One of the most popular programs in small business federal contracting seems to be the SBA’s Mentor-Protege Program. It is generally a great program for small businesses to utilize the resources and knowledge of a larger or more experienced business to grow. In turn, it also gives large businesses the ability to work on small business contracting opportunities, and the Government the ability to contract with more robust teams. Unfortunately, there has been a recent trend of the SBA being somewhat strict on minor language in Mentor-Protege Agreements, possibly stifling participation in the program, or at least making it take longer for SBA to approve these agreements.
The SBA’s Mentor Protege Program is appealing to many contractors due to its numerous benefits. There are of course many nuances to getting into the program and meeting its requirements (check out part 1 and part 2 of our series on misconceptions of the SBA’s Mentor-Protege Program). But, the backbone of the Mentor-Protege Program is the Mentor-Protege Agreement (MPA).
The MPA is not a document where the parties can set their own terms. SBA regulations set very clear standards for what must be in an MPA. The MPA must set out things like the anticipated assistance, discuss other MPAs (if applicable), establish points of contacts, and set a term for the MPA itself, among many other things.
In line with that and to help contractors, the SBA publishes an MPA template. Contractors can utilize this template to work on their MPA. This document is exactly what it says it is, a template (defined as a guide or pattern). Throughout the template is advice to MPA drafters, discussions of what should be provided to the SBA with the MPA, citations, terms which could apply to certain contractors but not others, and great guidance for forming the MPA. Logically, contractors should be able to take the regulations, and the SBA’s template, and come out the other side with a unique, but compliant MPA. Typically, if an agreement made sure to hit on the items within the regulations it would not run into an uphill battle for approval.
Unfortunately, some SBA reviewers (hopefully not all) have recently interpreted the MPA template as a requirement, rather than a guide. Attorneys at SmallGovCon have seen SBA pushing back on MPAs that are not a carbon copy of the SBA published template. As discussed, the template has instructions within it, terms that may only apply for certain contractors, and placeholder language. It is a fantastic tool, but it is certainly not a plug and play document for all contractors. However, over the past year SBA reviewers of MPAs have increasingly requested the MPA exactly match that specific template (or in some cases references older versions of the template from when SBA had the separate “All-Small” and “8(a)” Mentor Protege Programs). Even MPAs that utilized the template were not acceptable unless they used the exact verbiage and even formatting of the template.
For example, the Template for its section on Assistance states: “1. Identify the type(s) of assistance the Protégé is seeking from the Mentor. There are six categories to choose from, and you may select any or all that apply to your situation.” The Template then lists 6 types of assistance, with titles such as “Management and Technical Assistance” and “International Trade Education.” If SBA were to require the specific language and template, then contractors would have an MPA that instead of being descriptive with a heading like “Assistance to Be Provided” or something like that, provides as its heading an instruction to identify assistance and that there are six categories to choose from.
The regulations that dictate the Mentor-Protege Program and MPAs do not require this specific template. They require certain items be addressed, but not that they be in a SBA supplied format. Yet, some of the SBA’s own reviewers seem to be taking an approach that the MPA template itself should be completely replicated with the addition of the required info, rather than simply looking for the regulatory required language.
While it is commendable to try to streamline government contracting processes, it should not be at the expense of the regulation. Nor should agencies place upon contractors further additional unwritten rules. Finding a partner to go into the SBA’s Mentor-Protege program with you is a delicate process, and one that is unique to each Mentor-Protege relationship. A rigid unwritten rule, focused on formatting not regulations, can only chip away at the relationships that the SBA is trying to build between contractors in this program at the very beginning stages. Hopefully, the SBA will internally address this application of unwritten rules to the Mentor-Protege Program. Until they do, Contractors need to be very careful on how any MPA is drafted or formatted, as well as prepare for SBA questions on MPA formatting. So, if you find yourself contemplating a Mentor-Protege relationship, please do not hesitate to reach out to a federal contracting attorney, such as ourselves, for assistance.
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