Federal Bar Association Government Contracts Section Federal Grants Committee

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Federal Bar AssociationGovernment Contracts
SectionFederal Grants Committee

• National Grants Management Association Monthly
  Training Series
• Maggianos Little Italy, Washington, DC
• Wednesday, December 7, 2011
• 1130 am 130 pm

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Ask A Lawyer Questions And Answers for Grants Pr
ofessionals
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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 Associations annual training
  conferences, and
• an Internet listserv on grants law matters, to
  which non-members may also subscribe.

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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,
• [phone], esharp_at_doc.gov.
• Co-Chair Jana Gagner,
• [phone], jana_at_nist.gov.

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FBA Federal Grants Committee
New Co-Chairs

• Co-Chair
• Laura Shin
• laura.shin_at_dhs.gov
• Co-Chair
• Brad Hallman
• bhallman_at_deloitte.com

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FBA Federal Grants Committee

• To join the listserv, send an e-mail to
  esharp_at_doc.gov, with a message stating your
  e-mail address and asking to join the listserv.

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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
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Todays 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.

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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 

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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 Educations 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

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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

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Panelists

• Stacia Davis Le Blanc, Esquire
• Founder, My Grant Lawyer, PLLC
• Grant Compliance, Training, Audit Defense,
  Debarments
• www.MyGrantLawyer.com
• Staci_at_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

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Your Questions
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Questions to Start the Discussion
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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?

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Some Major Issues in 2011

• Constitutional conditions to be discussed at U.S.
  Supreme Court
• Cases
• Legislation
• Executive Branch policy

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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?

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Recipient

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

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Fiscal Agent

• How might the Recipient utilize a financial
  management services company to assure
  accountability, compliance, and programmatic
  performance?

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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?

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Availability of Appropriations

• Does appropriation law require discrete funding
  periods?
• Do grant funds awarded in first funding period
  expire at end of funding period?

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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?

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Carry-Over Funds

• May obligated but not expended funds under
  contract or subrecipient agreement be expended in
  next budget/funding period?

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Program Income

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

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Program Income

• What rights does the Federal Government have with
  respect to program income?
• Can the government demand the recipient to refund
  program income?

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Program Income

• How may the Recipient spend the program income?

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Program Income

• What if program income is earned under an award
  with a matching cost/non-federal cost share?

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Subrecipient / Subcontractor

• If an applicant identified a subrecipient or
  vendor in its proposal, does the execution of the
  award approve of those agreements?

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Subrecipient

• Can a subrecipient agreement be fixed price?
• Is fixed price agreement subject to audit?

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Vendor/Contractor

• What are recipients responsibilities regarding
  fixed priced contracts vs. cost contracts?

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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?
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Questions From the Audience?