Purchasing Policy Checklist for Procurement with Federal Grants Eileen Youens, JD

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1 Purchasing Plicy Checklist fr Prcurement with Federal Grants Eileen Yuens, JD T cmply with the Unifrm Administrative Requirements, Cst Principles, and Audit Requirements fr Financial Awards (the Super Circular, r UAR ), yur purchasing plicy must include the fllwing:! A reminder that when using federal grant funds, yu must fllw applicable state statutes and rules and lcal plicies nly t the extent that thse statutes, rules, and plicies d nt cnflict with the UAR. XX C.F.R. XX.318(a).! Written standards f cnduct; r must incrprate and reference yur written standards f cnduct if they are in a separate plicy. The standards f cnduct must prvide that: N emplyee, fficer, r agent must participate in the selectin, award, r administratin f a cntract supprted by a federal award if he r she [the emplyee, fficer, r agent] any member f his r her immediate family, his r her partner, r an rganizatin which emplys r is abut t emply " the emplyee, fficer, r agent; " an immediate family member f the emplyee, fficer, r agent; r " the partner f the emplyee, fficer, r agent has a financial r ther interest 1 in r will receive a tangible persnal benefit frm a firm cnsidered fr the cntract. Officers, emplyees, and agents must neither slicit nr accept gratuities, favrs, r anything f mnetary value 2 frm cntractrs r parties t subcntracts. If yu have a parent, affiliate, r subsidiary rganizatin that is nt a state, lcal gvernment, r Indian tribe, then yu must als maintain written standards f cnduct cvering rganizatinal cnflicts f interest. Organizatinal cnflicts f interest means that because f relatinships with a parent cmpany, affiliate, r subsidiary rganizatin, yu are unable r appear t be unable t be impartial in cnducting a prcurement actin invlving a related rganizatin. XX C.F.R. XX.318(c)(2). Yur purchasing plicy must als cntain the prvisins listed belw. Nte that these prvisins must apply t prcurements using federal grant funds, and may apply t yur ther prcurements. Yur entity s plicy makers must decide which f these prvisins will apply t all prcurements regardless f funding surce, and which will apply nly t thse prcurements funded by federal grants.! A requirement that, befre starting a prcurement prcess, yu: Review all prpsed prcurements t avid unnecessary/duplicative purchases f equipment, supplies, and services. XX C.F.R. XX.318(d). Cnsider whether it will it save mney/time t cnslidate prcurements; if s, cnslidate (and dcument hw yu came t yur decisin). XX C.F.R. XX.318(d). 1 Yur standards f cnduct may exclude frm this prhibitin situatins where the financial interest is nt substantial. The phrase nt substantial is nt defined by the UAR, s use a cmmn sense dllar limit. 2 Yur standards f cnduct may exclude frm this prhibitin any gratuities, favrs, r ther items f mnetary 2 Yur standards f cnduct may exclude frm this prhibitin any gratuities, favrs, r ther items f mnetary value that are unslicited items f nminal value. The phrase nminal value is nt defined by the UAR, s use a cmmn sense dllar limit The Law Office f Eileen Yuens, LLC Page 1 f 5

2 Purchasing Plicy Checklist Federal Grants Cnsider whether it will it save mney/time t split up prcurements; if s, split them up (and dcument hw yu came t yur decisin). XX C.F.R. XX.318(d). If relevant, cnsider whether a lease r a purchase is the mst ecnmical apprach (and dcument hw yu came t yur decisin). XX C.F.R. XX.318(d). Lk fr state r lcal intergvernmental agreements (such as cmpetitive bidding grup purchasing prgrams, state term cntracts, GSA cntracts, r frmal intergvernmental agreements if permitted under applicable state statutes and rules and applicable lcal rdinances r rules) that yu can use t prcure equipment, supplies, and services but get awarding agency apprval befre using ne f thse agreements. XX C.F.R. XX.318(e). If prcuring equipment r supplies, use surplus federal prperty if feasible and mre ecnmical than prcuring new equipment r supplies. XX C.F.R. XX.318(g). Check the federal surplus prperty website t lk fr equipment r supplies that will meet yur needs. Yu have t access the website thrugh yur state s prtal. T find yur state s prtal, search fr federal surplus prperty and yur state s name in any web search engine.! A requirement that all slicitatins must identify (1) all requirements which the fferrs must fulfill and (2) all ther factrs t be used in evaluating bids r prpsals. XX C.F.R. XX.319(c).! Use f the apprpriate prcurement methd, as utlined in the Guide t Prcurement with Federal Grant Funding under the Unifrm Administrative Requirements, Cst Principles, and Audit Requirements fr Federal Awards (the Super Circular ). If yu wuld like t use an exceptin t cmpetitive prcurement permitted under State law, State rules, r lcal plicies, yur purchasing plicy must require that yu first ask fr authrizatin frm the Federal awarding agency. See Sectin III.E. in the Guide t Prcurement with Federal Grant Funding under the Unifrm Administrative Requirements, Cst Principles, and Audit Requirements fr Federal Awards (the Super Circular )). Tip: Yur prcurement plicy shuld bth (1) describe each methd and (2) explain when it is apprpriate t use each methd.! If yu use prequalified lists f entities r prducts when prcuring gds r services, a requirement that yu make sure thse lists are current and include enugh qualified surces t ensure maximum pen and free cmpetitin, and d nt preclude ther ptential entities r prducts frm participating in the slicitatin. XX C.F.R. XX.319(d).! A requirement that yu take certain steps t assure that minrity firms and wmen s business enterprises are used when pssible. These steps are: Place qualified small and minrity businesses and wmen s business enterprises n slicitatin lists; Assure that small and minrity businesses and wmen s business enterprises are slicited whenever they are ptential surces; Divide ttal requirements int smaller tasks r quantities t permit maximum participatin by small and minrity businesses and wmen s business enterprises; The Law Office f Eileen Yuens, LLC Page 2 f 5

3 Purchasing Plicy Checklist Federal Grants Establish delivery schedules which encurage participatin by small and minrity businesses and wmen s business enterprises; Use the services and assistance f the Small Business Administratin ( and the Minrity Business Develpment Agency f the Department f Cmmerce ( and Require prime cntractrs t take the same steps listed abve. XX C.F.R. XX.321.! Reference t and incrpratin f yur affirmative prcurement prgram. Mre infrmatin abut these prgrams (which require preferences fr envirnmentally friendly materials when pssible) can be fund thrugh the Envirnmental Prtectin Agency (specifically, see the guide here: XX C.F.R. XX.322.! A requirement that yu perfrm a cst r price analysis in cnnectin with every prcurement actin in excess f the Simplified Acquisitin Threshld, including cntract mdificatins. XX C.F.R. XX.323(a).! A prhibitin n awarding time and materials type cntracts unless (1) yu have determined that n ther cntract is suitable and (2) the cntract includes a ceiling price that the cntractr exceeds at its wn risk. The UAR defines a time and materials type cntract as a cntract whse cst t a nn- Federal entity is the sum f: (1) the actual cst f materials; and (2) direct labr hurs charged at fixed hurly rates that reflect wages, general and administrative expenses, and prfit. XX C.F.R. XX.318(j).! A prhibitin n using cst plus a percentage f cst r percentage f cnstructin cst methds f cntracting. XX C.F.R. 323(d).! A requirement that all slicitatins incrprate a clear and accurate descriptin f the technical requirements fr the material, prduct, r service t be prcured; and a requirement that the descriptin must nt, in cmpetitive prcurements, cntain features that unduly restrict cmpetitin. The descriptin may include a statement f the qualitative nature f the material, prduct r service t be prcured and, when necessary, must set frth thse minimum essential characteristics and standards t which it must cnfrm if it is t satisfy its intended use. Detailed prduct specificatins shuld be avided if at all pssible. When it is impractical r unecnmical t make a clear and accurate descriptin f the technical requirements, a brand name r equivalent descriptin may be used as a means t define the perfrmance r ther salient requirements f prcurement. The specific features f the named brand which must be met by ffers must be clearly stated. XX C.F.R. XX.319(c).! A prhibitin n restricting cmpetitin. Specifically, yur purchasing plicy must prhibit the fllwing actins n prcurements funded with federal grants: Allwing cntractrs that develp r draft specificatins, requirements, statements f wrk, invitatins fr bids, r requests fr prpsals t cmpete fr such prcurements; Placing unreasnable requirements n firms fr them t qualify t d business (if yu re nt sure if a requirement is unreasnable, ask the Federal awarding agency); The Law Office f Eileen Yuens, LLC Page 3 f 5

4 Purchasing Plicy Checklist Federal Grants Requiring unnecessary experience r excessive bnding (the safest curse is t stick with the bnding limits required by the UAR r ther applicable statutes see Sectin III.H. in the Guide t Prcurement with Federal Grant Funding under the Unifrm Administrative Requirements, Cst Principles, and Audit Requirements fr Federal Awards (the Super Circular )); Permitting nncmpetitive pricing practices between cmpanies; Awarding cntracts t cnsultants n retainer cntracts; Permitting rganizatinal cnflicts f interest see Sectin II.A., abve. Specifying a brand name prduct withut permitting an equal prduct t be ffered, and withut describing the perfrmance requirements that must be met fr a prduct t qualify as an equal; Acting arbitrarily in awarding cntracts (in ther wrds, d be cnsistent, fair, and transparent). XX C.F.R. XX.319(a).! A prhibitin n awards based n lcal gegraphic preferences, except where applicable Federal statutes expressly mandate r encurage gegraphic preference. Hwever, gegraphic lcatin may be a selectin criteria when awarding cntracts fr architectural r engineering services, prvided that using such criteria leaves an apprpriate number f qualified firms t cmpete fr the wrk, given the nature and size f the prject. XX C.F.R. XX.319(b).! A requirement that all federally grant funded cntracts include all applicable prvisins described in Appendix II t Part XX Cntract Prvisins fr nn- Federal Entity Cntracts Under Federal Awards. These can be fund at the Electrnic Cde f Federal Regulatins website, A written methd fr cnducting technical evaluatins f prpsals received in respnse t a request fr prpsals, and fr selecting recipients f cntract awards in respnse t a request fr prpsals. XX C.F.R. XX.320(d)(3).! A requirement t award nly t respnsible cntractrs pssessing the ability t perfrm successfully under the terms and cnditins f a prpsed prcurement. In determining which cntractrs are respnsible, yu must cnsider matters such as cntractr integrity, cmpliance with public plicy, recrd f past perfrmance, and financial and technical resurces. XX C.F.R. XX.318(h). (Nte: This means that yur slicitatin dcuments must ask fr infrmatin that will allw yu t assess whether a cntractr is respnsible. )! A requirement that yu secure bid bnds, perfrmance bnds, and payment bnds when necessary under the UAR. See Sectin III.H. in the Guide t Prcurement with Federal Grant Funding under the Unifrm Administrative Requirements, Cst Principles, and Audit Requirements fr Federal Awards (the Super Circular )).! A requirement that yu verify, befre making a cntract award, that the cntractr yu plan t award the cntract t is nt listed n the Excluded Parties List System in the System fr Award Management (SAM) (fund at Appendix II t Part XX, Sectin (I) The Law Office f Eileen Yuens, LLC Page 4 f 5

5 Purchasing Plicy Checklist Federal Grants! A requirement that yu negtiate prfit as a separate element f the price (1) fr each cntract in which there is n price cmpetitin and (2) in all cases where cst analysis is perfrmed. XX. C.F.R. XX.323(b).! A requirement that yu use value engineering clauses in cntracts fr cnstructin prjects f sufficient size t ffer reasnable pprtunities fr cst reductins. (The UAR defines value engineering as a systematic and creative analysis f each cntract item r task t ensure that its essential functin is prvided at the verall lwer cst. ) XX C.F.R. XX.318(g).! A requirement that cntract perfrmance and payments are mnitred during the curse f the cntract. XX C.F.R. XX.318(b).! A requirement that awarding agency apprval is sught and received befre certain changes are made t a prgram r prject. See XX C.F.R. XX.308 fr key details.! A prcedure fr addressing bid prtests. XX C.F.R. XX.318(k).! Use f the apprpriate dispsal f prperty methd, as utlined in the Guide t Prcurement with Federal Grant Funding under the Unifrm Administrative Requirements, Cst Principles, and Audit Requirements fr Federal Awards (the Super Circular ). See Sectin VII. in the Guide t Prcurement with Federal Grant Funding under the Unifrm Administrative Requirements, Cst Principles, and Audit Requirements fr Federal Awards (the Super Circular )). Tip: Yur prcurement plicy shuld bth (1) describe each methd and (2) explain when it is apprpriate t use each methd.! A requirement that yu keep recrds t detail the histry f each prcurement. These recrds must include, at least, recrds shwing yur ratinale fr (1) the methd f prcurement, (2) the selectin f cntract type, (3) cntractr selectin r rejectin, and (4) the basis fr the cntract price. XX C.F.R. XX.318(i) The Law Office f Eileen Yuens, LLC Page 5 f 5