?

SBA will consider processing a HUBZone status protest if: the principal office of the protested firm is not located in a designated HUBZone; at least 35 percent of the employees of the protested firm do not reside in a designated HUBZone; the protested firm is not at least 51% unconditionally and directly owned and controlled by persons who are United States citizens; and, the protested firm is not a qualified HUBZone small business as described at 13 CFR 126.103 and 13 CFR 126.200.

Again, it is important to point out, a size protest is not processed by the HUBZone office.

–10 Regulatory Guidance

Regulatory guidance concerning HUBZone status protests can be found in 13 CFR Parts 126.800 through 126.805, in subpart “H” and in FAR Part 19.306.

–11 Filing a HUBZone Status Protest

Topic Divide – Filing a HUBZone status protest.

–12 Who Can File a HUBZone Status Protest?

For sole source acquisitions, the SBA or the contracting officer may protest the apparently successful offeror’s HUBZone status. For all other acquisitions, the offeror who is an interested party, the contracting officer, or the SBA may protest the apparently successful offeror’s HUBZone status.

–13 Where Should a Status Protest be Submitted?

An offeror must submit its protest to the contracting officer. The contracting officer and the SBA must submit protests to SBA’s Director for the HUBZone Program.

Importantly, all status protests must be in writing and must state all specific grounds for the protest. An assertion that a protested firm is not a qualified HUBZone small business without setting forth specific facts or allegations, is insufficient.

–14 How Should a HUBZone Status Protest be Submitted?

Again, HUBZone status protests must be in writing and submitted by e-mail, traditional mail, or in person. Such protests must also be submitted within five business days after the bid opening or notification of the intended award.

For sealed bid acquisitions, an interested party must submit its protest by close of business on the fifth business day after bid opening, or if the price evaluation preference was not applied at the time of bid opening, by close of business on the fifth business day from the date of identification of the apparent successful offeror.

–15 Must be Sufficiently Sufficient

In order to successfully file a protest and avoid having it dismissed by the SBA, it must be sufficiently specific and state all relevant facts.

For example, a protest is not sufficient if it simply states that a firm is not in compliance because it has not recertified (every 3 years) and submitting as evidence, only a copy of the firm’s Dynamic Small Business Search profile, showing a HUBZone certification date that is more than three years old. The date given in DSBS indicates only the initial date of certification and does not reflect the date of any recertification process, which is internal to the SBA.

In another example, it is sufficiently specific to state that a firm is not in compliance with the principal office requirement because the firm’s website lists numerous locations, and a photo is included showing that the stated principal office location is a boarded up building.

A protest merely asserting that a company is not a qualified HUBZone concern will be dismissed.

–16 SBA’s Role: Processing a HUBZone Status Protest

Topic Divide – SBA’s role: processing a HUBZone status protest.

–17 Processing the Protest — Notification

So, how does SBA process a HUBZone status protest?

First, SBA will determine whether a specific protest is both timely and sufficiently specific. If it is, SBA will process it. If it is not, SBA will dismiss it. In some cases where SBA determines that a protest is not timely, it may protest the award itself based on the facts in the dismissed protest.

In addition, SBA will notify the contracting officer and the protestor of the date it received the protest and whether it will process it or dismiss it. SBA will also notify the protested HUBZone firm of the protest and the identity of the protestor.

The firm being protested may submit information to SBA in response to or defending itself relative to the protest, within five business days. It is also important to note, SBA will determine the status of a protested company within 15 business days of receiving the protest, unless the contracting officer grants an extension.

–18 HUBZone Firm – Responding to a Protest

If SBA decides to process a protest, the protested firm, as previously noted, has five business days to provide documentation showing that it was in compliance with HUBZone eligibility requirements at the time of the contract offer and award.

Therefore, good record keeping is essential. A HUBZone firm should maintain records that document its HUBZone certification — for at least 6 years — from the date of its initial application and/or recertification.

–19 Additional Information and Fraud

After reviewing the documents requested and received, SBA may have further requests for additional documents or clarification of information provided by the firm. Further, signed declarations bear

greater weight than mere statements. In addition, the SBA’s regulations explain the penalties that may be imposed when a person or business concern provides false information to the federal government.

SBA will submit suspected cases of fraud to the Office of Inspector General.

–20 When SBA Makes a Protest Decision

What happens when SBA makes a HUBZone protest decision?

When SBA makes a decision, it notifies the contracting officer, protestor, and the protested concern of its determination. If the company is found to be compliant, SBA denies the protest, and the company may be awarded the contract in question.

If the company is found to be ineligible at either time of the offer and/or award, SBA sustains the protest and the company, may be decertified immediately; cannot be awarded the contract in question; and, may only apply for new HUBZone certification after 90 days from the date of decertification.

A protest decision may be dismissed by the SBA because it was untimely, not submitted by an interested party, or not specific enough. In some such cases, SBA may file its own protest, if the information was specific.

SBA’s protest decisions are posted on its website.

–21 Appealing a Protest Decision

Topic Divide – Appealing a protest decision.

–22 How Are Appeals Filed?

Sometimes SBA’s status protest decisions are questioned. In such circumstances, SBA may consider an appeal.

Only the protested HUBZone firm, the protestor, or the contracting officer may submit an appeal to the SBA. The appeal must be in writing and submitted by mail, or in person. It must also be submitted to the SBA within five business days after receiving the notice of the protest decision.

Also, the individual or firm filing the protest must notify all parties eligible or potentially impacted by the appeal.

–23 Contents of an Appeal

What should be included in an appeal request?

The appeal must be clear and fact-worthy. It should include specific information explaining why SBA’s initial protest decision resulted in a significant error or failed to consider important facts that were contained in the information supplied.

Importantly, SBA will not consider additional information or changed circumstances that were not disclosed at the time of its initial decision or that are based on a disagreement with the findings and conclusions contained in the determination.

–24 SBA’s Appeal Decision is Final

Once an appeal is received, SBA will make a decision within five business days of receipt of the appeal, if practicable. The agency will provide a copy of the appeal decision to the contracting officer, protestor, and the protested HUBZone company.

If the protest decision is overturned by appeal, the consequences are the same as if the initial decision was made in that way. That is, if a sustained protest is overturned on appeal, the protested company is now eligible to receive the contract in question. Conversely, if a denied protest is overturned, the protested company is immediately decertified and will not receive the contract.

Importantly, once a protest decision is rendered by the agency, that is SBA’s final decision. In some very rare cases, involving unique circumstances, a decision may be reconsidered by the SBA.