Paycheck Protection Program Guidance on Certification of Need: New Information, Unanswered Questions

Regulation | May 13, 2020 | by Brendan Flinn

FAQ guidance from the Department of the Treasury and the Small Business Administration provides new information on Paycheck Protection Program borrowers on the certification of need for loan funds.

The Department of the Treasury and the Small Business Administration on May 13 added an item to their living FAQ document for Paycheck Protection Program questions related to the certification of need for PPP loans. Summarized below, this new guidance (question 46 in the linked document) provides some clarity for PPP borrowers but leaves some questions unaddressed, particularly for those who borrowed more than $2 million.

When borrowers applied for PPP loans, they certified that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” The federal government had not issued guidance for borrowers on how this certification would be assessed, and with the safe harbor deadline coming quick (May 14), more information was needed so borrowers could determine whether to keep their PPP loans.

The May 13 FAQ addresses the certification and creates two categories for how it will be considered: loans in the amount above and below $2 million.

For PPP borrowers with $2 million or less in loans, the certification of need will be presumed in good faith for the purpose of loan forgiveness. Specifically, “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.”

The government explains in the question that they are focused primarily on assessing the certification among borrowers with larger loans (e.g., more than $2 million in principal). Previously, the government had announced that all loans greater than $2 million would be audited before borrowers received loan forgiveness.

PPP borrowers with more than $2 million in principal will be able to demonstrate their need for the loan “based on their individual circumstances in light of the language of the certification and SBA guidance.” This leaves questions as to how borrowers should expect to do this, as the FAQ does not specify any criteria borrowers should prepare to meet in this area. LeadingAge will continue to monitor for further guidance on this aspect of the program.

That said, there was some worry among borrowers about potential criminal penalties the government alluded to in previous FAQ responses. This new question lays those to rest by creating a mechanism for returning loan funds if borrowers are deemed to have not had an economic need in the first place.

Specifically, “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.”

In other words, borrowers deemed to have not needed a PPP loan will have an opportunity to repay the funds without criminal penalty.