While the Office of Management and Budget recently consolidated and revised much of the overarching guidance for federal grants, there are still numerous statutes, regulations and guidance on a government-wide and an agency-by-agency basis that underpin the expenditure of government funds. Remaining abreast of the myriad of baseline requirements imposed on grantees and their contractors is vital to the success of your program and continued success.

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Over the past few years, the federal government, through the U.S. Office of Management and Budget (OMB), has significantly rewritten its guidance concerning grants and cooperative agreements (referred to as the Uniform Guidance). We have written extensively on these changes, which demonstrate substantial movement toward a more formal, contract-like approach. In light of those changes, the U.S. Department of Defense Grant and Agreement Regulations (DoDGARs) required updating. The U.S. Department of Defense (DoD) established interim implementation of OMB’s guidance in December 2014. On November 7, 2016, the DoD took further steps to implement the OMB guidance. The six proposed rules seek to establish eleven new DoDGARs parts and make conforming changes to existing DoDGARs parts. The six proposed rules for comment are as follows:

  1. Revised Interim Implementation of Governmentwide Guidance for Grants and Cooperative Agreements;
  2. Format for DoD Grant and Cooperative Agreement Awards;
  3. Administrative Requirements Terms and Conditions for Cost-Type Awards to Nonprofit and Governmental Entities;
  4. National Policy Requirements: General Award Terms and Conditions;
  5. Definitions for DoD Grant and Agreement Regulations in Subchapters A Through F; and
  6. DoD Grant and Agreement Regulations.

Comments on each of these are due February 6, 2017.

Continue Reading DoD Issues Slew of Proposed Rules Updating Grant and Cooperative Agreement Regulations

On April 14, 2016, the GAO issued Report No. GAO-16-362, titled Grants Management: Actions Needed to Address Persistent Grant Closeout Timeliness and Undisbursed Balance Issues. This report followed up on a study concerning FY2011 data whereby the GAO found that while the sheer number of grant accounts within the Payment Management System (PMS)1 with undisbursed funds decreased from 10,548 to 8,832, the amount of undisbursed funds increased by approximately $200 million since the FY2011 data, totaling approximately $994 million in undisbursed funds.

Continue Reading GAO Finds Actions Needed to Address the Timeliness of Grant Closeout and Undisbursed Funds

On February 16, 2016, several federal agencies finalized their implementation of the Uniform Guidance, including the Office of the Chief Financial Officer, Farm Service Agency, Commodity Credit Corporation, National Institute of Food and Agriculture, Rural Utilities Service, Rural Business-Cooperative Service, and Rural Housing Service. While many agencies have been slow to officially adopt (and even slower to implement) the Uniform Guidance, the specific adoption and implementation of the Uniform Guidance for these agencies reminds us of the importance of assessing each award with each agency for compliance. Nonprofit grantees should establish a protocol for reviewing the requirements for each award. Consider the following actions:

Continue Reading Agency Implementation of the Uniform Guidance Continues to Shift Grantee’s Requirements under New Awards

With the close of the federal government fiscal year at the end of September, disappointed nonprofit grantees who did not receive the funding they had hoped for may be considering their next steps. Therefore, this article is dedicated to understanding a nonprofit grantee’s options for challenging a federal award, when to consider challenging an award, and tips for better positioning your organization for future awards.

Continue Reading Losing a Federal Grant Award—Now What?

With FY2016 nearly upon us, nonprofit federal grantees have much to keep in mind. Not only is FY2016 the first full year of the implementation of the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance or Super Circular), another important change is nearly afoot. As we have commented in this newsletter on many occasions recently, nonprofit federal grantees are being asked to adhere to a more “contract-like” environment, and, in this instance, nonprofits receiving federal grants and cooperative agreements‎ will be treated identically to federal contractors. Specifically, beginning on January 1, 2016, federal grantees will become part of the federal government’s Federal Awardee Performance and Integrity Information System (FAPIIS), an integrity and performance system that includes (and provides publicly) data related to the integrity and performance of entities receiving federal grants and cooperative agreements.

Continue Reading Federal Grantees Become Part of the Federal Government’s Federal Awardee Performance and Integrity Information System (FAPIIS)

Now, a year after its release, nonprofits that receive federal awards will need to begin implementing the new requirements of the OMB Super Circular. This program will discuss a number of the new requirements imposed by the Super Circular and will provide practical insight and advice for implementing those requirements. Topics will include tips for navigating the overlay of individual federal agency regulations and grant terms, and how to respond to additional government enforcement actions that may ensue as a result of the Super Circular’s emphasis on reducing waste, fraud, and abuse.

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On December 19, 2014, the U.S. Office of Management and Budget (OMB) and 28 Federal agencies issued a joint interim final rule implementing the guidance for the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (colloquially referred to as the “Super Circular”). The rule also sets out individual agency-specific regulations, to the extent OMB has approved specific agency requests to supplement or vary agency requirements from the standard Super Circular guidance. These agency-specific requirements are located in the subsequent parts to Part 200 of Title 2 of the Code of Federal Regulations (CFR).

Continue Reading 28 Federal Agencies Implement Uniform Guidance

Even though the December 2014 effective date approaches, agencies still have not issued corresponding regulations. However, the National Science Foundation (NSF) has issued preliminary revisions to its Proposal and Award Policies and Procedures Guide (PAPPG) to align NSF’s grant procedures with the Super Circular. The revised PAPPG provides some insight into how agencies may address the changes prompted by the Super Circular.

Continue Reading Agencies Begin Issuing New Guidance Prompted by the Super Circular

As is an annual tradition in Washington, the month of August is relatively quiet. However, the Court of Federal Claims (COFC) did issue a recent decision that provided guidance on how to distinguish a grant or cooperative agreement from a contract. The opinion furthers the discussion of what tools nonprofits can use to determine whether their subawards are contracts or grants/cooperative agreements, each requiring a different set of provisions and a different standard of administrative oversight.

Continue Reading COFC Provides Guidance in Determining Contract v. Grant