Uniform Grant Guidance Roundtable Discussion: October 5, 2015 Procurement 1

Extended Grace Period Effective September 10, 2015, the grace period regarding procurement provisions in the Uniform Grant Guidance has been extended from one year to two years. How does this impact State agencies? – State agencies with subrecipients will be impacted most as subrecipients are required to follow all of the procurement standards. – Subrecipients can choose to follow their current policies and procedures or the new procurement guidelines outlined in the Uniform Grant Guidance. However, they must document whether it is in compliance with the old or new standard, and must meet the documented standard. 2

State Agencies Per CFR , State agencies must continue to use their own procurement policies and procedures, but also must comply with the following: – Procurement of Recovered Materials – Contract Provisions 3

Procurement of Recovered Materials ( ) State agencies must comply with section 6002 of the Solid Waste Disposal Act. These requirements include: Procuring only items designated in guidelines of the Environmental Protection Agency (EPA) that contain the highest percentage of recovered materials practicable. This guideline applies to purchases of $10,000 or more of one of the designated items. Procuring solid waste management services in a manner that maximizes energy and resource recovery. Establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. 4

Contract Provisions ( ) Contracts must contain the applicable provisions described in Appendix II Part 200-Contract Provisions for non-Federal Entity Contracts Under Federal Awards. These include: Contracts for more than the simplified acquisition threshold ($150,000) must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate. All contracts in excess of $10,000 must address termination for cause and for convenience by the non-Federal entity including the manner by which it will be effected and the basis for settlement. 5

Contract Provisions ( ) Additional contract provisions include: Equal Employment Opportunity-All contracts that meet the definition of “federally assisted construction contract” must include the equal employment opportunity clause provided under 41 CFR (b). – Federally assisted construction contract means any agreement between the applicant and a person performing construction work which is paid in whole or in part with Federal funds. Davis-Bacon Act-All prime construction contracts in excess of $2,000 awarded by non-Federal entities must include a provision for compliance with the Davis Bacon Act. Under the act, contractors are required to pay the local prevailing wages on public works projects for laborers and mechanics. 6

Contract Provisions ( ) Contract Work Hours and Safety Standards Act- All contracts awarded by the non-Federal entity in excess of $100,000 that involve the employment of mechanics or laborers must pay overtime equal to one and one-half times their basic pay rate for hours worked over 40 during the work week. Rights to Inventions Made Under a Contract or Agreement- Contracts or agreements for the performance of experimental, developmental, or research work shall provide for the rights of the Federal Government and the recipient in any resulting invention in accordance with 37 CFR part

Contract Provisions ( ) Clean Air Act and the Federal Water Pollution Control Act- Contacts and sub-grants in excess of $150,000 must contain a provision to agree to comply with all of the applicable standards, orders or regulations issued pursuant to the Clean Air Act and the Federal Water Pollution Control Act. Mandatory standards and policy relating to energy efficiency which are contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act. 8

Contract Provisions ( )  Debarment and Suspension- A contract award must not be made to parties listed on the government wide Excluded Parties List System (EPLS) in the System for Award Management (SAM).  Byrd Anti-Lobbying Amendment- Contractors that apply or bid for an award of $100,000 or more must file the following required certification: – Each tier certifies to the tier above that Federal funds will not be used to pay any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, or an officer or employee of Congress in connection with any Federal contract, grant, or other award. 9

Non-Federal Entities (Other than States) All other non-Federal entities, including subrecipients of a state, are required to follow all of the procurement provisions in the Uniform Grant Guidance. This includes sections General procurement Standards to section Contract Provisions. State agencies are responsible for ensuring subrecipients are following these requirements. 10

General Procurement Standards ( ) Non-Federal entities (other than States) must: Use their own documented procurement procedures which reflect applicable State and local laws and regulations, provided that the procurement conforms to applicable Federal law and the standards identified in the Uniform Grant Guidance. Maintain oversight to ensure that contractors perform in accordance with the terms, conditions, and specifications of their contracts. Maintain written standards of conduct covering conflicts of interest. Avoid acquisition of unnecessary or duplicative items. 11

General Procurement Standards ( ) Non-Federal entities (other than States) must: Award contracts only to responsible contractors. Maintain sufficient records in order to detail procurement history. Be responsible for the settlement of all contractual and administrative issues arising out of procurements. 12

General Procurement Standards ( ) The non-Federal entity may: Use time and material type contracts only after a determination that no other contract is suitable and if the contract includes a ceiling price that the contractor exceeds at its own risk. – Time and material type contract means a contract whose cost to a non-Federal entity is the sum of the actual cost of materials and direct labor hours. 13

General Procurement Standards ( ) Additionally, the non-federal entity is encouraged to: Enter into State/local agreements for procurement or use of common or shared goods and services. Use Federal excess and surplus property in lieu of purchasing equipment. Use value engineering clauses in contracts for construction. 14

Methods of Procurement ( ) The non-Federal entity (other than States) must use one of the following methods of procurement: Micro purchases (< $3,000)-Do not require solicitation of any competitive quotations as long as the entity considers costs to be reasonable. Small purchases (<$150,000)-Price or rate quotations must be obtained from an adequate number of qualified sources. 15

Methods of Procurement ( ) Sealed bids (> $150,000)-Bid with lowest price from a responsible bidder awarded contract as long as they confirm to terms. Competitive proposals (RFP) – Used when conditions are not appropriate to use sealed bids. – Must have written method of conducting technical evaluations of the proposals received. – Price is not the only factor. 16

Methods of Procurement ( ) Non-Competitive proposals- Solicitation of proposal from only one source. May only be used when one or more of the following apply: – The item is available from only one source. – Public emergency will not permit delay. – The Federal awarding agency or pass-through entity expressly authorizes its use, or – After solicitation of a number of sources, competition is determined inadequate. 17

Other Procurement Provisions Minority businesses, women’s business enterprises, and labor surplus must be used whenever possible. A cost price analysis must be performed for every purchase over the Simplified Acquisition Threshold ($150,000). Procurement transactions must be conducted in a manner providing full and open competition. 18

Discussion Question #1 In regards to Federal requirements, what procurement issues has your agency faced? How did you overcome these issues? 19

Discussion Question #2 How do you ensure subrecipients are or will be following requirements in the Uniform Grant Guidance? 20

Discussion Question #3 What additional questions or concerns do you have regarding procurement? 21