Office of Purchasing and Contracts Procurement Outreach Training Level II - Module D Laws, Regulations and Guidelines

Research Funded procurement falls under the jurisdiction of various Federal, State, and Campus level laws, regulations and guidelines. These guidelines come into play before and after the procurement. In addition, the Sponsors unique guidelines must be understood and followed in procuring goods and services. Procurement guidelines vary with the value of the procurement, the applicable funding guidelines, and the life of the project. Purchasing associates must take into consideration these varied layers of regulation and apply them to your unique procurement. While some purchases seem ‘off-the-shelf’, many require an experienced individual to make its way through the process.

 American Recovery and Reinvestment Act (ARRA)  Antiterrorism and Death Penalty Act of 1995  Copeland “Anti-Kickback” Act  Debarment and Suspension  Disability Insurance  Ethics Law  E-Verify  Executive Orders  Exhibit X  Export Controls  Fair Labor Laws  Fly America Act  Health Insurance Portability and Accountability Act (Exhibit Z)  Insurance  Lobbying  Minority and Women-Owned Business Enterprise (MBE)  Office of Management and Budget Circular A -21 – Cost Principles for Educational Institutions Circular A-110 – Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations OMB Circular A-133 – Audits of States, Local Governments, and Non-Profit Organizations  Procurement Integrity  Split Ordering  Threshold Requirements  Vendor Responsibility  Workers’ Compensation Sample Guidelines and Resources

American Reinvestment and Recovery Act : The American Recovery and Reinvestment Act of 2009 (ARRA) represents a $787 billion effort to jumpstart the economy, create or save millions of jobs, and invest in the future. Federal agencies are already distributing funds for projects that build infrastructure; promote science, innovation and education; improve healthcare; and spur clean energy.  The federal government is requiring ARRA funding recipients to follow unprecedented accountability measures, including separate tracking and reporting of these stimulus dollars. The RF of SUNY provides guidance on their web page for complying with these federal regulations. Antiterrorism Act and Effective Death Penalty Act of 1995: The Antiterrorism and Effective Death Penalty Act of 1996 is the product of legislative efforts stretching back well over a decade and stimulated to passage in part by the tragedies in Oklahoma City and the World Trade Center. Copeland “Anti-Kickback” Act: Prohibits federal contractors or subcontractors engaged in building construction or repair from inducing an employee to give up any part of the compensation to which he or she is entitled under his or her employment contract and requires such contractors and subcontractors to submit weekly statements of compliance.

Debarment and Suspension: Debarment and suspension regulations apply to all agreements in excess of $25,000 including all subrecipients. Federal regulations prohibit, and vendors are required to certify, that neither their firm nor the principals of the firm are debarred or suspended from participating in federal non-procurement transactions. Vendors certify to this by completing the Debarment Certification form. Disability Insurance: Disability insurance replaces a workers income on a tax-free basis should a sickness or illness prevent the worker from earning an income. The Workers’ Compensation Board oversees all aspects of disability insurance.  Prior to any permit being issued or any contract being entered into, the Office of Purchasing & Contracts must obtain acceptable proof that a business is either exempt from or has secured disability insurance. An ACORD form is not acceptable proof of workers’ compensation disability coverage. The below listed forms are the only acceptable proofs of coverage: CE-200: Certification of Attestation of Exemption from Workers’ Compensation and/or Disability Insurance Form DB-120.1: Certificate of Disability Benefits Insurance Form DB-155: Certificate of Disability Benefits Self-Insurance Ethics Laws: All activities of University faculty and staff should be performed in an ethical fashion; no employee should have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature, which are in substantial conflict with the proper discharge of his/her duties.

E-Verify: This newly enacted regulation requires the Research Foundation to verify that its employees are eligible to work in the United States. This regulation flows down to vendors who also must certify to eligibility of their workers. Contracts funded from certain federal dollars must fall within the following criteria to comply:  E-Verify clause, FAR is contained in the originating contract;  Term of the work by the vendor is for more than 120 days;  The value of the contract is more than $100,000; and  The contracted work does not involve commercially available off-the-shelf items and related services. Executive Orders From time to time, each sitting NYS Governor has within his power to issue an Executive Order. Executive orders are not laws, but do have the same binding nature. While the Research Foundation is not legislatively bound to these orders, the University, at the discretion of the President, may elect to adopt the same principles for all campus activities and procurements.  The Governor of New York State has issued, and the President of the University has agreed to follow, Executive Order #4 Green Procurement, which has the following guidelines:  The use of copy paper, janitorial paper and other paper composed of 100% post-consumer recycled content and processed chlorine-free to the extent practicable.  The use of 100% post-consumer recycled content paper to the extent practicable in all University publications.  The implementation of programs to separate recyclable materials.  The implementation of programs to reduce waste. Exhibit X: A table of the U.S. federal government laws and implementing regulations that are applicable to Research Foundation contracts, agreements and purchase order terms and conditions is found within this exhibit. Exhibit X is not all inclusive of all applicable federal and state laws and regulations, and is subject to change as laws and regulations change. The Contractor must assure compliance with the requirements of Exhibit X, as applicable, to the work performed, or for the goods and services provided under the purchase order. For more information, review the Guidance for Exhibit X document. Exhibit X is incorporated in all Research Foundation contracts and purchase orders.

Export Controls: Procurements that involve the export of controlled items such as commodities, technology, software, or information to restricted foreign countries, persons, and entities must conform to export control regulations. This is accomplished by a through review by the Office of Purchasing and Contracts with a search using the Visual Compliance program. This service checks all appropriate restrictions by commodity, vendor, country, or individual name. Additional information on Export Controls can be found on the Research Foundation web site. Fly America Act: The Fly America Act was enacted in 1974 to mandate the use of U.S. flag air carriers for federally funded international travel. You may be asked to include this information in contracts requiring international travel on a federally funded award. If you would like to review the regulations, click on Fly America Act. HIPAA Requirement: In procurements or contracts that may contain personally identifiable protected health information all parties must certify to compliance with the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated there under. Insurance: Procurement regulations require evidence of various forms of insurance by vendors at the time a contract is entered into. The Research Foundation of SUNY, The State of New York, and the State University of New York must be listed as additional insureds on all procurements. The nature of the procurement will dictate the type and minimum level of insurance that is required. Please see our insurance tab for specific limits..

Lobbying: On awards of $100,000 or more the Research Foundation is required to have all contractors file the required certification that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C Each tier within the transaction shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient. In addition, certain programs administered by the Research Foundation may be subject to the New York State Procurement Lobbying Law. Minority and Women Owned Business Enterprise: The White House’s Office of Management and Budget Circular A-110 calls for recipients of federal awards, contracts and grants to make positive efforts to utilize small businesses, minority- owned firms, and women's business enterprises, whenever possible. When searching for minority and women-owned business enterprises the Office of Research Funded Purchasing and Contracts often utilizes the New York State Division of Minority and Women-Owned Business Development listing of NYS certified MWBEs. Information on becoming a NYS certified minority or women-owned business enterprise could be obtained at the New York State Division of Minority and Women-Owned Business Development

Procurement Integrity: Applying to all recipients of federal contracts or modifications at/over $100,000 per year, Section 423 of title 41 of the United States Code states, “Restrictions on disclosing and obtaining contractor bid or proposal information or source selection information” is the governing regulation for procurement integrity. This code prohibits certain activities by competing contractors, government procurement officials, and other individuals during the conduct of federal agency procurement. These activities generally include:Section 423 of title 41 Soliciting or discussing post government employment Offering or accepting a gratuity Soliciting or disclosing proprietary or source selection information. The Research Foundation must certify that they abide by the requirements of this regulation. Split Ordering: The practice of split ordering is defined as the procurement of commodities or services processed on various procurement documents in an effort to avoid thresholds and avoid appropriate procurement practices such as obtaining bids and advertising requirements. To ensure that procurements are done in a fair and open market, this practice is discouraged, and Purchasing staff are on hand assist you with a formal procurement.

Vendor Responsibility: In assessing vendor responsibility, the Research Foundation adheres to section.44 (d) of OMB Circular A-110, which states “Contracts shall be made only with responsible contractors who possess the potential ability to perform successfully under the terms and conditions of the proposed procurement. Consideration shall be given to such matters as contractor integrity, record of past performance, financial and technical resources, or accessibility to other necessary resources. In certain circumstances, contracts with certain parties are restricted by agencies' implementation of Executive Orders and 12689, 'Debarment and Suspension'." See Debarment and Suspension.Research Foundation section.44 (d) of OMB Circular A Workers’ Compensation: Workers' compensation provides medical treatment, wage replacement, and permanent disability compensation to employees who suffer job-related injuries or illnesses, and death benefits to dependents of workers who have died as a result of their employment. The Workers’ Compensation Board oversees all aspects of workers’ compensation insurance.The Workers’ Compensation Board  Prior to any permit being issued or any contract being entered into for work in which employees of a business will be engaged in employment the Research Foundation must obtain acceptable proof that a business is either exempt from or has secured workers’ compensation insurance. An ACORD form is not acceptable proof of workers’ compensation coverage. The below listed forms are the only acceptable proofs of workers’ compensation coverage: CE-200: Certification of Attestation of Exemption from Workers’ Compensation and/or Disability Insurance Form C-105.2: Certificate of Workers’ Compensation Insurance Form U-26.3: Certificate of Workers’ Compensation Insurance Form SI-12: Certificate of Workers’ Compensation Self-Insurance Form GSI-105.2: Certificate in Participation in Workers’ Compensation Group Self-Insurance

Resources Office of Management and Budget Circulars: OMB has promulgated a number of policy and regulatory circulars, which provide guidance for procurement. The following provides a brief synopsis of three most commonly referenced circulars.  OMB Circular A-21: This Circular establishes principles for determining costs applicable to grants, contracts, and other agreements with educational institutions. The principles are designed to provide that the Federal Government bear its fair share of total costs, determined in accordance with generally accepted accounting principles, except where restricted or prohibited by law. Agencies are not expected to place additional restrictions on individual items of cost. All Federal agencies that sponsor research and development, training, and other work at educational institutions shall apply the provisions of this Circular in determining the costs incurred for such work. OMB Circular A-21  OMB Circular A-110: This Circular sets forth standards for obtaining consistency and uniformity among Federal agencies in the administration of grants to and agreements with institutions of higher education, hospitals, and other non-profit organizations. These standards are furnished to ensure that such materials and services are obtained in an effective manner and in compliance with the provisions of applicable Federal statutes and executive orders. The standards contained in this section do not relieve the University of any other contractual responsibilities. The University is the responsible authority, without recourse to the Federal awarding agency, regarding the settlement and satisfaction of all contractual and administrative issues arising out of procurements entered into in support of an award or other agreement. OMB Circular A-110  OMB Circular A-133: A-133 sets forth standards for obtaining consistency and uniformity among Federal agencies for the audit of States, local governments, and non-profit organizations expending Federal awards. OMB Circular A-133:

In closing…. There are many levels of procurement, with unique requirements and regulations. Trained purchasing associates can help guide you through the process. Additional training presentations can be found at our website at