NHDES Watershed Assistance Section s 319 Grant Subcontracting and Procurement Guidance for Nonprofit Organizations

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1 NHDES Watershed Assistance Sectin s 319 Grant Subcntracting and Prcurement Guidance fr Nnprfit Organizatins Draft Guidance Dcument April 2010

2 Intrductin General guidance fr RFP/RFQ and Cnstructin Bid dcuments Federal Requirements: Title 40 (Prtectin f the Envirnment) f the Cde f Federal Regulatins CFR Part 30: Unifrm Administrative Requirements fr Grants and Agreements with Institutins f Higher Educatin, Hspitals, and Other Nn-Prfit Organizatins Cpyrights Cntract prvisins Financial Specificatins Debarrment and Suspensin Payment prcesses Operatin and Maintenance Prcurement Standards Prperty Management Quality Assurance Recrd-Keeping Specificatins Terminatin Reprting Specificatins CFR Part 7 and Part 12: Nndiscriminatin CFR Part 33: Participatin by Disadvantaged Business Enterprises CFR Part 34: New Restrictins n Lbbying State f New Hampshire requirements fr 319 Grant Recipients and prject subcntracts A. RFP/RFQ Dcuments B. Additinal Requirements fr Cnstructin Bid Dcuments Bnding requirements Prcurement prcedures Cntract prvisins...errr! Bkmark nt defined. 3. List f Appendices Appendix A: DBE Requirement Guidance and frms... Appendix B: Terms f the Standard State Agreement... Appendix C: Debarment Certificatin frm... Appendix D: Lbbying Certificatin frm... Appendix E: Example Cntract Language... Appendix F: RFQ example Cbbett s... Appendix G: RFQ example Baker... Appendix H: RFQ example Sunck... Appendix I: RFB example Cains... Appendix J: List f website links...

3 Intrductin The Federal Water Pllutin Cntrl Act, as amended in 1972 and 1987, is cllectively knwn as the Clean Water Act (CWA). The bjective f the CWA is t restre and maintain the chemical, physical, and bilgical integrity f the Natin's waters and, where attainable, t achieve a level f water quality that prvides fr the prtectin and prpagatin f fish, shellfish, and wildlife, and fr recreatin in and n the water. In 1987 Cngress amended the act and added sectin 319 fr the purpse f addressing nnpint surce pllutin. CWA sectin 319 established baseline requirements fr state and territrial nnpint surce management prgrams and authrized natinal funding t supprt implementatin f apprved management prgrams. CWA sectin 319(h) is the principal authrity fr EPA funding dedicated t nnpint surce pllutin cntrl. 1. General guidance fr RFP/RFQ and Cnstructin Bid dcuments The New Hampshire Department f Envirnmental Services (DES) uses sectin 319 grants t fund lcal implementatin prjects. Recipients f these grants are required t meet certain federal requirements because these are federal funds initially awarded by EPA. Federal requirements are included in Title 40 f the Cde f Federal Regulatins (CFR), Office f Management and Budget (OMB) Circulars, and EPA guidelines. Depending n the kind f rganizatin receiving funds (state r lcal agency, nnprfit, university, etc.), different regulatins and OMB circulars apply. Fr a lcal gvernment, 40 CFR parts 7, 12, 31, 33, 34, 36 and OMB Circulars A-87, A- 102, and A-133 apply. 40 CFR clearly utlines the OMB circulars fr cst principles applicable t grant recipients (cntract r subgrant). Fr institutins f higher educatin, hspitals, r nnprfit rganizatins, 40 CFR parts 7, 12, 30, 33, 34, 36 regulatins and OMB Circulars A-110, A-122, A- 133 apply. In additin t federal requirements, grant recipients must meet certain state-specific requirements that either cmply with state rules r are required t facilitate state cmpliance with federal requirements. All requirements fr use f these grant funds apply nt nly t the grantee, but t all subcntracts and prcurements funded with grant dllars, r cunted tward the nn-federal match requirement f the grant. This dcument is intended t be used as guidance fr nnprfit rganizatins when cntemplating, develping, r implementing sub-cntracts related t 319 grant prject wrk. It cntains highlights f specific financial, reprting, and ther requirements that apply t recipients f sectin 319 grant funds, and their subcntractrs. It is nt an all encmpassing explanatin f prcurement and subcntracting rules. Familiarity and/r reference t the relevant federal and state gvernment regulatins is recmmended. Please cntact yur DES prject manager with questins r cncerns.

4 1.1 Federal Requirements: Title 40 (Prtectin f the Envirnment) f the Cde f Federal Regulatins. Title 40 f the CFR, including parts 1 thrugh 790, is published in Octber r Nvember f each year. Only parts 1 thrugh 51 apply t grants. The CFR cdifies changes t EPA grant regulatins that have been published in the Federal Register in the previus year (July 1 t June 30). 40 CFR parts 30 (Unifrm Administrative Requirements) includes sme f the mst critical elements t cnsider when develping a subcntract. Sme f thse elements are detailed belw but it is highly recmmended that the grant recipient ( grantee ) prceed t e-cfr frm the US Gvernment Printing Office s webpage and carefully review 40 CFR Part 30. Other applicable sectins f the CFR are 40 CFR Part 7, 40 CFR Part 12, 40 CFR Part 33, 40 CFR Part 34, and 40 CFR Part 36. The fllwing is a summary f sme f the key sectins f 40 CFR CFR Part 30: Unifrm Administrative Requirements fr Grants and Agreements with Institutins f Higher Educatin, Hspitals, and Other Nn-Prfit Organizatins. 40 CFR part 30 establishes unifrm administrative requirements fr federal grants and agreements awarded t institutins f higher educatin, hspitals, and ther nnprfit rganizatins. Part 30 utlines pre-award plicies, pst-award requirements, and after-the-award requirements, which are very similar t thse cvered under 40 CFR part 31 (Unifrm Administrative Requirements fr Grants and Cperative Agreements t State and Lcal Gvernments), described in the fllwing sectin. Nnprfit rganizatins that implement federal prgrams fr the states are als subject t state requirements. The full text f part 30 is prvided nline at: e-cfr - Title 40--Prtectin f the Envirnment, Chapter 1, Part 30. (r Cpyrights. Paragraph 9.3 f the Standard State Agreement specifies that n data prduced under the agreement shall be subject t cpyright. Any grantee cntemplating a prject that wuld invlve cpyrights shuld cntact their DES prject manager t discuss special cntract prvisins. As per 40 CFR 30.36, if a grantee purchases wnership in cpyrighted materials, EPA is entitled t ryalty-free use f the cpyright Cntract prvisins (40 CFR 30.48) The grantee shall include, in additin t prvisins that define a sund and cmplete agreement, the fllwing prvisins in all subcntracts. (a) Cntracts in excess f the small purchase threshld (currently $100,000) shall cntain cntractual prvisins r cnditins that allw fr administrative, cntractual, r legal remedies in instances in which a cntractr vilates r breaches the cntract terms, and prvide fr such remedial actins as may be apprpriate. (b) All cntracts in excess f the small purchase threshld (currently $100,000) shall cntain suitable prvisins fr terminatin by the recipient, including the manner by which terminatin

5 shall be effected and the basis fr settlement. In additin, such cntracts shall describe cnditins under which the cntract may be terminated fr default as well as cnditins where the cntract may be terminated because f circumstances beynd the cntrl f the cntractr. (c) Except as therwise required by statute, an award that requires the cntracting (r subcntracting) fr cnstructin r facility imprvements shall prvide fr the recipient t fllw its wn requirements relating t bid guarantees, perfrmance bnds, and payment bnds unless the cnstructin cntract r subcntract exceeds $100,000. Fr thse cntracts r subcntracts exceeding $100,000, EPA may accept the bnding plicy and requirements f the recipient, prvided EPA has made a determinatin that the Federal Gvernment's interest is adequately prtected. If such a determinatin has nt been made, the minimum requirements shall be as fllws. (1) A bid guarantee frm each bidder equivalent t five percent f the bid price. The bid guarantee shall cnsist f a firm cmmitment such as a bid bnd, certified check, r ther negtiable instrument accmpanying a bid as assurance that the bidder shall, upn acceptance f his bid, execute such cntractual dcuments as may be required within the time specified. (2) A perfrmance bnd n the part f the cntractr fr 100 percent f the cntract price. A perfrmance bnd is ne executed in cnnectin with a cntract t secure fulfillment f all the cntractr's bligatins under such cntract. (3) A payment bnd n the part f the cntractr fr 100 percent f the cntract price. A payment bnd is ne executed in cnnectin with a cntract t assure payment as required by statute f all persns supplying labr and material in the executin f the wrk prvided fr in the cntract. (4) Where bnds are required in the situatins described herein, the bnds shall be btained frm cmpanies hlding certificates f authrity as acceptable sureties pursuant t 31 CFR part 223, Surety Cmpanies Ding Business with the United States. (d) All negtiated subcntracts (except thse fr less than the small purchase threshld) awarded by grant recipients shall include a prvisin t the effect that the recipient, EPA, the Cmptrller General f the United States, r any f their duly authrized representatives, shall have access t any bks, dcuments, papers and recrds f the cntractr which are directly pertinent t a specific prgram fr the purpse f making audits, examinatins, excerpts and transcriptins. (e) All subcntracts, including small purchases, awarded by grant recipients shall cntain the prcurement prvisins f the appendix t Circular A 110, as applicable. See OMB Circular A-110 at: Financial Specificatins. Financial requirements fr sectin 319 grant recipients and their subcntractrs are categrized by the fllwing tpics:

6 Allwable csts. All csts charged t EPA grants must be eligible, necessary, and reasnable fr perfrming the tasks utlined in the apprved prject wrk plan. The csts, including match, must be incurred during the perid f perfrmance f the prject. The csts als must be allwable, meaning that the csts must cnfrm t specific federal requirements (40 CFR part 30.27; and OMB Circular A-122). In additin, csts must be well dcumented. Financial management. 40 CFR require that grantees and subcntractrs meet specific standards regarding financial reprting, accunting recrds, internal cntrl, budget cntrl, allwable cst, surce dcumentatin, and cash management. Matching funds. Matching funds are the prtin f the allwable prject csts that the grantee (r third party) cntributes t a grant agreement. Grantees are required t dcument 40% f the ttal prject cst in nn-federal matching funds. Matching funds may include the value f vlunteer labr, dnated services, dnated prducts, r ther gds r services that wuld have therwise been paid fr with grant dllars. One accepted surce f vlunteer labr value determinatin is Independent Sectr. Prfessinal time may be credited at that prfessinal s nrmal rate fr the service. All matching funds must cnfrm t the same laws, regulatins, and grant cnditins as the federal funds in the grant (see 40 CFR and OMB Circular A-122). Grantees shuld check with their DES prject manager fr additinal matching fund guidance Debarrment and Suspensin. 40 CFR part states that anyne wh has been debarred r suspended by a gvernment agency must be excluded frm all federal financial and nnfinancial assistance. By signing and submitting the EPA s Certificatin Regarding Debarment, Suspensin, and Other Respnsibility Matters frm, applicants certify that they have nt been debarred r suspended by a gvernment agency. See Appendix C fr a cpy f this frm Payment prcesses. State-determined payment prcesses are used t pay grantees. Payment will be made frm the State t the grantee as detailed in the Grant Agreement. Payments t the sub-cntractr are the sle respnsibility f the grantee. Nte that payment requests frm the 319 grantee t DES may take a mnth r lnger t prcess thrugh the State accunting system, s grantees and sub-cntractrs shuld discuss and agree upn apprpriate cash-flw measures Operatin and Maintenance. Grant recipients are bligated t cntinue perating and maintaining measures and practices that have been funded with sectin 319 funds, and are required t develp peratin and maintenance plans as part f their Grant Agreements. Grantees must als include in subcntracts a prvisin that the recipient will als prperly perate and maintain practices implemented thrugh a sectin 319 prject when applicable. Please see the DES requirements in the peratin and maintenance prvisin f the grant agreement Prcurement Standards. Grant recipients may use their wn prcurement prcedures prvided that the prcedures cnfrm t applicable laws and standards. In the event that the grant recipient des nt have an apprved frmal prcurement prcedure, State methdlgies may be used. Prcurements f less than $1,000 require 3-telephne qutes; prcurements ranging frm $1,000 t $2,000 require 3-written qutes; and prcurements exceeding $2,000 must fllw the

7 federally apprved prcess detailed in 40 CFR thrugh 30.47, and the slicitatin must be published in a state newspaper fr 3-cnsecutive days. Slicitatins fr engineers, arcitects, surveyrs, and cnsultants must fllw the qualificatins based selectin prcess as detailed in State Statute 21-I:22 (and subsectins a thrugh d as applicable). The CFR and Statute detailed infrmatin n prcedures required fr the prcurement f materials r services which vary depending n the nature f the prject. The text f thse sectins have nt been duplicated here. Please refer t 40 CFR thrugh and State Statute 21- I:22as applicable. Sme ntable elements are: Cmpetitin. 40 CFR requires that all prcurement transactins be cnducted in a way that prvides pen and free cmpetitin. Purchases fr prjects must be made n a cmpetitive basis t ensure that fair and reasnable prices are btained fr gds and services. Federal regulatins require dcumentatin f cst r price analysis in cnnectin with every prcurement actin regardless f amunt. State requirements als specify that all RFP/RFQ/RFBs exceeding $2,000 shall be published in a state newspaper fr 3 cnsecutive days. Cnflict f Interest. 40 CFR requires standards f cnduct t avid cnflict f interest. Recipients f federal funds may nt participate in the selectin, award, r administratin f a cntract if real r apparent cnflict f interest wuld result. Paragraph 13 f the standard state agreement prvides additinal detail n state prhibitin f cnflict f interest which shuld be adapted fr use in subcntracts (See Appendix B Standard State Grant Argeement Terms) Prperty Management. Prperty management and prcedures are detailed in 40 CFR part thrugh 40 CFR and OMB Circular A-122. Prperty (e.g., equipment, supplies) purchased in whle r in part with federal funds shuld be itemized. Prperty purchased with these funds may cntinue t be used fr its intended purpse indefinitely. If equipment with a fair market value f less than $5,000 is sld, there are n further bligatins t EPA. If the fair market value f the item exceeds $5,000, EPA has the right request reimbursement fr its share f the item s value Quality Assurance. Prjects invlving watershed surveying, watershed management planning, r implementatin f watershed restratin activities may be eligible fr cverage under the New Hampshire Sectin 319 Nnpint Surce Grant Prgram Quality Assurance Prject Plan (319 Prgram QAPP). Prjects that invlve the cllectin f envirnmental data that are nt eligible fr cverage under the 319 Prgram QAPP must develp individual prject QAPPs in accrdance with specific EPA guidelines (40 CFR 31.45). QAPPs utline the prcedures that a mnitring prject will use t make sure that samples are cllected, data are stred, and reprts are written t ensure quality sufficient t meet the needs f the prject. Grantees shuld discuss QAPP requirements with the state as early in the grant prcess as pssible, and subcntracts that invlve QAPP related wrk must specify cmpliance with QAPP requirements. Specific QAPP guidance fr 319 grant prjects is available n the DES website at Recrd-Keeping Specificatins. Sectin 319 grant recipients are required t retain all recrds pertaining t federally spnsred activities r prjects fr seven years after the date f submissin f the final financial status reprt r final date f recnciliatin f utstanding issues.

8 The recrds must be available and accessible t the state r EPA, as requested, fr review r audit (40 CFR 30.53). Nte that Paragraph 7 f the standard state agreement prvides additinal detail regarding state recrds and accunts requirements which shuld be adapted fr use in subcntracts. Of particular nte is that the state requires grantees t maintain recrds fr seven years thugh the CFRs specify three years Terminatin. 40 CFR includes prvisins fr terminatin. The grantee shuld refer t the detailed infrmatin in 40 CFR fr mre infrmatin. Als nte that Paragraph 12 f the standard state agreement cntains requirements fr terminatin (See Appendix B) Reprting Specificatins. All sectin 319 grants are subject t EPA's general grant requirements fund in 40 CFR part 30.51, which specify varius basic grant reprting requirements. Grantees are als encuraged t include prvisins in their subcntracts which will assist them in meeting their DES reprting requirements. Please see Exhibit A f yur grant agreement r cntact yur DES prject manager fr details n reprting requirements. Cpies f the DES reprting frms are available n the DES website CFR Part 7 and Part 12: Nndiscriminatin in Prgram Receiving Federal Assistance frm the Envirnmental Prtectin Agency. 40 CFR part 7 prhibits discriminatin under any prgram r activity receiving EPA assistance n the basis f race, clr, natinal rigin, r gender, and Part 12 prhibits discriminatin based n handicap. The regulatins utline the fllwing requirements: Submissin f an assurance with the prpsal that the applicant will cmply with the federal requirements. Maintenance f cmpliance infrmatin during the life f the cntract and fr three years after cmpleting the prject. Public ntificatin that the funding recipient des nt discriminate n the basis f race, clr, natinal rigin, gender, r handicap CFR Part 33: Participatin by Disadvantaged Business Enterprises. As per 40 CFR Part 33 Subpart C, rganizatins are required t cnduct a cmpetitive bid prcess fr cntractr selectin making a gd faith effrt t hire disadvantaged businesses. A list f disadvantaged business enterprises is available n NHDOT s website, the U.S. Small Business Administratin list r cntact yur DES prject manager fr assistance. (See Appendix A DBE Guidance fr mre infrmatin) CFR Part 34: New Restrictins n Lbbying: Interim Final Rule. Federal restrictins regarding lbbying are prvided in 40 CFR and OMB Circulars A-87 and A Nte that 40 CFR part 34 prhibits the use f federal grant funds t influence (r attempt t influence) a federal emplyee. It als requires the submissin f Standard Frm LLL ("Disclsure f Lbbying Activities") if nnfederal funds have been used t influence (r attempt t influence) a federal emplyee. See Appendix D fr a cpy f this frm.

9 CFR Part 36: Drug-Free Wrkplace. 40 CFR Part 36 requires that as a cnditin f their grant, grantees must certify that they maintain a drug-free wrkplace. By signing and submitting the prpsal, the applicant certifies that he r she will nt engage in the unlawful manufacture, distributin, dispensing, pssessin, r use f a cntrlled substance in cnducting any activity with the grant. 1.2 State f New Hampshire requirements fr 319 Grant Recipients and prject subcntracts. Please nte that the 319 grantee is ultimately respnsible fr the cmpletin f activities as listed in the grant agreement regardless f whether the grantee engages subcntractrs t perfrm sme r all f thse tasks. Previus successful grantee/subcntractr agreements have been structured t clsely parallel the arrangement f payments and activities in the grantee s 319 grant agreement, and clearly delineate the respnsibilities and expectatins f each party. Nte that all subcntract Request fr Prpsals, Request fr Qualificatins, r Request fr Bids cntemplated as part f a 319 grant prject must be reviewed and apprved by the DES prject manager in writing befre the grantee issues the request r enters int any sub-agreement as required by the terms f yur grant agreement: Paragraph 15. ASSIGNMENT AND SUBCONTRACTS. The Grantee shall nt assign, r therwise transfer any interest in this Agreement withut the prir written cnsent f the State. Nne f the Prject Wrk shall be subcntracted r subgranteed by the Grantee ther than as set frth in Exhibit A withut the prir written cnsent f the State. Insurance requirements Grantees must insure that their subcntractrs als maintain insurance that meets the requirements as specified in the standard state agreement, and prvide dcumentatin t the grantee. Unless special prvisins in Exhibit C f the Grant Agreement specify therwise, the insurance related terms f the standard state agreement are as fllws: Paragraph 17. INSURANCE AND BOND The Grantee shall, at its sle expense, btain and maintain in frce, r shall require any subcntractr, subgrantee r assignee perfrming Prject wrk t btain and maintain in frce, bth fr the benefit f the State, the fllwing insurance: statutry wrker s cmpensatin and emplyees liability insurance fr all emplyees engaged in the perfrmance f the Prject, and cmprehensive public liability insurance against all claims f bdily injuries, death r prperty damage, in amunts nt less than $2,000,000 fr bdily injury r death any ne incident, and $500,000 fr prperty damage in any ne incident; and 17.2 The plicies described in subparagraph 17.1 f this paragraph shall be the standard frm emplyed in the State f New Hampshire, issued by underwriters acceptable t the State, and authrized t d business in the State f New Hampshire. Each plicy shall cntain a clause prhibiting cancellatin f mdificatin f the plicy earlier than ten (10) days after written ntice has been received by the State. Use f Materials Prduced Paragraph 9.5 f the Standard State Agreement prvides the State rights t ryalty-free, nnexclusive, and irrevcable license t reprduce, publish, r therwise use, and t authrize thers t use fr state r

10 federal gvernment purpses use f all materials prduced using grant r match funds, and all subagreements shuld als include such a prvisin. 2A. RFP/RFQ Dcuments The general federal requirements detailed in Sectin 1 apply t all requests fr prcurement f gds r services using EPA Sectin 319 grant funds. The fllwing dcuments are examples specific t qualificatins-based selectin f services such as cnsulting, planning, design and engineering. Examples f cnstructin bid dcuments are prvided in Sectin 2B. Examples: Nte that the prvided examples are examples nly and d nt necessarily prvide all currently required infrmatin r cmpnents fr every specific prject r prject type. Please refer t the federal guidance fr mre infrmatin and cntact DES if yu have any questins. a. Cbbett s example See Appendix F b. Baker example - See Appendix G c. Sunck example See Appendix H 2B. Additinal Requirements fr Cnstructin Bid Dcuments The general federal requirements detailed in Sectin 1 apply t all requests fr prcurement f gds r services using EPA Sectin 319 grant funds. The fllwing dcuments are examples specific t cst-based bids t prvide cnstructin services. Examples f qualificatins based RFPs and RFQs are prvided in Sectin 2A. Cnstructin specific prcurement requirements: Bnding requirements fr cnstructin r facility imprvement cntracts r subcntracts exceeding the simplified acquisitin threshld (currently $100,000). Bnding requirements are detailed in 40 CFR Prcurement prcedures Subawardees may use their wn prcurement prcedures prvided that the prcedures cnfrm t applicable federal laws and standards. Additinal prcurement prcedures are required fr cnstructin prjects. The CFR cntains detailed infrmatin n prcedures required fr the prcurement f materials r services. The text f thse sectins have nt been duplicated here. Please refer t 40 CFR Examples: Nte that the prvided example des nt necessarily prvide all currently required infrmatin r cmpnents fr every specific prject r prject type. Please refer t the federal guidance fr mre infrmatin and cntact DES if yu have any questins. d. Cains Pnd example See Appendix I e. Small cnstructin prject bid example See Appendix K

11 3. List f Appendices Appendix A: DBE Requirement Guidance and frms Appendix B: Terms f the Standard State Agreement Appendix C: Debarment Certificatin frm Appendix D: Lbbying Certificatin frm Appendix E: Example Cntract Language Appendix F: RFQ example Cbbett s Appendix G: RFQ example Baker Appendix H: RFQ example Sunck Appendix I: RFB example Cains Appendix J: List f website links Appendix K: Small cnstructin prject bid example

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