The New OMB SuperCircular: Impact on TEROs and Section 7(b) of the Indian Self-Determination and Education Assistance Act Council for Tribal Employment Rights Legal Update Conference December 10, 2014

The New OMB SuperCircular New OMB SuperCircular - also referred to as the “Uniform Guidance for Federal Awards” Official title is the “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards” Effective for new grants awarded after 12/26/14 The OMB SuperCircular consolidates and streamlines eight Federal regulations.

The New OMB SuperCircular Stated purposes of the SuperCircular: Eliminate duplicate and conflicting guidance Focus on performance for accountability Provide consistent and transparent treatment of costs Strengthen oversight Reduce waste, fraud, and abuse

The New OMB SuperCircular The SuperCircular is organized into six subparts Subpart A – Acronyms and Definitions Subpart B – General Provisions Subpart C – Pre-Federal Award Requirements and Contents of Federal Awards Subpart D – Post Federal Award Requirements Subpart E – Cost Principles Subpart F – Audit Requirements

OMB SuperCircular and Procurement Standards Procurement standards are included in Subpart D of the SuperCircular and are listed under 2 CFR sections 200.317 – 200.326 These sections describe the applicable procurement standards, methods of procurement allowed, and lists specific items that must be included in contracts under Federal awards

OMB SuperCircular and Procurement Standards Section 200.319 details the requirements regarding competition under the new OMB SuperCircular “All procurement transactions must be conducted in a manner providing full and open competition consistent with the standards of this section.” 2 CFR 200.319(a) The requirement in the OMB SuperCircular regarding “full and open competition” was changed to no longer include the language “to the maximum extent practical”

OMB SuperCircular Procurement Standards and Potential Impact on Indian Preference In light of the revised language in the new OMB SuperCircular requiring full and open competition (without the qualifying language “to the maximum extent practical”), is Indian Preference for contracting allowed, particularly when bids are initially limited to Indian-owned firms?

Indian Preference under Section 7(b) of the Indian Self-Determination and Education Assistance Act Section 7(b) of the ISDEAA provides: Any contract, subcontract, grant, or subgrant pursuant to this subchapter . . . or any other Act authorizing Federal contracts with or grants to Indian organizations or for the benefit of Indians, shall require that to the greatest extent feasible— (1) preferences and opportunities for training and employment in connection with the administration of such contracts or grants shall be given to Indians; and (2) preference in the award of subcontracts and subgrants in connection with the administration of such contracts or grants shall be given to Indian organizations and to Indian-owned economic enterprises as defined in section 1452 of this title.

Indian Contracting Preference allowable under New OMB SuperCircular Although there have been concerns about the changed language in the procurement standards under the new OMB SuperCircular requiring “full and open competition” for providing Indian preference, the Indian preference requirements under section 7(b) of the ISDEAA appear protected.

Indian Contracting Preference allowable under New OMB SuperCircular Section 200.101(b)(3) in the OMB SuperCircular states: With the exception of Subpart F—Audit Requirements of this part, which is required by the Single Audit Act, in any circumstances where the provisions of Federal statutes or regulations differ from the provisions of this part, the provision of the Federal statutes or regulations govern. This includes, for agreements with Indian tribes, the provisions of the Indian Self-Determination and Education and Assistance Act (ISDEAA), as amended, 25 U.S.C 450-458ddd-2.