PL 93-638 CONTRACT REFRESHER

APRIL 1, 2014 NILAH DEVANEY NWRO, AWARDING OFFICIAL 503-872-2867 E-Mail: nilah.devaney@bia.gov 1

TOPICS FOR DISCUSSION

• Authorities - Responsibilities • Pre-Award - Application Process • Management Systems – Single Audits • Award - Contract • Post Award - Contract Administration • Close Out - Options

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Authorities: BIA Authorized Officials

APPROVING OFFICIALS AWARDING OFFICIALS Regional Directors Level 1 – Model 108 Superintendents Level 2 – Subpart J Program Line Officials Construction

AWARDING OFFICIAL TECHNICAL REPRESENTATIVE (AOTR)

1.Designated by Awarding Official limited authority 2.Supervised by Line Officials or Superintendents

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Authorities: Key Responsibilities 1. APPROVING OFFICIAL (Designated by Positions Held) a) Approve or Decline 638 contract applications b) Ensure performance and fund compliance c) Recommend awards to contracts and modifications 2. AWARDING OFFICIAL (AO) (Designated by Certification) a) Negotiate, Award, Monitor, Closeout. Contract Authority. b) Reviews Management Systems/Single Audits c) Designates AOTR in writing 3. AWARDING OFFICIAL TECHNICAL REPRESENTATIVE AOTR (Designated by Awarding Official) a) Monitors performance and compliance w/638 Contract b) Recommends to AO approval of Proposals/Payments c) Construction Final Inspections, audits, closeout

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TRIBAL PROGRAM PLANNERS

TRIBE CHAIRMAN

AND COUNCIL

BIA, NWRO

REGIONAL DIRECTOR SUPERINTENDENTS

638 CONTRACT MANAGEMENT

STAKEHOLDERS

BIA PROGRAM OFFICIALS

BIA AWARDING OFFICIAL

Awarding Official Technical Reps

AOTR.

TRIBAL GRANT OFFICERS

FINANCE & COMPLIANCE

OFFICERS

Technical Reps.

AOTR.

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Pre-Award 638 Proposal 1. BIA Notifies Tribe of available Funds Within

(30 days after receipt of funds) 2. Tribe and BIA Program perform consultation To Confirms Project RIFDS, TIPS, LRTP Status 3. Tribe Submits Proposals To BIA Approving Official 25 CFR Part 900 900.8 Non-Construction format 900.125 Construction format

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Pre-Award: Common Transportation Contracts

MODEL 108 (Section 108 of PL 93-638)

• PLANNING UPDATING INVENTORY, TIP & LRTP

• TRANSIT

• ROAD MAINTENANCE

• CONSTRUCTION MANAGEMENT SERVICES

Subpart J: Design Construction 25 CFR Part 900

• PRELIMINARY ENGINEERING & DESIGN, 2ND LEVEL REVIEW

• NEPA • RIGHT OF WAY

• CONSTRUCTION

• CONSTRUCTION MANAGEMENT SERVICES

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Successful Planning Behind The Scenes Before Award

• Tribal Planning and Analysis Activities Of Past, Present and Future Contracts • BIA AOTR Communication, Technical

Assistance and Document Sharing

• Coordination, Collaboration and Cooperation Makes for Successful Contract Award 8

Management Systems & Standards

25 CFR Part 900, Subpart F

• Before Award, the Awarding Official and Approving Official review the following Tribal Systems, Standards,

• Financial Management Systems

• Procurement Management Systems • Property Management Systems

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OMB Requirement A-133 SINGLE AUDIT ACT

• Tribe’s receiving Federal Funds must have

Annual Independent Audits • Reviewed are: Financial, Procurement,

Subcontractors, Davis Bacon Wage Rates, Property, Personnel, etc

• • Review Accounting Systems & Internal Controls

• Review Reporting Compliance to Contracts

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AWARD: 31 USC Purpose Budget and Money Statute

Contracts Awarded For A “NEED & PURPOSE”

• USC 1301 “Funds appropriated for a PURPOSE can ONLY be expended for that purpose.

• Budget Funding documents along with laws and regulations drive what the fund purpose can be.

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Award: What is a Contract?

-A legally enforceable written agreement between two or more persons (individuals, businesses, organizations, or government agencies) to do, or to refrain from doing, a particular thing in exchange for something of value.

-A written agreement between two or more parties for the doing something in exchange for something else.

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AWARD: What is a Self Determination Contract?

Government-to-Government Agreement between Tribe and BIA

Facilitates meaningful participation by Tribes

in planning, conducting and administering programs and construction projects.

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SINGLE AUDIT BEST PRACTICES Ways To Avoid Audit Findings

– Know what is Allowed and Unallowed - OMB A-87 – Cash Management- Expenditure documentation

and reconciliation – Reporting compliance – Submit Timely – Document competitive bidding & selection process – Document any Sole Source Justifications – Ensure Subcontractors are NOT debarred (sam.gov) – Davis Bacon Act: Document Subcontractors pay

employees Prevailing DB Wages. Keep Certified Payrolls with each Progress Payment.

– Keep Invoice documentation for all payments make available to BIA for liquidations.

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POST AWARD: KEY RESPONSIBILITIES

IMPORTANT: READ THE CONTRACT!!

TRIBAL RESPONSIBILITY: • Provide Contracted Services • Submit Narrative Progress Reports • Submit Financial Status Reports • Submit Annual A-133 Single Audits • Allow Bureau Monitoring

BUREAU RESPONSIBILITY:

• Provide Technical Assistance • Contract Administration • Monitor Performance and Compliance

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Post Award: Modifications Changes To The Contract

638 Contract Changes Require BIA Approval. • 25 CFR Part 900.131 (7) Changes that increase the negotiated

contract budget, increase in negotiated performance period or a significant departure from project scope or objective shall require BIA approval

• 25 CFR Part 170.471(c) BIA must process substantial changes for construction projects in coordination with the tribe. (e) Only licensed professional engineers may change IRR project's plans, specifications and estimates during construction. (1) For substantial changes, the approving agency must review the change; Federal, tribal, State, or local entity with PS&E approval authority (2) making substantial changes, the approving agency must consult with the tribe.(3) A change exceeding the limits of available funding may be made only with the approving agency's consent.

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Post Award: What is Contract Administration?

Who Performs It? WHAT IS IT? • Performance and Progress monitoring • Communication With Stakeholders • Record keeping/Documentation • Timely Invoice processing • Finalization, Acceptance and Close Out

WHO PERFORMS IT? • All Stakeholders

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Post Award: Contract Administration Allowable Costs and Documentation

A-87 (Now 2CFR Part 225) Defines Allowable costs principles as follows: -Necessary: Is it necessary for executing the grant? -Allocable: Is it directly related to the program? -Reasonable: Purchase at fair market price. -Is expense valid. -Did we pay fair and competitive prices? -Can we prove it? -Are we comfortable defending the purchase?

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Post Award: Contract Administration Payment Process

• ASAP Automated Standard Application For Payments

• Payments can be drawn-down within 2 days after award

-Unless restriction approvals are placed on funds due to sanctions for reporting or audit findings

• Advance Payments require Tribe to liquidate advance payments by submitting documentation of expenditures; Examples: Construction (Monthly Certified Progress Payments and/or General Ledgers, paid invoices 19

Post Award: Contract Administration BID vs RFP vs RFQ Definitions

• Bid Solicitation: A document requesting submittal of bids for construction, goods or services with clear defined scope of work.

• Request for Proposals: Requesting proposals with parameters and required scope of services, but does not specify in detail how to accomplish or perform the services

• Request for Qualifications: A solicitation document requesting qualifications or specialized expertise from parameters and scope of services required

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POST AWARD: REPORTING BEST PRACTICES

Mark Report Due Dates

Know DUE DATES: Develop Reminder Tracking Tools. Send Reports to Awarding Official and AOTR

Risks of Late Reporting • Sanctions on payments • Material Weakness or

Finding in the Tribes A-133 Single Audit

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Post Award: RECORD KEEPING Transparency and Accountability

Do you remember Records Requirements for ARRA ?

Nothing has changed…. Records and Documentation

were and still are REQUIRED

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BEST PRACTICE: CONTRACT ADMINISTRATION COMMUNICATION AND DOCUMENTATION

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KEEP YOUR AWARDING OFFICIAL INFORMED

Post Award: Contract Administration: How Long Do We All Keep Records?

• Minimum of 3 years following completion of the contract.

• How old are your contracts? Then Add 3 years to when you think you will complete project & closeout.

• Records may include bid advertisements, selections, awards, notice to proceed, E-Mails/Telephone documentation, reports, meeting notes, invoices, project certifications, submittals, payments, payrolls etc.

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Post Award: Design Contract Best Practices

• Best performed during winter months. Allow bidding in late spring with construction in summer months

• Completed Design Package are Deliverables to 638 Contract. Tribe to submit for review. PS&E, 2nd Level Review, NEPA and Right of Way.

• Copy to Awarding Official as well as Technical AOTR. This may avoid delays in your bidding, selection and/or construction start date schedule.

• A Construction project cannot proceed without PS&E added to the 638 contract. AO issues Notice to Proceed.

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Post Award: Contract Administration CONSTRUCTION

• Documentation requirements can be found in your contract, specifications, regulations, IRR Business Plan and all other negotiated deliverables.

• Preconstruction Meetings are held prior to a

Notice to Proceed and provide clear direction on the required construction and contract submittals

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Post Award: Construction Phase: 25 CFR PART 170.460 PROJECT PACKAGE

Minimum Requirements for Construction Package : Plans; Specifications; Engineer’s Estimates 2nd Level Engineering Review Right-of-way, NEPA, Archeological, Cultural Reminder: Bid Package Review by BIA before bidding out the project. Ensure funding. Modify Contract.

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Post Award: Construction Phase: Project Funding

What happens when isn’t sufficient funds in the 638 Contract for your construction project? OPTIONS: 1) Revise Project Length or Scope of Work? 2) Review other agreement sources. (Example: G2G) 3) Review other unspent 638 contracts. If Tribal Official

and BIA Program approve scope change contract can be modified. Note: Projects must be on approved Inventory, TIP, LRTP.

4) Review other Tribal Funds or cost sharing grants

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Post Award: Construction Reminder: Davis Bacon Act (DBA) www.w.dol.gov

• Wage Rates NOT required for work performed by Tribal Employees

• Wage Rates ARE required for Tribal

Subcontractors performing construction • Best Practice: Ensure Engineer adds to your

Bid Package a copy of current DB Wage Rates Ensure Certified Payrolls are received during construction. Review website.

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SAMPLE OF WEBSITE FOR WAGE RATES

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Post Award: CCR REGISTRATION EPLS DEBARRED DOCUMENTATION (www.sam.gov)

CCR REGISTRATION REQUIREMENT IN SAM.GOV: TRIBES AND SUBCONTRACTORS. PRINT AND FILE EPLS DEBARRED CONTRACTOR RESEARCH

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Post Award: CCR REGISTRATION CHECK

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EXAMPLE:

CLOSEOUT: CONSTRUCTION CLOSE OUT PROCESS

• A construction close out is a final accounting of project and contract matters by all parties.

• Construction Project Closeout occurs after: – Substantial Project Completion (Tribe notifies BIA) – Develop and Complete Project Punch List – Tribe – Final Project Inspection by BIA AOTR, FHWA – Tribe submits Final As-Builts, Final Payments – BIA Audits Final Payment and Reconciliation – Project Acceptance by BIA, AOTR – AO Issues Final Modification and Release of

Claims. Contract Closed

33 Other Close Out Instructions contact AOTR’s

ISSUES, CONCERNS, OPTIONS

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1.Awarding Official administers 158 open PL 638 contracts. Total amount unspent $ 32,097,598.00 2.Many contracts are (4–21 years old). Range from oldest 1993 - 2011. Of which 20 have not started. 3.Request a Tribal and BIA/AOTR consultation to revisit contract and project purpose on old contracts. 4.Collaborate and identify what obstacles prevent project starts and completions. Review available options to complete projects, expend and close out. This will reduce workload for all parties.

638 Contract Status • Tribes that have gone G2G Agreements

still have 98 Open 638 Contracts

Total of $15,611,310.26, unspent funds.

• Tribes that are solely 638 have 60 Open Contracts

Total of $16,486.288.88, unspent funds

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Interesting 638 Workload Statistics Tribe and BIA combined workload since 1993 for our 158 open contracts • Tribes submitted 16,402 Reports. BIA reviewed same

Reports (Est. 8 reports per contract per year) • BIA Awarding Official issued 2,451 mods. Tribe has

reviewed and signed same 2,451 mods • Oldest Records maintained since 1993 open contracts.

BIA and Tribe maintained and retain 21 years of records. Add 3 years after we closeout.

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SUCCESSFUL COMPLETION

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Congratulations to many Tribes for timely and successful

project and contract close out

THANK YOU FOR YOUR TIME QUESTIONS?

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