COMMENTARY

HUBZone's beware the too good to be true offer

I’m sure you’re familiar with the adage, “If it sounds too good to be true, it probably is.”

For owners of HUBZone businesses—small businesses that operate and employ people in Historically Underutilized Business Zones (HUBZones)—it’s a motto to keep in mind as they travel to one of the largest HUBZone matchmaking events in the country this October, the National HUBZone Conference in Chantilly, Virginia.

This annual conference provides a tremendous opportunity for HUBZone business owners and corporations to network and identify potential partners who can help them win business with the federal government. Unfortunately, such gatherings can also attract nefarious corporate executives who are on the hunt for a HUBZone business to illegally use as a pass-through to gain access to lucrative federal contracts that would otherwise be out of reach.

But there are proactive steps a HUBZone business can take to protect itself and the integrity of the HUBZone program.

The Small Business Administration created the HUBZone program to encourage business development in economically challenged areas, and the federal government's goal is to award at least 3 percent of all federal contracting dollars—or roughly $15 billion—to HUBZone-certified small businesses each year. While the program was designed to provide legitimate small businesses with a path to get their foot in the door with the federal government, it has become a prime target for fraud. To retain their HUBZone eligibility and avoid potential civil or criminal liability, small business owners need to understand the potential pitfalls.

Understandably, many small businesses are unable to comprehensively serve the needs of a federal contract on their own, so they partner with larger corporations. There are legitimate ways to engage in such a partnership and the SBA provides extensive guidance in how to do so. However, HUBZone businesses are sometimes approached with a proposal to sign off as a partner on a contract or bid without having to perform any of the actual work. That should raise a red flag. Experienced HUBZone businesses generally refuse to engage in these types of deals. But when large businesses are intent on establishing a pass-through with a HUBZone organization, they will often use conferences to shop the offer to many potential partners until someone says “yes.”

In other cases, large businesses and corporations are more covert about their intent to use a HUBZone organization as a pass through. In these instances, in the months immediately after partnering on a piece of business, a HUBZone organization may find their corporate partner slowly beginning to squeeze them out of performing the work for which they have been contracted, while still continuing to pay them. In these situations, when the work arrangement starts to look and feel less like a partnership and more like the HUBZone business is just being used for its HUBZone certification, it may be time to take a closer look at the engagement to see if the larger business is committing fraud.

Contractor fraud in HUBZone set-aside programs is a little bit like an iceberg. It can be difficult to detect and prove, which is why even though the problem is pervasive, only a small percentage of fraud cases ever make it to a courtroom. This is why HUBZone contractors play a key role in helping to police their industry. In particular, there are a number of ways for HUBZone business owners to protect themselves and the HUBZone program from these pervasive forms of fraud.

First, if you are a HUBZone business owner who is approached at a convention like the National HUBZone Conference to become a “pass through” for a larger corporation, keep your eyes and ears open. There is a strong likelihood that the corporate contact who offered you a “too good to be true” deal will pursue your peers until someone agrees to their terms. When you have knowledge of this type of fraud, it is important to reach out to an attorney who specializes in government contracting fraud cases and can help you share this information with the federal government. Often, by serving as a whistleblower, you may be entitled to monetary rewards if the government can prove the fraud occurred.

Second, if you are a HUBZone business that enters into a partnership with a larger organization, make sure you have a tightly defined contract and scope of work. This scope of work should clearly state the percentage of work that you are required to perform, as well as what the work will entail. By having these legal documents established at the beginning of a relationship, it will be very difficult for a corporate partner to illegally squeeze you out of a partnership.

Third, and most importantly, it is critical that HUBZone businesses have a strong backbone to stand-up to corporate executives rather than giving in and accepting payment in exchange for the use of their certification. If you’re in a partnership, insist that you perform the work—even if your corporate partner pressures you not to. And if you’re presented with a “too good to be true” offer, protect yourself and your business by walking away. When in doubt, talk to a lawyer.

About the Author

Andrew Miller is a shareholder and attorney at the firm Baron & Budd.

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