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Treasury, Introduction to Procurement Requirements for Tribal Entities.

Summary

A Treasury Office of Capital Access slide deck, "Procurement Overview for Participating Tribes," on buying goods and services with federal financial assistance. It defines recipients and subrecipients under 2 CFR 200.1 and walks through the competition tiers: a $10,000 micro-purchase threshold and a $250,000 simplified acquisition threshold, with independent estimates required before bids and a price or cost analysis for procurements over $250,000. Noncompetitive (sole source) procurement under 2 CFR 200.320(c) is permitted in only five circumstances, such as an item available from a single source or prior approval by the federal agency, and many procurement rules continue to apply in emergencies. Cost Plus Percentage of Cost contracts are prohibited.

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“Treasury, Introduction to Procurement Requirements for Tribal Entities.” Original at home.treasury.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/treasury-introduction-to-procurement-requirements-for-tribal-entities-8ff1ce3d81/, SHA-256 d3cb7c2fb8e8d79ab2fc3b81f4b8fe53eb3170bbc892887069dcbb53c4514047.

Full text

OFFICE OF CAPITAL ACCESS

Procurement Overview for
Participating Tribes
Objectives
1. Understand federal financial assistance procurement
   requirements

2. Be able to identify and apply competition requirements for
   procurement using federal financial assistance

3. Learn about exceptions to competitive procurement
   requirements




                                                                2
Importance of Procurement Requirements
      Recipients and              Goods and Services
                                                                 Federal Government
      Subrecipients                   Providers
• Helps ensure federal award • Ensures all stakeholders      • Helps ensure federal award
  dollars are used to advance   have a shared                  dollars are used to advance
  the intended award            understanding or               the intended award
  purpose                       requirements                   purpose
• Promotes securing           • Benefits providers because   • Provides procurement
  competitive prices for                                       standards for acquiring
                                the requirements promote
  services to implement the                                    goods and services for
                                equity                         implementation of federal
  award
                              • Mitigates conflicts of         awards
• Prioritizes equity when
  purchasing goods and          interest                     • Advances equity
  services                                                   • Promotes transparency
• Mitigates conflicts of                                     • Minimizes likelihood of
  interest                                                     fraud, waste, and abuse of
• Ensures stakeholders have                                    federal awards
  a shared understanding or
  requirements

                                                                                         3
Key Definitions (2 CFR 200.1)
Recipient
An entity (e.g., state, local government, tribal government, non-profit) that receives
Federal financial assistance directly from a Federal awarding agency to carry out an
activity under a Federal program. The term does not include subrecipients, or individuals
that are participants or beneficiaries of the award. Recipients may also be pass-through
entities.
Subrecipient
An entity that receives a subaward from a recipient or pass-through entity to carry out
part of a federal award. The term subrecipient does not include a beneficiary or
participant. A subrecipient may also be a recipient of other Federal awards directly from
a Federal awarding agency.




                                                                                            4
   Key Definitions (2 CFR 200.1) cont.
   Pass-Through Entity
   Pass-through entity means a recipient or subrecipient that provides a subaward to a
   subrecipient (including lower tier subrecipients) to carry out part of a Federal program.
   The authority of the pass-through entity flows through the subaward agreement between
   the pass-through entity and subrecipient.
   Contractor
   An entity that receives a contract from a recipient or subrecipient for the purpose of
   obtaining goods and services to implement a Federal award.

   Beneficiary
   Entities that benefit from a recipient or subrecipient’s actions to carry out an activity
   under an award.*




* Extrapolated from the definition of grant which states that grants are not used to “acquire property or services for the
  Federal agency or pass-through entity's direct benefit or use.”

                                                                                                                         5
Subrecipient and Contractor Determinations
2 CFR 200.331 states that “a pass-through entity is responsible for making case-by-case
determinations to determine whether the entity receiving federal funds is a subrecipient
or a contractor.”

        Subrecipients (§200.331(a))                         Contractors (§200.331(b))
A subaward is for the purpose of carrying out a    A contract is for the purpose of obtaining
portion of the Federal award and creates a         goods and services for the recipient’s use and
Federal financial assistance relationship with a   creates a procurement relationship with a
subrecipient.                                      contractor.




                                                                                                    6
Subrecipient and Contractor Determinations cont.
        Subrecipients (§200.331(a))                         Contractors (§200.331(b))
Characteristics which support the classification   Characteristics that support a procurement
of the entity as a subrecipient include, but are   relationship between the recipient or
not limited to, when the entity:                   subrecipient and a contractor include, but are
(1) Determines who is eligible to receive what     not limited to, when the contractor:
    Federal assistance;                            (1) Provides the goods and services within
(2) Has its performance measured in relation           normal business operations;
    to whether the objectives of a Federal         (2) Provides similar goods or services to many
    program were met;                                  different purchasers;
(3) Has responsibility for programmatic            (3) Normally operates in a competitive
    decision-making;                                   environment;
(4) Is responsible for adherence to applicable     (4) Provides goods or services that are
    Federal program requirements specified in          ancillary to the implementation of a
    the Federal award; and                             Federal program; and
(5) Implements a program for a public purpose      (5) Is not subject to compliance requirements
    specified in authorizing statute, as opposed       of a Federal program as a result of the
    to providing goods or services for the             agreement. However, similar requirements
    benefit of the pass-through entity.                may apply for other reasons.




                                                                                                    7
Overview of Uniform Guidance Procurement
Requirements
                         Section                           Title
                         §200.317   Procurements by states
                         §200.318   General procurement standards
                         §200.319   Competition
                         §200.320   Methods of procurement to be followed
                                    Contracting with small and minority businesses,
                         §200.321   women’s business enterprises, and labor surplus
                                    area firms
                         §200.322   Domestic preferences for procurements
                         §200.323   Procurement of recovered materials
2 CFR §§200.317 – .327   §200.324   Contract cost and price
                         §200.325   Federal awarding agency or pass-through entity
                                    review
                         §200.326   Bonding requirements
                         §200.327   Contract provisions


                                                                                      8
 Procurement Requirements for State Entities
    Are You a State Entity?                       Applicable Requirements
• Any State of the United States   Section                          Title
• District of Columbia             §200.317   Procurements by states
• US Territories:                  §200.318
   Commonwealth of Puerto
    Rico                           §200.319
   U.S. Virgin Islands            §200.320
   Guam                                      Contracting with small and minority businesses,
   American Samoa                 §200.321   women’s business enterprises, and labor surplus
   Commonwealth of the                       area firms
    Northern Mariana Islands       §200.322   Domestic preferences for procurements
• State Agency                     §200.323   Procurement of recovered materials
• State Instrumentality
                                   §200.324
                                   §200.325
                                   §200.326
                                   §200.327   Contract provisions


                                                                                                9
 Non-State Entities and Procurement Requirements
  Are You a Non-State Entity?   Section                           Title
• Local Governments
                                §200.317
• Tribal Governments
• Hospitals (some)              §200.318   General procurement standards
• Institutions of Higher        §200.319   Competition
  Education (some)              §200.320   Methods of procurement to be followed
• Other Private Non-Profit
  Organizations                            Contracting with small and minority businesses,
                                §200.321   women’s business enterprises, and labor surplus
                                           area firms
                                §200.322   Domestic preferences for procurements
  Applicable Requirements
                                §200.323   Procurement of recovered materials
• Entity’s own procurement
  policies and procedures       §200.324   Contract cost and price
                                §200.325   Federal awarding agency or pass-through entity
• State and Tribal laws                    review
                                §200.326   Bonding requirements
                                §200.327   Contract provisions


                                                                                             10
 Full and Open Competition: A Fair Playing Field
Full and Open competition:
• Is a key principle of the
  procurement standards
• Permits all qualified and
  responsible vendors who are
  eligible to compete without
  restrictions
• Casts the net broadly to reach
  fair and reasonable pricing
  from the most qualified          $
  contractor
• Prevents favoritism, fraud,
  waste, and abuse




                                                   11
     Practices that Restrict Competitive Procurement 2 CFR §200.319(b)

Examples of situations that may restrict competition include, but are not limited to:

1.     Requiring unnecessary experience and excessive bonding requirements

2.     Specifying a “brand name” product instead of allowing “an equal” product to be
       offered and describing the performance or other relevant requirements of the
       procurement

3.     Placing unreasonable requirements on firms in order for them to qualify to do business

4.     Noncompetitive pricing practices

5.     Organizational conflicts of interest

6.     Noncompetitive contracts to contractors on retainer contracts

7.     Any arbitrary action in the procurement process




                                                                                            12
Procurement Methods 2 CFR §200.320



     Micro-     Small       Sealed                          Sole
                                            Proposals     Sourcing
    Purchase   Purchase     Bidding
      Up to     Up to     Usually Over    Usually Over
     $10,000   $250,000    $250,000        $250,000      Dependent on
                                                         Circumstances
                          • Independent Estimates are
                            required before receiving
                            bids or proposals

                          • Price or Cost Analysis is
                            required for procurements
                            over $250,000




                                                                         13
 Noncompetitive Procurement (Sole Source) 2 CFR §200.320(c)

Noncompetitive procurement is only permitted in one of the following five (5) circumstances:

                   (c)(2) Item only available   (c)(4) Prior Approval by
                  from a single (sole) source       Federal Agencies




    (c)(1) Procurement value      (c)(3) Public emergency         (c)(5) Inadequate
        below the Micro-           or exigency exception             competition
       purchase Threshold                  applies




                                                                                          14
Contract Provision Requirements (2 CFR §200.327 and
Appendix II)
Contract provisions are required for both State and non-State entities to protect the interests
of recipients, subrecipients, goods and services providers, and the Federal Government

Contract provisions in 2 CFR Part 200, Appendix II include, but are not limited to:
• Addressing termination of the contract for cause and for convenience
• Equal Employment Opportunity (EEO)
• Davis-Bacon Act (i.e., labor requirements for construction contracts)
• Byrd Anti-Lobbying Amendment
• Debarment and Suspension
• Prohibition on certain telecommunications (See 2 CFR §200.216)
• Domestic preference for procurements (See 2 CFR §200.322)
• Recovered Materials (See 2 CFR §200.323)




                                                                                            15
Best Practice: Document, Document, Document

When using the Emergency and Exigency procurement exception document and maintain
the records on the following in sufficient to detail to provide the history of the procurement:

• Rationale for the Method of Procurement – Justification for sole sourcing

• Selection of Contract Type – Justification for contract type

• Selection of Contractor – Contractor search performed at www.SAM.gov

• Basis for Contract Price – Independent estimate; cost or price analysis; quotations




                                                                                             16
Procurement Take-Aways

• State and Non-State Entities follow different procurement requirements

• There are different requirements depending on the cost to procure goods or services (e.g.,
  $10,000 micro-purchase threshold, $250,000 simplified acquisition threshold)

• Certain circumstances permit exceptions to competitive procurement

• Pursuant to 2 CFR 200.320(c), many procurement rules continue to apply under
  emergency and exigent circumstances




                                                                                          17
Questions?




             18
Appendix: Procurement and Emergency and Exigency
Noncompetitive Procurement in Emergency and Exigent
Situations 2 CFR §200.320(c)(3)

                                  Situations that demand
                                 immediate aid or action



             Emergency                                          Exigency
  Need to alleviate a threat to life,                   Need to avoid, prevent or
     public health or safety, or                     alleviate serious harm or injury,
        improved property                                 financial or otherwise


                                                                    $




                                                                                         20
State Entity Emergency and Exigency Requirements

When using noncompetitive procurement due to an emergency or exigency, state entities
must:
• Follow state procurement policies and procedures
• Follow procurement of recovered materials requirements (See 2 CFR §200.323)
• Include required contract provisions


 State entities and their contractors must comply with section 6002 of the Solid Waste
 Disposal Act. Requirements include:
 • Only procuring items designated in EPA guidelines that contain the highest percentage
   of recovered materials practicable
 • Procuring solid waste management services in a manner that maximizes energy and
   resource recovery
 • Establishing program for procuring recovered materials identified in the EPA guidelines




                                                                                             21
Non-State Entity Emergency and Exigency Requirements

When using noncompetitive procurement due to an emergency or exigency, non-state
entities must:
• Use only during the period of actual exigent or emergency circumstances
• Document and provide justification for the use of the exception
• Award contract to a responsible contractor
• Include required contract clauses
• Follow documentation, oversight, and conflict of interest requirements
• Not enter into Cost Plus Percentage of Cost (CPPC) contracts. They are prohibited!

If applicable, Non-State Entities must:
• Conduct a cost or price analysis
• Follow bonding requirements
• Follow time and materials (T&M) contract requirements




                                                                                       22


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