Presentation on theme: "Grants Administrative Changes under the New EDGAR"— Presentation transcript:
1Grants Administrative Changes under the New EDGAR Tiffany R. Winters, Esq.Brustein & ManasevitMarch 2015
2Agenda Major changes Financial management Allowability Procurement The Importance and Structure of the New EDGARPart 76Part 3474Part 200Major changesFinancial managementAllowabilityProcurementInventorySubrecipient monitoringAudits
4Key Parts of the NEW EDGAR Title 34Part 75 – Direct Grant ProgramsPart 76 – State-Administered ProgramsPart 77 – DefinitionsPart 81 – General Education Provisions Act (GEPA)Title 2Part 200 – Cost/Administrative/Audit RulesPart 3474 – USDE Exceptions – Adopts Part 200Part 3485 – Nonprocurement Debarment and SuspensionIncorporates 2 CFR Part 180, OMB’s Guidelines on Debarment and Suspension
5Prior Rules (Incorporated Into the NEW EDGAR) A-21 – Cost Rules – Rules – IHEsA-87 – Cost Rules – State / Local Gov’tA-122 – Cost Rules – NonprofitA-102 – Administrative Rules State / Local Gov’tA-110 – Administrative Rules IHEsA-133 – Audit Rules
6Effective Dates December 26, 2014 – Direct Grants from ED July 1, 2015 – State Administered ProgramsJuly 1, 2016 – Procurement Rules (One YearGrace Period for IHEs and Nonprofits ONLY)Indirect Cost Rates When Due For Renegotiation
8Allowable CostsThe general principles to be used in determining costs applicable to grants is 2 CFR Part 200 Subpart EProhibited:Use of funds for religionReal property and construction (unless authorized)
9Indirect Cost Rates –Incorporates language from 2 CFR Part 200Includes information on Restricted indirect cost rate and how to calculate the rate.
10General Administrative Responsibilities 76.700 – 76.702 Incorporates 2 CFR Part 200 Subpart DA State and subgrantee must comply with the State plan, applicable statutes, regulations, etc.A state and subgrantee shall use fiscal control and fund accounting procedures that insure proper disbursement of and accounting for federal funds.
11When Obligations Are Made 76.707 Type of ObligationWhen Obligation OccursAcquisition of PropertyDate of binding written commitmentPersonal Servicesby EmployeeWhen services are performedby ContractorDate of binding written commitmentTravelWhen travel is takenNEW: Approved Pre-Agreement CostOn the first day of the grant or subgrant performance period.
12Procedures to Ensure Compliance 76.770 – 76.783 Goes beyond 2 CFR Part 200, Subpart DA State shall have procedures for reviewing and approving applications and amendments, for technical assistance, for evaluating projects and for performing other admin responsibilities the State has determined necessary.A subgrantee may request a hearing if State has violated a State or Federal statute.
14USDE Adopts Part 200 with Exceptions 3474.1 NEW: USDE Adopts Part 200 into EDGARExcept for 2 CFR (a) and 2 CFR (a). Thus, this part gives regulatory effect to the OMB guidance and supplements the guidance as needed for the Department.
15USDE Exception toClarification regarding 2 CFRRetained “High-Risk” LanguagePreviously Under and 80.12The Secretary or a pass-through entity may, in appropriate circumstances, designate the specific conditions established under 2 CFR as “high-risk conditions” and designate a non- Federal entity subject to specific conditions established under § as “high-risk”.
16Part 200 Uniform Administrative Req, Cost Principles, and Audits for Federal Awards Formerly know as the “Uniform Grants Guidance”, the “Omni Circular” and the “Super Circular”
17The Major Changes in Federal Grants Management Focus on OutcomesPerformance MetricsRisk AssessmentsFinancial Management PoliciesEquipment UseMicro PurchasesCorrective ActionFamily Friendly PoliciesFalse Claims CertificationsAudit Thresholds
191) Identification of Awards 200.302(b)(1) NEW: All federal “awards” received and expendedThe name of the federal “program”Identification # of awardCFDA Title and NumberFederal Award I.D. #Fiscal Year of AwardFederal AgencyPass-Through (If S/A)
202) Financial Reporting 200.302(b)(2) Accurate, current, complete disclosure of financial results of each award in accordance with andNEW: – Federal awarding agency can only collect OMB approved data elements, no less than annually, no more than quarterlyNEW: – 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
21Financial Reporting (cont.) NEW: Performance MetricsCompare actual accomplishments to objectives. (quantify to extent possible)Reasons goals were not met if appropriateAdditional pertinent information (e.g. analysis and explanation of cost overruns, high unit costs) Significant developmentsProblems, delays. Adverse conditions that would impair ability to meet objective of the awardFavorable developments. Finishing sooner or at less cost
223) Accounting Records 200.302(b)(3) Combined 80.20(b)(2) and 80.20(b)(6):Source Documentation Must Be Kept On:Federal AwardsAuthorizationsObligationsUnobligated balancesAssetsExpendituresIncomeInterest (New) (Eliminated liabilities)
234) Internal Controls 200.302(b)(4) Essentially same as prior 80.20(b)(3):Effective control over and accountability for:All fundsPropertyOther assetsMust adequately safeguard all assetsUse assets solely for authorized purpose
24Required Certification 200.415 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.”
256) Written Cash Management Procedures 200.302(6) NEW: Written Procedures to implement the requirements of
26Payment (a) and (b)For states, payments are governed by Treasury – State CMIA agreements 31 CFR Part 205No ChangeFor all other non federal entities, payments must minimize time elapsing between draw from G-5 and disbursement (not obligation)
27Payment (cont.) 200.305(b)(1)-(4) Written procedures must describe whether non- federal entity uses:Advance Payments (preferred)Limited to minimum amounts needed to meet immediate cash needsReimbursementPass through must make payment within 30 calendar days after receipt of the billingWorking Capital AdvanceThe pass through determines that the nonfederal entity lacks sufficient working capital. Allows advance payment to cover estimated disbursement needs for initial period
28Payment (cont.) 200.305(b)(7)-(8) NEW: Advances must be maintained in insured accountsNEW: Pass through cannot require separate depository accountsNEW: Accounts must be interest bearing unless:Aggregate federal awards under $120,000Account not expected to earn in excess of $500 per yearBank require minimum balance so high, that such account not feasibleA foreign gov’t or banking system prohibits or precludes interest bearing accounts.
29Payment (cont.) (b)(9)NEW: Interest amounts up to $500 may be retained by non federal entity for administrative purposesCurrently $100 for State and local Gov’tsCurrently $250 for IHEs and Non-profits.NEW: Interest earned must be remitted annually to HHS Payment Management System.
307) Written Allowability Procedures 200.302(b)(7) NEW: Written procedures for determining allowability of costs in accordance with Subpart E – Cost PrinciplesProcedures can not simply restate the Uniform Guidance Subpart EShould explain the process used throughout the grant development and budget processTraining tool and guide for employees
32Factors Affecting Allowability of Costs 200.403 All Costs Must Be:Necessary, Reasonable and AllocableConform with federal law & grant termsConsistent with state and local policiesConsistently treatedIn accordance with GAAPNot included as matchNet of applicable credits (moved to )Adequately documented
33Methods for Collection, Transmission and Storage of Information 200 NEW: When original records are electronic and cannot be altered, there is no need to create and retain paper copies.When original records are paper, electronic versions may be substituted through the use of duplication or other forms of electronic media provided they:Are subject to periodic quality control reviews,Provide reasonable safeguards against alteration; andRemain readable.BRUSTEIN & MANASEVIT, PLLC
34Prior Written Approval 200.407 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
35Direct v. Indirect Costs 200.413(c) NEW: Salaries of administrative and clerical staff should be treated as “indirect” unless all of following are met:Such services are integral to the activityIndividuals can be specifically identified with the activitySuch costs are explicitly included in the budgetCosts not also recovered as indirect
36Collection of Unallowable Costs 200.410 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.
37There are 55 specific items of cost! Selected Items of CostThere are 55 specific items of cost!Listed on page 94.Starts at
38Selected Items of Cost Examples Advertising/PRAllowable for programmatic purposes including:RecruitmentProcurement of goodsDisposal of materialsProgram outreachPublic relations (in limited circumstances)
39Selected Items of Cost Examples (cont.) AlcoholNot allowableCollections of Improper PaymentsThe costs incurred by the non-Federal entity to recover improper payments are allowable as either direct or indirect costs, as appropriate.
40Selected Items of Cost Examples (cont.) ConferencesPrior Rule: Generally allowableIncludes Meals / Conferences / Travel and Family Friendly PoliciesAllowable conference costs include rental of facilities, costs of meals and refreshments, transportation, unless restricted by the federal awardNEW: Costs related to identifying, but not providing, locally available dependent-care resourcesConference hosts must exercise discretion in ensuring costs are appropriate, necessary and managed in manner than minimizes costs to federal award
41Selected Items of Cost (cont.) Pre-award CostsThose costs incurred prior to the effective date of the Federal award directly in negotiation or anticipation of the awardCosts must be necessary for efficient and timely performance of the scope of workAllowable to the extent they would have been allowable if incurred after the effective date and ONLY with written approval from the Federal awarding agency.
42Selected Items of Cost (cont.) Travel Costs (Changed)Travel costs may be charged on actual, per diem, or mileage basisNEW: Travel charges must be consistent with entity’s written travel reimbursement policiesNEW: Allows costs for “above and beyond regular dependent care”Grantee must retain documentation that participation of individual in conference is necessary for the projectNEW: Travel costs must be reasonable and consistent with written travel policy / or follow GSA 48 CFR (a)
44Documentation for Personnel Expenses 200.430(i) NEW: Charges to Federal awards for salaries and wages must be based on records that accurately reflect the work performed.How staff demonstrate allocabilityIf employee paid with federal funds, then must show that the employee worked on that specific federal program cost objective (a)
45Who must participate? 200.430(i)(1) and (i)(4) Must be maintained for all employees whose salaries are:Paid in whole or in part with federal fundsUsed to meet a match/cost share requirementNOT contractors
46The Prior A-87 Rule (SEAs and LEAs) Semi-Annual CertificationsPersonnel Activity Report (PAR)If an employee works on a single cost objective:After the factAccount for the total activitySigned by employee or supervisorEvery six months (at least twice a year)If an employee works on multiple cost objectives:After the factAccount for total activitySigned by employeePrepared at least monthly and coincide with one or more pay periods
47Documentation for Personnel Expenses (cont.) 200.430(i)(1) NEW: These records MUST:Be supported by a system of internal controls which provides reasonable assurance charges are accurate, allowable and properly allocated;Be incorporated into official records;Reasonably reflect total activity for which employee is compensated;Not to exceed 100%
48Documentation for Personnel Expenses (cont.) 200.430(i)(1) Encompass all activities (federal and non- federal);Comply with established accounting polices and practices; andSupport distribution among specific activities or cost objectives.
49COFAR 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.
50Cost ObjectivesProgram, 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.
51Time and Effort Guidance by OCFO? 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.
52Use of Budget Estimates 200.430(i)(1)(viii) Budget estimates alone do not qualify as support for charges to Federal awards May be used for interim accounting purposes if:Produces reasonable approximationsSignificant changes to the corresponding work activity are identified in a timely mannerInternal controls in place to review after-the- fact interim charges based on budget estimates
53Percentages 200.430(i)(1)(ix) 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.
54Compliance (i)(2)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 nuber of hours worked each day).
55Noncompliance (i)(8)For a non-Federal entity where the records do not meet these standards:USDE 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!!
56Reconciliation 200.430(i)(1)(viii)(C) NEW: All necessary adjustment must be made such that the final amount charged to the Federal award is accurate, allowable, and properly allocated.
57Substitute Systems 200.430(i)(5) 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.
58Alternative Proposals 200.430(i)(6) 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.
59Blended Funding (i)(7)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.
61General Procurement Standards 200.318(a) All nonfederal entities must have documented procurement procedures which reflect applicable Federal, State, and local laws and regulations.BRUSTEIN & MANASEVIT, PLLC
62Contract Administration 200.318(b) Nonfederal entities must maintain oversight to ensure that contractors perform in accordance with the terms, conditions, and specifications of the contractBRUSTEIN & MANASEVIT, PLLC
63Conflict of Interest 200.318(c)(2) 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 interestBRUSTEIN & MANASEVIT, PLLC
64Conflict of Interest (cont.) 200.112 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.BRUSTEIN & MANASEVIT, PLLC
65Mandatory Disclosures 200.113 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 (remedies for noncompliance) including suspension and debarment.
66Methods of Procurement 200.320 Method of procurement:NEW: Micro-purchaseSmall purchase proceduresCompetitive sealed bidsCompetitive proposalsNoncompetitive proposalsBRUSTEIN & MANASEVIT, PLLC
67Micro-Purchase (a)NEW: Acquisition of supplies and services under $3,000 or less.$2,000 for construction subject to the Davis-Bacon ActMay 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.BRUSTEIN & MANASEVIT, PLLC
68Small Purchase Procedures 300.320(b) Good or service that costs $150,000 or less(NEW: Simplified Acquisition Threshold was raised under )Organization may set lower thresholdMust obtain price or rate quotes from an adequate number of qualified sources“Relatively simply and informal”BRUSTEIN & MANASEVIT, PLLC
69Noncompetitive Proposals 200.320(f) 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; orAfter soliciting a number of sources, competition is determined inadequate.BRUSTEIN & MANASEVIT, PLLC
71Equipment 200.313(a) and (c)(4) No change to the definitionNEW: Conditional Title vests with the non-Federal entity.NEW: Cannot encumber the property without approval of Federal agency or Pass-through agencyButNEW: 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.BRUSTEIN & MANASEVIT, PLLC
72Supplies 200.94 All tangible personal property other than equipment NEW: Computing devices are supplies is less than $5,000NEW: Computing devicesMachines used to acquire, store, analyze, process, public data and other information electronicallyIncludes accessories for printing, transmitting and receiving or storing electronic informationBRUSTEIN & MANASEVIT, PLLC
73Internal Controls 200.302(b)(4) Regardless of cost, grantee must maintain effective control and “safeguard all assets and assure that they are used solely for authorized purposes.”BRUSTEIN & MANASEVIT, PLLC
74Use of Equipment 200.313(c)(1) and (2) 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:Projects supported by Federal awarding agencyProject funded by other Federal agenciesWhen 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 (page 61)BRUSTEIN & MANASEVIT, PLLC
75Disposition of Equipment 200.313(e) 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 shareIf 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)BRUSTEIN & MANASEVIT, PLLC
77Federal Awarding Agency Review of Risk Posed by Applicants 200.205 NEW: Must have in place a framework for evaluating risks posed by applicants, which may include reviewing:Financial StabilityQuality of Management SystemHistory of PerformanceAudit ReportsApplicant’s ability to effectively implement program
78Specific Conditions 200.207(a) 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 reportingAdditional project monitoring;Require grantee to obtain technical or management assistance; orEstablish additional prior approvals.
79Remedies for Noncompliance 200.338 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 correctionDisallow all of part of the costWholly or partly suspend or terminate the Federal award (see Termination)Initiate suspension or debarment proceedings under 2 CFR Part 180Withhold further Federal awards for the project or programTake other remedies that may be legally available.
81Audit Requirements 200.501 NEW: Threshold increased to $750,000 The federal agency, OIG, or GAO may arrange for audits in addition to single audit
82Federal Agency Responsibilities 200.513 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
83Audit Findings 200.516 The auditor must report (for major programs): Significant deficiencies and material weaknesses in internal controlsSignificant instances of abuseMaterial noncomplianceKnown questioned costs > $25,000Auditor 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
85~ Legal Disclaimer ~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.