PPP Borrowers Who Received Loans of Less than $2 Million Deemed to Have Made Certification in “Good Faith;” Safe Harbor Return Period Extended to May 18

By Paul Burgin - Shawe Rosenthal LLP

May 14, 2020

The Small Business Administration (SBA), in consultation with the Department of the Treasury, updated its Frequently Asked Questions (FAQs) to address the “necessity certification” in the Paycheck Protection Program (“PPP”) loan application and to extend the repayment period of “unnecessary” PPP loans to May 18 in order to allow entities to review the new guidance. The loan application requires certification that “[c]urrent economic uncertainty makes this loan necessary to support the ongoing operations of the Applicant.”

Borrowers who received loans of less than $2 million will be deemed to have made the certification concerning the necessity of the loan in “good faith,” and will not be subject to SBA review. Borrowers of loans of more than $2 million will be subject to SBA review for compliance, and may still satisfy the good faith certification requirement based on their individual circumstances.  Borrowers of loans of more than $2 million should immediately assess and determine the necessity of their loan in order to meet the May 18, 2020 safe harbor return period.

The new FAQs are below.

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, 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.

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.

In FAQ 31, published April 23, 2020, SBA stated that “[b]orrowers must make this certification in good faith, taking into account their current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business.”