© ncura fra x conference la quinta, ca 2009 1 subawards, subcontracts, submarines – what’s...

© NCURA FRA X Conference La Quinta, CA 2009

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Subawards, Subcontracts, Submarines – What’s Below

the Surface?

NCURA FRA X 2009La Quinta, CAFebruary 10th

Concurrent Session, 1:15 p.m. – 2:15 p.m.

Panelists: Marti Preston, Administrator, Department of Pediatrics, University of Rochester and Brenda Kavanaugh, Senior Research Administrator, Office of

Research and Project Administration, University of Rochester


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Learning Objectives:

This session will focus on the nuts and bolts of subaward management and administration

By the end of the session we will have provided tools showing:• How to prepare and administer subawards, including

– Appropriate flow-down from prime awards– Cost analysis and subrecipient monitoring– Closeout– Tips when working with industry or foreign sites


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INTRODUCTION:What is a subrecipient (subawardee, subcontractor)?Per A-133: Any person or government department, agency,

establishment, or nonprofit organization that receives financial assistance to carry out a program through a primary recipient or other subrecipient, and– Has its performance measured against whether the objectives of

the project are met– Has responsibility for programmatic decision-making– Has responsibility for adherence to applicable federal program

compliance responsibilities– Uses federal funds to carry out a program of the organization as

compared to providing goods or services for a program of the passthrough entity


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INTRODUCTION:

What is a vendor? It is an organization that:

• Provides goods and services within normal business operations

• Provides similar good and services to many different purchasers

• Operates in a competitive environment

• Provides goods and services that are ancillary to the operations of the federal program, and

• Is not subject to compliance requirements of the federal program


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INTRODUCTION:

Vendor or subaward – how can you tell?• Is there an identified investigator at the lower-tier

organization?• Is the lower-tier organization free to decide how to

carry out the activities requested of it?• Will there be potentially patentable or copyrightable

technology created or reduced to practice from the activities of the lower-tier entity? Will the lower-tier organization have rights?


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INTRODUCTION:

Vendor or subaward – how can you tell? (cont.)

• Are publications anticipated from the lower tier entity? Will individuals at the lower-tier be co-authors on articles?

• Is the lower-tier organization providing cost sharing or matching funds?

• Is the activity to be performed a series of repetitive tests or activities requiring little or no discretionary judgment on behalf of the service provider?


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INTRODUCTION

There are many types of subrecipients

• Universities, hospitals, research institutes

• For-profit companies

• Non-profits

• Foreign institutions


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Pass-through Entity Responsibilities

• Identify federal awards by CFDA title and number, award name and number, award year, if award is R&D, name of federal agency

• Subrecipient monitoring• Ensure subrecipient has met audit requirement for the fiscal

year• Issue management decisions


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PREPARATION: RESEARCH PROPOSAL SUBMISSION – GETTING OFF TO A GOOD START

What is needed from the subrecipient?

• Statement of work (SOW)• Project budget and justification (with all appropriate costs + F&A)• Written evidence that an authorized institutional official has endorsed

the subrecipient’s proposal• Other documents such as resources/facilities/equipment page,

checklist, biosketches, other support and a signed application face page

• All this should be received at prime institution in advance of agency deadline


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Meanwhile, what should the “prime” institution’s PI do?

• Check out that Statement of work (SOW) – is it what was discussed and agreed to with subrecipient PI?

• Review the budget – are the costs what was expected and are they reasonable?

• Nag subrecipient PI to get proposal information in ASAP!


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What should you do?

• As a department administrator, work with your PI to make sure that the subrecipient budget makes sense, adds up and contains the appropriate information, such as:– Fringe benefit rates– Salary (NIH cap?)– F&A rate and costs– Equipment and supplies– Special needs – mandatory cost sharing , program income, etc.


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What should you do?• You should be meeting with your PI as early as possible

(my department guidelines require a minimum of 1 ½ months prior!)

• Your PI will already have been in touch with Sub PI and will have discussed personnel and general budget items

• You, the department administrator will be filling in the blanks in the budget and collecting all the details

• Be sure to make contact with your equivalent at the Sub PI’s institution, explaining the project from your point of view and letting them know the documents will require – this is your collaborator


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What should you do?• Let the Sub PI’s administrator know exactly who will be

working on their part of the proposal and obtain the following information:– Salary and FTE status of faculty and staff involved at Sub site– Benefit rate(s)– Institutional F&A rate

• What else? Screen dump the electronic form to be used for key personnel and site location and send it to the site DA


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What should you do?• The information you generally need (varies by

agency) from the subrecipient DA’s are:– Face page– Subaward contacts page (FDP form)– Checklist and rate agreement– Resources and Environment information– Site location informaiton– Senior Key Personnel information


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What should you do?• The information you generally need (varies by

agency) from the subrecipient DA’s are:– Sub’s DUNS # and cognizant agency information– If this is a Multiple PI’s submission, will require

Commons USERID for Senior Key Personnel page of SF424 form.


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What should you do?• Prepare a draft of the overall budget with linked

budget worksheets of all subrecipient budgets rolling up to the prime.

• Clearly show at all stages where the budget is if there are direct cost caps or you want to stay away from that $500,000 figure.

• Send Sub those worksheets for review, correction, addition, etc.


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What should you do?• This kind of oversight insures consistency in the

budget preparation, e.g., – Same escalation rate for outgoing years– Appropriate FTE’s budgeted for studies that are

occurring in several sites such as clinical studies– Comparable non-salary costs budgeted across all sites

for multicenter studies, etc.


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What should you do?In many cases, when preparing electronic

proposals, the Sub is happy to have you prepare the electronic subaward attachment budget form.

Makes you happy too, because in allows you to control your destiny, timelines and quality controls


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If the subaward is planned under a Federal contract, there are more things to worry about! The subcontractor must:

• Include a completed Contract Pricing Proposal Cover Sheet (Standard Form 1411)

• Include completed and signed Representations and Certifications• Include Small Business Subcontracting Plan (if sub costs exceed

$500,000)

Deadlines are even more important!


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Foreign Subcontracts – General Considerations:1. Can you work with the entity at all?

OFAC restrictions

Denied Party Screenings

2. How much experience does the foreign subrecipient have with contract research?

3. Does the foreign subrecipient have the infrastructure necessary to document payroll, purchases, overhead costs?

4. Are there tax restrictions associated with working with that entity?

5. Do you have someone “on the inside” who knows the unique rules, restrictions, and challenges of that country?


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Foreign Subcontracts – Financial Considerations:1. How stable is the subrecipient’s currency? Some countries (e.g., Zimbabwe) have experienced bizarre currency fluctuations in recent years, so a proposal budget prepared now may be completely inadequate six months from now.

**Always request budgets in U.S. dollars**2. How do you intend to verify the subrecipient’s expenditures? Consider audit and subrecipient monitoring responsibilities.

**When in doubt, propose a Firm Fixed Price sub**3. Avoid asking a foreign subrecipient to cost-share. If the sponsor requires cost-sharing, you are better off shouldering it all yourself.


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Foreign Subcontracts – More Financial Considerations:4. Will the subrecipient face cash-flow challenges? If you are working with developing countries, you may need to consider cash-advances, up front payments, and other similar approaches.

– You’ll need to balance the risk to your institution with the needs of the foreign subrecipient.

– You should establish reasonable caps for cash advances.– You should make sure this payment structure is explicit in your

proposal.– If the project is not fixed price, you’ll need to establish

mechanisms for reconciling cash advances with expenditures.


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Foreign Subcontracts – More Financial Considerations:5. What additional costs should you include in your prime budget to manage your foreign subs?

– Translation costs

– Shipping costs

– Communication costs

– Wire transfer costs

– Additional administrative costs (A-21: “Major Project”)


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Foreign Subcontracts – Export Considerations:Physical exports – Does the proposed collaboration involve shipping anything abroad? Computers? Laptops? GPS equipment?Foreign travel – Will your researchers be travelling abroad? With whom will they be interacting?Deemed exports – Will your foreign collaborators be visiting you during the course of the project? What technology will they be exposed to?Defense services – Will your project involve training foreign personnel in the use of any technology included on the Munitions List?


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Foreign Subcontracts – Other Considerations:

Human Subjects/Animal Subjects - If human or animal subject research will take place abroad, please consider what measures will be taken to ensure compliance. (The same standards of care are required regardless of whether the research is performed in the U.S. or abroad.)

F&A - Please check your sponsor guidelines to see if additional restrictions apply to foreign subrecipients. For example, NIH will only pay 8% F&A on foreign subs, even if the domestic organization is charging full F&A.


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• For Profit Subawards – General Considerations– Will the sub entity consider financial

information confidential?– Does the sponsor allow for a fee?– Will an IP agreement be required at the time

of proposal?


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PREPARATION FOR THE SUBAWARD

Congratulations, you got the award. What happens next?

• Check the prime award document – has the subaward been approved by the sponsor (or not specifically disapproved)?

• Is the budget intact or has it been reduced– Revised or detailed budgets will be needed

• Are the required assurances and certifications in hand for the subrecipient?– IRB and IACUC approvals– Certification on education in the use of humans in research

• If this is a foreign subaward, there may be additional hurdles to jump


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Congratulations, you got the award. What happens next?

For the department administrator (DA), a lot!

• DA meets with prime PI to discuss account/budget setup and provides Request to Issue Subcontract form (http://www.rochester.edu/ORPA/Forms/– This form provides your sponsored programs office with the basic

information they need to set up the subaward• Statement of Work• Additional terms and conditions they may need in subaward• Budget information (including account number, not to exceed amount, etc)• Contact information• Prime PI’s cost assurance (he/she must sign!)

– Do you have all of your approvals and assurances from your sub in hand?

http://www.rochester.edu/ORPA/Forms/


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Foreign Subcontracts• You should always seek explicit approval from your sponsor before

issuing a foreign sub. Do not assume it is acceptable simply because it was proposed and not expressly disallowed.

• In addition to needing your sponsors approval, you may need the approval of the foreign government before performing work.

• Some countries have complex legal authorities with overlapping jurisdictions (including tribal authorities, etc.)

• How will language barrier issues be resolved for programmtic and administrative oversight? Are translators available? Have they been budgeted for?


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If subrecipient is a for-profit or small non-profit, you will need to know:• Are they qualified to receive Federal funds?• Do they have internal controls in place to manage and track the funds?• Have they every received Federal funds?

• Perhaps a pre-qualifying questionnaire to determine all this is

necessary (see http://www.rochester.edu/ORPA/Forms/ )




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ISSUING THE SUBAWARD

There are three main components to all subawards

1. Statement of Work (SOW) – can be difficult to get

– A poorly prepared SOW can lead to disputes between collaborating institutions

– Not advisable to just reference the approved proposal for the overall award or the budget justification in place of a detailed SOW

– Name specific deliverables, if required


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2. Budget– Should be at least as detailed as required by prime sponsor

– Cost-reimbursable• Costs reimbursed against actual expenditures up to a not-to-

exceed amount

– Fixed price• Based on project performance or completion of milestones• Paid based on fixed price amount, regardless of actual costs

– Per research subject• Clinical trials


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Order of Precedence

Statute

Administrative Regulations

Program Regulations

Special Terms and Conditions of Award

OMB Circulars


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3. Terms and conditions– Federal Demonstration Partnership (FDP) Template

• Used for most Federal assistance subawards – NIH, NSF, DOE, AFOSR, AMRMC, ARO, EPA, NASA, ONR and USDA (AHRQ and HRSA are not participating agencies in FDP)

• Contain basic flow-down terms from Federal sponsors and consists of the following sections:


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3. Terms and Conditions, cont.– If you not using the FDP terms and conditions, the

prime institution will need to develop its own template. The FDP terms may not be suited to some awards.


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Other considerations when setting up the subaward, invoices

– Submission of invoices and payments• Invoice intervals• Invoice format and requirements• Payment intervals• Special requirements for final invoice

– Carryforward of unobligated balance from budget period to budget period• Indicate whether or not this is allowed


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Other considerations when setting up the subaward, invoices, cont.

– Mandatory cost sharing (voluntary does not have to be tracked by prime grantee institution)

• Must be identified in invoices to prime– Display total actual costs for reimbursement by major

budget category– In addition, subrecipient’s actual costs incurred to meet

cost share commitment made to prime sponsor must be labeled as cost sharing, displayed and totaled by major budget category on each invoice

– Final invoices will not be paid until mandatory cost sharing is certified


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Other considerations when setting up the subaward, invoices, cont.

– Advance payments• Payments are normally made after service is rendered and

associated costs are reviewed and approved• Under unusual circumstances advance payments may be

made– Small or foreign entity does not have the cash reserve to

initiate work– Sponsor actually allows cash advances to prime and

subrecipients– National laboratories


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Other considerations when setting up the subaward

– Records and audit• Subrecipient must maintain acceptable financial systems and

accurate records to identify the expenditures of the sponsored funds

– Intellectual property: patents, inventions, and copyright• Rights granted in accordance with U.S. patent and copyright

law and additional sponsor requirements• Subrecipient maintains ownership rights to IP it develops• Exception: subrecipients under an industry initiated clinical

trial


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Other considerations when setting up the subaward• Indemnification

• Institutional or state policy of subrecipient may dictate what type of indemnification provision will be included in subaward agreement

• Typically, the agreement states that each party indemnifies the other party for negligent acts or omissions

• If the sponsor provides a certain level of indemnification to prime awardee, subrecipient should receive the same level


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• Issues under Federal contracts– Flow-down Federal Acquisition Regulations (FARs)– Specific deliverables– Rebudgeting restrictions, etc.– Small business plans


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Foreign Subcontracts – Legal Issues

Buy American Act. This Act requires that you purchase domestic products, unless doing so imposes an unreasonable cost or is not in the public interest. However, to avoid export control issues, it is generally better to purchase equipment abroad if it is available rather than shipping domestic products overseas.

Anti-terrorism requirements. Many foundations (Ford) and some federal agencies (USAID) require such provisions. You must complete denied party screenings of foreign persons involved in the project to comply.


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Foreign Subcontracts – More Legal Issues

Trafficking in Persons. This clause is found in contracts (FAR 52.222-50) and more recently in ONR grants. It is important to research foreign organizations to make sure they comply with this clause.

Foreign Corrupt Practices Act (FCPA). Bribery of foreign officials is illegal (obviously). However, corruption is widespread in many countries, and you may be asked to pay all sorts of “transaction fees” to make things happen. Check with your legal counsel before paying any cost that does not pass the smell test.


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Foreign Subcontracts – More Legal Issues

Anti-Boycott Laws. Certain countries participate in boycotts against Israel. If you receive documentation or invoices from a foreign organization that requires you to indicate your compliance with Israel boycotts, you are required (under U.S. law) to insist on deletion.

Choice of Law. U.S. law and venue are always preferred. Only agree to foreign law and venue if your legal counsel has indicated an interest in travelling abroad (and you are willing to pay). Please note that you are unlikely to win any disputes settled in a foreign venue.


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Foreign Subcontracts – Certifications & Representations

Most public policy requirements apply to foreign subs:

Research misconduct

Animal welfare/Human subjects

Inclusiveness in research design (NIH)

Lobbying

Some requirements do NOT apply to foreign subs:

Civil rights


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Foreign Subcontracts – Certifications & Representations

Some public policy requirements may or may not apply:

Drug-free workplace can sometimes be eliminated, if the U.S. federal government judges that the inclusion of this provision is in conflict with foreign laws.

Some additional requirements may apply:

Foreign governments and government agencies are NOT subject to debarment and suspension requirements, but they may have to provide a certification that they are not delinquent on any debts owed to the U.S. (Other foreign entities ARE subject to debarment certification requirements.)


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Foreign Subcontracts – Relational Considerations

The terms and conditions of the subcontract may prove difficult to enforce, no matter how much time you spend negotiating them.

At the end of the day, establishing a good relationship with your foreign subrecipient is more important than anything else.

Avoid talking down to your foreign subrecipients, even if they seem confused or overwhelmed by the U.S. contracting process. Even a hint of condescension can undermine months of hard work.


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• Issues with clinical trial subrecipients– More problematic terms and conditions

• If industry sponsored, can be problematic as you will have to flow-down the same you received

• Consequently, negotiations can be drawn out• Sponsor pressure to meet enrollment goals

– Different payments terms– IRB approvals and reapprovals– Additional costs


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• Issues with commercial organizations– Administrative requirements

• F&A rate (No federally negotiated rate? See Appendix E, Administrative Overhead Costs Worksheet)

• Fringe benefit rates (see Appendix F, Fringe Benefit Costs Worksheet)

– Cost principles– Inspection and audit clauses– Profit and fees– Intellectual property– Indemnification– Flow-down terms


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POSTAWARD – Keeping up and moving forward

• Verification of subrecipient F&A rate– Copy of current rate agreement at time of initial award– Rate should be fixed for life of award if under federal award

• Monitoring requirements– A-133 audit

• If subrecipient is not subject to A-133, other types of audits (as agreed to in the subaward) may be effective tools for monitoring

– Financial reports• Timeliness of reports or invoices• Content of reports

– Performance reports– Routine contact with subrecipient– Site visits


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• Technical monitoring by prime PI– Annual progress reports with discussion between PI and sub PI

• Include proof of current IRB or IACUC approvals• Detailed budget for upcoming year• Updated other support for key personnel

– Prime PI’s responsibility to ensure performance of subrecipient• Notify sponsor if subrecipient is not performing and SOW is

affected• But first notify the sponsored programs office at prime

institution


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POSTAWARD – Keeping up and moving forwardDepartment Administrator (DA) will be responsible for:• Setting up a cumulative (project period) tracking

document for each subaward that indicates:– Name of Institution/PI– Total amount awarded– Total amount of current award– Invoices as received are ented into the worksheep so that a

cumulative (total invoiced” and cumulative “balance available” is obvious at all times

– Invoices are reviewed for accuracy by DA/accounting staff (dates of service, correct math, correct F&A calculation as awarded) and give to Prime PI for review and approval/signature. Then invoices are sent to Finance Department for payment

– If invoicing is not timely, get in contact with Sub DA or have Prime PI contact Sub PI


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• Early termination– Failure of subrecipient to perform– Relocation or illness of subrecipient’s PI– Termination by project sponsor


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• What if anything (everything?) goes wrong?– No work done, but regular invoicing– No invoicing, no work done– Per subrecipient, work done, invoicing done, per prime PI, work

not done or done improperly– Monitor, monitor, monitor– Communicate with sponsored programs office about problems

ASAP, your’s and their’s


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CLOSE-OUT PROCEDURES

– Prime PI must certify that all technical reports and/or deliverables have been received and that subrecipient has fulfilled its obligations

– Final invoice is required at the end of the subrecipient project period and indicates that:• All work has been done and all deliverables have

been received by prime PI• Mandatory cost sharing (see sample form

Certification of Cost Sharing at http://www.rochester.edu/ORPA/Forms/ )

• This is usually required 45 to 60 days after the project has ended and is dependent upon the subrecipient closing out the subaward



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Foreign Subcontracts• Foreign subrecipients are generally subject to the same audit

requirements as for-profit organizations (45 CFR 74.26(d)).• Foreign organizations are NOT subject to A-133, but an audit that

meets the standards of an A-133 audit will satisfy the 45 CFR 74.26(d) requirements.

• If a foreign organization spends less than $500K/year in U.S. federal funds, audits are not usually required. However, the U.S. Government reserves the right to request “grant-related records” for review.

• USAID sometimes requires independent audits.• Reporting and record retention requirements are generally the same

as for domestic organizations.


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Remember, the prime award cannot be closed out until the subaward is closed out.


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QUESTIONS?

University of Rochester Subcontract Manual can be accessed at: http://www.rochester.edu/ORPA/publications/index.htm

Some use subcontracting forms can be found at: http://www.rochester.edu/ORPA/Forms/

[email protected] [email protected]

http://www.rochester.edu/ORPA/publications/index.htm


mailto:[email protected]

mailto:[email protected]

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