§ 26.69 Ownership. ( a ) *General rule.* A SEDO must own at least 51 percent of each class of ownership of the firm. Each SEDO whose ownership is necessary to the firm's eligibility must demonstrate that her ownership satisfies the requirements of this section. If not, the firm is ineligible.
( b ) *Overall Requirements.* A SEDO's acquisition and maintenance of an ownership interest meets the requirements of this section only if the SEDO demonstrates the following: ( 1 ) *Acquisition.* The SEDO acquires ownership at fair value and by one or more “investments,” as defined in paragraph (c) of this section.
( 2 ) *Proportion.* No owner derives benefits or bears burdens that are clearly disproportionate to their ownership shares.
( 3 ) *Maintenance.* This section's requirements continue to apply after the SEDO's acquisition and the firm's certification. That is, the SEDO must maintain her investment and its proportion relative to those of other owners. ( i ) The SEDO may not withdraw or revoke her investment.
( ii ) When an existing co-owner contributes significant, additional, post-acquisition cash or property to the firm, the SEDO must increase her own investment to a level not clearly disproportionate to the non-SEDO's investment. ( A ) *Example 1 to paragraph (b)(3)(ii).* SEDO and non-SEDO own DBE 60/40. Their respective investments are approximately $600,000 and $400,000. The DBE has operated its business under this ownership and with this capitalization for 2 years. In Year 3, the non-SEDO contributes a $2 million asset to the business. The SEDO, as a result, owns 60 percent of a $2 million asset without any additional outlay. Her ownership interest, assuming no other pertinent facts, is worth $1.2 million more than it was before. Unless the SEDO increases her investment significantly, it is clearly disproportionate to the non-SEDO's investment and to her nominal 60 percent ownership. She has not maintained her investment.
( B ) *Example 2 to paragraph (b)(3)(ii).* Same facts except that the DBE purchases the asset with a combination of 30 percent operating income and 70 percent proceeds of a bank loan. The SEDO maintains her investment because it remains in proportion to the non-SEDO's investment and to the value of her 60 percent ownership interest.
( C ) *Example 3 to paragraph (b)(3)(ii).* Same facts except that the non-SEDO, not a bank, is the DBE's creditor. The SEDO has not maintained her investment because the benefits and burdens of her ownership are clearly disproportionate to those of the non-SEDO. The transaction may also raise § 26.71 concerns.
( iii ) An organic increase in the value of the business does not affect maintenance because the value of the owners' investments remains proportional. In Example 2 above, the SEDO and the non-SEDO own the new asset at 60 percent and 40 percent of its net value of $60,000.
( c ) *Investments.* A SEDO may acquire ownership by purchase, capital contribution, or gift. Subject to the other requirements of this section, each is considered an “investment” in the firm, as are additional purchases, contributions, and qualifying gifts. ( 1 ) Investments are unconditional and at full risk of loss.
( 2 ) Investments include a significant outlay of the SEDO's own money.
( 3 ) For purposes of this part, title determines ownership of assets used for investments and of ownership interests themselves. This rule applies regardless of contrary community property, equitable distribution, banking, contract, or similar laws, rules, or principles. ( i ) The person who has title to the asset owns it in proportion to her share of title.
( ii ) However, the title rule is deemed not to apply when it produces a certification result that is manifestly unjust.
( 4 ) If the SEDO jointly (50/50) owns an investment of cash or property, the SEDO may claim at least a 51 percent ownership interest only if the other joint owner formally transfers to the SEDO enough of his ownership in the invested asset(s) to bring the SEDO's investment to at least 51 percent of all investments in the firm. Such transfers may be gifts described in paragraph (e) of this section.
( d ) *Purchases and capital contributions.* ( 1 ) A purchase of an ownership interest is an investment when the consideration is entirely monetary and not a trade of property or services.
( 2 ) Capital that the SEDO contributes directly to the company is an investment when the contribution is all cash or a combination of cash and tangible property and/or realty.
( 3 ) Contributions of time, labor, services, and the like are not investments or components of investments.
( 4 ) Loans are not investments. The proceeds of loans may be investments to the extent that they finance the SEDO's qualifying purchase or capital contribution.
( 5 ) Debt-financed purchases or capital contributions are investments when they comply with the rules in this section and in § 26.70.
( 6 ) Guarantees are not investments.
( 7 ) The firm's purchases or sales of property, including ownership in itself or other companies, are not the SEDO's investments.
( 8 ) Other persons' or entities' purchases or capital contributions are not the SEDO's investments.
( e ) *Gifts.* A gift to the SEDO is an investment when it meets the requirements of this section. The gift rules apply to partial gifts, bequests, inheritances, trust distributions, and transfers for inadequate consideration. They apply to gifts of ownership interests and to gifts of cash or property that the SEDO invests. The following requirements apply to gifts on which the SEDO relies for her investment. ( 1 ) The transferor/donor is or immediately becomes uninvolved with the firm in any capacity and in any other business that contracts with the firm other than as a lessor or provider of standard support services;
( 2 ) The transferor does not derive undue benefit; and
( 3 ) A writing documents the gift. When the SEDO cannot reasonably produce better evidence, a receipt, cancelled check, or transfer confirmation suffices, if the writing identifies transferor, transferee, amount or value, and date.
( f ) *Curative measures.* The rules of this section do not prohibit transactions that further the objectives of, and compliance with, the provisions of this part. A SEDO or firm may enter into legitimate transactions, alter the terms of ownership, make additional investments, or bolster underlying documentation in a good faith effort to remove, surmount, or correct defects in eligibility, as long as the actions are consistent with this part. ( 1 ) The certifier may notify the firm of eligibility concerns and give the firm time, if the firm wishes, to attempt to remedy impediments to certification.
( 2 ) The firm may, of its own volition, take curative action up to the time of the certifier's decision. However, it must present evidence of curation before the certifier's decision.
( 3 ) The certifier may provide general assistance and guidance but not professional (legal, accounting, valuation, etc.) advice or opinions.
( 4 ) While the certifier may not affirmatively impede attempts to cure, it may maintain its decision timeline and make its decision based on available evidence.
( 5 ) The certifier must deny or remove certification when the firm's efforts or submissions violate the rules in paragraph (g) of this section.
( g ) *Anti-abuse rules.* ( 1 ) The substance and not the form of transactions drives the eligibility determination.
( 2 ) The certifier must deny applications based on sham transactions or false representations, and it must decertify DBEs that engage in or make them. Transactions or representations designed to evade or materially mislead subject the firm to the same consequences.
( 3 ) Fraud renders the firm ineligible and subjects it to sanctions, suspension, debarment, criminal prosecution, civil litigation, and any other consequence or recourse not proscribed in this part.
Example 1 to paragraph (g)(3): SEDO claims an investment consisting of a contribution of equipment and a significant amount of her own cash. She shows that she transferred title to the equipment and wrote a check from an account she alone owns. She does not disclose that her brother-in-law lent her the money and she must repay him. The firm is ineligible under paragraphs (g)(1) and (2) of this section.
[89 FR 24972, Apr. 9, 2024]