If you got an aggressive email from the SBA earlier this month requesting an awful lot of documentation and information in relation to your 8(a) Program participation—you are far from alone. SBA actually sent this December 5th email to about 4300 current and past 8(a) Program participants. And if you too found yourself reading and rereading SBA’s specific requests trying to determine exactly what the SBA is looking for—but to no avail—you are again far from alone. Now, we at SmallGovCon don’t have all the answers or any insider knowledge. But we offer you these five tips for surviving the 8(a) audit—based on our vast experience with the fundamentals of legal language interpretation and our expertise with the 8(a) Program regulations and standard operating procedures.
Editor’s Note: The SBA on December 18 has released FAQs regarding the 8(a) audit data call that impact some of this post. In particular,
-“A. The due date has been extended to January 19, 2026.”
-“The last three (3) closed fiscal years of each respective participant are required. It is not the government fiscal year, it is the individual participant’s fiscal year.”
-“Q. Concerning Exhibit A, item 9, “Copy of all 8(a) Contracts on which the firm is currently working for the last three full fiscal years,” Does this include sole source purchase orders?
A. Yes, any award made based on the 8(a) status of the business should be submitted.”
-“Businesses without any history of revenue should submit a statement attesting to this for each prompt and then complete the Attest and Submit steps.”
This unfortunate holiday season surprise (as you can read about in our initial blog on this most recent 8(a) audit) really seems to be just another link in the chain of challenges faced by 8(a) Program Participants of late. These 8(a) challenges date (at least) all the way back to the Federal Court Decision in Ultima. They’ve continued through numerous direct 8(a) and general DEI attacks from the current administration (resulting in a substantial dip in small disadvantaged business goaling and many 8(a) contract terminations already). And they’ve most recently presented through SBA’s announcement of a 15-year lookback audit of all 8(a) contracts by the SBA OIG and DOJ.
So, was the December 5th email truly a surprise? For those keeping up with recent 8(a) events, likely not. But SBA apparently felt the need to keep things exciting here, nonetheless. From what we’ve been seeing, there are two main aspects of this audit that have reasonably surprised, well, almost everyone it seems. First, the timing of this 8(a) audit compounded by the very short deadline for compliance (i.e., allowing only a month–and a month including two federal holidays–for contractors to gather and submit all requested documents and information). And second, the level of ambiguity and/or lack of clarity in essentially all 13 of SBA’s requests for the 8(a) audit. So, those two main issues will be the focus of these five tips.
TIP ONE: If you got SBA’s December 5th 8(a) audit request email–no matter where you are at in your 8(a) Program Term or even in your process of 8(a) Program withdrawal, termination, or early or standard graduation–comply!
So, we have yet to hear of any 8(a) Program applicants–awaiting SBA’s application decision–receiving the 8(a) audit email request.1 But we have heard numerous reports of graduated/graduating, terminated or proposed for termination, and withdrawn/withdrawing 8(a) Program firms receiving the request. And as such, we’ve had a lot of questions as to whether or not the firm is still required to comply with the request. The answer, unfortunately, is yes. SBA’s rule at 13 C.F.R. § 124.603 says the following:
If requested by the SBA, former Participants must provide such information as SBA may request concerning the former Participant’s continued business operations, contracts, and financial condition for a period of three years following the date on which the concern leaves the 8(a) BD program (either through the expiration of the firm’s program term, graduation, or termination). Failure to provide such information when requested will constitute a violation of the regulations set forth in this part, and may result in the nonexercise of options on or termination of contracts awarded through the 8(a) BD program, debarment, or other legal recourse.
As you can see, this rule clearly requires any former 8(a) participant that has left the program (for whatever reason) within the last three years to comply with the 8(a) audit requests. It even includes some terrifyingly broad assertions of possible consequences for anyone thinking, “well, I have no 8(a) Program participation or 8(a) contracts or options left to lose.” So, if you got the email, comply with it.
TIP TWO: Submit each and every document you believe in good faith is responsive to SBA’s requests–and withhold nothing.
One thing we say across the board for all 8(a) Program rules and procedures, and all 8(a) Program applicants, participants, and even former participants, is full disclosure is always best. When there is even a question as to an 8(a) applicant’s or firm’s duty to notify SBA of something, we always suggest erring on the side of caution and fully disclosing the information in question. And naturally, there is no exception here. We will talk more in the subsequent tips about ways to handle documents that are unavailable or delayed and ways to handle different interpretations of the SBA’s requests. But for this crucial tip number two, I want to refer you back to and reiterate the language in 13 C.F.R. § 124.603, which states:
Failure to provide such information when requested will constitute a violation of the regulations set forth in this part, and may result in the nonexercise of options on or termination of contracts awarded through the 8(a) BD program, debarment, or other legal recourse.
This part of the rule does not say “failure to provide such information without a valid excuse . . .”–nor does it provide any safe harbors or options for explaining why something is missing to SBA after the fact. It says, failure to provide the requested information by the requested date will constitute a violation–not “may,” “will.” So, don’t leave anything out in hopes that SBA will understand or take the time to ask you why. And if you must leave something out for a valid reason, pay close attention to tips number four and five before you do so.
TIP THREE: Submit everything as soon as physically possible prior to the January 5, 2026 deadline.
So, I see no need to reiterate the same regulatory language or threats from the 8(a) audit email here. The deadline is clear in the email; and the regulations clearly require compliance with whatever deadline SBA sets. So, get everything in by that January 5, 2026, deadline at all costs.
But in doing so, please don’t forget that at least 4300 or so companies are going to be frantically uploading hundreds if not thousands of documents over the next two and half weeks. Please also consider the fact that they all had just a month to do so–making it quite reasonable to assume that many if not most of them will be submitting all those documents on or incredibly close to that January 5th deadline. As such, I would highly recommend you not rely heavily on SBA’s uploading portal’s (https://certifications.sba.gov) ability to handle these mass logins and uploads without a hiccup or two. If you have your documents ready to go early, get them in.
We have yet to hear confirmation from anyone of SBA granting any extensions. And the SBA’s email included the loaded and infinitely broad threat that any contractor failing to provide the requested documentation and information by January 5, 2026, “may lose their eligibility to participate in the 8(a) Program and could face further investigative or remedial actions.”
So, our best advice is to assume you cannot and will not be given any extension or deadline leniency. But we also understand that some of the requested documents may not be immediately accessible, despite your best efforts. And if that is the case for you, please pay close attention to Tip Four below.
TIP FOUR: Immediately & diligently communicate your need for any extension to your BOS, the 8(a) Program Office, your local SBA Area Office, and anyone at the SBA or 8(a) that will listen.
If you physically cannot meet the deadline for anything for a real and valid reason–or if you will be physically unable to get certain documents or information uploaded by that time–we strongly suggest you don’t wait another minute to put your situation and request into writing and submit it everywhere and to everyone possible.
Of course, having a “paper trail” of some kind in this scenario is strongly recommended. But that does not mean we discourage you from picking up the phone and trying to get through to your own 8(a) Business Opportunity Specialist (BOS), the 8(a) Program Office (or any 8(a) Program representatives), your general local SBA Area Office, and/or any of your own contacts within the SBA or the 8(a) Program willing to listen. But–and I cannot stress this part enough–if you are granted some kind of extension over the phone, Zoom, or any other verbal communication means, follow-up in writing! That can be a simple email like, “I just wanted to follow-up via email to thank you and confirm the 10-day extension you granted me today.” But it would be wise to copy as many of the recipients I listed above as possible.
Regardless of whether you start with a call and follow-up in writing, or simply start mass emailing those listed above, we would recommend your request include all of the following: (a) your need for an extension; (b) how long you believe that extension will need to be; (c) the specific reason why you need that extension, why you need it for that length of time, and a specific explanation for each and every document you cannot submit on time (I would strongly advise against any generalities here, such as, “Because its Christmas, dude!”–no matter how fair and reasonable that may be); and finally, (d) an offer to provide some kind of substitute document, information, or declaration covering the subject matter of the delayed submission document in the meantime (i.e., “though I am still waiting on that specific financial document, I am happy to provide a signed SBA form or declaration covering those same financial aspects of my company in the meantime.”)
Finally, if you have any questions as to whether someone agreeing to grant you an extension has the authority to do so–that touches on specific legal advice territory that I would highly recommend you confirm with a government contracting attorney prior to relying on the extension granted.
TIP FIVE: With basically all 13 requests containing ambiguity, unclear or undefined language, or all of the above, go with the safest “interpretation” and explain yourself.
While none of the 13 requests from SBA are crystal clear, I will focus on a few of the most common questions here, as well as our general tips on handling all the unclear and ambiguous requests. Many of the requests refer to “fiscal year” without defining whose fiscal year SBA means (the 8(a) firm’s or the government’s) and to “last three full fiscal years” without establishing which date should be used to determine the same.
Whose Fiscal Year Are We Talking?
For some guidance on whose fiscal year SBA is referring to here, we looked to the 8(a) regulations at 13 C.F.R. § 124.112(d) and (e) (on continued eligibility criteria) and 13 C.F.R. § 124.602(a) through (g) (on annual financial statements). Those regulations nearly always refer to the 8(a) firm’s fiscal year. So, our best guess is that SBA intends for its 8(a) audit request to match its general 8(a) annual financial statement requirements, and thus, means the 8(a) firm’s fiscal year. But we, of course, cannot be sure.
As for “the last three full fiscal years,” there are really two reasonable ways to interpret this: (a) 2022, 2023, and 2024–based on the SBA’s 8(a) audit email being dated December 5, 2025; or (b) 2023, 2024, and 2025–based on the required submission deadline being January 5, 2026. But we have generally been leaning toward interpretation (a), suggesting that the date of the letter is the most likely date SBA intended recipients to go off. So, we think SBA is most likely looking for 2022, 2023, and 2024 as the last three full fiscal years for the requests containing that language. But again, we have no way of knowing for sure. One note here, if you do decide to go with interpretation (b) instead, just make sure you do in fact upload your submissions in the new year, in 2026, otherwise, that interpretation seems to become a lot less reasonable.
What On Earth Is Request Number Nine Asking For?
Finally, the infamous request number nine from SBA’s 8(a) audit email asks for, “Copy [sic] of all 8(a) Contracts on which the firm is currently working for the last three full fiscal years[.]” Oh yeah, oh boy–is what we said too.
Unfortunately, not even our standard–typically helpful–canons of construction can provide any relief from the blatant ambiguity with this one. For example, it is a widely accepted canon of construction that no words intentionally included in a sentence/term/rule/etc. should be interpreted to have no meaning. But there is no way around it here due to the pure contradiction of the language; either you have to assume: (a) “currently” is meaningless (or just the plain ol’ wrong word), or (b) “for the last three full fiscal years” is meaningless or was wrongfully included at the end of the request (or was at least severely misstated).
So, it is possible SBA meant something in line with the latter assumption (b) (i.e., that SBA meant to request either: “Copies of all 8(a) Contracts on which the firm is currently working” (period); or maybe “. . . currently working that were awarded over the past three full fiscal years.”). But our best guess here–and what we feel is the safest interpretation, nonetheless–is that SBA’s intent was more likely aligned with assumption (a) above (i.e., intending to request “Copies of all 8(a) Contracts on which the firm is currently or was actively working over the past three full fiscal years.” But indeed, we fully understand that SBA’s actual request doesn’t match any of our reasonable interpretations here.
That said, we would recommend providing all the 8(a) contracts (including any modifications, extensions, amendments, etc., thereof or thereto) that the firm was actively performing over the past three full fiscal years. We find this option safest because it may provide SBA with more contracts than it was seeking–but the other options have the more concerning risk of not providing SBA with all the contracts it was seeking.
What is “Safest” and What All Should We “Explain”?
Well that last one–the doozy that it was–still provides us a nice segue into what we believe are some of the most important general takeaways for handling the plethora of ambiguities and undefined or unclear terms in SBA’s 8(a) audit requests. Just as we stressed the safer option for responding to SBA request number nine is whatever option potentially gives SBA more but not less than it meant to ask for–generally, the same goes for any of SBA’s 13 requests subject to multiple interpretations.
But we also understand that each 8(a) firm is different; which documents may be available, unavailable, delayed, etc., could all impact what is truly the “safest” option for a given 8(a) firm. And with major questions to this end, it is certainly best to seek specific and specialized legal advice with your submissions here.
And regardless of how you chose to interpret and respond to any of SBA’s 13 8(a) audit requests, we strongly suggest one thing across the board: explain yourself! In fact, we’d go so far as to say that a cover letter for each submission could be a really good idea. That cover letter, we suggest, should include (at least):
- A brief explanation of how you interpreted the request at issue;
- Why your interpretation is reasonable under 8(a) law, the express language used in the request, (if applicable) the guidance and advice of counsel or an SBA/8(a) representative, etc.;
- Assertions as to how your submission is directly responsive to the request as you interpreted it; and
- A request that SBA simply let you know if you misread SBA’s intent.
- And with that, depending on which way you went with your submission, it would be wise to include: (a) a sincere offer to promptly provide any additional information or documentation that may be necessary to meet SBA’s intended request; or (b) an index of your submissions for the request at hand indicating which documents SBA should focus on if you misinterpreted SBA’s intent (i.e., “SBA can focus on Contracts No. 1 and 2, and ignore Contracts Nos. 3-10 if SBA indeed meant only to request 8(a) contracts “currently” being performed by my firm.”)
* * *
By now, I am sure you can tell, our biggest concern here is with 8(a) firms inadvertently failing to provide the documents SBA intended to request–without an explanation as to why things appear to be “missing.” We are not saying a mismatched interpretation with an explanation is risk free, by any means. But we do note the language of 13 C.F.R. § 124.603 we repeatedly cited and referred to throughout this blog seems most concerned with outright “failure[s] to provide such information when requested[.]”
As SBA’s 8(a) audit email asks for everything to be submitted in either PDF or CSV2 (comma separated value, i.e. a spreadsheet) format–it is probably safe to say that at least the initial review of the vast amount of information and documentation SBA will receive by January 5 will be fed through some type of A.I. or other advanced data processing system. And potentially, only the legal compliance concerns initially identified in the provided documents and the apparently missing or withheld documents will get “flagged” for deeper SBA review. If that is the case, and of course we have no way of knowing for sure, it would confirm our stance that the most risk likely lies in unexplained missing or non-responsive documents. Essentially, anything that could even look like an intentional failure to provide responsive documentation by the deadline may be subject to punishment–and may not include any opportunity to further explain things to SBA.
Questions about this post? Email us. Need legal assistance? Call us at 785-200-8919.
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- Based on this, we assume SBA may only be requesting compliance from 8(a) applicants once they have actually entered the 8(a) Program and executed all agreements with SBA to do so. But this is in no way our advice to not respond if you are an 8(a) applicant in receipt of the 8(a) audit email. To the contrary, the safest bet is for anyone who gets the email to comply with it. While the regulations are much clearer on the legal duties for current and past 8(a) participants to comply with the 8(a) audit requests, there are still regulations regarding broader duties for 8(a) applicants to provide additional requested documents to SBA and keep its application documentation current and complete. And we are not comfortable enough to say those regulations would not or could not be applied here to require compliance with the 8(a) audit request. ↩︎
- According to Adobe, “CSV files are a simple, widely compatible format for storing and sharing data. They are easy to use across various software tools, making them ideal for organizing and managing structured information. CSV files are primarily used for simple data exchange rather than elaborate presentations.” Accessed on 12/18/2025 at: https://www.adobe.com/acrobat/resources/document-files/what-is-a-csv-file.html ↩︎