Jennifer Castillo, Esq. [email protected] Bonnie Graham, Esq. [email protected] Brustein &...

Jennifer Castillo, Esq.

[email protected]

Bonnie Graham, Esq.

[email protected]

Brustein & Manasevit

www.bruman.com

October 2015

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Grants Administrative Changes under the New EDGAR

mailto:[email protected]

mailto:[email protected]

http://www.bruman.com/

Agenda The Importance and Structure of

the New Uniform Guidance Major changes

Financial management Allowability Procurement Inventory Subrecipient monitoring Audits

Drafting Policies and Procedures

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Why are these rules important?

Recent OIG Findings Northeastern University (Chicago) agreed to pay $2.7 million

to cover nine years of mishandling federal research funds, in the largest-ever civil settlement with the National Science Foundation.

The university failed to provide necessary oversight, failed to pay interest due, paid salaries without required documentation, and paid expense money based on inadequate or fraudulent documentation.

Northeastern continued to engage in these practices when it knew or should have known in 2006, if not before, that the professor in charge of the grant violated NSF requirements when he submitted fraudulent claims for personal expenses.

Altogether the university approved and disbursed at least 26 advances, totaling approximately $8.4 million in NSF funds, without required verification of need and sufficient oversight.

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Recent OIG Findings (cont.) Over the past 5 years, the OIG has conducted 38 grant

fraud investigations resulting in five prosecutions, $13.5 million in restitution and recoveries, and $15 million in civil settlements.

For example, a former executive pleaded guilty to fraud charges for misrepresenting his firm as a disadvantaged small business in order to secure more than $2.4 million in NASA security contracts. The executive was sentenced to 5 years in prison and ordered to forfeit $2.9 million in ill-gotten gains.

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Recent OIG Findings (cont.)

Former Boeing procurement officer and others plead guilty to federal fraud charges.

In July 2014, a former Boeing procurement official was convicted of taking bribes from companies seeking to sell parts for military aircraft to Boeing in exchange for providing them with a competitor’s confidential bid information.

The official admitted to three counts of mail fraud, one count of wire fraud, and one count of currency structuring for his role in the scheme.

As part of the criminal scheme, an accomplice received confidential financial information through coded language in phone calls and e-mails and used this information to win Government contracts from Boeing worth more than $1.5 million.

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Recent OIG Findings (cont.) In December 2014, an OIG investigation led to the

conviction of two North Dakota brothers for defrauding the Federal Crop Insurance and Federal Crop Disaster Programs.

In order to collect Federal crop insurance indemnities and Federal crop disaster benefits, the brothers perpetrated a scheme to ruin their potato crops. The brothers were sentenced to a total of 66 months’ incarceration and ordered to forfeit $932,776.

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Recent OIG Findings (cont.) Greenville Public School District (Mississippi)

The former superintendent pled guilty to charges of bribery, kickbacks, and embezzlement.

He conspired with the owner of Teach Them To Read, Inc., a company that provided reading services for at-risk youth, to award $1.4 million in district contracts in exchange for monetary kickbacks.

The former superintendent was sentenced and the owner of the company pled guilty for their roles in this scam.

The former superintendent was sentenced to 76 months in prison and 3 years of supervised release, and he was ordered to pay more than $1.2 million in restitution.

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Part 200Uniform Administrative Req, Cost Principles, and Audits for Federal Awards

Formerly know as the “Uniform Grants Guidance”, the “Omni Circular” and the

“Super Circular”

Prior Rules (Incorporated Into the UGG)

A-21 – Cost Rules – Rules – IHEs A-87 – Cost Rules – State / Local Gov’t A-122 – Cost Rules – Nonprofit A-102 – Administrative Rules State / Local Gov’t A-110 – Administrative Rules IHEs A-133 – Audit Rules

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The New 2 CFR Part 200

Subpart A – Definitions Subpart B – General Provisions Subpart C – Pre Award Requirements Subpart D – Post Award Requirements Subpart E – Cost Principles Subpart F – Audit Requirements

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Agency Adoption

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Agriculture 415.1 – Competition in the awarding of discretionary

grants and cooperative agreements 416.1 – Special procurement provisions

Prospective contracts cannot develop or draft specifications, requirements, statements of work, invitations for bids, RFPs, contract terms or other documents for use by a state in conducting procurement under USDA entitlement programs

Education 3474.5 – How exceptions are made to 2 CFR part 200

Secretary will consult with OMB, but not seek approval, of any exceptions to UGG

3474.10 – Clarification regarding 2 CFR 200.207 ED will continue to use the label “high risk”

grantee / subgrantee to describe nonfederal entities with specific conditions

Agency Adoption (cont.) NASA

1800.3 – Applicability Extends requirements to commercial firms awarded

grants and cooperative agreements by NASA when cost sharing is not required, and to foreign organizations awarded grants by NASA If cost sharing is required, terms and conditions of

14 CFR part 1274 apply Grants to foreign organizations are made on

exceptional basis 1800.315 – Intangible property

Title to intellectual property created under a cooperative agreement by NASA or its contractors will initially vest with creating party.

NSF Rewrote the Proposal & Award Policies &

Procedures Guide (PAPPG) to conform to UGG13

Effective Dates

December 26, 2014 – Direct Grants from Federal Agency

July 1, 2015 – State Administered Programs July 1, 2016 – Procurement Rules Indirect Cost Rates When Due For Renegotiation

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The Major Changes in Federal Grants Management

1. Focus on Outcomes

2. Performance Metrics

3. Risk Assessments

4. Financial Management Policies

5. Equipment Use

6. Micro Purchases

7. Corrective Action

8. Family Friendly Policies

9. False Claims Certifications

10. Audit Thresholds

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Major Changes (cont.)

Part 200 has a MAJOR emphasis on strengthening accountability by

improving policies that protect against waste, fraud and abuse

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Financial Management Controls

Financial Management Rules200.302(b)

Prior Rule 74.21(b)

1.Financial Reporting

2.Accounting Records

3.Internal Control

4.Budget Control

5.Written Cash Management

6.Written Allowable Cost

7.Source Documentation

2 CFR 200.302 (b)

1.Identification of Awards (NEW)

2.Financial Reporting

3.Accounting Records (Source Docs)

4.Internal Control

5.Budget Control

6.Written Cash Management Procedures

7.Written Allowability Procedures

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1) Identification of Awards200.302(b)(1) (pg 118)NEW: All federal “awards” received and expended

The name of the federal “program”

Identification # of award CFDA Title and Number Federal Award I.D. # Fiscal Year of Award Federal Agency Pass-Through (If S/A)

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2) Financial Reporting200.302(b)(2) (pg 118)

Accurate, current, complete disclosure of financial results of each award in accordance with 200.327 and 200.328.

NEW: 200.327 – Federal awarding agency can only collect OMB approved data elements, no less than annually, no more than quarterly

NEW: 200.328 – Non federal entity must submit performance reports at intervals required by federal agency or pass through.

Annual performance reports due 90 days after reporting period; Quarterly performance reports due 30 days after reporting period

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Financial Reporting (cont.)

NEW: Performance Metrics1. Compare actual accomplishments to objectives.

(quantify to extent possible)2. Reasons goals were not met if appropriate4. Additional pertinent information (e.g. analysis and

explanation of cost overruns, high unit costs) Significant developments

a. Problems, delays. Adverse conditions that would impair ability to meet objective of the award

b. Favorable developments. Finishing sooner or at less cost

3) Accounting Records 200.302(b)(3) (pg 119)

Source Documentation Must Be Kept On:1. Federal Awards2. Authorizations3. Obligations4. Unobligated balances5. Assets6. Expenditures7. Income8. Interest (New) (Eliminated liabilities)

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4) Internal Controls200.302(b)(4) (pg 119) Effective control over and accountability for:

1. All funds2. Property3. Other assets

Must adequately safeguard all assets

Use assets solely for authorized purpose

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The Definition of Internal Controls 200.61 (pg 102)

Internal controls means a process, implemented by a non-Federal entity, designed to provide reasonable assurance regarding the achievement of objectives in the following categories:

a. Effectiveness and efficiency of operations;b. Reliability of reporting for internal and external use; andc. Compliance with applicable laws and regulations.

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Internal Controls 200.303 (pg 119)a. Non-Federal entities must establish and maintain

effective internal control over the Federal award that provides reasonable assurances that the entity is managing the award in compliance with federal statutes, regs, and terms of the award.

NEW: Internal controls “should” be in compliance with: The U.S. Comptroller General’s Standard for Internal

Controls in the Federal Government; and Internal Control Integrated Framework issued by the

Committee of Sponsoring Organizations of the Treadway Commission (COSO)

Internal Controls (cont.)200.303 (pg 119)

b.Comply with Federal statutes, regs, and the terms and conditions of the Federal awards.

c.Evaluate and monitor the non-Federal entity's compliance with statutes, regs and the terms and conditions of Federal awards.

d.Take prompt action when instances of noncompliance are identified including in audit findings.

e.Take reasonable measures to safeguard protected personally identifiable info (PII) and other information designated or deemed sensitive

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Required Certification 200.415 (pg 148)

NEW: An official authorized to legally bind the non-federal entity must certify on annual and final fiscal reports or vouchers requesting payment: “By signing this report, I certify to the best of my

knowledge and belief that the report is true, complete and accurate and the expenditures, disbursements and cash receipts are for the purposes and objectives set forth in the terms and conditions of the federal award. I am aware that any false, fictitious, or fraudulent information or the omission of any material fact, may subject me to criminal civil or administrative penalties for fraud, false statements, false claims, or otherwise.”

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5) Budget Control200.302(5) (pg 119) Comparison of expenditures with budget amounts for each award

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6) Written Cash Management Procedures 200.302(6) (pg 119)

NEW: Written Procedures to implement the requirements of 200.305

Payment200.305 (a) and (b) (pg 119)

For states, payments are governed by Treasury – State CMIA agreements 31 CFR Part 205 No Change

For all other non federal entities, payments must minimize time elapsing between draw from G-5 and disbursement (not obligation)

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Payment (cont.)200.305(b)(1)-(4) (pg 119)

Written procedures must describe whether non-federal entity uses:

1) Advance Payments (preferred) • Limited to minimum amounts needed to meet immediate

cash needs

2) Reimbursement• Pass through must make payment within 30 calendar

days after receipt of the billing

3) Working Capital Advance• The pass through determines that the nonfederal entity

lacks sufficient working capital. Allows advance payment to cover estimated disbursement needs for initial period

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Payment (cont.)200.305(b)(7)-(8) (pg 121)

NEW: Advances must be maintained in insured accounts

NEW: Pass through cannot require separate depository accounts

NEW: Accounts must be interest bearing unless:1. Aggregate federal awards under $120,0002. Account not expected to earn in excess of $500 per year3. Bank require minimum balance so high, that such account not

feasible4. A foreign gov’t or banking system prohibits or precludes

interest bearing accounts.

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Payment (cont.)200.305(b)(9) (pg 121)

NEW: Interest amounts up to $500 may be retained by non federal entity for administrative purposes

Currently $100 for State and local Gov’ts Currently $250 for IHEs and Non-profits.

NEW: Interest earned must be remitted annually to HHS Payment Management System.

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7) Written Allowability Procedures200.302(b)(7) (pg 119)

NEW: Written procedures for determining allowability of costs in accordance with Subpart E – Cost Principles Procedures can not simply restate the Uniform Guidance Subpart E

Should explain the process used throughout the grant development and budget process Training tool and guide for employees

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Program Income 200.307 (pg 123)

Non-Federal entities are encouraged to earn income to defray program costs where appropriate. Costs of generating program income may only be deducted if:

Authorized by federal regulations or the Federal award; Costs are incidental and not charged to the Federal award.

Property from the sale of real property or equipment is not program income – apply post award property rules.

Program Income Must Be Deducted from Total Allowable Costs (except for IHEs and Research Non-profits) With prior approval may add to Federal award.

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Subpart E – Cost Principles

Factors Affecting Allowability of Costs 200.403 (pg 143)

All Costs Must Be:1. Necessary, Reasonable and Allocable2. Conform with federal law & grant terms3. Consistent with state and local policies 4. Consistently treated5. In accordance with GAAP6. Not included as match7. Net of applicable credits (moved to 200.406)8. Adequately documented

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Reasonable 200.404 (pg 143)

Consideration must be given to:a. Whether cost is a type generally recognized as ordinary and

necessary for the operation of the non-Federal entity or the proper and efficient performance of the Federal award;

b. The restraints or requirements imposed such as: Arms length bargaining (hint: procurement processes); Federal, state and local laws; and Terms of the grant award.

c. Market Prices for comparable goods or services in the geographical area;

d. Whether the individuals acted with prudence under the circumstances considering their responsibilities; and

e. No significant deviation from established prices.

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Reasonable (cont.)

Practical Questions Do I really need this? Is the expense targeted to valid programmatic/

administrative need? Is this the minimum amount I need to spend to meet

my need? Do I have the capacity to use what I am purchasing? Did I pay a fair rate? If I were asked to defend this purchase, would I be able

to?

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Allocable 200.405 (pg 143)

A cost is allocable to a Federal award or cost objective if the goods or services involved are chargeable or assignable in accordance with relative benefits received. Incurred specifically for the award;

Benefits both award and other work and can be distributed in proportions that may be approximated using reasonable methods; and

Necessary to the overall operation of the entity and assignable to the award in accordance with this Part.

Can only charge in proportion to the value received by the program

Example: Agency purchases a computer to use 50% on the Federal grant program and 50% on a state program – can only charge half the cost to the grant.

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Allocable Costs200.405(c) (pg 143) Any cost allocable to a particular Federal award under the

principles in Part 200 may not be charged to other Federal awards to overcome fund deficiencies, to avoid restrictions imposed by Federal Statutes, regulations, or terms and conditions of the Federal awards, or for other reasons.

However, this prohibition would not preclude the non-Federal entity from shifting costs that are allowable under two or more Federal awards in accordance with existing Federal statutes, regulations, or the terms and conditions of the Federal award.

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Allocable Costs (cont.)200.405(d) (pg 143) If a cost benefits two or more projects or activities in

proportions that can be determined without undue effort or cost, the cost should be allocated to the projects based on proportional benefit.

If cost benefits two or more projects or activities in proportions that cannot be determined because of the interrelationship of the work involved, then notwithstanding 200.405(c), the costs may be allocated or transferred to benefited projects on any reasonable documented basis.

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Factors Affecting Allowability of Costs (cont.)200.403 (pg 119)

Be consistent with policies and procedures that apply uniformly to both federally- financed and other activities of the non-Federal entity.

Be accorded consistent treatment Can not charge cost as both direct and indirect

Be determined in accordance with GAAP Not be included as a cost or used to meet cost sharing or matching

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Factors Affecting Allowability of Costs (cont.)200.403(g) (pg 143)

Adequately documented Amount of funds under grant How the funds are used Total cost of the project Share of costs provided by

other sources Records that show compliance

and performance Other records to facilitate an

effective audit (for ED grants, see 76.730 page 68)

Methods for Collection, Transmission and Storage of Information 200.335 (pg 138)o NEW: When original records are electronic and cannot be

altered, there is no need to create and retain paper copies.

o When original records are paper, electronic versions may be substituted through the use of duplication or other forms of electronic media provided they:o Are subject to periodic quality control reviews, o Provide reasonable safeguards against alteration; and o Remain readable.

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Applicable Credits 200.406 (pg 144)

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Those receipts or reduction-of-expenditure type transaction that offset or reduce expense items – must be credited to the Federal award as either cost reduction or cash refund, as appropriate. Examples: purchase discounts, rebates or allowances,

recoveries or indemnities on losses, insurance refunds or rebates, adjustments of overpayments

Prior Written Approval 200.407 (pg 144)

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NEW: In order to avoid subsequent disallowance: Non-Federal entity may seek prior written approval of cognizant agency (for indirect cost rate) or Federal awarding agency in advance of the incurrence of special or unusual costs

Direct v. Indirect Costs 200.413(c) (pg 146)NEW: Salaries of administrative and clerical staff should be treated as “indirect” unless all of following are met:

1. Such services are integral to the activity2. Individuals can be specifically identified with

the activity3. Such costs are explicitly included in the

budget4. Costs not also recovered as indirect

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Collection of Unallowable Costs200.410 (pg 145) NEW: Payments made for costs determined to be unallowable by either the Federal awarding agency or pass-through must be refunded (including interest) to the Federal government in accordance with instructions from the Federal agency that determined the costs are unallowable.

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Selected Items of Cost

There are 55 specific items of cost!

Listed on page 94.

Starts at 200.420 (pg 150)

Selected Items of Cost Examples

Advertising/PR 200.421 (pg 150)◦ Allowable for programmatic purposes

including:◦ Recruitment◦ Procurement of goods◦ Disposal of materials◦ Program outreach◦ Public relations (in limited circumstances)

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Selected Items of Cost Examples (cont.)

Alcohol 200.423 (pg 151) Not allowable

Collections of Improper Payments 200.428 (pg 152) The costs incurred by the non-Federal entity to

recover improper payments are allowable as either direct or indirect costs, as appropriate.

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Conferences 200.432 (pg 158) Prior Rule: Generally allowable

Includes Meals / Conferences / Travel and Family Friendly Policies

Allowable conference costs include rental of facilities, costs of meals and refreshments, transportation, unless restricted by the federal award

NEW: Costs related to identifying, but not providing, locally available dependent-care resources

Conference hosts must exercise discretion in ensuring costs are appropriate, necessary and managed in manner than minimizes costs to federal award


Conferences 200.432 ED Restrictions on Food

(1) Is a working lunch necessary? (2) Is the portion of the agenda to be carried out during

lunch substantive and integral to the overall purpose of the conference or meeting?

(3) Is there a genuine time constraint that requires the working lunch?

(4) If a working lunch is necessary, is the cost of the working lunch reasonable?

(5) Has the SEA or LEA carefully documented that a working lunch is both reasonable and necessary?

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Selected Items of Cost (cont.)

Defense and prosecution of criminal and civil proceedings, claims, appeals 200.435 Generally, legal fees to defend are unallowable

NEW: Allowable if no monetary penalty or order of corrective action; costs must be reasonable and necessary, not prohibited, and not otherwise recovered from Federal gov’t or third party

Employee health and welfare costs 200.437

Removed “morale”

Documented policies for improvement of working conditions

Entertainment Costs 200.438

Cost of entertainment are unallowable

Amusement, Diversion, Social Activities

NEW: Except where costs might otherwise be considered programmatic and are authorized or have prior written approval of the Federal awarding agency.

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Maintenance and Repair Costs 200.452 (pg 170) Costs incurred for utilities, insurance, security,

necessary maintenance, janitorial services, repair or upkeep of buildings and equipment, which neither add to the permanent value of the property nor appreciably prolong its intended life, but keep it in efficient operating condition are allowable. If adds to permanent value, etc. must be treated as capital

expenditures and are only allowable to the extent not paid through rental or other agreement.


Pre-award Costs 200.458 (pg 171) Those costs incurred prior to the effective date of

the Federal award directly in negotiation or anticipation of the award

Costs must be necessary for efficient and timely performance of the scope of work

Allowable to the extent they would have been allowable if incurred after the effective date and ONLY with written approval from the Federal awarding agency.

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Participant Support Costs 200.456 (pg 170) Means direct costs for stipends, travel, registration

fees paid to or on behalf of participants or trainees (but not employees) in connection with conferences, or training projects. 200.75

Allowable with prior approval of the Federal awarding agency.

Training and Education Costs 200.472 (pg 176) Costs for employee development are allowable.

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Selected Items of Cost (cont.) Travel Costs 200.474 (Changed) (pg 176)

Travel costs may be charged on actual, per diem, or mileage basis

Travel charges must be consistent with entity’s written travel reimbursement policies

NEW: Allows costs for “above and beyond regular dependent care”

NEW: Grantee must retain documentation that participation of individual in conference is necessary for the project

Travel costs must be reasonable and consistent with written travel policy / or follow GSA 48 CFR 31.205-46(a)

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Time and Effort

Documentation

Documentation for Personnel Expenses200.430(i) (pg 154)

NEW: Charges to Federal awards for salaries and wages must be based on records that accurately reflect the work performed.

How staff demonstrate allocability If employee paid with federal funds, then

must show that the employee worked on that specific federal program cost objective 200.403(a)

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Who must participate?200.430(i)(1) and (i)(4) (pg 154, 155) Must be maintained for all employees whose salaries are: Paid in whole or in part with federal funds Used to meet a match/cost share requirement NOT contractors

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The Prior A-87 Rule (SEAs and LEAs)

Semi-Annual Certifications

If an employee works on a single cost objective: After the fact Account for the total

activity Signed by employee

or supervisor Every six months (at

least twice a year)

Personnel Activity Report (PAR) If an employee works on

multiple cost objectives: After the fact Account for total

activity Signed by employee Prepared at least

monthly and coincide with one or more pay periods

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The Prior A-21 standards (IHEs)

Plan Confirmation

Budgeted allocations for professional/professorial staff

Updated to reflect any significant changes in actual work

After-the-Fact Activity Reports

Professional/Professorial staff keep records every six months

All other employees keep monthly records

Signed by employee, principal investigator, or responsible official using suitable means of verification.

Must reflect activity applicable to each sponsored agreement and to each category needed to identify F&A costs

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Variety of records kept in combination at least monthly.

Multiple Confirmation Records

Documentation for Personnel Expenses (cont.)200.430(i)(1) (pg 154)

NEW: These records MUST:1. Be supported by a system of internal

controls which provides reasonable assurance charges are accurate, allowable and properly allocated;

2. Be incorporated into official records;3. Reasonably reflect total activity for which

employee is compensated; Not to exceed 100%

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Documentation for Personnel Expenses (cont.)200.430(i)(1) (pg 154)

4. Encompass all activities (federal and non-federal);

5. Comply with established accounting polices and practices; and

6. Support distribution among specific activities or cost objectives.

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COFAR Comments on Part 200 Rule

By focusing more on internal controls, the rule “mitigates the risk that a non-Federal entity… will focus on prescribed procedures... which alone may be ineffective in assuring full accountability.”

Uncovering weaknesses in internal controls or instances of fraud is goal. Not audit findings.

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Cost Objectives200.28 (pg 98)

Program, function, activity, award, organizational subdivision, contract, or work unit for which cost data are desired and for which provision is made to accumulate and measure the cost of processes, products, jobs, capital projects, etc.

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ED’s Time and Effort Guidance? (pg 269)

Does it still apply? It is possible to work on a single cost objective even if an

employee works on more than one Federal award or on a Federal award and a non-Federal award.

The key to determining whether it is a single cost objective is whether the employee’s salary and wages can be supported in full from each of the Federal awards on which the employee is working or from the Federal award alone if the employee’s salary is also paid with non-Federal funds.

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http://www2.ed.gov/policy/fund/guid/gposbul/time-and-effort-reporting.html



Use of Budget Estimates200.430(i)(1)(viii) (pg 154)

Budget estimates alone do not qualify as support for charges to Federal awards May be used for interim accounting purposes if: Produces reasonable approximations Significant changes to the corresponding work activity are identified in a timely manner

Internal controls in place to review after-the-fact interim charges based on budget estimates

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Percentages200.430(i)(1)(ix) (pg 154) NEW: Because practices vary as to the activity constituting a full workload, records may reflect categories of activities expressed as a percentage distribution of total activities.

Focus on IHES200.430(i)(1)(x) (pg 155)It is recognized that teaching, research, service, and administration are often inextricably intermingled in an academic setting.

When recording salaries and wages charged to Federal awards for IHEs, a precise assessment of factors that contribute to costs is therefore not always feasible, nor is it expected.

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Compliance200.430(i)(2) (pg 155)NEW: For records which meet the standards, the non-federal entity will not be required to provide additional support or documentation for the work performed.

DOL regulations for Fair Labor Standards Act must still be met (i.e. charges must be supported by records indicating the total number of hours worked each day).

Noncompliance200.430(i)(8) (pg 155)For a non-Federal entity where the records do not meet these standards: Federal agency may require personnel activity reports (PARs), including prescribed certifications or equivalent documentation that support the records as required in this section. PARs are not defined!!

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Reconciliation200.430(i)(1)(viii)(C) (pg 154)

NEW: All necessary adjustment must be made such that the final amount charged to the Federal award is accurate, allowable, and properly allocated.

Substitute Systems200.430(i)(5) (pg 155)

States, local governments and Indian tribes encouraged to adopt “substitute systems” if approved by cognizant agency for indirect cost. No longer applies to nonprofits.

Still acceptable to allocate sampled employees’ supervisors, clerical and support staffs, based on the result of the sampled employees.

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Alternative Proposals200.430(i)(6) (pg 155)

NEW: Cognizant agencies for indirect costs are encouraged to accept alternative proposals based on outcomes and milestones for program performance.

These plans are acceptable as alternatives to the Part 200 standards.

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Blended Funding200.430(i)(7) (pg 155)A non-Federal entity may submit performance plans that incorporate funds from multiple Federal awards and account for their combined use based on performance-based metrics, if approved.

Must submit a request for a waiver that includes certain information, including the method of charging costs.

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Procurement

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Contract vs. Grant 200.330 (pg 135)No change from the current requirement.

Entities must clearly determine what is a subgrant and what is a contract.

Procurement by States200.317 (pg 129)

Still provides flexibility for StatesAll other nonfederal entities follow policies and

procedures under Section 200.318-200.326.


General Procurement Standards 200.318(a) (pg 129) All nonfederal entities must have documented procurement procedures which reflect applicable Federal, State, and local laws and regulations.


Contract Administration 200.318(b) (pg 129) Nonfederal entities must maintain oversight to ensure that contractors perform in accordance with the terms, conditions, and specifications of the contract


Conflict of Interest 200.318(c)(1) (pg 129)

Must maintain written standard of conduct, including conflict of interest policy.

A conflict of interest arises when any of the following has a financial or other interest in the firm selected for award: Employee, officer or agent Any member of that person’s immediate family That person’s partner An organization which employs, or is about to employ, any of the

above or has a financial interest in the firm selected for award


Conflict of Interest (cont.)200.318(c)(1) (pg 129)

Must neither solicit nor accept gratuities, favors, or anything of monetary value from contractors/ subcontractors.

However, may set standards for situations in which the financial interest is not substantial or the gift is an unsolicited item of nominal value.

Standards of conduct must include disciplinary actions applies for violations.


Conflict of Interest (cont.)200.318(c)(2) (pg 130) NEW: If the non-federal entity has a parent,

affiliate, or subsidiary organization that is not a state or local government the entity must also maintain written standards of conduct covering organization conflicts of interest


Conflict of Interest (cont.)200.112 (pg 112) The Federal awarding agency must establish

conflict of interest policies for Federal awards. NEW: All non federal entities must establish

conflict of interest policies, and disclose in writing any potential conflict to federal awarding agency in accordance with applicable Federal awarding agency policy.


Mandatory Disclosures200.113 (pg 113) NEW: Must disclose in writing, in a timely manner: All violations of Federal criminal law involving fraud,

bribery, or gratuity violations potentially affecting the Federal award.

Failure to make disclosures can result in remedies in 200.338 (remedies for noncompliance) including suspension and debarment.

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Vendor Selection Process200.318(h) (pg 130) Must award contracts only to responsible contractors

possessing the ability to perform successfully: Contractor integrity Compliance with public policy Record of past performance Financial and technical resources


Competition200.319(a) (pg 130)

All procurement transactions must be conducted with full and open competition. Must have protest procedures to handle disputes

To eliminate unfair advantage, contractors that develop or draft specifications, requirements, statement of work, and invitations for bids or RFPs must be excluded from competing for such procurements.


Competition (cont.)200.319(a) (pg 130)

Situations that restrict competition:1. Unreasonable requirements on firms to qualify to do business2. Requiring unnecessary experience or excessive bonding3. Noncompetitive pricing practices4. Noncompetitive awards to consultants on retainer5. Organizational conflicts of interest (see 200.318(c)(2))6. Specifying a brand name instead of allowing “an equal”7. Any arbitrary action in the procurement process


Competition (cont.)200.319(b) (pg 131)

Must prohibit the use of statutorily or administratively imposed state or local geographical preferences in the evaluation of bids or proposal, except where applicable Federal statutes expressly mandate or encourage geographic preference. Does not preempt state licensing laws. Exception: architectural and engineering services (if

provides appropriate number of qualified firms).


Competition (cont.)200.319(c) (pg 131)

Written procedures for procurement must ensure all solicitations: Incorporate a clear and accurate description of the

technical requirements for materials, product or service to be procured; and “Brand name or equivalent” may be used as needed, but the

specific features of the named brand which must be met by the offers must be clearly states

Identify all requirements which the offerors must fulfill and all other factors to be used in evaluating bids or proposals.


Methods of Procurement200.320 (pg 131) Method of procurement:

NEW: Micro-purchase Small purchase procedures Competitive sealed bids Competitive proposals Noncompetitive proposals


Micro-Purchase 200.320(a) (pg 131) NEW: Acquisition of supplies and services under $3,000

or less. On October 1, 2015 the micro-purchase threshold will

increase to $3,500. $2,000 for construction subject to the Davis-Bacon Act

May be awarded without soliciting competitive quotations if nonfederal entity considers the cost reasonable.

To the extent practicable must distribute micro-purchases equitably among qualified suppliers.


Small Purchase Procedures200.320(b) (pg 131) Good or service that costs $150,000 or less

(NEW: Simplified Acquisition Threshold was raised under 200.88)

Organization may set lower threshold

Must obtain price or rate quotes from an adequate number of qualified sources

“Relatively simply and informal”


Sealed Bids200.320(c) (pg 130) Over $150,000


Bids are publically solicited. Appropriate when:

A complete, adequate and realistic specification or description of good or service is available;

Two or more responsible bidders are willing and able to compete effectively for the business

Selection of vendor can be made principally based on price and it’s a firm fixed price contract.


Competitive Proposals200.320(d) (pg 132) Over $150,000


Award contract to responsible vendor whose proposal is most advantageous to the program, considering price and other factors.

Generally used when sealed bid is not appropriate.


Noncompetitive Proposals200.320(f) (pg 132)

Appropriate only when: The item is only available from a single source; There is a public emergency that will not permit

delay; NEW: The Federal awarding agency or pass-through

expressly authorizes noncompetitive proposals in response to a written request from non-Federal entity; or

After soliciting a number of sources, competition is determined inadequate.


Contract Cost and Price200.323 (pg 133)

NEW: Must perform a cost or price analysis in connection with every procurement action over $150,000, including contract modifications

Independent estimate before receiving bids or proposals. Cost analysis generally means evaluating the separate cost

elements that make up the total price (including profit) Price analysis generally means evaluating the total price


Suspension and DebarmentAppendix II(H) (pg 200)


Cannot contract with vendor who has been suspended or debarred Excluded Parties List System in the System for Award Management (SAM)

2 CFR Part 180 (OMB Debarment Suspension Rules) and 2 CFR 3485 (USDE Rules)

Suspension and Debarment2 CFR 180.300


For contracts over $25,000 you must verify that the person with whom you intend to do business is not excluded or disqualified.

This MUST be done by either:a. Checking System for Award Management

(SAM); orb. Collecting a certification from that person; orc. Adding a clause or condition to the covered

transaction with that person.

Property Management

BRUSTEIN & MANASEVIT, PLLC

Equipment 200.33 (pg 99) Equipment: tangible, nonexpendible, personal property

having a useful life of more than one year and an acquisition cost of $5,000 or more per unit.

Grantee may also use its own definition of equipment as long as the definition would at least include all equipment defined above.


Supplies 200.94 (pg 106) All tangible personal property other than

equipment NEW: Computing devices are supplies is less

than $5,000

NEW: Computing devices 200.20 (pg 97) Machines used to acquire, store, analyze, process,

public data and other information electronically Includes accessories for printing, transmitting and

receiving or storing electronic information


Internal Controls 200.302(b)(4) (pg 119)

Regardless of cost, grantee must maintain effective control and “safeguard all assets and assure that they are used solely for authorized purposes.”


Equipment200.313(a) and (c)(4) (pg 127)

NEW: Conditional Title vests with the non-Federal entity.

NEW: Cannot encumber the property without approval of Federal agency or Pass-through agency

But NEW: When acquiring replacement equipment, may use the equipment to be replaced as a trade-in or sell the property and use the proceeds to offset the cost of the replacement property.


Use of Equipment 200.313(c)(1) and (2) (pg 127)

Equipment must be used by the Non-Federal entity in the program or project for which it was acquired as long as needed, whether or not the project or program continues to be supported by the Federal award.

When no longer needed, may be used in other activities with the following priority:1. Projects supported by Federal awarding agency2. Project funded by other Federal agencies

When used it may be shared (according to the above priorities) provided such use will not interfere with work on the original projects/programs.

Exception – Private Schools 76.661 (page 61)


Equipment Procedures200.313 (d) (pg 127)

Procedures for managing equipment must meet the following requirements:

1. Property records Description, serial number or other ID, source of funding, title,

acquisition date and cost, percent of federal participation, location, use and condition, and ultimate disposition date including sale price

2. Physical inventory at least every two years3. Control system to prevent loss, damage, theft

All incident must be investigated

4. Adequate maintenance procedures5. If authorized or required to sell property, proper sales

procedures to ensure highest possible return.


Disposition of Equipment 200.313(e) (pg 127)

When property is no longer needed in any current or previously Federally-funded supported activity, must follow disposition rules: NEW: Nonfederal entity must request disposition

instructions from the federal awarding agency if required by the terms of the grant.

Otherwise, may be retained, sold or otherwise disposed as follows: Over $5,000 – pay federal share

If equipment is sold: Federal awarding agency may permit non-Federal entity to deduct and retain $500 or 10% of the proceeds for selling and handling instructions.

Under $5,000 – no accountability (still must formally dispose)


Disposition of Supplies200.314 (pg 128)

If there is a residual inventory of unused supplies exceeding $5,000 in total aggregate value upon termination or completion of the project or program and the supplies are not needed for any other federal award, must compensate the federal government for its share.


Requirements of Pass-through

Entities

112

112

Federal Awarding Agency Review of Risk Posed by Applicants 200.205 (pg 115)

NEW: Must have in place a framework for evaluating risks posed by applicants, which may include reviewing:1. Financial Stability

2. Quality of Management System

3. History of Performance

4. Audit Reports

5. Applicant’s ability to effectively implement program

113

Specific Conditions200.207(a) (pg 116)Federal agency or pass-through agency may impose additional Federal award conditions: Require reimbursement;

Withholding authority to proceed until evidence of acceptable performance;

Additional detailed reporting

Additional project monitoring;

Require grantee to obtain technical or management assistance; or

Establish additional prior approvals.

114

Specific Conditions (cont.)200.207(b)-(c) (pg 116)

Right to Notice:1. Nature of additional requirements, 2. Reason why imposed, 3. Nature of the action ned to remove the

requirement's; 4. Time for completing actions;5. Method for requesting reconsideration.

Specific conditions MUST be removed once corrected.

115

Requirements for Pass-through Entities 200.331 (pg 136)

NEW: All pass-through entities MUST:

a. Ensure subawards are clearly identified with specific data

b. Evaluate subrecipient’s risk of noncompliance Prior experience with same or similar subawards; Results of previous audits; Whether new personnel or new or substantially changed

systems; and Extent and results of Federal monitoring.

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116

Requirements for Pass-through Entities (cont.)200.331 (pg 137)

c. Consider imposing specific conditions

d. Monitor as necessary to ensure subaward is used for authorized purposes, which must include: Reviewing financial and programmatic reports; Ensure timely and appropriate action to correct all deficiencies; and Issue management decision for audit findings as required under

200.521.

e. Depending on assessment of risk, the following monitoring tools may be useful to ensure proper accountability and compliance with program requirements and achievement of performance goals: Training + technical assistance on program-related matters; On-site reviews; and Arranging for “agreed-upon-procedures” engagements (described in

200.425).

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117

Requirements for Pass-through Entities (cont.)200.331 (pg 137)

f. Verify subrecipients have audits as required in Subpart F

g. Consider whether results require adjustments to the pass-through entity’s own records

h. Consider taking enforcement actions 200.338.

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118

Remedies for Noncompliance200.338 (pg 139) NEW: If noncompliance can not be remedied with Specific

Conditions, the entity may take one or more of the following actions: Temporarily withhold cash payment pending correction Disallow all of part of the cost Wholly or partly suspend or terminate the Federal award (see

200.339 Termination) Initiate suspension or debarment proceedings under 2 CFR

Part 180 Withhold further Federal awards for the project or program Take other remedies that may be legally available.

119

Audit Requirements

120

Audit Requirements200.501 (pg 177)NEW: Threshold increased to $750,000

The federal agency, OIG, or GAO may arrange for audits in addition to single audit

121

Federal Agency Responsibilities 200.513 (pg 184)

NEW: The federal awarding agency must use cooperative audit resolution to improve federal program outcomesCooperative Audit Resolution: means the use of audit follow-

up techniques which promote prompt corrective action by improving communication, fostering collaboration, promoting trust and developing an understanding between the Federal agency and non-Federal entity 200.25.

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Audit Findings200.516 (pg 188)

The auditor must report (for major programs):Significant deficiencies and material weaknesses in internal

controls Significant instances of abuse Material noncomplianceKnown questioned costs > $25,000

Auditor will not normally find questioned costs for a program that is not audited as a “major program”NEW: But if auditor becomes aware of questioned costs

> $25,000 for non-major program, must report

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123

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Policies and Procedures – The Road to Compliance

Developing and revising policies and procedures

Brustein & Manasevit, PLLC

Agenda

Why policies and procedures are important? Logistics Suggested Sections

Rules and Requirements Helpful Questions to Ask

What to do with completed policies and procedures?

125


Why?

Single Audits

Monitoring

Staff Changes and Transitions

Uniform Grants Guidance

126


Single Audits

Auditors ask about policies and procedures Some tests specifically require written policies and

procedures E.g. Subrecipient monitoring

127


Single Audits

Compliance Supplement, Part 6: Internal Controls

“The A-102 Common Rule and OMB Circular A-110 … require that non-Federal entities receiving Federal awards … establish and maintain internal control designed to reasonably ensure compliance with Federal laws, regulations, and program compliance requirements.”

“Control activities are the policies and procedures that help ensure the management’s directives are carried out.” Clearly written & communicated

128


Federal Monitoring

Policies and procedures are evidence of compliance under all program monitoring tools

129


Staff Changes and Transitions Training tool

Maintain consistency

130


Uniform Grant Guidance Emphasis on internal controls

Written policies and procedures are required!

Written Cash Management Procedures - § 200.302(b)(6) & § 200.305

Written Allowability Procedures - § 200.302(b)(7) Written Conflicts of Interest Policy - § 200.318(c) Written Procurement Procedures - § 200.319(c) Written Method for Conducting Technical Evaluations of

Proposals and Selecting Recipients - § 200.320(d)(3) Written Compensation and Fringe Benefits Policies - §

200.430(a), § 200.431(a), § 200.464 (Relocation costs of employees)

Written Travel Policy - § 200.474(b)131


Compliant policies and procedures lead to:

Administering compliant programs and complying with grants management requirements!

132

133 Logistics


Logistics

Where to start? Review & collect available policies & procedures from

different offices and websites If starting from scratch, get information from people who

perform grant related activities

134


Logistics

Who should be involved? Fiscal AND program staff

Use team approach to capture entire grant process Everyone involved should sit in the same room to review

grant activities, decision making, job responsibilities

135


Logistics

What is the process? Review existing policies and procedures Develop questions Schedule interviews with relevant staff Gather information on actual practices Draft policies and procedures Review internally with appropriate staff Revise Formally adopt and implement Train staff

Annually review and revise!

136


Logistics

How long does it take? Depends on need Review of existing policies and procedures is less time than

starting from scratch Set deadlines for actions

Don’t get overwhelmed!

137


Types of Grants

State-Administered Grants Any grant distributed by formula to eligible States Describe the process (hint: follow the money trail)

Direct Grants Any grant other than those distributed by formula to eligible

States Review GAN for terms and conditions

138

Suggested Sections

139


Suggested Sections Organization, Structure and Function Grant Application Process Financial Management System

Cash Management Allowability

Procurement Inventory/Property Management Time and Effort Record Keeping/Record Retention Monitoring Audit Resolution Programmatic Fiscal Requirements Programmatic Requirements

140


Organization, Structure and Function

141


Organization, Structure and Function Organization Chart

Offices Sections Divisions

Job Descriptions & Responsibilities

Outside entities with grant administration responsibilities MOU/MOA

142


Organization, Structure and FunctionHelpful Questions to Ask Do you have an organizational chart?

What are the offices, sections, divisions or employees that have responsibility for grant administration? What are their responsibilities?

Are there any entities outside of the agency that have grant administration responsibilities? What are those responsibilities? How was relationship created? What are the terms? MOU/MOA?

143


Grant Application Process

144


Grant Application Process State-Administered Grant vs. Direct Grant

Decisions regarding what grants to apply for

Determining organizational capacity to run a compliant program

Approvals and Authorizations

After the grant is awarded

145


Grant Application Process State-Administered Grant vs. Direct Grant Decisions regarding what grants to apply for Determining organizational capacity to run a compliant

program Approvals and authorizations After the grant is awarded

If Pass-Through Entity: Discuss how subgrantees apply for grants Responsible for risk analysis prior to issuing award! (Uniform

Grant Guidance)

146


Grant Application Process Best Practices

Whether or not formal acceptance is required, meet with appropriate parties to be certain you want to accept the grant.

Make acceptance a conscious act. Circumstances may have changed between submission of application and notice of award

147


Grant Application ProcessHelpful Questions to Ask How does the agency determine what grants to apply

for?

What is the process?

Who reviews and signs off on a grant application?

What happens after a grant is awarded?

148


Financial Management System

149

Financial Management

Required Standards (1) Identification of

awards (2) Financial reporting (3) Accounting records (4) Internal controls (5) Budget control (6) Cash management (7) Allowable costs

Procedures Overview of financial

management / accounting system

Budget control, amendments

Maintaining accounting records

Journal voucher process Cash management and

interest remittance Spending funds,

determining allowability

150


Written Cash Management Procedures

Cover timely obligations of funds: period of availability, obligations, carryover, FIFO, etc.

Process must minimize time elapsing between draw from G5 and disbursement (not obligation)

Describe payment method (advance, reimbursement, working capital)

151


Written Allowability Procedures

Not just a restatement of Subpart E

Not required to list out all allowable costs

Describe budgeting and planning process for determining allowable costs Program requirements Identified needs Selected item of costs Frequently asked questions

152


Financial Management System Helpful Questions to Ask What accounting systems are used?

What function does each system perform?

Who is responsible for managing budgets and accounts payable?

How are budgets loaded and tracked on the system?

What is the process for comparing budgets to expenditures?

How do you ensure all expenditures are allowable?

153


Financial Management System Helpful Questions to Ask What is the process for requesting budget revisions?

How do you ensure that all expenditures are made within the period of availability?

What happens to unobligated funds?

Does the system interface with the procurement and inventory systems?

How are vendors paid? What is the process? Who is involved?

154


Procurement

155


Procurement Uniform Grant Guidance: All non-federal entities must

have documented procurement procedures which reflect applicable Federal, State, and local laws and regulations. § 200.318(a)

Open competition Conflict of Interest Solicitation Cost/Price Analysis Vendor Selection Required Contract Provisions Contract Administration Protest Procedures

156


Conflict of Interest Policy Include:

Definition (§ 200.318(c)(1)) Chain for reporting potential conflicts

Alternate if reporting to employee involved in potential conflict

Definitions and examples of nominal items Recusal of interested parties Sanctions Signed certification that employee received and understands conflicts policy

Training on policy157


Required Contract Provisions Non-federal entities must maintain oversight to ensure

that contractors perform in accordance with the terms, conditions, and specifications of the contract - § 200.318

Non-federal entity’s contracts must contain the applicable provisions in Appendix II to Part 200 - § 200.326

Examples (not complete list) Remedies Termination Equal Employment Opportunity Davis-Bacon Act Debarment and Suspension

158


Procurement:Helpful Questions to Ask What is your conflict of interest policy?

What are State and/or agency-specific requirements that must be followed?

Approval for contracts?

Service contracts vs. Contracts for goods?

Contract thresholds and process for entering into contracts within each threshold amount?

What clauses and/or certifications must be in each contract?

How do you ensure that the terms of the contract are met?

159


Inventory &Property Management

160


Inventory/Property Management Uniform Grant Guidance § 200.313 Property Classifications

Equipment Supplies Computing Devices

Shared Use of Equipment Inventory Procedure Loss, Damage or Theft Disposition

161


Disposition - Equipment When property no longer needed, must follow disposition rules: Transfer to another federal program Over $5,000 – pay federal share Under $5,000 – no accountability

NEW: Non-federal entity must request disposition instructions from the federal awarding agency if required by the terms of the grant

162


Inventory/Property ManagementHelpful Questions to Ask How do you classify and define property?

Equipment, supplies, etc.

What items must be inventoried and tagged? Detailed inventory records

What is the inventory process?

How frequently is a physical inventory conducted?

What is the policy regarding lost, stolen or damaged items?

Are there procedures to transfer equipment between programs?

What are the disposition procedures?

163


Time and Effort

164


Time and Effort – UGG Options for Multiple Cost Objectives Personnel activity reports or equivalent documentation –

Follow old standards: 200.430(i)(8) Less frequently? Supervisor signature?

Allocating effort using basis other than time – If inextricably intermingled, appropriate method to allocate

using “any reasonable documented basis”: 200.405(d) E.g., Number of accounting transactions processed?

Substitute systems – Cognizant agency for indirect cost approval: 200.430(i)(5)

Allocating effort for supervisory, clerical and support staff – Roll up of employee effort: 200.430(i)(5)(ii) Statistically valid sample of employees is required

165

Time and Effort – UGG Options for Multiple Cost Objectives Alternative proposals based on outcomes/performance –

Federal cognizant agency approval: 200.430(i)(6)

Alternative proposals based on blended funding – Must have blended funding plan approved by all involved

federal awarding agencies: 200.430(i)(7) Must describe how costs will be charged and relationship

between charging of costs and the specific activity applicable to all fund sources

Indirect cost pool – Employees that work on general management activities, such

as accounting, payroll preparation, or personnel management may be included in indirect cost pool. Recover costs attributed to federal programs through applying rate: 200.414

Administrative and clerical staff normally treated as indirect: 200.413(c) 16

6


Time and EffortHelpful Questions to Ask How do you document time and effort?

Employees that work on one cost objective? Employees that work on multiple cost objectives?

Who must sign the forms?

Where are the forms turned in?

How often is actual effort compared to budgeted effort?

How and when are reconciliations completed? Budget amendments?

167


Record Keeping

168


Record Keeping

Uniform Grant Guidance §§ 200.333, 200.335 Statute of Limitations

5 years

State Policy Agency Policy

169


Record KeepingHelpful Questions to Ask How long must records be maintained? How are records maintained?

Hard copy, electronic

Who handles records requests? How is personally identifiable

information protected?

170


Monitoring

171


Monitoring § 200.328 Awarding Agency Monitoring

Self-Assessment Performance and compliance

Monitoring of Subrecipients

Risk-Based Factors

Type of Monitoring: Onsite Reviews Remote Monitorings Desk Reviews

Corrective Actions and Follow-Up

172


Monitoring Helpful Questions to Ask

What are the risk factors used to determine who is monitored?

Process for when agency is monitored? Notification, preparation, responding, follow-up

Process for monitoring subrecipients? From notification to issuing report and timeline

Who is responsible for monitoring? Fiscal? Programmatic?

What gets monitored?

How do you determine which subrecipients will be monitored?

How often does monitoring occur? Site visits, desk reviews, self-assessments

How do you ensure findings are resolved? Corrective action plan, closeout letter, future monitoring 17

3


Audit Resolution

174


Audit Resolution

Single Audit

Uniform Grant Guidance – Subpart F

Resolution of Findings

Review of Subrecipients’ Single Audits

175


Audit ResolutionHelpful Questions to Ask Who is responsible for overseeing single audit

compliance and resolution?

What is the audit process?

How are findings resolved? Correct Action Plan, Timeline

Process for reviewing subrecipients’ single audits?

176


Programmatic Fiscal Requirements

177


Programmatic Fiscal Requirements Supplement Not Supplant

Maintenance of Effort

Matching and Cost Sharing

Hold Harmless

178


Programmatic Fiscal Requirements How do you ensure compliance with programmatic fiscal

requirements?

What documentation is required to be maintained?

179


Programmatic Requirements

180


Programmatic Requirements Programmatic Compliance

Application process Allocations to subrecipients Allowable costs under the grant program Other

181


Programmatic RequirementsHelpful Questions to Ask

How does your agency ensure compliance with the specific requirements of the grant program?

What resources are available to program staff to help ensure compliance?

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183

Things to consider:

Buy-in from those who will be using the policies and procedures.

Review for accuracy, completeness and compliance.

Adoption by board or other governing body.

184

Your work is never done…

Policies and procedures are only useful if they are current, accurate and regularly used.

Ongoing professional development and training What the requirements are, and how your organization meets

the requirement.

Continually review and revise

QUESTIONS?

~ Legal Disclaimer ~

186

This presentation is intended solely to provide general information and does not constitute legal advice.

Attendance at the presentation or later review of these printed materials does not create an attorney-client

relationship with Brustein & Manasevit. You should not take any action based upon any information in this

presentation without first consulting legal counsel familiar with your particular circumstances.

Jennifer Castillo, Esq. [email protected] Bonnie Graham, Esq. [email protected] Brustein &...

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