© NCURA FRA X Conference La Quinta, CA Subawards, Subcontracts, Submarines – What’s Below the Surface? NCURA FRA X 2009 La Quinta, CA February 10 th Concurrent Session, 1:15 p.m. – 2:15 p.m. Panelists: Marti Preston, Administrator, Department of Pediatrics, University of Rochester and Brenda Kavanaugh, Senior Research Administrator, Office of Research and Project Administration, University of Rochester

© NCURA FRA X Conference La Quinta, CA Learning Objectives: This session will focus on the nuts and bolts of subaward management and administration By the end of the session we will have provided tools showing: How to prepare and administer subawards, including –Appropriate flow-down from prime awards –Cost analysis and subrecipient monitoring –Closeout –Tips when working with industry or foreign sites

© NCURA FRA X Conference La Quinta, CA INTRODUCTION: What is a subrecipient (subawardee, subcontractor)? Per A-133: Any person or government department, agency, establishment, or nonprofit organization that receives financial assistance to carry out a program through a primary recipient or other subrecipient, and –Has its performance measured against whether the objectives of the project are met –Has responsibility for programmatic decision-making –Has responsibility for adherence to applicable federal program compliance responsibilities –Uses federal funds to carry out a program of the organization as compared to providing goods or services for a program of the passthrough entity

© NCURA FRA X Conference La Quinta, CA INTRODUCTION: What is a vendor? It is an organization that: Provides goods and services within normal business operations Provides similar good and services to many different purchasers Operates in a competitive environment Provides goods and services that are ancillary to the operations of the federal program, and Is not subject to compliance requirements of the federal program

© NCURA FRA X Conference La Quinta, CA INTRODUCTION: Vendor or subaward – how can you tell? Is there an identified investigator at the lower-tier organization? Is the lower-tier organization free to decide how to carry out the activities requested of it? Will there be potentially patentable or copyrightable technology created or reduced to practice from the activities of the lower-tier entity? Will the lower-tier organization have rights?

© NCURA FRA X Conference La Quinta, CA INTRODUCTION: Vendor or subaward – how can you tell? (cont.) Are publications anticipated from the lower tier entity? Will individuals at the lower-tier be co- authors on articles? Is the lower-tier organization providing cost sharing or matching funds? Is the activity to be performed a series of repetitive tests or activities requiring little or no discretionary judgment on behalf of the service provider?

© NCURA FRA X Conference La Quinta, CA INTRODUCTION There are many types of subrecipients Universities, hospitals, research institutes For-profit companies Non-profits Foreign institutions

© NCURA FRA X Conference La Quinta, CA Pass-through Entity Responsibilities Identify federal awards by CFDA title and number, award name and number, award year, if award is R&D, name of federal agency Subrecipient monitoring Ensure subrecipient has met audit requirement for the fiscal year Issue management decisions

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START What is needed from the subrecipient? Statement of work (SOW) Project budget and justification (with all appropriate costs + F&A) Written evidence that an authorized institutional official has endorsed the subrecipient’s proposal Other documents such as resources/facilities/equipment page, checklist, biosketches, other support and a signed application face page All this should be received at prime institution in advance of agency deadline

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START Meanwhile, what should the “prime” institution’s PI do? Check out that Statement of work (SOW) – is it what was discussed and agreed to with subrecipient PI? Review the budget – are the costs what was expected and are they reasonable? Nag subrecipient PI to get proposal information in ASAP!

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START What should you do? As a department administrator, work with your PI to make sure that the subrecipient budget makes sense, adds up and contains the appropriate information, such as: –Fringe benefit rates –Salary (NIH cap?) –F&A rate and costs –Equipment and supplies –Special needs – mandatory cost sharing, program income, etc.

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START What should you do? You should be meeting with your PI as early as possible (my department guidelines require a minimum of 1 ½ months prior!) Your PI will already have been in touch with Sub PI and will have discussed personnel and general budget items You, the department administrator will be filling in the blanks in the budget and collecting all the details Be sure to make contact with your equivalent at the Sub PI’s institution, explaining the project from your point of view and letting them know the documents will require – this is your collaborator

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START What should you do? Let the Sub PI’s administrator know exactly who will be working on their part of the proposal and obtain the following information: –Salary and FTE status of faculty and staff involved at Sub site –Benefit rate(s) –Institutional F&A rate What else? Screen dump the electronic form to be used for key personnel and site location and send it to the site DA

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START What should you do? The information you generally need (varies by agency) from the subrecipient DA’s are: –Face page –Subaward contacts page (FDP form) –Checklist and rate agreement –Resources and Environment information –Site location informaiton –Senior Key Personnel information

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START What should you do? The information you generally need (varies by agency) from the subrecipient DA’s are: –Sub’s DUNS # and cognizant agency information –If this is a Multiple PI’s submission, will require Commons USERID for Senior Key Personnel page of SF424 form.

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START What should you do? Prepare a draft of the overall budget with linked budget worksheets of all subrecipient budgets rolling up to the prime. Clearly show at all stages where the budget is if there are direct cost caps or you want to stay away from that $500,000 figure. Send Sub those worksheets for review, correction, addition, etc.

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START What should you do? This kind of oversight insures consistency in the budget preparation, e.g., –Same escalation rate for outgoing years –Appropriate FTE’s budgeted for studies that are occurring in several sites such as clinical studies –Comparable non-salary costs budgeted across all sites for multicenter studies, etc.

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START What should you do? In many cases, when preparing electronic proposals, the Sub is happy to have you prepare the electronic subaward attachment budget form. Makes you happy too, because in allows you to control your destiny, timelines and quality controls

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START If the subaward is planned under a Federal contract, there are more things to worry about! The subcontractor must: Include a completed Contract Pricing Proposal Cover Sheet (Standard Form 1411) Include completed and signed Representations and Certifications Include Small Business Subcontracting Plan (if sub costs exceed $500,000) Deadlines are even more important!

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START Foreign Subcontracts – General Considerations: 1. Can you work with the entity at all? OFAC restrictions Denied Party Screenings 2. How much experience does the foreign subrecipient have with contract research? 3. Does the foreign subrecipient have the infrastructure necessary to document payroll, purchases, overhead costs? 4. Are there tax restrictions associated with working with that entity? 5. Do you have someone “on the inside” who knows the unique rules, restrictions, and challenges of that country?

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START Foreign Subcontracts – Financial Considerations: 1. How stable is the subrecipient’s currency? Some countries (e.g., Zimbabwe) have experienced bizarre currency fluctuations in recent years, so a proposal budget prepared now may be completely inadequate six months from now. **Always request budgets in U.S. dollars** 2. How do you intend to verify the subrecipient’s expenditures? Consider audit and subrecipient monitoring responsibilities. **When in doubt, propose a Firm Fixed Price sub** 3. Avoid asking a foreign subrecipient to cost-share. If the sponsor requires cost-sharing, you are better off shouldering it all yourself.

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START Foreign Subcontracts – More Financial Considerations: 4. Will the subrecipient face cash-flow challenges? If you are working with developing countries, you may need to consider cash-advances, up front payments, and other similar approaches. –You’ll need to balance the risk to your institution with the needs of the foreign subrecipient. –You should establish reasonable caps for cash advances. –You should make sure this payment structure is explicit in your proposal. –If the project is not fixed price, you’ll need to establish mechanisms for reconciling cash advances with expenditures.

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START Foreign Subcontracts – More Financial Considerations: 5. What additional costs should you include in your prime budget to manage your foreign subs? –Translation costs –Shipping costs –Communication costs –Wire transfer costs –Additional administrative costs (A-21: “Major Project”)

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START Foreign Subcontracts – Export Considerations: Physical exports – Does the proposed collaboration involve shipping anything abroad? Computers? Laptops? GPS equipment? Foreign travel – Will your researchers be travelling abroad? With whom will they be interacting? Deemed exports – Will your foreign collaborators be visiting you during the course of the project? What technology will they be exposed to? Defense services – Will your project involve training foreign personnel in the use of any technology included on the Munitions List?

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START Foreign Subcontracts – Other Considerations: Human Subjects/Animal Subjects - If human or animal subject research will take place abroad, please consider what measures will be taken to ensure compliance. (The same standards of care are required regardless of whether the research is performed in the U.S. or abroad.) F&A - Please check your sponsor guidelines to see if additional restrictions apply to foreign subrecipients. For example, NIH will only pay 8% F&A on foreign subs, even if the domestic organization is charging full F&A.

© NCURA FRA X Conference La Quinta, CA PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START For Profit Subawards – General Considerations –Will the sub entity consider financial information confidential? –Does the sponsor allow for a fee? –Will an IP agreement be required at the time of proposal?

© NCURA FRA X Conference La Quinta, CA PREPARATION FOR THE SUBAWARD Congratulations, you got the award. What happens next? Check the prime award document – has the subaward been approved by the sponsor (or not specifically disapproved)? Is the budget intact or has it been reduced –Revised or detailed budgets will be needed Are the required assurances and certifications in hand for the subrecipient? –IRB and IACUC approvals –Certification on education in the use of humans in research If this is a foreign subaward, there may be additional hurdles to jump

© NCURA FRA X Conference La Quinta, CA PREPARATION FOR THE SUBAWARD Congratulations, you got the award. What happens next? For the department administrator (DA), a lot! DA meets with prime PI to discuss account/budget setup and provides Request to Issue Subcontract form ( –This form provides your sponsored programs office with the basic information they need to set up the subaward Statement of Work Additional terms and conditions they may need in subaward Budget information (including account number, not to exceed amount, etc) Contact information Prime PI’s cost assurance (he/she must sign!) –Do you have all of your approvals and assurances from your sub in hand?

© NCURA FRA X Conference La Quinta, CA PREPARATION FOR THE SUBAWARD Foreign Subcontracts You should always seek explicit approval from your sponsor before issuing a foreign sub. Do not assume it is acceptable simply because it was proposed and not expressly disallowed. In addition to needing your sponsors approval, you may need the approval of the foreign government before performing work. Some countries have complex legal authorities with overlapping jurisdictions (including tribal authorities, etc.) How will language barrier issues be resolved for programmtic and administrative oversight? Are translators available? Have they been budgeted for?

© NCURA FRA X Conference La Quinta, CA PREPARATION FOR THE SUBAWARD If subrecipient is a for-profit or small non-profit, you will need to know: Are they qualified to receive Federal funds? Do they have internal controls in place to manage and track the funds? Have they every received Federal funds? Perhaps a pre-qualifying questionnaire to determine all this is necessary (see / ) /

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD There are three main components to all subawards 1.Statement of Work (SOW) – can be difficult to get –A poorly prepared SOW can lead to disputes between collaborating institutions –Not advisable to just reference the approved proposal for the overall award or the budget justification in place of a detailed SOW –Name specific deliverables, if required

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD 2.Budget –Should be at least as detailed as required by prime sponsor –Cost-reimbursable Costs reimbursed against actual expenditures up to a not-to- exceed amount –Fixed price Based on project performance or completion of milestones Paid based on fixed price amount, regardless of actual costs –Per research subject Clinical trials

© NCURA FRA X Conference La Quinta, CA Order of Precedence Statute Administrative Regulations Program Regulations Special Terms and Conditions of Award OMB Circulars

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD 3.Terms and conditions –Federal Demonstration Partnership (FDP) Template Used for most Federal assistance subawards – NIH, NSF, DOE, AFOSR, AMRMC, ARO, EPA, NASA, ONR and USDA (AHRQ and HRSA are not participating agencies in FDP) Contain basic flow-down terms from Federal sponsors and consists of the following sections:

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD 3. Terms and Conditions, cont. –If you not using the FDP terms and conditions, the prime institution will need to develop its own template. The FDP terms may not be suited to some awards.

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD Other considerations when setting up the subaward, invoices –Submission of invoices and payments Invoice intervals Invoice format and requirements Payment intervals Special requirements for final invoice –Carryforward of unobligated balance from budget period to budget period Indicate whether or not this is allowed

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD Other considerations when setting up the subaward, invoices, cont. –Mandatory cost sharing (voluntary does not have to be tracked by prime grantee institution) Must be identified in invoices to prime –Display total actual costs for reimbursement by major budget category –In addition, subrecipient’s actual costs incurred to meet cost share commitment made to prime sponsor must be labeled as cost sharing, displayed and totaled by major budget category on each invoice –Final invoices will not be paid until mandatory cost sharing is certified

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD Other considerations when setting up the subaward, invoices, cont. –Advance payments Payments are normally made after service is rendered and associated costs are reviewed and approved Under unusual circumstances advance payments may be made –Small or foreign entity does not have the cash reserve to initiate work –Sponsor actually allows cash advances to prime and subrecipients –National laboratories

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD Other considerations when setting up the subaward –Records and audit Subrecipient must maintain acceptable financial systems and accurate records to identify the expenditures of the sponsored funds –Intellectual property: patents, inventions, and copyright Rights granted in accordance with U.S. patent and copyright law and additional sponsor requirements Subrecipient maintains ownership rights to IP it develops Exception: subrecipients under an industry initiated clinical trial

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD Other considerations when setting up the subaward Indemnification Institutional or state policy of subrecipient may dictate what type of indemnification provision will be included in subaward agreement Typically, the agreement states that each party indemnifies the other party for negligent acts or omissions If the sponsor provides a certain level of indemnification to prime awardee, subrecipient should receive the same level

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD Other considerations when setting up the subaward Issues under Federal contracts –Flow-down Federal Acquisition Regulations (FARs) –Specific deliverables –Rebudgeting restrictions, etc. –Small business plans

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD Foreign Subcontracts – Legal Issues Buy American Act. This Act requires that you purchase domestic products, unless doing so imposes an unreasonable cost or is not in the public interest. However, to avoid export control issues, it is generally better to purchase equipment abroad if it is available rather than shipping domestic products overseas. Anti-terrorism requirements. Many foundations (Ford) and some federal agencies (USAID) require such provisions. You must complete denied party screenings of foreign persons involved in the project to comply.

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD Foreign Subcontracts – More Legal Issues Trafficking in Persons. This clause is found in contracts (FAR ) and more recently in ONR grants. It is important to research foreign organizations to make sure they comply with this clause. Foreign Corrupt Practices Act (FCPA). Bribery of foreign officials is illegal (obviously). However, corruption is widespread in many countries, and you may be asked to pay all sorts of “transaction fees” to make things happen. Check with your legal counsel before paying any cost that does not pass the smell test.

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD Foreign Subcontracts – More Legal Issues Anti-Boycott Laws. Certain countries participate in boycotts against Israel. If you receive documentation or invoices from a foreign organization that requires you to indicate your compliance with Israel boycotts, you are required (under U.S. law) to insist on deletion. Choice of Law. U.S. law and venue are always preferred. Only agree to foreign law and venue if your legal counsel has indicated an interest in travelling abroad (and you are willing to pay). Please note that you are unlikely to win any disputes settled in a foreign venue.

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD Foreign Subcontracts – Certifications & Representations Most public policy requirements apply to foreign subs: Research misconduct Animal welfare/Human subjects Inclusiveness in research design (NIH) Lobbying Some requirements do NOT apply to foreign subs: Civil rights

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD Foreign Subcontracts – Certifications & Representations Some public policy requirements may or may not apply: Drug-free workplace can sometimes be eliminated, if the U.S. federal government judges that the inclusion of this provision is in conflict with foreign laws. Some additional requirements may apply: Foreign governments and government agencies are NOT subject to debarment and suspension requirements, but they may have to provide a certification that they are not delinquent on any debts owed to the U.S. (Other foreign entities ARE subject to debarment certification requirements.)

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD Foreign Subcontracts – Relational Considerations The terms and conditions of the subcontract may prove difficult to enforce, no matter how much time you spend negotiating them. At the end of the day, establishing a good relationship with your foreign subrecipient is more important than anything else. Avoid talking down to your foreign subrecipients, even if they seem confused or overwhelmed by the U.S. contracting process. Even a hint of condescension can undermine months of hard work.

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD Other considerations when setting up the subaward Issues with clinical trial subrecipients –More problematic terms and conditions If industry sponsored, can be problematic as you will have to flow-down the same you received Consequently, negotiations can be drawn out Sponsor pressure to meet enrollment goals –Different payments terms –IRB approvals and reapprovals –Additional costs

© NCURA FRA X Conference La Quinta, CA ISSUING THE SUBAWARD Other considerations when setting up the subaward Issues with commercial organizations –Administrative requirements F&A rate (No federally negotiated rate? See Appendix E, Administrative Overhead Costs Worksheet) Fringe benefit rates (see Appendix F, Fringe Benefit Costs Worksheet) –Cost principles –Inspection and audit clauses –Profit and fees –Intellectual property –Indemnification –Flow-down terms

© NCURA FRA X Conference La Quinta, CA POSTAWARD – Keeping up and moving forward Verification of subrecipient F&A rate –Copy of current rate agreement at time of initial award –Rate should be fixed for life of award if under federal award Monitoring requirements –A-133 audit If subrecipient is not subject to A-133, other types of audits (as agreed to in the subaward) may be effective tools for monitoring –Financial reports Timeliness of reports or invoices Content of reports –Performance reports –Routine contact with subrecipient –Site visits

© NCURA FRA X Conference La Quinta, CA POSTAWARD – Keeping up and moving forward Technical monitoring by prime PI –Annual progress reports with discussion between PI and sub PI Include proof of current IRB or IACUC approvals Detailed budget for upcoming year Updated other support for key personnel –Prime PI’s responsibility to ensure performance of subrecipient Notify sponsor if subrecipient is not performing and SOW is affected But first notify the sponsored programs office at prime institution

© NCURA FRA X Conference La Quinta, CA POSTAWARD – Keeping up and moving forward Department Administrator (DA) will be responsible for: Setting up a cumulative (project period) tracking document for each subaward that indicates: –Name of Institution/PI –Total amount awarded –Total amount of current award –Invoices as received are ented into the worksheep so that a cumulative (total invoiced” and cumulative “balance available” is obvious at all times –Invoices are reviewed for accuracy by DA/accounting staff (dates of service, correct math, correct F&A calculation as awarded) and give to Prime PI for review and approval/signature. Then invoices are sent to Finance Department for payment –If invoicing is not timely, get in contact with Sub DA or have Prime PI contact Sub PI

© NCURA FRA X Conference La Quinta, CA POSTAWARD – Keeping up and moving forward Early termination –Failure of subrecipient to perform –Relocation or illness of subrecipient’s PI –Termination by project sponsor

© NCURA FRA X Conference La Quinta, CA POSTAWARD – Keeping up and moving forward What if anything (everything?) goes wrong? –No work done, but regular invoicing –No invoicing, no work done –Per subrecipient, work done, invoicing done, per prime PI, work not done or done improperly –Monitor, monitor, monitor –Communicate with sponsored programs office about problems ASAP, your’s and their’s

© NCURA FRA X Conference La Quinta, CA CLOSE-OUT PROCEDURES –Prime PI must certify that all technical reports and/or deliverables have been received and that subrecipient has fulfilled its obligations –Final invoice is required at the end of the subrecipient project period and indicates that: All work has been done and all deliverables have been received by prime PI Mandatory cost sharing (see sample form Certification of Cost Sharing at ) This is usually required 45 to 60 days after the project has ended and is dependent upon the subrecipient closing out the subaward

© NCURA FRA X Conference La Quinta, CA CLOSE-OUT PROCEDURES Foreign Subcontracts Foreign subrecipients are generally subject to the same audit requirements as for-profit organizations (45 CFR 74.26(d)). Foreign organizations are NOT subject to A-133, but an audit that meets the standards of an A-133 audit will satisfy the 45 CFR 74.26(d) requirements. If a foreign organization spends less than $500K/year in U.S. federal funds, audits are not usually required. However, the U.S. Government reserves the right to request “grant-related records” for review. USAID sometimes requires independent audits. Reporting and record retention requirements are generally the same as for domestic organizations.

© NCURA FRA X Conference La Quinta, CA CLOSE-OUT PROCEDURES Remember, the prime award cannot be closed out until the subaward is closed out.

© NCURA FRA X Conference La Quinta, CA QUESTIONS? University of Rochester Subcontract Manual can be accessed at: Some use subcontracting forms can be found at: