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Conflicting regulations could enable hundreds of publicly traded companies to hold on to taxpayer-backed small-business loans despite the Trump administration’s effort to claw back the funds, small-business advocates and analysts say.

The deadline for return of the money was Monday. The Small Business Administration did not respond to a request for information about how much money had been given back.

On April 23, nearly three weeks after it launched the first tranche of what would become a $669 billion small-business relief effort known as the Paycheck Protection Program, the Treasury Department said that publicly traded companies “with substantial market value and access to capital markets” were not the intended recipients of the taxpayer-backed loans. At that time, the <a href="https://www.washingtonpost.com/business/2020/04/20/white-house-gop-face-heat-after-hotel-restaurant-chains-helped-run-small-business-program-dry/" target=_blank>initial $349 billion authorized for the program had run out</a>, and outrage was building as news outlets revealed that several well-heeled national brand names, including Shake Shack, AutoNation and the Aspen Institute, had received the loans.

New SBA guidelines ask big companies to consider returning coronavirus loans

The government gave publicly traded companies until May 7 to return the money, then moved the deadline to May 14 and finally to Monday. The government said it would also audit loans larger than $2 million.

But while some companies returned the money, <a href="https://www.washingtonpost.com/business/2020/04/28/small-business-wont-repay-ppp/" target=_blank>many others declined to do so.</a> Now, there are questions about whether the administration can force companies that received money under the initial PPP program to return it.

An April 6 regulation issued by the Treasury Department said that borrowers and lenders “should rely on the laws, rules and guidance available at the time of the relevant application.” Small-business advocates say it is unlikely the government could penalize public companies whose application predated the April 23 rule.

Gene Marks, a Philadelphia-based accountant and small-business advocate who is tracking the program, said the two rules seem to directly contradict each other.

“It is unclear whether the second rule supersedes the first,” Marks said. “They’re going to have to battle that one out in the courts, and as [the Treasury Department] tries to claw back the money, it will be a problem.” 

Democratic lawmakers criticize ‘mismanaged’ SBA loan program in letter to administrator

The dilemma highlights the chaotic way in which federal bailout programs were thrown together on the fly after the U.S. economy suddenly shut down in mid-March.

There is a lot at stake for economically devastated small businesses across the country, and for taxpayers who have to foot the bill. The Paycheck Protection Program is a critical component of the Trump administration’s efforts to shore up the economy with public funds while people in all 50 states wait out the <a href="https://www.washingtonpost.com/coronavirus/" target="_blank" class="contextual_link">coronavirus</a> pandemic.

The program offers loans at ultralow interest rates and includes an opportunity to have the loan entirely forgiven. The taxpayer-backed loans are accepted, processed and disbursed by a network of private lenders and financial technology companies, with the Small Business Administration and Treasury Department playing a regulatory role. Businesses with up to 500 employees can apply, although there are numerous exceptions to that rule.

With the economy spiraling downward in late March, lawmakers wanted the program to move as quickly as possible. With no time to go through the standard regulatory machinations of standing up a federal program, officials at the SBA and Treasury Department launched it with next to no regulations in place. The first official guidance was published just hours before banks started offering loans.

Public companies received $1 billion in stimulus funds meant for small businesses

Lawmakers put very little red tape in front of small businesses seeking loans. In a major departure from past federal lending programs, borrowers were allowed to self-certify that they meet the loan requirements. Businesses were only required to certify “in good faith” that “current economic uncertainty makes the loan necessary to support your ongoing operations,” according to SBA informational materials.

Seeing no federal guidance that would disqualify them, corporate boards quickly realized that the small-business loan program could provide millions in quick cash at impossibly low interest rates. Nearly 300 public companies reported receiving money from the fund, according to <a href="https://wpinvestigative.github.io/ppp_loans/">data compiled by The Washington Post</a>, including 43 companies that had more than 500 workers.

Dozens of them decided to return the funds, either in response to negative press or confusion over the rules.

“There are quite a lot of companies who have decided that, because of concerns over shifting goal posts that might change how they would be viewed under audit, it wasn’t worth the hassle,” said John Lettieri, president and chief executive of the Economic Innovation Group, an advocacy organization.

Emory University, b.a.

Georgetown University, masters in public policy

Aaron Gregg is a business reporter for the Washington Post.

Aaron Gregg

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Deadline to return SBA PPP money complicated by conflicting rules

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