U.S. Communities does not directly participate in contract solicitations. However, U.S. Communities is committed to assisting the participants in its cooperative purchasing program with compliance. While it is important for each lead public agency, participating public agency and supplier in the U.S. Communities program to seek independent legal counsel for each particular solicitation and contract, the following notice is designed to generally respond to inquiries received regarding the program’s position on the new Uniform Guidance related to federal grants.
The use of federal funds for procurement of goods and services requires compliance with federal grant requirements, which govern the use and accountability of those funds. The Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, 2 C.F.R. §200, et. seq. (the “Uniform Guidance” or the “New Edgar”), became effective for procurements after December 26, 2014. The Uniform Guidance consolidates and amends federal procurement provisions found at 44 C.F.R. §13.36(a)-(i) (States, Local and Tribal governments) and 2 C.F.R. §215.40-48 (Institutions of Higher Education, Hospitals, and Private Non-Profits). The Uniform Guidance procurement provisions are found at 2 C.F.R., §200.317-326. Although the effective date of the Uniform Guidance was December 26, 2014, Non-federal entities (“NFEs”) may defer implementation of the Uniform Guidance for up to two full fiscal years, or until July 1, 2017, if a written deferral election is adopted into purchasing policy. Even if compliance with the Uniform Guidance is properly deferred, the NFE must still comply with the old federal provisions found at 44 C.F.R. § 13.36(a)-(i) (States, Local and Tribal governments) and 2 C.F.R. 215.40-48 (Institutions of Higher Education, Hospitals, and Private Non-Profits).
Contracts solicited and executed prior to December 26, 2014, are grandfathered under prior law.
How are Lead Public Agencies Handling Compliance?
Many of the U.S. Communities' lead public agencies are adopting deferral language similar to that set forth below:
NOTICE OF DEFERRAL UNDER FEDERAL GRANT UNIFORM GUIDANCE
As permitted under the rule published at 80 FR 54407, the (Lead Public Agency) is electing to defer until July 1, 2017, the implementation of the procurement provisions of the Uniform Guidance, as detailed in 2 CFR 200 subsections .317 through .326. During this period, we will continue to operate under the guidance of 44 C.F.R. § 13.36(a)-(i) (States, Local and Tribal governments) and 2 C.F.R. 215.40-48 (Institutions of Higher Education, Hospitals, and Private Non-Profits). This memo shall constitute the documentation of this decision as required, and shall be deemed incorporated into our internal procurement policies.
How Are Lead Public Agencies Handling Future Solicitations?
U.S. Communities has promoted the use of the following language in future solicitations with lead public agencies:
Uniform Administrative Requirements
By entering into this Contract the Contractor agrees to comply with all applicable provisions of Title 2, Subtitle A, Chapter II, PART 200—UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS contained in Title 2 C.F.R. § 200 et seq.
Contract Awarded Before December 2014
Contract Awarded After December 2014
Contracts In Compliance
Each U.S. Communities program solicitation must stand on its own legal merits, and this notice does not constitute legal advice.