Page -0 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | Overview of Key Provisions of the American Recovery and Reinvestment Act Presented by: Edward T. Waters, Esquire Stacia Davis Le Blanc, Esquire

Page -1 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law |  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

Page -2 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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?

Page -3 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | The Basics

Page -4 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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

Page -5 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | What money is ARRA supplying and where is it going?  $787 Billion dollars of spending provisions and tax provisions

Page -6 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | ARRA Money Allocated to Agencies Thus Far…

Page -7 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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.

Page -8 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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

Page -9 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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,  Remember: The obligation deadline for State Fiscal Stabilization Funds is Sept. 30, 2011.

Page -10 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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

Page -11 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | Reporting Requirements

Page -12 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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

Page -13 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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

Page -14 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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)

Page -15 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | OMB Guidance on Recipient Reports  On Feb. 18, 2009, OMB released Initial Implementing Guidance for ARRA:  menting%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

Page -16 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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

Page -17 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | Inspectors General: Reviews, Investigations, and Audits

Page -18 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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

Page -19 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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

Page -20 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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

Page -21 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | Recovery Accountability and Transparency Board

Page -22 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | Board Membership

Page -23 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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

Page -24 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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

Page -25 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | Whistleblower Provisions and Protections

Page -26 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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

Page -27 © Feldesman Tucker Leifer Fidell LLP. All rights reserved. Federal Grants Law | 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...