AGC Succeeds in Securing New Paycheck Protection Program Guidance from Treasury Department

AGC of America statements to SBA on Interim Final Rules

AGC’s comments to the Small Business Administration (SBA) on their interim final rules implementing PPP loans:

AGC’s comments recommend the SBA address the following (Details):

  • Ensure Clear Construction Business Eligibility for PPP Loans;
  • Waive the Affiliation Rules for Construction Business Eligibility for PPP Loans;
  • Provide Clear Guidance and Reasonable Safe Harbors Regarding the PPP Loan Application Certifications;
  • Remove Requirement to Dedicate At Least 75% of a PPP Loan to Payroll Costs;
  • Allow Broad Flexibility for Construction Businesses in Definition of “Payroll Costs”
  • Allow for Accrued Costs during the Covered Period;
  • Eliminate Requirement to Begin Repayment of PPP Loan within Six Months; and
  • Extend Loan Repayment Period from 2 Years to 5 Years

May 15, 2020

Contact: Treasury Public Affairs, (202) 622-2960

SBA and Treasury Release Paycheck Protection Program Loan Forgiveness Application

WASHINGTON — Today, the Small Business Administration (SBA), in consultation with the Department of the Treasury, released the Paycheck Protection Program (PPP) Loan Forgiveness Application and detailed instructions for the application.

The form and instructions inform borrowers how to apply for forgiveness of their PPP loans, consistent with the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). SBA will also soon issue regulations and guidance to further assist borrowers as they complete their applications, and to provide lenders with guidance on their responsibilities.

The form and instructions include several measures to reduce compliance burdens and simplify the process for borrowers, including:

  • Options for borrowers to calculate payroll costs using an “alternative payroll covered period” that aligns with borrowers’ regular payroll cycles
  • Flexibility to include eligible payroll and non-payroll expenses paid or incurred during the eight-week period after receiving their PPP loan
  • Step-by-step instructions on how to perform the calculations required by the CARES Act to confirm eligibility for loan forgiveness
  • Borrower-friendly implementation of statutory exemptions from loan forgiveness reduction based on rehiring by June 30
  • Addition of a new exemption from the loan forgiveness reduction for borrowers who have made a good-faith, written offer to rehire workers that was declined

The PPP was created by the CARES Act to provide forgivable loans to eligible small businesses to keep American workers on the payroll during the COVID-19 pandemic. The documents released today will help small businesses seek forgiveness at the conclusion of the eight week covered period, which begins with the disbursement of their loans.


PLEASE BE ADVISED
May 13, 2020

Additional information has been released regarding the Paycheck Protection Program:

Frequently Asked Questions (Questions 46-47)

Following the issuance of today’s important guidance on the PPP loan borrowers’ good faith certification concerning the necessity of the loan (Question #46), Treasury and SBA tonight extended the safe harbor repayment of PPP loans from May 14 to May 18. Please see below for more information.

47. Question: An SBA interim final rule posted on May 8, 2020 provided that any borrower who applied for a PPP loan and repays the loan in full by May 14, 2020 will be deemed by SBA to have made the required certification concerning the necessity of the loan request in good faith. Is it possible for a borrower to obtain an extension of the May 14, 2020 repayment date?

Answer: Yes, SBA is extending the repayment date for this safe harbor to May 18, 2020, to give borrowers an opportunity to review and consider FAQ #46. Borrowers do not need to apply for this extension. This extension will be promptly implemented through a revision to the SBA’s interim final rule providing the safe harbor.

Original Post - May 13, 2020

The Treasury Department’s new Paycheck Protection Program guidance offers the kind of information we have been seeking to provide many employers with additional clarity on how to proceed with their loans. Importantly, the Department has opted to provide a safe harbor provision for firms that self-certified their need for loans that totaled less than $2 million. In addition, the new guidance provides a mechanism to allow firms that received loans of $2 million or more and are later found to have not met the Department’s need-standard to repay, seemingly without penalty, those loans.

While the new guidance is helpful, it does leave several important questions unanswered, including about the timing and condition of those possible loan repayments, as well as what criteria the SBA will use to determine if a loan should be repaid. AGC will continue to push Treasury officials to answer those questions as quickly as possible. That being said, today’s new guidance will clearly help save many jobs.

Here is the guidance:

46. Question: How will SBA review borrowers’ required good-faith certification concerning the necessity of their loan request?

Answer: When submitting a PPP application, all borrowers must certify in good faith that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” SBA, in consultation with the Department of the Treasury, has determined that the following safe harbor will apply to SBA’s review of PPP loans with respect to this issue: Any borrower that, together with its affiliates,20 received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith.

SBA has determined that this safe harbor is appropriate because borrowers with loans below this threshold are generally less likely to have had access to adequate sources of liquidity in the current economic environment than borrowers that obtained larger loans. This safe harbor will also promote economic certainty as PPP borrowers with more limited resources endeavor to retain and rehire employees. In addition, given the large volume of PPP loans, this approach will enable SBA to conserve its finite audit resources and focus its reviews on larger loans, where the compliance effort may yield higher returns.

Importantly, borrowers with loans greater than $2 million that do not satisfy this safe harbor may still have an adequate basis for making the required good-faith certification, based on their individual circumstances in light of the language of the certification and SBA guidance. SBA has previously stated that all PPP loans in excess of $2 million, and other PPP loans as appropriate, will be subject to review by SBA for compliance with program requirements set forth in the PPP Interim Final Rules and in the Borrower Application Form. If SBA determines in the course of its review that a borrower lacked an adequate basis for the required certification concerning the necessity of the loan request, SBA will seek repayment of the outstanding PPP loan balance and will inform the lender that the borrower is not eligible for loan forgiveness. If the borrower repays the loan after receiving notification from SBA, SBA will not pursue administrative enforcement or referrals to other agencies based on its determination with respect to the certification concerning necessity of the loan request. SBA’s determination concerning the certification regarding the necessity of the loan request will not affect SBA’s loan guarantee.

Click HERE for the full list of questions and answers from the Treasury Department on PPP loans.