Page -0 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | Overview...

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© Feldesman Tucker Leifer Fidell LLP. All rights reserved.

Federal Grants Lawwww.ftlf.com | www.federalgrantslaw.com

Overview of Key Provisions of theOverview of Key Provisions of theAmerican Recovery and Reinvestment ActAmerican Recovery and Reinvestment Act

Presented by:

Edward T. Waters, Esquire Stacia Davis Le Blanc, Esquire

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This webinar has been prepared by the attorneys of Feldesman Tucker Leifer Fidell LLP. The opinions expressed in these materials are solely their views.

This presentation is provided with the understanding that the authors are not rendering legal or other professional services.

We will be not be covering the Tax Provisions contained in Division B

Disclaimer

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Overview

What are the special reporting requirements? What is the Recovery Accountability and

Transparency Board? What role will the OIG play? What are the new whistleblower provisions?

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The Basics

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The American Recovery and Reinvestment Act of 2009

Multiple Statutory Purposes: Create and save jobs Jump-start the economy Foundation for long-term economic growth Modernize the nation's infrastructure Enhance America's energy independence Expand educational opportunities Increase access to health care Provide tax relief Protect those in greatest need

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What money is ARRA supplying and where is it going?

$787 Billion dollars of spending provisions and tax provisions

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ARRA Money Allocated to Agencies Thus Far…

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State Fiscal Stabilization Fund – Title XIV

$53.6 Billion administered by Dept. of Education No "supplement not supplant" provision applicable

to fiscal stability funds. Upon prior approval from the Secretary, may treat

any portion of such funds as non-Federal funds for the purpose of any requirement to maintain fiscal effort under any other program...

Maintenance of Effort provision may be waived or modified under certain conditions.

Deadline for agency obligation of funds is September 30, 2011.

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Applicability

Recipient Any entity, other than an individual, that

receives recovery funds directly from the Federal Government through grant, loan, cooperative agreement or contract

Includes a State that receives recovery funds- Contractors are “recipients”

Recovery Funds Any funds that are made available from

appropriations under this Act

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Definitions

“Obligated” vs. “Expended” Obligated means that the federal agencies

awarded funds to other entities Expended means that the agencies spent the

funds Agencies must obligate or expend funds

by September 30, 2010 Recipients do not have to spend the

money by Sept. 30, 2010. Remember: The obligation deadline for State

Fiscal Stabilization Funds is Sept. 30, 2011.

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How To Monitor ARRA Implementation

Recovery.Gov Grants.Gov FederalSpending.Gov Federal Funding Opportunities on agency sites Recovery Act Terms and Conditions

Special Conditions in supplemental awards

Recovery Accountability and Transparency Board Actions

GAO and OMB Reports IG Findings

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ReportingRequirements

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Who Must Report:

Prime recipients of Discretionary Funds

First tier subawards made by these prime recipients.

Recipients of Entitlement or other Mandatory programs are not required to report, except as specifically required by OMB

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ATTENTION: Separate Accounting of ARRA Funds

Recovery Act funds can be used in conjunction with other funding as necessary to complete projects, however . . . tracking and reporting must be separate to

meet the reporting requirements of the Recovery Act and OMB Guidance.

You will likely need to set up separate cost centers to track Recovery Act money separately from your other grant money

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What Must Recipients Report? (2)

jobs created jobs retained by the project or activity For infrastructure investments made by

State and local governments purpose, total cost, and rationale of the

agency for funding the project, and name of the person to contact at the agency

if there are concerns

Subgrants and Subcontracts (FFATA)

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OMB Guidance on Recipient Reports

On Feb. 18, 2009, OMB released Initial Implementing Guidance for ARRA:

http://www.recovery.gov/files/Initial%20Recovery%20Act%20Implementing%20Guidance.pdf

Within 180 days of enactment, as a condition of continued receipt of funds recipients must have complied with reporting requirements under this Act

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Administrative Cost Shifting

Set-Aside for Reporting and Recordkeeping Costs § 1552 Federal agencies may, after following the notice

and comment rulemaking requirements under the APA, reasonably adjust applicable limits on administrative expenditures

Help recipients defray the costs of data collection requirements initiated pursuant to the Act

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Inspectors General:

Reviews, Investigations,

and Audits

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ARRA and the Inspectors General

$250 million in additional funding for agency IGs to hire experienced auditors and investigators

ARRA mandates that an IG shall review, as appropriate, any concerns raised by the public about specific investments of stimulus funds

ARRA provides new authority giving IGs access to records and interviews of contractors

or grantees, including their employees and subcontractors or subgrantees

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Inspector General Reviews

What is an IG “Review?” Not an Audit Not an Investigation Is it an “Inspection”?

What standards are applied? What is the outcome of an IG “review?” What due process is provided to

grantee? IGs will post outcomes on website

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IG Investigations and Audits

ARRA investigations emphasize: preventing and identifying fraud timely investigations when potential criminal activity

occurs response to the new sources of whistleblower

complaints OMB Circular A-133 Audits will not be sufficient to

provide effective feedback on stimulus programs Results of A-133 audits are not available until at least 9

months after fiscal year end Perform risk analyses of those programs to determine

the types of testing that should be done

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Recovery Accountability

and Transparency

Board

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Board Membership

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Functions of the RAT Board

Reviewing whether the reporting of contracts and grants meets applicable standards, specifies the purposes, and measures performance;

Reviewing whether competition requirements have been satisfied;

Auditing or reviewing covered funds to determine wasteful spending, poor contract or grant management, or other abuses and

Referring matters appropriate for investigation to the agency IG

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Functions of the RAT Board (2)

Reviewing whether there are sufficient qualified acquisition and grant personnel overseeing covered funds;

Reviewing whether personnel whose duties involve acquisitions or grants made with covered funds receive adequate training; and

Reviewing whether there are appropriate mechanisms for interagency collaboration relating to covered funds

Coordinating and collaborating with the IG Council on Integrity and Efficiency

Use website as means for public feedback

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Whistleblower Provisions and

Protections

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IGs and Whistleblowers – New Protections Federal officials must act on evidence of:

gross mismanagement, waste, or illegality related to stimulus expenditures

IGs are required to complete these whistleblower investigations within 180 days, subject to certain extensions.

A violation of law, rule, or regulation related to the competition for or negotiation of a contract or grant

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Whistleblower Protections § 1553

“Prohibition of Reprisals – An employee of any non-Federal employer receiving covered funds may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing, including a disclosure made: in the ordinary course of an employee’s duties, to the Board, an inspector general, the Comptroller General, a member of Congress, a State or Federal regulatory or law

enforcement agency, a person with supervisory authority over the employee (or

such other person working for the employer who has the authority to investigate, discovery, or terminate misconduct),

a court or grant jury, the head of a Federal agency, or their representatives, information that the employee reasonably believes is evidence of . . .

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