Get SWaM Certified in Virginia and Win!

by Williams Mullen

Williams Mullen

When it comes to new business opportunities for small businesses, there are two potentially lucrative markets that are sometimes overlooked: the state and local governments. In fact, the Commonwealth of Virginia spent nearly $9.8 billion in fiscal year 2018.[1] Given the large dollars involved and diverse opportunities, government contractors, and small businesses eager to break into the government contracting industry, may find it advantageous to look beyond the federal government for contracts.

Start with SWaM?

For a small business eager to do business with the Commonwealth of Virginia, a major part in winning these opportunities depends on a company’s ability to receive SWaM certification. The SWaM certification program is a state program administered by the Virginia Department of Small Business & Supplier Diversity (SBSD). “SWaM” stands for small, women-owned and minority-owned business, which are the applicable designations that an applicant may receive. In addition to the small, women-owned and minority-owned business designations, a company may also apply for a micro certification. Unlike some of the similar federal programs (e.g., women-owned small business), a company eager to obtain a SWaM certification cannot merely self-certify, but instead must apply for certification.

This post describes the various categories of SWaM certification and summarizes hurdles in the certification process.[2]

Which SWaM certification applies to your business?

Generally, the first step in obtaining SWaM certification is to determine which certification applies to your business and whether your business satisfies the requirements for such certification. For the socio-economic certifications, such as minority-owned and women-owned, the minority or woman must own and control the business, which must be sufficiently evidenced in the submitted legal documents. Although this may sound simple, there are common pitfalls related to the organizational documents that give the SBSD grounds for denying certification, and, in such case, a denied applicant must wait one year to re-apply.

Several key categories include:

  • Small. To be classified as a “small business,” the business must be “at least 51 percent independently owned and controlled by one or more individuals who are U.S. citizens or legal resident aliens and, together with affiliates, ha[ve] 250 or fewer employees or average annual gross receipts of $10 million or less averaged over the previous three years.” Notably, the number of employees and average gross receipts are calculated by looking at the business applying for certification as well as all affiliates.

Whether a company is an affiliate of the applicant will be discussed in a subsequent blog post, but for right now just think of subsidiary companies and those under common ownership or control.

  • Micro. A business may be certified as a micro business if it may certify as a small business (above) and has 25 or fewer employees and average annual gross receipts of $3 million or less averaged over the previous three years. Again, the calculation of gross receipts and employees takes into account the receipts and employees of the applicant’s affiliates.
  • Women-Owned. To qualify as a “women-owned” business, the business must be at least 51% owned by women who are U.S. citizens or legal resident aliens. Both the management and daily business operations must be controlled by one or more women. As explained in further detail below, evidencing the requisite level of control tends to be difficult for many applicants.
  • Minority-Owned. Generally, a business may be certified as a minority-owned business if: (1) it meets the definition of minority-owned business under the statute or (2) the minority owner is regarded as such by the community of which the person claims to be a part. 

    To qualify as a “minority-owned” business, the business must be at least 51% owned by minority individuals who are U.S. citizens or legal resident aliens, and both the management and daily business operations must be controlled by one or more minority owners. Generally, the statute defines “minority individual” to include African Americans, Asian Americans, Hispanic Americans and Native Americans.

    In making the determination whether a person is a minority individual, the department may be required to determine whether the person is regarded as a minority individual by the community in which he or she claims to be a part. In determining whether a person is regarded as a minority by the community of which he or she claims to be a part, the SBSD may consider whether:

    • The person regularly describes himself, in printed materials and orally, as a member of the community.
    • Whether the person historically has held himself out as a member of the community.
    • Whether the individual is a member of and actively participates in business, educational, charitable, civic, or community organizations, or activities made up of or traditionally identified with or attended by members of the community.
    • Whether other members of the community describe the person as a fellow member of the community.

Certification hurdles: ownership and control

As described above, there are a variety of hurdles to obtaining the applicable certifications, but perhaps the biggest problem is demonstrating the requisite level of ownership and control. In order to verify the legal ownership and control of the business, the SBSD requires the applicant to submit certain organizational documents. The required organizational documents depend on the type of entity involved but generally include, for an LLC, the articles of organization, operating agreement, and record of ownership interests, and for a corporation, the articles of incorporation, bylaws, shareholders’ agreement and stock certificates. 


The broadest ownership policy is that the ownership of the business by women, minority or individual owners (in the case of a small business) must be real, substantial and continuing beyond the pro forma ownership of the business. In fact, the SBSD will look at the applicant’s organizational documents to verify the necessary ownership and that the individuals in question share in “all risks and profits in proportion to their ownership interests.” 

To further complicate matters, the SBSD looks at an individual’s level and sufficiency of contribution of capital or expertise. For instance, for an applicant seeking the women-owned certification, the SBSD would look to determine whether the woman-owner contributed sufficient capital for her interest (e.g., did she pay a real and substantial amount for her stock?), and whether she has sufficient expertise to run the business (e.g., does she have the necessary training and experience?). In evaluating the sufficiency of a contribution, the SBSD finds “promises to contribute capital or expertise in the future; a note or notes payable to the business or its owners who are not themselves women, minority, or individual owners; or the mere participation as an employee” as insufficient contributions. These tend to be payments or contributions that are due in the future. Interestingly, we have even seen situations in which the SBSD has denied certification to an applicant based on the husband and wife owning the joint bank account that was drawn upon to purchase the wife’s stock in a corporation seeking certification as a women-owned small business.  

As to whether the owner has sufficient expertise, the SBSD will review the prior work and educational experience of the applicant as set forth in the applicant’s resume. This may cause issues in a joint ownership situation, in which the woman or minority owner does not have the background and experience compared to the other owner.


Perhaps the most difficult hurdle is to “show evidence that the women, minority, or individual owners have control of the business.” In determining whether such control is sufficiently evidenced, the SBSD evaluates:

  • the broad governance authority
  • control of the day-to-day operations
  • the level of independence 

The SBSD determines whether these factors are sufficiently present by reviewing the applicant’s organizational documents.


The organizational documents of the applicant must not contain any provision that may be read to restrict the ability of the women, minority or individual owners to exercise managerial control and operational authority of the business. One way the SBSD evaluates this requirement is by looking at the composition and powers of the Board of Directors. The SBSD requires that the board of directors (or other management committee) be composed in such a manner as to allow the women, minority, or individual owners to act in their sole and unfettered discretion. One common ground for denying certification based on this requirement occurs when the board includes more than one director or manager. In fact, if the board is comprised of two or more members, then the woman or minority member would depend on the other members to be present to create a quorum (be present to hold a meeting) and to affirmatively vote with the woman or minority owner. If the SBSD can conceive a situation in which a quorum would not be present, or the other members would not be required to vote with the woman or minority owner, the application will likely be denied based upon a lack of control.

Furthermore, applicants claiming women-owned or minority-owned status must have a woman or minority owner holding the highest executive officer position in the company. The best practice is for him or her to be the highest paid employee.

Operation and management

The women, minority or individual owners “must possess the power to direct or cause the direction of the management and policies of the business and to make the day-to-day decisions as well as major decisions on matters of management, policy, and operations.” On an operational level, such owners must actually operate the day-to-day business, which depends on the peculiarities of the industry of the applicant. In order to determine whether operational control exists, the SBSD looks at the experience of the owner by looking at the level of relevant educational and work experience and whether the necessary certifications are held. Further, the owner must demonstrate his or her role in making the day-to-day decisions and must also have the technical competence necessary to critically evaluate the work of the subordinates.

Managerial control, on the other hand, requires that the owner demonstrate that he or she guides the “future and destiny of the business.” In particular, the organizational documents and the record must demonstrate that the owner has the ability to control the basic business functions, such as executing contracts, hiring and authorizing payroll.


To satisfy the independence factor, the applicant must demonstrate that the “woman, minority, or individual owner’s expertise must be indispensable to the business’s potential success.” Moreover, such owner must be able to run the business without substantial reliance on the finances or resources of persons that are not eligible for certification. For instance, the SBSD will look at how the applicant obtains its employees, office space, equipment and other necessary items to see if there is undue reliance on another entity (or whether common ownership or control exists). An example of this is a construction company that is unable to obtain the necessary bonding and that unduly relies upon another entity for such bonding.   


Given the tremendous value in obtaining a SWaM certification, the intricacies and hurdles in obtaining certification, and the one year waiting period after denial, applicants should ensure they have their house in order before applying for SWaM certification. One way to avoid these hurdles is to make sure the organizational documents satisfy complicated ownership and control requirements. 

[2] Note that this post does not discuss the various federal designations that may be grounds for certification at the state and local levels.



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Williams Mullen | Attorney Advertising

Written by:

Williams Mullen

Williams Mullen on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.