(a) In determining a concern's number of employees, SBA counts all individuals employed on a full-time, part-time, or other basis. This includes employees obtained from a temporary employee agency, professional employee organization or leasing concern. SBA will consider the totality of the circumstances, including criteria used by the IRS for Federal income tax purposes, in determining whether individuals are employees of a concern. Volunteers (i.e., individuals who receive no compensation, including no in-kind compensation, for work performed) are not considered employees.
(b) Where the size standard is number of employees, the method for determining a concern's size includes the following principles:
(1) The average number of employees of the concern is used (including the employees of its domestic and foreign affiliates) based upon numbers of employees for each of the pay periods for the preceding completed 24 calendar months.
(2) Part-time and temporary employees are counted the same as full-time employees.
(3) If a concern has not been in business for 24 months, the average number of employees is used for each of the pay periods during which it has been in business.
(4)(i) The average number of employees of a business concern with affiliates is calculated by adding the average number of employees of the business concern with the average number of employees of each affiliate. If a concern has acquired an affiliate or been acquired as an affiliate during the applicable period of measurement or before the date on which it self-certified as small, the employees counted in determining size status include the employees of the acquired or acquiring concern. Furthermore, this aggregation applies for the entire period of measurement, not just the period after the affiliation arose.
(ii) The employees of a former affiliate are not counted if affiliation ceased before the date used for determining size. This exclusion of employees of a former affiliate applies during the entire period of measurement, rather than only for the period after which affiliation ceased. However, if a concern has sold a segregable division to another business concern during the applicable period of measurement or before the date on which it self-certified as small, the employees used in determining size status will continue to include the employees of the division that was sold.
[61 FR 3286, Jan. 31, 1996, as amended at 69 FR 29203, May 21, 2004; 84 FR 66579, Dec. 5, 2019; 87 FR 34120, June 6, 2022]
Notes of Decisions
Metro Mach. Corp. v. United States Small Bus. Admin., 305 F. Supp. 2d 614 (E.D. Va. 2004).
· cites it 7× “1,” which was promulgated in 1986 to assist SBA program examiners *619 in determining under 13 C.F.R. § 121.106 (a) who an “employee” of a company is for purposes of deciding whether the business is “small” as defined by 13 C.”
DSE, Inc. v. United States, 169 F.3d 21 (D.C. Cir. 1999).
· cites it 2× “The government conceded at oral argument that the SBA has always rejected the use of equivalency figures as inconsistent with its regulations requiring that a count include “all individuals employed on a full-time, part-time, temporary, or other basis,” 13 C.F.R. § 121.106 (a),…”
Lion Raisins, Inc. v. United States, 57 Fed. Cl. 505 (Fed. Cl. 2003).
“13 C.F.R. § 121.106 (2002), provides that “[w]here the size standard is number of employees,” the “average number of employees of the concern is used (including the employees of its domestic and foreign affiliates) based upon numbers of employees for each of the pay periods for…”
Meduri Farms, Inc. v. U.S. Small Bus. Admin. (D. Or. 2025).
· cites it 16× “The central issue in this case is whether the SBA erroneously determined Meduri’s eligibility for the PPP2 loan by averaging the number of employees Meduri had in the twelve calendar months preceding its loan application, as established in 13 C.F.R. § 121.106 . This Court…”
Bloomfield (E.D. Va. 2025).
· cites it 16× “Such workers must be included in PPP-related headcount calculations within the parameters set forth under 13 C.F.R. § 121.106 . I. BACKGROUND The PPP arose out of the March 2020 Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Pub.”
DSE, Inc. v. United States, 3 F. Supp. 2d 1464 (D.D.C. 1998).
“, and 13 C.F.R. § 121.106 , which impose on the SBA the obligation to consider all individuals employed by a company and its affiliates.”
Gordon Coll. v. Small Bus. Admin. (D.D.C. 2025).
· cites it 2× “Plaintiff’s second amended complaint did not identify which supposed regulations SBA violated, SAC ¶¶ 293-302, but in opposing defendants’ motion, plaintiff argues that 13 C.F.R. § 121.106 permitted SBA to create a “custom-fit” definition of employee based on the “totality of…”
Zin Tech., Inc. v. United States (Fed. Cl. 2024).
“103 (a)(6); 13 C.F.R. § 121.106 . ZIN Tech concludes that if “the Agency had properly done so here, Sierra Lobo’s [ employees plus HX5 Sierra’s [ ] employees plus NAS’s full average of [ ] employees would equal [ ] employees.”
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