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Federal Bar Association Government Contracts Section Federal Grants Committee

Federal Bar Association Government Contracts Section Federal Grants Committee. National Grants Management Association Monthly Training Series Maggiano ’ s Little Italy, Washington, DC Wednesday, December 7, 2011 11:30 am – 1:30 pm. Ask A Lawyer Questions And Answers for Grants

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Federal Bar Association Government Contracts Section Federal Grants Committee

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  1. Federal Bar AssociationGovernment Contracts SectionFederal Grants Committee National Grants Management Association Monthly Training Series Maggiano’s Little Italy, Washington, DC Wednesday, December 7, 2011 11:30 am – 1:30 pm

  2. Ask A Lawyer Questions And Answers for Grants Professionals

  3. FBA Federal Grants Committee • Professional organization for private and government lawyers and judges involved in Federal practice. • Sponsors a variety of programs, including: • a panel presentation at the National Grants Management Association’s annual training conferences, and • an Internet listserv on grants law matters, to which non-members may also subscribe.

  4. FBA Federal Grants Committee • Each month the Committee also holds an informal “brown bag” luncheon meeting to discuss committee business, legal cases and situations of interest. • Lawyers may join the Committee or obtain more information: • Co-Chair Edward Sharp, • (301) 713-2175, esharp@doc.gov. • Co-Chair Jana Gagner, • (301) 975-5035, jana@nist.gov.

  5. FBA Federal Grants Committee New Co-Chairs • Co-Chair • Laura Shin • laura.shin@dhs.gov • Co-Chair • Brad Hallman • bhallman@deloitte.com

  6. FBA Federal Grants Committee • To join the listserv, send an e-mail to esharp@doc.gov, with a message stating your e-mail address and asking to join the listserv.

  7. Honoring Those Who Led the Way • Two major contributors to the grants law field died in 2011 • Malcolm S. Mason, age 101 • Paul G. Dembling, age 91 • Agency Counsel • Drafted many grants laws • FBA leaders • Co-Authors, “Essentials of Grants Law Practice” Jana Gagner, Malcolm Mason, Ed Levin

  8. Today’s Discussion • Comments today do not necessarily reflect the views of the employers of the panelists. • Comments are general in nature and do not constitute legal advice. • They are intended to provide helpful ideas and suggestions for your consideration. • Any actual situations described in a question may vary if counsel were to examine documentation and evidence. • Consult your own counsel about any specific situation you may encounter.

  9. Moderator Jana Patterson Gagner • Senior Counsel, Federal Assistance Law Division, Office of the General Counsel U.S. Department of Commerce Client Bureau: National Institute of Standards and Technology • Co-Chair , Federal Bar Association Federal Grants Committee 

  10. Panelists Peter Wathen-Dunn • Senior Counsel, U.S. Department of Education Office of General Counsel • Co-Leader Education/OGC Discretionary Grant Practice Team • Lead role in Drafting of Education’s Handbook for Discretionary Grant Process • Advises Agency Working Groups implementing P.L. 106-107 • Assisted in drafting unifying amendments to the cost principles • Advised on implementation of FFATA • Advises on the Paperwork Reduction Act of 1995

  11. Panelists Edward Levin • Grants Law Consultant • Grants Law Teacher and Trainer • Former Member NGMA Board of Directors Former Chair FBA Grants Committee and ABA Federal Assistance Committee • Retired Chief Counsel • Economic Development Administration U.S. Department of Commerce

  12. Panelists Stacia Davis Le Blanc, Esquire • Founder, My Grant Lawyer, PLLC • Grant Compliance, Training, Audit Defense, Debarments • www.MyGrantLawyer.com • Staci@MyGrantLawyer.com • Former Partner, Feldesman Tucker Leifer Fidell • Chief of Federal Assistance Law Division within Commerce Department • Advised Agency Working Groups and OMB regarding P.L. 106-107 implementation • Former Chair, FBA Government Contract Section and Grants Committee

  13. Your Questions

  14. Questions to Start the Discussion

  15. Re-opening a closed grant • Advance question FBA received: If statute and rules are silent, is it legal to re-open a closed award to correct a mistake? • Example of mistakes: technical glitches, award inadvertently or erroneously closed by agency or recipient in the technical system, charges made to wrong award, disallowed costs and credits from audits, payment transactions from interfaced systems. • Standard Operating Procedure, formal guidance, or policy?

  16. Some Major Issues in 2011 • Constitutional conditions to be discussed at U.S. Supreme Court • Cases • Legislation • Executive Branch policy

  17. Who may be the Recipient If an organization is not eligible to apply for a grant, may another organization apply for it and make a subaward to that organization?

  18. Recipient • May a Recipient have a fiscal agent apply for the grant?

  19. Fiscal Agent How might the Recipient utilize a financial management services companyto assure accountability, compliance, and programmatic performance?

  20. Partnerships / Consortium • Does partnering with one or more organizations on a grant application change the rules? Which is treated as the Recipient? What is the legal relationship with the partners?

  21. Availability of Appropriations Does appropriation law require discrete funding periods? Do grant funds awarded in first funding period expire at end of funding period?

  22. Availability of Appropriations Are grants and cooperative agreements subject to the Bona Fide Needs Rule? May Recipient continue to use funds awarded in first funding period during the second funding period?

  23. Carry-Over Funds • May obligated but not expended funds under contract or subrecipient agreement be expended in next budget/funding period?

  24. Program Income • Are membership fees collected by a Recipient from individuals or organizations considered program income?

  25. Program Income What rights does the Federal Government have with respect to program income? Can the government demand the recipient to refund program income?

  26. Program Income How may the Recipient spend the program income?

  27. Program Income What if program income is earned under an award with a matching cost/non-federal cost share?

  28. Subrecipient / Subcontractor • If an applicant identified a subrecipient or vendor in its proposal, does the execution of the award “approve” of those agreements?

  29. Subrecipient Can a subrecipient agreement be fixed price? Is fixed price agreement subject to audit?

  30. Vendor/Contractor What are recipients’ responsibilities regarding fixed priced contracts vs. cost contracts?

  31. Background Property and Equipment Records • . What record keeping is required of Recipients regarding all of the ARRA funded acquisition, construction, and improvements to real property and equipment owned by Recipients?

  32. Questions From the Audience?

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