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SUBAWARDS: CONTRACTING FOR SPECIAL CASES AND COMPLEXITIES April 28, 2008 NCURA Region VI & SUBAWARDS: CONTRACTING FOR SPECIAL CASES AND COMPLEXITIES April 28, 2008 NCURA Region VI & VII 2008 – Portland, OR Panelists: Derrick Lin, Senior Contract & Grant Officer Stephanie Tramz, Subrecipient Monitoring Coordinator and Contract & Grant Officer Moderator: Michiko Taniguchi Pane, Associate Director Office of Sponsored Research Stanford University 1

Federal Demonstration Partnership (FDP) Subaward Templates approved by Federal Agencies allow for streamlined subawarding Federal Demonstration Partnership (FDP) Subaward Templates approved by Federal Agencies allow for streamlined subawarding http: //www. thefdp. org/Subawards_Forms. html • • Versions for FDP members and non. FDP members Ideal for use between U. S. institutions covered under A-110 when: – the prime award is a standard Federal grant or cooperative agreement – there are no other risk factors 2

Customizing the agreement Examples of Risk Factors • Prime award type & nature of Customizing the agreement Examples of Risk Factors • Prime award type & nature of the deliverables – Federal contracts – Foundation awards – Clinical trials • Audit status – Significant findings that relate to research and development • Location, nature and maturity of the subrecipient – International subrecipient – Start-up or small commercial entity different risk profiles may impact the choice of subaward instrument or language 3

Customizing the agreement When the Prime is a Federal Contract • Government is buying Customizing the agreement When the Prime is a Federal Contract • Government is buying a product, tangible or intangible (e. g. , scientific instrument or data). Depending on the nature of the deliverables, it may make sense to: – Tie subrecipient payments to deliverables to assure delivery to the Prime – Consider a different type of agreement than your Prime • Cost reimbursement –vs- fixed price 4

Customizing the agreement When the Prime is a Federal Contract, cont. • Spell out Customizing the agreement When the Prime is a Federal Contract, cont. • Spell out particular FAR Clauses that need to be highlighted, e. g. : – FAR 52. 232 -22 Limitation of Funds requires advance notice to Government when 75% of funding will be exceeded within next 60 days • Flow down FAR Clauses that are applicable to subrecipient or to protect your institution, e. g. : – Reporting and Deliverables, including data deliverables (CDRLs – Contract Data Requirements List) where the Government owns unlimited rights, FAR 52. 227 -14 5

Customizing the agreement When the Prime is a Federal Contract, cont. • Flow down Customizing the agreement When the Prime is a Federal Contract, cont. • Flow down FAR Clauses, e. g. , cont. : – Intellectual property governed by the Bayh. Dole Act, or other? – Property purchased by Subrecipient is owned by Government – Change order, Stop work or Termination for convenience clauses – Subaward totals over $550, 000 Subcontracting Plan is required 6

Customizing the agreement When the Prime is a Federal Contract, cont. • Special Terms Customizing the agreement When the Prime is a Federal Contract, cont. • Special Terms and Conditions, e. g. : – Agency prior review and comment period on publications – Agency credit/acknowledgement for research • Other issues to consider: – sole source justification – cost-price analysis – certificate of current cost or pricing 7

Customizing the agreement When the Prime is a Private Foundation • Special reporting requirements: Customizing the agreement When the Prime is a Private Foundation • Special reporting requirements: – Special formats for reports – Special timing, due dates for reports • Require Subrecipient’s report before your Institution’s report is due • May be necessary to shorten Subrecipient’s period of performance to meet deadlines • Ownership of intellectual property – Some foundations may want to own the IP • Publicity (giving public credit to foundation, or not) 8

Customizing the agreement When the Prime is a Private Foundation, cont. • Special accounting Customizing the agreement When the Prime is a Private Foundation, cont. • Special accounting requirements and record retention requirements • Other Issues that may intrude into fundamental research exclusion and institutions’ varied sensitivities: –Anti-terrorism –Limitations on foreign nationals –Limitations on publication These issues are sensitive, and each institution may have its own distinctive policies and principles on these issues 9

Customizing the agreement When the Prime Agreement is a Clinical Trial • Is this Customizing the agreement When the Prime Agreement is a Clinical Trial • Is this government or industry sponsored? • Is this a PI Initiated Study? • Can the Sponsor contract directly with the other Institution? • Is there a Clinical Research Organization (CRO) involved? 10

Customizing the agreement When the Prime Agreement is a Clinical Trial Industry sponsor approval Customizing the agreement When the Prime Agreement is a Clinical Trial Industry sponsor approval of subaward • Negotiation points with subrecipients: – Confidentiality – Audit – Ownership of Intellectual Property Rights and Data – Ownership of Tissue and Specimens 11

Customizing the agreement When the Prime Agreement is a Clinical Trial Negotiation points with Customizing the agreement When the Prime Agreement is a Clinical Trial Negotiation points with subrecipients: – – – – Publication of CTA Results Disclaimer of warranties Indemnification Insurance Adverse Event Reporting Subject injury payment Subrecipient’s Record Retention 12

Customizing the agreement When Subrecipient has Special Risk Factors • Subrecipient is U. S. Customizing the agreement When Subrecipient has Special Risk Factors • Subrecipient is U. S. university, but has audit findings – Review A-133 audit report for detail of findings and corrective action plan: • A-21 Allowable Costs • Time and Effort Reporting • Certification of Effort • Cost-Sharing • Cost Transfers • Late Technical, Financial Reports • Property and Equipment Inventories 13

Customizing the agreement When Subrecipient has Special Risk Factors • Subrecipient is U. S. Customizing the agreement When Subrecipient has Special Risk Factors • Subrecipient is U. S. university, but has audit findings, cont. Interpreting OMB Circular A-133, sections ___. 400(d)(5) and ___. 405 http: //www. whitehouse. gov/omb/circulars/a 133. pdf – Do findings “relate to” your Institution’s subaward to the Subrecipient, or to the same CFDA number? – Do findings “relate to” the Research and Development Cluster of funding? Variation in Institutional sensitivities, policies. – Write management decision letter 14

Customizing the agreement When Subrecipient has Special Risk Factors • Subrecipient is U. S. Customizing the agreement When Subrecipient has Special Risk Factors • Subrecipient is U. S. university, but has audit findings, cont. – Depending upon finding and nature of subaward research, develop special terms and conditions in Subaward Agreement • Progress reports from subrecipient on performing corrective action plan • Special post-performance review and verification of invoices by subrecipient • Subrecipient provides back-up documentation for invoices 15

Customizing the agreement When Subrecipient has Special Risk Factors Subrecipient is: • international (outside Customizing the agreement When Subrecipient has Special Risk Factors Subrecipient is: • international (outside of U. S. ) • start-up (new entity) • small entity (commercial or nonprofit) – Will not have A-133 audit report – Inquire with Subrecipient as to what kinds of current accounting and audit information are available, and obtain copies 16

Customizing the agreement When Subrecipient is International or Start-Up • First, perform a “desk Customizing the agreement When Subrecipient is International or Start-Up • First, perform a “desk review” of all current audit and accounting information the Subrecipient has available – Areas of inquiry: • • • Independent audit report? Financial statements? Accounting, procurement procedures Time-keeping procedures Property management Basis for IDC, FB charged 17

Customizing the agreement When Subrecipient is International or Start-Up Your institution as pass-through entity Customizing the agreement When Subrecipient is International or Start-Up Your institution as pass-through entity may conduct an up-front “limited scope” audit of the Subrecipient, using an outside accounting firm – it covers activities allowed or unallowed; allowable costs/costs principles; level of effort; reporting – See OMB Circular A-133, Section 230(b) for details 18

Customizing the agreement When Subrecipient has Special Risk Factors • Add terms and conditions Customizing the agreement When Subrecipient has Special Risk Factors • Add terms and conditions for subrecipient monitoring: – OMB Circular A-133 Compliance Supplement (March 2006) lists some: • Reporting • Site Visits • Regular Contacts and Inquiries with Subrecipients regarding program activities • For non-A-133 subrecipients, “Agreedupon procedures engagements” including audit under OMB Circular A-133, section ___. 230(b)(2) (costs chargeable to prime award) 19

Customizing the agreement When Subrecipient has Special Risk Factors • Add terms and conditions Customizing the agreement When Subrecipient has Special Risk Factors • Add terms and conditions for subrecipient monitoring: – Source documents: Parts 3 -M and 6 -M of OMB Circular A-133 Compliance Supplement (March 2006) are located at: http: //www. whitehouse. gov/omb/circulars/a 13 3_compliance/06/pt 3. pdf - and http: //www. whitehouse. gov/omb/circulars/a 13 3_compliance/06/pt 6. pdf 20

Customizing the agreement Balancing Risk Factors with Future Collaboration • Your institution (as pass-through Customizing the agreement Balancing Risk Factors with Future Collaboration • Your institution (as pass-through entity issuing a subaward) may be held responsible for subrecipient’s errors and may be required to reimburse the funding agency for them – See case studies by Office of Inspector General, Department of Health and Human Services, at http: //oig. hhs. gov/oeisearch. html 21

Customizing the agreement Balancing Risk Factors with Future Collaboration At the same time…… • Customizing the agreement Balancing Risk Factors with Future Collaboration At the same time…… • Maintain a collaborative relationship with the subrecipient – Facilitate successful completion of research project – Lay groundwork for future collaborations – Undue burdens imposed upon Subrecipient may call forth undue burdens in return 22