Update on the Issue as of 6/9/2021 From ACEC National staff:
ACEC’s advocacy continues to focus on finding an equitable resolution to the PPP/FAR credits clause issue. Over the past months, our Advocacy team and state Executive Directors have been lobbying Members of Congress in Washington, D.C. and in their home districts to highlight this critical issue and to build support for a legislative fix that would exempt engineering firms from being subject to the clause.
This is a priority issue for our member firms—especially those that relied on PPP loans to help navigate the uncertainty of the pandemic. We should never forget that when the economy shutdown, the need for our essential work continued.
The good news is that we find ourselves with several near-term opportunities to influence policy in our favor. The less-than-good news is that the policy environment in Congress is moving fast and is ever changing. To win, we will need to double down on our advocacy and implement an “all of ACEC” campaign to fix the FAR.
This week, we launched a new communications advocacy campaign on this all-important issue. The campaign involves traditional and social media from ACEC and our allies spreading the message about PPP Fairness to the audiences that matter to our industry. We will advertise in leading Capitol Hill news outlets. We will leverage our digital marketing capabilities to reach influencers online. And we will take our message to the states through our federation.
Our core message has one unifying theme: Engineering firms shouldn’t be singled out and penalized for acting in the best interests of their employees and clients. It’s time for real PPP fairness.
I urge you to join us. Our ability to convince Members of Congress to act on this issue depends on telling them why it is so critically important to firms. There is no better advocate than a constituent, especially a constituent business owner. I invite you to visit our campaign website at www.acec.org/ppp. While you are there, use the email template to reach out to your Member of Congress, or the Twitter template to tweet out a message of support with the hashtag #PPPFairness. Use our template for a letter to the editor to tell your local paper what this issue means for your business. If you need further assistance, contact your state’s Executive Director for resources to make your voice heard.
Together, we can make a difference and fix the FAR once and for all.
--- Linda Bauer Darr, ACEC President/CEO
Update on the Issue as of 5/25/21 From ACEC National staff:
I wanted to provide an update for you and for your members on the status of ACEC’s efforts to resolve problems related to the FAR credits clause and its impact on firms with PPP loans. As you know we continue to attack this challenge on two fronts, through the regulatory process with FHWA and legislatively with Congress.
On the regulatory side, ACEC recently concluded an effort to supplement FHWA’s March guidance with an FAQ document that was developed by a group of affiliate ACEC CPA firms and State DOT representatives from Arizona, Georgia, Ohio, and Utah. The FAQ document isn’t the complete fix we want, but until we have a legislative solution in place it’s a step forward to ease compliance for firms, a tool to assist you in engaging with your DOT on implementation (and we’re working on an additional summary document to help you discuss the key points in the FAQs), and a blueprint for achieving uniformity in how the various DOTs and transit agencies implement the policy. While FHWA has not yet officially endorsed or adopted the FAQs, the agency did indicate that it’s consistent with their own implementation guidance, and our DOT partners are promoting it to their colleagues around the country. ACEC is organizing a webinar for member firms on the FAQ document and we will notify you once that’s scheduled.
However, FHWA’s implementation process – and the whole idea of applying the credits clause to PPP loans -- has fundamental flaws that cannot be fixed by regulation:
For these reasons ACEC continues to pursue a legislative fix. As you may recall, in March the House Small Business Committee held a hearing where ACEC Chair Robin Greenleaf and ACEC member Carlos Penin of Florida testified, and we also received help from the Chairman of the House Transportation & Infrastructure Committee, Rep. Peter DeFazio (D-OR) in outreach to DOT Secretary Pete Buttigieg. We’ve done extensive meetings with House and Senate offices since then, in addition to the regulatory engagement described above. Our focus this week has been on the Senate with the surprise release over the weekend by the Senate Environment & Public Works Committee of their 5-year $303 billion highway bill. We’ve asked for language to waive the credits clause as it applies to PPP loans for engineering firms and sent the Committee legislative text, and we’re doing more outreach to members of the Committee to build support for an amendment as the bill goes to the Senate floor.
The House T&I Committee should take up their version of the bill in June, and we’ve sent them the same waiver language, which for your reference is below:
SEC. ___. Treatment of Paycheck Protection Program Loan Forgiveness under Highway and Public Transportation Project Cost Reimbursement Contracts.
If we can’t persuade lawmakers to waive the credits clause completely, we will seek legislative language to restrict the ability of DOTs to apply the credits clause to state funded contracts. That amendment language is below:
To be or remain eligible for federal matching funds for State highway programs, a State shall not consider any amount of loan forgiveness obtained under the Small Business Administration Paycheck Protection Program as “income, rebate, allowance, or other credit” within the meaning of 48 C.F.R. 31.201-5 Credits,” except in such case as the Credit is due against a prior payment from Federal funds.
We’ll continue to keep you posted as this develops.
Update on the Issue as of 5/19/21:
A group of AASHTO and ACEC members, including several CPAs who do extensive amounts of FAR audit work, worked to develop a set of Questions and Answers (Q&As) regarding PPP loan forgiveness.
The results of the discussions are captured in the attached document, which presents a set of recommended best practices for use by state DOT auditors, A/E firms, and CPA auditors regarding the treatment of loan forgiveness granted through the operation of the Paycheck Protection Program (PPP), as authorized by the CARES Act and administered through the Small Business Administration (SBA). Although these recommendations do not have the effect of law or regulation, they are encouraged for use to promote fairness and consistency, with the understanding that some flexibility in application is necessary to accommodate the unique contracting policies and procedures of each state DOT, as well as the professional judgment of auditors.
The working group released this document to the FHWA for comment, and FHWA advised that, generally, the content is consistent with FHWA guidance. However, FHWA cannot endorse or approve the Q&As, as they get into a level of detail outside the FHWA’s purview.
Accordingly, the working group is circulating the Q&As to the AASHTO Audit Committee members and to ACEC state organizations, as the document was developed by our working group and is intended to provide additional guidance to supplement the FHWA memo issued on March 24.
Update on the Issue as of 3/31/21 From ACEC National staff:
There is a great deal of attention on infrastructure this week in Washington, but ACEC's focus also remains on the PPP/FAR credits clause issue. ACEC met with FHWA officials earlier this week to gain a better understanding of the agency’s intent and next steps as they work to apply their new guidance on the FAR provision to firms with PPP loans.
It’s clear that FHWA is trying to do this the right way and limit the impact to firms as much as possible. As noted last week, FHWA confirmed that the guidance would only apply the FAR credits clause to contracts that include federal funds – which has logic as there is a clear nexus between the PPP assistance and federal dollars in contract payments. FHWA indicated that they will develop a Q&A document to provide more detailed guidance on implementation, and invited ACEC to organize a working group of CPAs and selected State DOT representatives to help with drafting the guidance. Matt Reiffer and Dan Purvine will be connecting with some Member Organizations as they identify the right DOTs to partner with in this effort.
There are concerns however: Some State DOTs are making it clear that they will impose their own requirements on firms for state-funded engineering contracts – forcing firms to provide the agencies with discounts in their rates in return for the federal assistance they received under the PPP program. We understand there may be some states that will demand a return of the entire PPP loan, regardless of whether it was allocated to a DOT project. Finally, if this regulatory approach were to continue unchanged – where both the feds and the states are demanding rebates for forgiven PPP loans – there doesn’t appear to be an agency at this time that will manage this process to ensure that firms credit back only the amount of the PPP loan that overlapped contract payments on federal-aid projects.
Putting aside the question of whether the FAR credits clause should even apply to PPP loans – ACEC continues to advocate that it should not apply -- we do believe FHWA is trying to do this the right way. As stated above, the challenge remains if the DOTs are permitted to impose their own requirements relative to a federal assistance program outside of the FHWA rules. This, coupled with the clear difficulties state and federal agencies will have in managing implementation fairly, may help to bolster our arguments in favor of a waiver of the credits clause or some other workable solution.
The leaders of the House Transportation & Infrastructure Committee continue to be engaged on our behalf. Committee counsels for both Chairman DeFazio and Ranking Republican Sam Graves (R-MO) are also meeting with FHWA this week to discuss implementation and next steps, and we’ve shared the insights above with them in advance of those meetings. ACEC GA staff will be meeting with committee staff next week to recap and discuss next steps.
Update on the Issue as of 3/24/21 From ACEC National staff:
ACEC received the guidance above from U.S. DOT on 3/24/21. ACEC is reviewing it and has asked our group of CPA experts for their analysis and feedback as well. They have also requested a meeting with DOT/FHWA to discuss the guidance and its potential impact on the industry.
The guidance appears to be largely consistent with the draft that FHWA put out in January, with a few new components.
The following elements remain the same as the earlier draft guidance:
The following provisions are new:
ACEC is assessing whether these additions provide any protection or relief for firms. That first bullet may allow firms to allocate some of the PPP to private/commercial or other non-FAR covered work, thereby reducing the amount of the credit required, but that is not clear. The second bullet acknowledges the concerns we have raised about locking in a lower indirect cost rate and then applying that rate to new contracts, including multi-year contracts, thereby losing more revenue than the amount of the loan. However, it’s not clear how that condition would be implemented by the State DOTs or the firms to ensure that it is effectively applied. The last bullet limits the scope to cost-reimbursement contracts, not fixed price, which is good.
Lastly, the guidance is clearly directed at only federally funded contracts. That also narrows the scope. But again, the key will be how states implement this.
Chairman DeFazio’s staff reached out to ACEC's Steve Hall on the morning of March 24 to discuss the guidance noted above. Here is the substance of that conversation:
First , they confirmed what we assumed – that the guidance came out on March 24 because the Chairman has engaged the agency on our behalf. They have conveyed specific concerns we expressed over the draft guidance, as well as our concerns that State DOTs are moving forward with developing their own implementation rules in absence of federal guidance. This, coupled with the fact that the Secretary is appearing before the Committee on March 25 where this issue might be raised prompted the agency to release the guidance today.
Chairman DeFazio's committee counsel emphasized that they have been working with the agency on this issue and will remain engaged going forward, including the potential of following up with the Secretary after tomorrow’s hearing. ACEC let Chairman DeFazio’s counsel know that the guidance remains very broad and leaves many questions unanswered -- for example what do these various provisions mean, will there be additional guidance and detail for implementation and what role does industry play in helping to craft that guidance, and other questions. Depending on the meaning behind various provisions in the guidance – for example, if the credits clause applies only to engineering contracts that have federal funds included – the new guidance could be a significant step forward, but again it depends on how FHWA will interpret the rules. The guidance came directly to ACEC's Matt Reiffer and Steve Hall from the Office of the Secretary and they have requested a meeting with agency staff to discuss these and other questions.
ACEC National has a working group of CPAs looking at the guidance and they will continue to advise us going forward as we engage the agency. We’ve also heard from the House Small Business Committee and individual lawmaker offices asking for our input on the guidance, as they were also contacted by the agency. We will keep them apprised of the situation, and we will also be asking Congress to stay engaged on this issue until we achieve a worthwhile resolution.
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March 23, 2021: House Small Business Committee – and specifically the Subcommittee on Contracting and Infrastructure – held its hearing on the impact of the FAR credits clause on small engineering firms that have PPP loans and qualify for forgiveness.
ACEC's Matt Reiffer thanked ACEC’s witnesses at today’s hearing – ACEC Chair-Elect Robin Greenleaf of Architectural Engineers in Boston and Carlos Penin of CAP Engineers in Coral Gables, Florida. Both Robin and Carlos did a terrific job of highlighting the challenges facing engineering firms in their testimony if they are forced to return their PPP loans, as well as handling numerous questions from lawmakers. The hearing also featured testimony from an attorney/FAR expert and a CPA to provide lawmakers with technical guidance on the FAR and contracting issues, and while neither went as far as to support a waiver of the credits clause as it applies to PPP loans, both acknowledged – particularly the CPA – the need for better guidance from FHWA on implementation. Copies of everyone’s testimony are available on the hearing link above.
The need for better guidance from FHWA was actually a common thread in all of the testimony, and we will be working with Subcommittee Chairman Kweisi Mfume (D-MD) and Ranking Member Maria Salazar (R-FL) on potential action items to enlist Congress’ engagement and support to that end. We are also engaged in preparing for a second hearing on Thursday at 11:00 am EDT with the House Transportation & Infrastructure Committee featuring testimony from US DOT Secretary Pete Buttigieg, where we understand that Chairman Peter DeFazio (D-OR) may raise our PPP issue with the Secretary. Here is the link to the March 25, T&I Hearing ACEC has connected with every lawmaker on the T&I Committee with background information on the PPP issue, and we’re coordinating with a number of individual Executive Directors on additional outreach to lawmakers to urge them to weigh in with supportive comments to the Secretary.
In ENR 3/23: Design Firms Tell Congress of Financial Harm From Credits for PPP Loans: Engineering firm executives, including ACEC Chair-Elect Robin Greenleaf, PE (Architectural Engineers Inc) and others told a House small business subcommittee about the negative financial impact their firms have experienced because some federal agencies are recognizing Paycheck Protection Program loans as credits under the Federal Acquisition Regulation.
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12/2/20: Today ACEC national launched an Action Alert on two important fixes to the PPP loan forgiveness program: the tax deductibility of covered expenses and the expectation of a credit from government contractors and the resulting impact on firm overhead rates.
This is for firms with less than 500 employees total.
Click here to access the ACEC Action Alert, including tools to help you craft an email to your 2 US Senators and your US Representative.
Once you log in to the system, you’ll be able to access a sample email to send to your US Representative and 2 US Senators based on where you live/vote. Please do personalize the message if you can. This is especially important in this case, as every firm will have a specific financial impact that will be compelling. Otherwise, if you don't want to edit the message, you can send it as written.
Right now, there is no specific legislation to support or bill number to cosponsor. The tax provision has been included in various economic relief packages, and we know there is strong bipartisan support in Congress to address it. We also want to continue to educate lawmakers on the impact of the FAR credits clause and ask for a correction there as well, but right now there is no specific bill introduced.
Thanks for your continued engagement on this. ACEC will send ACEC/MA updates as things develop in Washington, and please contact us if you have questions.
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