Omni circular key area 7 new responsibilities of the pass through agency
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Omni Circular Key Area #7: New Responsibilities of the Pass-Through Agency. By Michael Brustein, Esq. [email protected] Brustein & Manasevit, PLLC Spring Forum 2014. Show me the money!!!. What was COFAR Thinking?.

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Omni Circular Key Area #7: New Responsibilities of the Pass-Through Agency

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Omni circular key area 7 new responsibilities of the pass through agency

Omni Circular Key Area #7:New Responsibilities of the Pass-Through Agency

By

Michael Brustein, Esq.

[email protected]

Brustein & Manasevit, PLLC

Spring Forum 2014


Omni circular key area 7 new responsibilities of the pass through agency

Show me the money!!!

BRUSTEIN & MANASEVIT, PLLC


What was cofar thinking

What was COFAR Thinking?

BRUSTEIN & MANASEVIT, PLLC


If a 133 cost and s a costs come from the same pot of funds perhaps seas will do a better job

If A-133 cost and S/A costs come from the same pot of funds, perhaps SEAs will do a better job

BRUSTEIN & MANASEVIT, PLLC


Will pass through agencies embrace performance metrics more effectively

Will pass-through agencies embrace “performance metrics” more effectively?

BRUSTEIN & MANASEVIT, PLLC


Omni circular key area 7 new responsibilities of the pass through agency

  • A pass-through entity means a non-federal entity that provides a subaward to a subrecipientto carry out part of a federal program.

    -200.74

    (e.g. ESEA, IDEA, CTE, AEFLA)

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Omni circular key area 7 new responsibilities of the pass through agency

  • Under EDGAR / A-102, pass-through responsibilities primarily described in 34 CFR 80.40 – Monitoring of Subgrantees

  • (Note – Part 76* on S/A programs will not change significantly)

    *And Part 75

BRUSTEIN & MANASEVIT, PLLC


Omni circular key area 7 new responsibilities of the pass through agency

  • But OMB / COFAR shifted many new responsibilities to the pass-through, over and above 80.40

BRUSTEIN & MANASEVIT, PLLC


Omni circular key area 7 new responsibilities of the pass through agency

  • Omni Circular NPRM (February 1, 2013) proposed reduction of the number of types of compliance requirements in the compliance supplement

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Omni circular key area 7 new responsibilities of the pass through agency

  • Many pass-throughs opposed this reduction because of burden on them. OMB puntedp. 78608

BRUSTEIN & MANASEVIT, PLLC


Monitoring responsibilities of the pass through 200 328 34 cfr 80 40

Monitoring Responsibilities of the Pass-Through 200.328 34 CFR 80.40

  • Non-federal entity is responsible for oversight of the operations of the federally supported activities

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Measuring performance performance metrics 200 328 b

Measuring Performance“Performance Metrics” 200.328(b)

  • The non-federal entity must submit to the pass-through performance reports:

    • Comparing actual accomplishments to the objectives established by the federal award

    • Where the accomplishment can be quantified (e.g. cost) it may be required

    • If performance trend data is useful to federal award agency, agency should include it as requirement for performance

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Measuring performance 200 328 b cont

Measuring Performance 200.328(b) (cont.)

  • Reasons why goals were not met, if appropriate

  • Explanation of other pertinent information, such as cost overruns

  • Significant developments, problems, delays, adverse conditions

  • Favorable developments

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The big question

The Big Question

  • How will ED (OESE, OSERS, OPE, OCTAE) reconcile the OMB required performance metrics with the current statutory / regulatory performance / accountability indicators?

BRUSTEIN & MANASEVIT, PLLC


Omni circular key area 7 new responsibilities of the pass through agency

  • In many instances OMB performance metrics are more detailed

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Specific requirements for pass through 200 331

Specific Requirements for Pass-Through (200.331)

  • Ensure that every subaward contains the following information relating to federal award identification:

    • Subrecipient name (must match registered name in DUNS)

    • Subrecipient DUNS # (Data Universal Numbering System)

    • Federal Award Identification Number (FAIN)

    • Federal Award Date

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Specific requirements for pass through 200 331 cont

Specific Requirements for Pass-Through (200.331) (cont.)

  • Period of performance start and end date

  • “Amount of federal funds “obligated” by this action”??

  • “Total amount of federal funds “obligated” to the subrecipient” ??

  • “Total amount of the federal award”

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Specific requirements for pass through 200 331 cont1

Specific Requirements for Pass-Through (200.331) (cont.)

  • Federal award project description for FFATA purposes

  • Name of federal awarding agency, pass-through agency, and contact official

  • Is the award for “research and development” ?

  • The indirect cost rate (restricted vs. unrestricted)

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Omni circular key area 7 new responsibilities of the pass through agency

  • The pass-through must reference the requirements of the federal grant and any additional requirements imposed by the pass-through (i.e. state-administered programs)

    (Incorporate by reference)

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Compare 200 331 a 1 xiii to 200 331 a 4 on indirect costs

Compare 200.331(a)(1)(xiii) to 200.331(a)(4) on indirect costs

  • What is the relevance of the approved federally recognized indirect cost rate in state-administered programs with a non supplant provision?

  • Must pass-through negotiate restricted rates, and must sub-grantees use them?

BRUSTEIN & MANASEVIT, PLLC


Omni circular key area 7 new responsibilities of the pass through agency

  • Pass-through must seek an assurance from subgrantees that access will be provided to records and financial statements

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New risk management requirements for pass throughs

New Risk management Requirements for Pass-Throughs

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Omni circular key area 7 new responsibilities of the pass through agency

  • Pass-through must evaluate each subrecipient’s risk of non compliance (federal statute / regulations / terms of award) for purpose of monitoring

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200 331

200.331

  • Risk Factors:

    • Subrecipient’s prior experience with the grant program

    • Results of previous audits

    • New personnel or substantially changed systems

    • Results of federal monitoring

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200 3311

200.331

  • Pass-through may impose conditions on subgrant based on risk assessment:

    • Shift to reimbursement

    • Withhold payments until evidence of acceptable performance

    • Require more reporting

    • Require additional monitoring

    • Require additional technical or management assistance

    • Establish additional prior approvals

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200 3312

200.331

  • Pass-through must monitor its subrecipients to assure compliance and performance goals are achieved

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200 3313

200.331

  • Monitoring must include:

    • Review financial and programmatic reports

    • Ensure corrective action

    • Issue a “management decision” on audit findings if the award is from the pass-through

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200 3314

200.331

  • Types of monitoring tools (depending on risk assessment)

    • Providing training and technical assistance

    • On-site reviews

    • Arranging for “agreed upon procedures” (less than $750,000)

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200 3315

200.331

  • Pass-through must verify all subrecipients (> $750,000) have single audits

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200 3316

200.331

  • Pass-through must adjust its own financial records based on audits, monitoring, on-site reviews

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200 3317

200.331

  • Pass-through must consider taking enforcement action based on non compliance:

    • Temporarily withhold cash payments pending correction

    • Disallow all or part of the cost

    • Wholly or partly suspend the award

    • Recommend to federal awarding agency suspension / debarment

    • Withhold further federal awards

    • Other remedies that may be legally available

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200 339

200.339

  • The pass-through may terminate the award for “cause,” notice and opportunity for hearing (200.340 and 200.341)

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Omni circular key area 7 new responsibilities of the pass through agency

Ready To Retire!!!

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Firm disclaimer

Firm Disclaimer

This presentation is intended solely to provide general information and does not constitute legal advice or a legal service.  This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct.  Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC.  You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.

BRUSTEIN & MANASEVIT, PLLC


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