Federal Bar Association
Government Contracts Section
Federal Grants Committee
National Grants Management Association Monthly Training Series
Maggiano’s Little Italy, Washington, DC
Wednesday, December 7, 2011
11:30 am – 1:30 pm
1
Ask A
Lawyer
Questions
And
Answers
for
Grants
Professionals
2
FBA Federal Grants Committee

Professional organization for
private and government lawyers
and judges involved in Federal
practice.

Sponsors a variety of programs,
including:

a panel presentation at the
National Grants Management
Association’s annual training
conferences, and

an Internet listserv on grants law
matters, to which non-members
may also subscribe.
3
FBA Federal Grants Committee

Each month the Committee also
holds an informal “brown bag”
luncheon meeting to discuss
committee business, legal cases
and situations of interest.

Lawyers may join the Committee
or obtain more information:


Co-Chair Edward Sharp,
(301) 713-2175, esharp@doc.gov.

Co-Chair Jana Gagner,

(301) 975-5035, jana@nist.gov.
4
FBA Federal Grants Committee
New Co-Chairs
Co-Chair
Laura Shin
laura.shin@dhs.gov
Co-Chair
Brad Hallman
bhallman@deloitte.com
5
FBA Federal Grants Committee
 To
join the listserv, send an
e-mail to esharp@doc.gov,
with a message stating your
e-mail address and asking
to join the listserv.
6
Honoring Those Who Led the Way

Two major contributors to the
grants law field died in 2011

Malcolm S. Mason, age 101

Paul G. Dembling, age 91

Agency Counsel
 Drafted many grants laws
 FBA leaders
 Co-Authors, “Essentials of
Jana Gagner, Malcolm Mason, Ed Levin
Grants Law Practice”
7
Today’s Discussion

Comments today do not necessarily reflect the views of the
employers of the panelists.

Comments are general in nature and do not constitute legal advice.

They are intended to provide helpful ideas and suggestions for your
consideration.

Any actual situations described in a question may vary if counsel
were to examine documentation and evidence.

Consult your own counsel about any specific situation you may
encounter.
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Moderator
Jana Patterson Gagner

Senior Counsel, Federal Assistance
Law Division, Office of the General
Counsel
U.S. Department of Commerce
Client Bureau: National Institute of
Standards and Technology

Co-Chair , Federal Bar Association
Federal Grants Committee
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Panelists
Peter Wathen-Dunn







Senior Counsel, U.S. Department of
Education Office of General Counsel
Co-Leader Education/OGC Discretionary
Grant Practice Team
Lead role in Drafting of Education’s
Handbook for Discretionary Grant Process
Advises Agency Working Groups
implementing P.L. 106-107
Assisted in drafting unifying amendments to
the cost principles
Advised on implementation of FFATA
Advises on the Paperwork Reduction Act of
1995
10
Panelists
Edward Levin




Grants Law Consultant
Grants Law Teacher and Trainer
Former Member NGMA Board of Directors
Former Chair FBA Grants Committee and
ABA Federal Assistance Committee
Retired Chief Counsel

Economic Development Administration
U.S. Department of Commerce
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Panelists
Stacia Davis Le Blanc, Esquire
 Founder, My Grant Lawyer, PLLC
 Grant Compliance, Training, Audit Defense, Debarments
 www.MyGrantLawyer.com
 Staci@MyGrantLawyer.com
 Former
Partner, Feldesman Tucker Leifer Fidell
 Chief of Federal Assistance Law Division within
Commerce Department
 Advised Agency Working Groups and OMB
regarding P.L. 106-107 implementation
 Former Chair, FBA Government Contract Section
and Grants Committee
12
Your Questions
13
Questions to Start the Discussion
14
Re-opening a closed grant

Advance question FBA received: If
statute and rules are silent, is it legal
to re-open a closed award to correct a
mistake?

Example of mistakes: technical
glitches, award inadvertently or
erroneously closed by agency or
recipient in the technical system,
charges made to wrong award,
disallowed costs and credits from
audits, payment transactions from
interfaced systems.

Standard Operating Procedure, formal
guidance, or policy?
15
Some Major Issues in 2011




Constitutional
conditions to be
discussed at U.S.
Supreme Court
Cases
Legislation
Executive Branch
policy
16
Who may be the Recipient
If an organization is not eligible to apply
for a grant, may another organization
apply for it and make a subaward to
that organization?
17
Recipient

May a Recipient
have a fiscal agent
apply for the grant?
18
Fiscal Agent

How might the Recipient utilize a financial
management services company to assure
accountability, compliance, and
programmatic performance?
19
Partnerships / Consortium

Does partnering with one or more organizations on
a grant application change the rules? Which is
treated as the Recipient? What is the legal
relationship with the partners?
20
Availability of Appropriations
Does appropriation law require discrete
funding periods?
 Do grant funds awarded in first funding
period expire at end of funding period?

21
Availability of Appropriations
Are grants and cooperative agreements
subject to the Bona Fide Needs Rule?
 May Recipient continue to use funds
awarded in first funding period during the
second funding period?

22
Carry-Over Funds

May obligated but
not expended
funds under
contract or
subrecipient
agreement be
expended in next
budget/funding
period?
23
Program Income

Are membership fees collected by a
Recipient from individuals or
organizations considered program
income?
24
Program Income
 What
rights does the Federal
Government have with respect to
program income?
 Can the government demand the
recipient to refund program
income?
25
Program Income
 How
may the Recipient spend the
program income?
26
Program Income
 What
if program income is earned
under an award with a matching
cost/non-federal cost share?
27
Subrecipient / Subcontractor

If an applicant
identified a
subrecipient or
vendor in its
proposal, does the
execution of the
award “approve” of
those agreements?
28
Subrecipient
 Can
a subrecipient agreement be
fixed price?
 Is fixed price agreement subject
to audit?
29
Vendor/Contractor
 What
are recipients’
responsibilities regarding fixed
priced contracts vs. cost
contracts?
30
Property andBackground
Equipment Records

.
What record keeping is required of
Recipients regarding all of the ARRA
funded acquisition, construction, and
improvements to real property and
equipment owned by Recipients?
31
Questions From the Audience?
32