09-06G

Procurement Information Circular


April 7, 2010

CONTRACTING WITH RECOVERY ACT FUNDS

 

PURPOSE:   This Procurement Information Circular (PIC) is issued to provide guidance to the procurement community on the implementation of the American Recovery and Reinvestment Act (Recovery Act) of 2009, PL 111-5.  This guidance is applicable to contracts.  Grants are addressed under a separate Grant Information Circular (GIC 09-03.)

 

This guidance is supplemental to Agency guidance on implementation of the Recovery Act.  Contractors, as recipients of Recovery Act funds, have specific tracking and reporting requirements which are different from and should not be confused with the tracking and reporting requirements NASA, as a Federal Agency, has pursuant to the Recovery Act. 

 

BACKGROUND:  On February 17, 2009, The President signed the Recovery Act (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h1enr.pdf).

The Act’s purpose is to provide a stimulus to the US economy, and, among other provisions, it provides funds to Federal agencies for use on contracts and assistance agreements.

 

On March 20, 2009, The Administration issued a memorandum addressing responsible spending of Recovery Act Funds (http://www.whitehouse.gov/the_press_office/Memorandum-for-the-Heads-of-Executive-Departments-and-Agencies-3-20-09/).  The Administration is committed to ensuring that Recovery Act funds are spent responsibly and in a manner that is transparent to the American public. Consequently, use of the funds is limited to projects that demonstrate the potential to:

 

-          deliver programmatic results,

-          achieve economic stimulus by optimizing economic activity and the number of jobs created or saved in relation to the Federal dollars obligated,

-          achieve long-term public benefits, and

-          satisfy the Recovery Act’s transparency and accountability objectives.

 

The Administration empowers agencies to exercise their discretion and judgment in implementing the Act and stresses responsible management.  Agencies are to ensure that Recovery Act funds are expended for projects that promote economic recovery and are not used for imprudent projects.  For example, the guidance specifically forbids spending under the Recovery Act for casinos, aquariums, zoos, golf courses, and swimming pools.  Projects of a similar nature are also inappropriate for receipt of Recovery Act funds.  

 

The Office of Management and Budget (OMB) has issued implementation guidance to Federal agencies which will be updated and supplemented periodically. (http://www.whitehouse.gov/omb/recovery_default).

 

The Federal Acquisition Regulation (FAR) Council has issued five (5) rules to make changes to the FAR.  The interim rules were published and became effective on March 31, 2009.  The new and revised clauses included in the rules are available for use in contract actions through the Contract Management Module (CMM). 

 

Furthermore, automated systems, both internal to NASA and Government-wide, have been created or modified to support the posting and reporting requirements of the Recovery Act.  They are designed to meet the accountability and transparency requirements of the Act. 

 

GUIDANCE:

  

1.  General Principles

 

a.    Contracting Officers (COs), in coordination with the requesting office, shall ensure that requests for contract services to be funded with Recovery Act funds meet the objectives of the Act, and that projects funded are based on merit and further the objectives of the Act, including job preservation, job creation, and economic recovery.

 

b.   The Recovery Act, and all associated guidance, expresses a clear preference for award of fixed-price, competitive contracts.  COs shall support these principles and maximize the use of fixed price, competitive contracts, as appropriate, in awarding contracts that use Recovery Act funding.

 

c.    NASA has established Program Plans and more specific Project Plans which set forth the Agency’s strategic plan for allocating and spending Recovery Act funds. 

 

      d.   Recovery Act funds shall not be utilized on any new contract, order or modification under which payment is made through the Letter of Credit (LOC) payment method, except for contracts and orders with the Jet Propulsion Laboratory (JPL).  Should circumstances arise where Agency plans support using Recovery Act funds on any LOC contract other than one with JPL, the CO shall request a waiver from this restriction via e-mail to the HQ Procurement Contract Management Division.

 

2.   Requisition Requirements

 

a.    The requiring office is responsible for generating a requisition to initiate a procurement action under the Recovery Act, and for ensuring that the requisition is consistent with approved Program and Project Plans.  A separate requisition is required for each Recovery Act action, and a Recovery Act requisition may not include any requirements or funds for other than Recovery Act actions. 

 

b.   Requisitioners must create Recovery Act requisitions in the Financial Management System and include the word “Recovery” followed by the appropriate Contract Line Item Number (CLIN) in the Short Text Description block at both the Item Overview level and the Item Detail level (under the services tab.)  The requiring office must coordinate with the CO prior to initiating the requisition in order to obtain CLINs.  It is imperative that the Financial Management System reflect CLINs as they are identified in the hard copy contractual document and, consequently, on the contractor’s invoice, to enable proper payment.  The requiring office is responsible for editing all Recovery Act requisitions initiated prior to the date of this PIC, Rev. C, to include the word “Recovery” and CLIN designations in the Financial Management system.   

 

c.   The requiring office is also responsible for including a specific description of the supplies or services to be contracted for pursuant to the requisition.  The description must identify discrete supplies or services that are severable from non-Recovery Act funded supplies or services.  Recovery Act funding may not be used for incremental funding unless the increment has distinct parameters and the contractor’s performance of the specific increment is measurable.

 

-          Distinct parameters mean that the work can be distinguished by a beginning and an end.  If an increment of work under an existing contract is to be funded with Recovery Act funds, the requiring office is responsible for establishing a beginning and an end of the Recovery Act work.  Among other options, the beginning and end may be expressed as dates or as identifiable points of service or completion.  For example, Recovery Act increments may:

 

o    begin on September 1, 2009 and continue until December 31, 2009. 

o    begin following NASA’s approval of a plan or report, and end upon NASA’s  acceptance of a plan or report.

o   begin when a specific project is 25 percent complete and end when it is 40 percent complete. 

 

Parameters should be established which ensure that NASA will be able to examine and evaluate Recovery Act work separate and distinct from non-Recovery Act work. 

 

-          Measurable performance means that NASA can quantify and judge the quality of service or production received during the specified increment.  Because the Federal Government will be measuring what it receives for corresponding amounts spent under the Recovery Act, it is insufficient to say, for example, that NASA received three months of service.  Therefore, the requiring office is responsible for specifying performance for the incremental period in a manner that permits evaluation and review of the work performed.  For example, measurements for a Recovery Act increment may include:

       

         meeting specified milestones between beginning and ending dates.

         successful completion of significant identified activities.

         on time delivery of required reports, documents, or supplies.

 

d.   In support of the transparency requirements of the Recovery Act, and in order to facilitate mandatory reporting requirements, the description must clearly identify the supplies or services without using technical jargon, Agency-unique language, or acronyms.  The description should be easily understood by the general public and suitable for public disclosure.

 

e.   COs are responsible for reviewing the requisition to ensure that spending is consistent with the intent of the Recovery Act, but COs may generally rely upon the requesting office for assurance that the requested acquisition is consistent with approved Program and Project Plans.  COs must ensure that the CLINs identified in the requisition are identical to the CLINs utilized in the contract document.

 

3.  Pre-award Considerations; CO Responsibilities

 

a.       Recovery Act funds may not be obligated unless the contract, order, or modification includes the Federal Acquisition Regulation (FAR) Recovery Act clauses.  If offerors or contractors refuse to accept the Recovery Act clauses, and hence, Recovery Act funds, the CO shall notify the HQ Office of Procurement, Contract Management Division. Notifications should include a brief summary of the Recovery Act action and the contractor’s objection.  Also identify efforts made by NASA to secure acceptance, CO contact information, and contractor point of contact with contact information.

 

b.      When making Recovery Act awards, COs shall not combine multiple requisitions on a single contract action.  Each Recovery Act requisition shall result in a separate contract award, order award, or modification to an existing contract or order.  Any contractual document that obligates Recovery Act funds must not include any non-Recovery Act funds, or any Recovery Act funds that were provided via another requisition.

 

c.        FAR 4.1501 identifies procedures for ensuring that Recovery Act acquisitions are appropriately identified as such, and that they are distinguished from other, non-Recovery Act acquisitions. It is a NASA requirement that COs establish specific CLINs to identify all work on any contract or order which is funded, in whole or in part, with Recovery Act funds.  When Recovery Act funds are added to existing contracts, COs must establish and assign CLINs to describe and segregate both Recovery Act requirements and non-Recovery Act requirements. For new awards that are funded in full with Recovery Act dollars, establishment of a CLIN to describe and segregate the work will facilitate later additions of non-Recovery Act funds to the contract, on a unique CLIN.

 

d.      For contracts that contain NASA Form 533 reporting requirements, COs shall ensure that the contract contains directions for contractors to segregate Recovery Act funds from non-Recovery Act funds on NASA Form 533, Financial Management Reporting.  Because segregation of funds is an existing requirement under NASA FAR Supplement (NFS) Clause 1852.242-73, and NASA Procedural Requirement (NPR) 9501.2, referenced therein, direction to the contractor is consistent with paragraph (a) of the clause. When adding Recovery Act funds, COs should set forth detailed reporting categories in the schedule.  Directing the contractor to segregate Recovery Act funds on NF 533 is not viewed as a change as described in paragraph (e) of 1852.242-73.  NASA does not anticipate any additional charges associated with segregation of Recovery Act funds on NF 533.

e.   COs shall obtain a proposal for each and every Recovery Act requirement. A proposal is required not only for new awards, but also for Recovery Act requirements added to existing contracts, even if the Recovery Act work is work that was covered by the contractor’s original proposal.  COs shall direct offerors or contractors to submit separate proposals for Recovery Act requirements and non-Recovery Act requirements. Recovery Act and non-Recovery Act costs cannot be combined in one proposal. Negotiation documents, which might include a detailed pre and post negotiation memorandum for large, new awards, or just a memo to file for modifications to existing awards, shall indicate that pricing of work to be performed with Recovery Act funds was negotiated or agreed-upon as a stand-alone effort, and is separately identifiable.  COs, in conjunction with the requiring office, should determine the appropriate level of detail for proposals, consistent with the contract action.  Care should be taken to request only the level of detail necessary, thereby minimizing bid and proposal costs.

 

-           When Recovery Act funds are obligated on a new contract or a new order, or on an existing contract or order for new work, the proposal shall meet the regulatory requirements for FAR Parts 12, 13, 14, or 15, as appropriate.

 

-           When Recovery Act funds are added to existing contracts to fund existing work which was covered by a proposal at time of award, the level of detail should be sufficient to allow separate pricing of the Recovery Act effort, and to permit segregation of costs associated with the Recovery Act effort.  The purpose of a new proposal, in these cases, is to ensure that the amount of funding on the Recovery Act line item accurately relates to the effort defined for that line item. There must be a relationship between the work and the funding and the contractor must agree that the relationship is realistic. Through submission of a proposal, the contractor specifies a realistic cost estimate for the Recovery Act work, and NASA secures the contractor’s agreement that the Recovery Act work is realistically funded.  Consequently, COs must request, and contractors must provide, a proposal to price the Recovery Act modification, but the proposal will usually not be a traditional proposal. In these cases, COs should generally request basic estimates which resemble budgetary estimates or consist of general cost information culled from the original proposal.  Likewise, COs may request contractors to assign general estimates to each of the measureable tasks in the Recovery Act line item without providing an associated cost breakdown.  As another option, COs may share NASA’s independent cost estimate for the Recovery Act work with the contractor and it can serve as the proposal if the contractor affirms that the estimate is realistic for the Recovery Act work.

 

f.    COs shall create all Recovery Act contractual documents in the Contract Management Module (CMM).  Further, COs shall utilize the PRISM milestone templates in CMM.  NASA’s ability to track, manage, and report on Recovery Act requirements is enhanced when NASA can place reliance on its automated systems and leverage the

ability to share information between systems.  Automated systems also provide checks and balances which serve as an oversight mechanism to identify missing, incomplete, or incorrect actions.  CMM’s interface with the financial management system will facilitate proper implementation of the Recovery Act.  Therefore, it is vital that documents are created in CMM in accordance with the milestone templates. 

g.   COs are reminded to make careful and considered responsibility determinations for companies receiving Recovery Act funds.   Particular attention should be paid to the Excluded Parties List System (EPLS), which should be checked and verified several times prior to award to ensure that no parties that have been excluded from Federal contracting will receive Recovery Act funds.  

 

4.   Posting Requirements

 

a.       Posting of Presolicitation Notices

 

In accordance with FAR 5.704, COs shall use FedBizOpps (FBO) to post presolicitation notices for contract actions that will be made using Recovery Act funds.  Contract actions include new contract awards, new task or delivery orders, and modifications to existing contracts or orders.  Some Recovery Act presolicitation notices are for informational purposes only, as identified in FAR 5.704.  They serve the transparency objectives of the Act by notifying the public of anticipated Recovery Act awards, regardless of whether a presolicitation notice was posted at the time of original award.  Inasmuch as the Recovery Act includes specific elements for presolicitation notices that are in addition to the standard requirements for presolicitation requirements, it is important to carefully follow the instructions in FAR 5.7.

 

When using NAIS EPS for submitting pre-award notices to FedBizOpps, using their electronic e-mail interface, COs must select the radio button that indicates the acquisition is a Recovery Act action and use the word “Recovery” as the first entry in the title field, prior to the actual title of the pre-solicitation notice.  For reporting purposes, automated systems will use the “Recovery” tag to pull and identify actions, so it is important to ensure that the word Recovery appears first and is spelled correctly.  The entry/search is not case sensitive.  

 

      b.   Announcing Contract Awards

 

In accordance with FAR 5.705, COs must publicize contract actions that are made, in whole or in part, with Recovery Act funds, by posting an award notice in FBO.  Contract actions include new contract awards, new task and delivery order awards, and modifications to existing contracts and orders.  Recovery Act award announcements shall be posted as ‘post award notices’ rather than any other type of notice.  The Recovery Act requires that, if the award is not both fixed price and competitive, the award notice include the rationale for using other than a fixed price and/or competitive approach.

 

c.   Entering Data into the Federal Procurement Data System (FPDS)

FAR 4.605(c) provides the requirements for entering awards made using Recovery Act funds in FPDS.  In addition, and because FPDS entry directions are likely to change from time to time during the course of Recovery Act spending, instructions shall be prominently displayed on the home page at https://www.fpds.gov. 

 

COs must enter the Treasury Account Symbol (TAS) in the Description of Requirements field in FPDS to identify obligation of Recovery Act funds.  This applies to original awards, awards of orders, and to modifications of existing contracts or orders.  The TAS should be entered in the following format:  TAS::XX XXXX::TAS.  (The acronym TAS followed by two colons precede the code and two colons followed by the acronym TAS follow the code.)  The TAS entry, in this format, must be the first thing entered in the Description of Requirements field.  The TAS must precede the description of the contract action.  While Recovery Act funds may be added to an existing contract or order, Recovery Act funds cannot be co-mingled with non-Recovery Act funds for reporting purposes.  Therefore, COs must record each obligation of Recovery Act funds as a separate entry in FPDS.

 

OMB has designated five TAS codes for NASA’s use in obligating Recovery Act funds:

 

   Science, Recovery Act – 80 0119

                        Aeronautics, Recovery Act – 80 0125

                        Exploration, Recovery Act – 80 0123

                        Cross Agency Support, Recovery Act – 80 0121

                        Office of Inspector General, Recovery Act – 80 0116

           

On reimbursable actions, where other agencies have provided Recovery Act funds to NASA for obligation on NASA contracts, the requesting agency should advise the NASA CO of the appropriate TAS code.

 

In support of the transparency provisions of the Act, COs must enter clear and concise descriptions of the supplies or services being procured, avoiding technical jargon and Agency-specific language and acronyms.  Furthermore, COs should take extra care to ensure that the competition information entered in FPDS matches competition information identified in FBO.

 

5.   Reporting Requirements

 

   a.  Contractors that receive Recovery Act funds are required to report on the use of the funds quarterly.  Accordingly, a new FAR clause, 52.204-11, has been created.  The clause is available in the Contract Management Module (CMM).   COs must ensure that all solicitations, contracts, or orders that include Recovery Act funds also include the clause.  If contractors refuse to accept the clause and Recovery Act funds, COs must notify the HQ Office of Procurement, Contract Management Division.  The clause requires contractors to utilize the tool at www.FederalReporting.gov to report first-tier subcontracts, executive compensation, and jobs created or retained, work progress, and amount invoiced, among other things.  The Federal Reporting website is publically available and the information reported by Federal contractors will serve to provide transparent information on the use and effectiveness of Recovery Act funds. 

 

b.  Consistent with accountability and transparency requirements of the Act, the reporting requirements apply to Commercial Off-the-Shelf (COTS) items, Commercial item purchases, Simplified Acquisitions, and Sealed Bid awards, in addition to negotiated awards made pursuant to FAR Part 15.  

 

c.  Compliance with the reporting requirements of FAR 52.204-11 is a contract requirement, and non-compliance may be grounds for withholding payment, or invoking other contractual remedies.  Given the Recovery Act’s commitment to transparency, and the detrimental impact non-compliance with reporting has on transparency, withholding of payment may be a necessary tool to effect compliance and promote transparency.  Inasmuch as most of the Agency’s Recovery Act actions do not include a separate price for the reporting component, any withheld amount must be reasonable and associated with the value of the reporting effort.  COs should consult with legal counsel when considering withholding of payment as a contractual remedy on Recovery Act actions.  Because of the uncertainties associated with the system and the reportable data elements for the first reporting period, October, 2009, COs should not withhold payment for non compliance with the reporting requirements in this initial period, unless the contractor willfully refuses to comply.

 

d.  To assist contractors in completing their report, contracting officers are responsible for providing the following data elements to the contractor.  The data elements should be provided in writing via a letter, or e-mail, or “Quick Reference Card” which may be developed at the Centers.  It is also acceptable to identify the correct entries for the following data elements directly in the award document if they are clearly presented in summary fashion so that the contractor is not required to search throughout the award document to identify the individual data items.  The goal underlying the requirement for the CO to provide the contractor with this information, most of which is otherwise available to the contractor, is to decrease errors.  Therefore, COs should bear this goal in mind when communicating with the contractor and convey the information in the simplest and most easily recognizable form that will facilitate accurate reporting. 

 

i)  Award Type (inform contractors that they must select, from the pull down menu, the reporting option for “Federally Awarded Contract;”

(ii)  Award Number;

(iii) Order Number, if applicable;

(iv) Funding Agency Name

(v)  Funding Agency Code (four characters, 8000 for NASA, different if reimbursable);

(vi) Awarding Agency Name;

(vii) Awarding Agency Code (four characters, 8000 for NASA);

(viii) Government Contracting Office Code (6 characters or less);

APL00                         NASA Management Office at APL

ARC00         Ames Research Center

DFRC0         Dryden Flight Research Center

GRC00         Glenn Research Center

GSFC0          Goddard Space Flight Center

HQTR0         NASA Headquarters

JSC00                           Johnson Space Center

KSC00                         Kennedy Space Center

LARC0         Langley Research Center

MSFC0         Marshall Space Flight Center

NMO00        NASA Management Office (JPL)

NSSC0          NASA Shared Service Center

SSC00                          Stennis Space Center

(ix)  Award Date;

(x)  Amount of Award (the total amount of Recovery Act funds obligated);

(xi) North American Industrial Classification System (NAICS), known as “Activity Code” at http://www.Federal Reporting.gov; (the six character NAICS code specific to the solicitation which may not necessarily be same as the contractor’s self-described NAICS code.

(xii) Program Source (Treasury Account Symbol (TAS)) Code (format will be two digits, a space, and then four digits.  See paragraph 4.c of this PIC for NASA’s TAS codes by program.

(xiii) Sub Account Number for Program Source (TAS) Code, if applicable (format, if applicable, will be three digits). NASA contracts will not have sub account numbers.

 

e.  Contractors are responsible for obtaining their congressional districts.  The reporting system will prompt the contractor for both their physical locale congressional district and the primary place of performance congressional district.  While COs are not required to provide contractors with their congressional districts, COs, while compiling the information in d. above, should  check FPDS for congressional district numbers, both locations, and work with the contractor to ensure that congressional districts reported for Recovery Act are consistent with the award document and FPDS.  Congressional districts are linked to zip codes, and occasionally, the contractor’s location or place of performance may have a zip code that is associated with a postal zone that is in a different congressional district.  If this situation arises, Contractors should enter the correct congressional district when reporting at FederalReporting.  It may be necessary to use a ‘dummy’ zip code as the system will automatically check to see that the congressional district and zip code match.  An accurate congressional district takes precedence.  COs shall work with their contractors, providing advice on data entry, and reviewing contractors’ entries as part of the review and validation process.   

 

f.  As the third reporting period (April 2010) looms, reporting requirements are continuing to evolve and changes to the FederalReporting tool continue to be made.  The FAR rule is in the process of being revised, and a second interim rule is expected to be published shortly.  The following topics are among the most significant recent requirement and system changes:

 

- implementation of a ‘continuous corrections’ period,

- identification of final or completed Recovery Act work for reporting purposes

 

To be responsive to the continuously evolving nature of Recovery Act reporting, NASA has established a Recovery Act reporting help line which will serve as the first point of inquiry for reporting questions or concerns.  Inquiries should be submitted via e-mail to: HQ-Recovery-Recipient-Reporting@NASA.gov.  This line is available to Agency personnel and contractors.  If you refer contractors, please ask that they identify the Center and the CO in their message.  That way, the CO can be included in the response and have a record of the advice provided to the contractor.    

 

Further, the FederalReporting.gov website is staffed with a helpdesk which may be utilized by Agency personnel and contractors to obtain information on reporting requirements and the reporting system.  Contact information is on the home page at FederalReporting.gov.  Frequently Asked Questions (FAQs) have been developed and are continuously updated.  They are posted on the Office of Federal Procurement Policy website at  http://www.whitehouse.gov/omb/recovery_faqs_contractors/.  Federal Reporting.gov has a link to the OFPP site.  Likewise, the NASA Procurement Knowledge Management Portal has a link to the OFPP site.  Agency personnel are encouraged to consult these sources for answers to specific reporting questions as the Recovery Act reporting requirements are rapidly evolving. 

 

g.  Contracting Officers are responsible for reviewing contractors’ reports in FederalReporting.gov for:

     - consistency with award information,

     - significant errors, and

     - material omissions

     - administrative and technical accuracy

 

Further, COs are responsible for validating the accuracy of contractors’ reports.  However, contracting officers are not required to validate data for which they would not normally have supporting information, such as the compensation information required of contractors and first-tier subcontractors.  The contracting officer is responsible for informing the contractor of any inconsistencies with the award, significant errors, or material omissions and requiring that the contractor correct the report.  Contracting Officers will be supported in this activity by others in accordance with the process set forth in Enclosure 1 to this PIC.
 

6.   Audit Rights, GAO/IG Access to Contractor Employees, and Whistleblower Protection

 

a.  Contracts, orders, and modifications that are funded with Recovery Act dollars are subject to audit and examination, consistent with the accountability and transparency requirements of the Recovery Act.  The FAR previously provided audit rights for certain types of contracts.  Where that right did not previously exist, changes have been made to existing clauses to add an alternate that addresses audit rights for Recovery Act contract actions. 

 

b.       COs must ensure that any contract that includes Recovery Act funds, includes the appropriate clause to provide audit rights:  FAR 52.212-5 (Commercial Items), 52.214-26 (Sealed Bidding) and 52.215-2 (Negotiation).  COs shall modify, on a bilateral basis, in accordance with FAR 1.108(d)(3), existing contracts to include the FAR clauses (Alternates) for future orders, if Recovery Act funds will be used.  In the event that a contractor refuses to accept such a modification, the contractor will not be eligible for receipt of Recovery Act funds.

 

c.          In order to prevent fraud, waste, and abuse of Recovery Act funds, the FAR has been amended to provide for agency Inspectors General and the Government Accountability Office (GAO) to review concerns raised by the public.  Therefore, the clauses cited above which provide audit rights have also been revised to provide for the right of IG and GAO to have access to contractor and first-tier subcontractor personnel. 

 

d.       Likewise, FAR 3.9 has been added to provide whistleblower protections for contractor employees who report ‘covered information’ related to use of Recovery Act funds.  A new FAR clause, 52.203-15, requires contractors to post notice of employee whistleblower protections.  COs must ensure that this clause is included in all contracts that obligate Recovery Act funds. 

 

7.   Construction Contracts 

 

a.  The Recovery Act requires that any construction project funded with Recovery Act funds be in the US and outlying areas.  Definitions and limitations are set forth in FAR 25.6.

 

b.   New FAR coverage has been added at FAR 25.6 to specify the application of the Buy American Act to construction projects funded with Recovery Act funds.  The Recovery Act provides a strong preference for American-made materials by mandating use of evaluation factors designed to favor awards to firms offering domestic materials.

 

c.   For all Recovery Act contract actions, it is important that Recovery Act funds not be comingled with non-Recovery Act funding.  This is particularly important in construction contracts where Recovery Act funds are expected to be added to existing contracts.  In order to meet the accountability requirements of the Act, the new work should be separately identifiable and able to be segregated from prior work funded with non-Recovery Act funds.

 

d.   Contract provisions and clauses are provided at FAR 52.225-21, -22, -23, and -24 to specify a requirement for domestic iron, steel, and manufactured goods in construction contracts, and to address Trade Agreements when foreign-made materials are proposed.  These provisions and clauses must be included in any construction contract which obligates Recovery Act funds.  The provisions and clauses are available in CMM.

 

e.   COs are reminded that the Davis-Bacon Act applies to Recovery Act construction contracts, regardless of dollar value.  The Recovery Act specifies that all laborers and mechanics, employed by contractors and subcontractors on projects funded, in whole or in part, with Recovery Act funds, shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor.

 

8.  Communications with Lobbyists and Other Interested Parties

 

      The Office of General Counsel has issued separate guidance regarding communications with Registered Lobbyists and Other Interested Parties about Recovery Act funds.   The guidance is available from the HQ Office of General Counsel.

 

9.  Invoicing Procedures:

 

The Office of Procurement has developed suggested language which sets forth instructions to contractors for submitting invoices for contract work funded with Recovery Act money.  COs shall include specific Recovery Act invoicing instructions in all Recovery Act contract actions, worded substantially as follows:

 

Special Invoicing Instructions for Contracts Containing Recovery Act Funds

 

In addition to the requirements set forth in any payment and invoicing clauses contained within the contract, the following special requirements apply to those contracts with work authorized under the American Recovery and Reinvestment Act (ARRA) of 2009 (herein after referred to as the Recovery Act). 

 

-  All requests for payment for work performed subject to the Recovery Act shall be submitted separately from requests for payment for any other work performed under the contract.

-  All requests for payment for work on contracts, funded in whole or in part, with Recovery Act funds, shall identify the applicable Contract Line Item Number(s) (CLINs) associated with the supplies or services being invoiced.

-  All invoices/vouchers shall be submitted via e-mail with no more than one invoice/voucher per e-mail submission.  Invoices shall be submitted to NSSC-AccountsPayable@nasa.gov.

- The NASA Shared Services Center is the Designated Billing Office for Recovery Act invoices, except for cost type contracts where DCAA is designated as the billing office for verification of vouchers. (COs should tailor the language in this bullet to identify the appropriate DBO for the specific Recovery Act requirement.)

 

10.  Prohibition on the use of the Governmentwide Commercial Purchase Card for purchases funded with Recovery Act appropriations

 

a.       Recovery Act funds are provided to support distinct NASA projects which will preserve and create jobs, further scientific and technological advances, and. stimulate the economy.  These actions are best supported through contracts or grants, not purchase card transactions.  Additionally, implementing Recovery Act reporting requirements necessitates collecting detailed information on expenditures, items purchased, recipients, and performance which is not normally tracked for purchase card transactions. 

 

b.      Purchases using Recovery Act funds shall be placed using the appropriate purchasing vehicle, e.g., purchase order, task order, etc. by COs within the Center’s procurement office.  The CO is responsible for ensuring purchases using Recovery Act funds are placed in accordance with the requirements of this PIC and are recorded in FPDS.

 

11.  Evolving Guidance

 

a.       Federal implementing guidance for the Recovery Act is being reevaluated on an ongoing basis and will be revised periodically.  This PIC will be updated as necessary to reflect changes made by Federal offices as well as changes made internally to NASA procedures.

 

b.      The Integrated Acquisition Environment (IAE) program has committed to posting the most current direction related to reporting under the Recovery Act at the various websites including Recovery.gov, FederalReporting.gov, FedBizOpps and FPDS.  COs are encouraged to visit the sites for current direction. To the extent that the websites specify instructions that differ from those in this PIC, the website’s instructions supersede the instructions in this PIC.

 

CANCELLATION:  This PIC supersedes PIC 09-06F and shall remain in effect until canceled or superseded.

 

HEADQUARTERS CONTACTS:  Leigh Pomponio, Office of Procurement, Contract Management Division, (202) 358-0592, e-mail: Leigh.Pomponio@nasa.gov.

 

 

James A. Balinskas

Director, Contract Management Division

 

Enclosure 1

 

DISTRIBUTION:

  PIC List



ENCLOSURE 1                                                                                                         PIC 09-06G

                                                                                                                                         

 

NASA Process for Reviewing Contactor Reporting under the Recovery Act.

 

1.  In accordance with FAR 52.204-11, and supplemental Federal Register Notices and Office of Management and Budget (OMB) guidance (see references below), recipients of Recovery Act funds are required to report quarterly, beginning in October, 2009 at FederalReporting.gov.  Thereafter, reporting months are January, April, July, and October for the immediately preceding quarter or until the recipient has completed all efforts funded with Recovery Act funds.  The procedures herein apply to Federal contracts funded in whole or in part with Recovery Act funds.  Procedures for grants and cooperative agreements are set forth in Grant Information Circular (GIC) 09-03.

 

2.  A NASA Mailbox has been established as the first point of inquiry for Recovery Act reporting questions and issues.  The address is: RecoveryRecipientReporting@NASA.gov.  In addition, a Federal help desk has been established to support FederalReporting.gov and the help desk may be utilized for information and direction for Recovery Act reporting.  Additionally, the Office of Federal Procurement Policy (OFPP) has developed a series of Frequently Asked Questions (FAQs) to respond to reporting issues.  They are available at: http://www.whitehouse.gov/omb/recovery_default.  Because the system and the requirements are new, there are many uncertainties.  OFPP, in conjunction with the FAR Council, is responding to emerging issues quickly by continuously updating the FAQs.  The FAQs will be version-controlled so you will be able to identify when changes and additions are made, and also which guidance was in effect at a given point in time.  If you receive inquiries from contractors regarding reporting, they should be referred to these sources. 

 

3.  Because the FAR rule was issued before FederalReporting.gov was developed, the role of contracting officers (CO) and other agency reviewers in ensuring Federal contractor compliance with the requirements of FAR 52.204-11, is evolving.  CO and contractor responsibilities will be further defined through a second interim, and ultimately a final rule. 

 

4.  Agencies are required to review contractors’ reports for:

     - consistency with award information,

     - significant errors, and

     - material omissions

     - correct administrative and technical data

 

A significant error is defined as data that is not reported accurately and where such erroneous reporting results in significant risk that the public will be misled or confused by the contractor’s report.  Examples include, but are not limited to:

     - the cumulative invoiced amount reported is in excess of the obligation

     - the contractor incorrectly selects ‘fully complete’ to describe an incomplete project.

     - the Recovery Act obligation was for a relatively small amount and the contractor reports the number of jobs created or retained as an unrealistically high number.

 

A material omission is defined as data that is not responsive to a specific data element.  When reviewing for material omissions, agency reviewers should do so with the goals of transparency in mind.  For example, where the contractor is required to provide a narrative description, is it sufficiently clear to facilitate understanding by the general public?

 

Administrative and Technical matters are those not appropriately categorized as significant errors or material omissions.  They are issues which significantly impact the reliability of the report, but they are not representative of a contractor not complying with the reporting requirements.  Administrative and technical issues include, but are not limited to:

   - inadvertent deactivation of reports,

   - duplicate reports,

   - unlinked reports, or

   - record identifier issues (contract number and associated award information)

 

5.  In addition to reviewing contractors’ reports, COs are responsible for ensuring accuracy and validating contractors’ entries.  COs shall notify contractors if the Agency review finds gross errors, material omissions, or entries that are otherwise inconsistent with the award.  The schedule and the process for review and notification are further described below.

 

6.  Contracting Officers are the Agency officials responsible for reviewing and providing comment on contractor Recovery Act reports.  COs will be supported in this effort by COTRs, the Accounts Payable office (NSSC), and others, as needed.  All Agency personnel who play a role in Recovery Act reporting shall register at FederalReporting.gov.  Registration should be accomplished immediately so that the system can be accessed on the first day of the reporting period. 

 

The HQ Office of Procurement, Analysis Division will be responsible for running a series of reports, during the month immediately preceeding each reporting period, and into the reporting period, that identify contractors that have received Recovery Act awards but are not registered at FederalReporting.gov, and for providing those reports to the cognizant COs.  COs shall contact the identified contractors and encourage them to register early.  COs shall provide assistance to contractors in completing the registration process.

 

7.  COTRs will provide the CO with a quarterly report addressing data elements m, and p – r, in paragraph 9.   The Accounts Payable Office will provide the CO with input addressing item v. in paragraph 9.  These responsibilities, along with the communication process, are further defined below.   Additionally, COs may request input or assistance from any other Agency sources as may be helpful to respond to the specific circumstances of any given action.

 

8.  In each of the reporting months, the following schedule applies:

 

-  Day 1- 10                              Contractors prepare and submit their reports

 

-  Day 11 – 12             Agency personnel may view contractor reports beginning on day 11 but cannot officially enter the system to begin the review and validation process. These two days are set aside for prime recipients (of funds under Grants, Cooperative Agreements, Loans, and other vehicles) to review data submitted by sub recipients and for both prime and sub recipients to make corrections.  Because sub recipients do not report directly under contracts, these two days are a period for the contractors to make edits. 

 

-  Day 13 – 29                          - Reports are available for agency review and validation.

                                  - Period of CO and contractor reconciliation and edits.

 

-  Day 30                   Contractor reports are published on Recovery.gov

 

-  Day 31 – 32                          System maintenance; no system entry

 

- Day 33 – 90                           System is unlocked and reports are opened for edit

- Period of continuous corrections

                                                 - agencies may comment on data submitted

                                                 - contractors may make corrections

                                                 - no late submissions accepted

              

9.  Contractors are required to report the following data elements:

               a.  Funding Agency code (same as c. unless reimbursable)  *

 

b.  Funding Agency name (same as d. unless reimbursable) *

 

c.  Awarding Agency code  (8000) *

 

d.  Awarding Agency name  (NASA)  *

 

e.  Program Source (TAS number)  *

 

f.  Award number  *

 

g.  Order number, if applicable  *

 

h.  Contractor’s DUNS  *

 

i.  Government Contracting Office Code  (see center designations in 5.d.) *

 

j.  Government Office Contracting  *

 

k.  Contractor name and address  *

 

l.  Contractor’s congressional districts (both recipient district and place of performance district)  *

 

m.  Final Report?  (yes/no button) (Is this contractor’s final report at Federal Reporting.gov, i.e. have they completed Recovery Act work?)  * & ** (see below for instructions on determining whether a contract action is complete for purposes of Recovery Act reporting.)

 

n.  Award type (drop down list, select “Federally Awarded Contract”)  *

o.  Award date *

 

p.  Award description:  a description of the overall purpose and expected outcome, or results of the contract, or action under the contract, funded by the Recovery Act, including significant deliverables and, if appropriate, associated units of measure.  **

 

q.  Quarterly activities:  A description of all significant services performed and/or supplies delivered, including construction, for which the prime contractor invoiced in this calendar quarter.  **

 

r.  Project status:  The status of the work completed.  Contractor will select from 4 options:  not started, less than 50 percent completed, completed 50 percent or more, or fully completed.  **

 

s.  NAICS  *

 

t.  Estimate of the combined number of jobs created or retained, calculated quarterly, non-cumulative. (Information on how to calculate jobs may be found at Frequently Asked Questions (FAQs) for Federal Contractors at http://www.FederalReporting.gov)****

 

u.  Amount of award (Recovery Act obligation)  *

 

v.  Total Recovery Act funds invoiced  (cumulative)   ***

 

w.  Primary place of performance (city, state and congressional district) *

 

x.  Names and total compensation of each of the five most highly compensated officers (reporting required if conditions apply- see FAR 52.204-11.  To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total compensation filings at http://www.sec.gov/edgar/searchedgar/companysearch.html)  ****

 

y.  Total number of sub awards to individuals (per quarter, not cumulative) ****

 

z. Total number of sub awards less than $25K (per quarter, not cumulative) ****

 

aa. First tier subcontract information (per quarter, not cumulative) ****

                               - subcontractor’s DUNS number (for subcontracts of $25K or more) ****

                               - award number  ****

                               - subcontractor’s name   ****

                               - subcontractor’s physical address   ****

                               - subcontractor’s primary place of performance   ****

                               - subcontractor’s congressional district     ****

                               - amount of subcontract    ****

                               - date of subcontract    ****

                               - subcontractor’s parent company   ****

- compensation information, name and total compensation for each of the five most highly compensated officers of the subcontractor.  (reporting required if conditions apply.  See FAR 52.204-11)    ****

 

*

COs can verify these data elements from file and/or FPDS

**

COTRs will provide CO with information to review these data elements.

***

Accounts Payable (NSSC) will post information on disbursements to their website for CO use in reviewing this element.

****

Specific information not available to Agency personnel.  CO will check that contractor entries appear reasonable.

 

10.  Based on the above requirements and schedule, the following procedures are established to ensure that contractor Recovery Act reports are appropriately reviewed and validated, and that gross errors, significant omissions, and administrative and technical issues are identified and reported for correction.

 

a.  On the first business day of each reporting month (Oct, Jan, April, and July) the

Contract Analysis Division of the HQ Office of Procurement is responsible for running and distributing an FPDS system report (hereafter referred to as ‘The Master Quarterly Reporting List’ or the ‘Master List’) which identifies all NASA contracts/contractors required to report that period.  The Analysis Division shall also check that contractors appearing on the Master Quarterly Reporting List are registered at FederalReporting.gov.  If they are not, that information should be included on the Master Quarterly Reporting List before it is distributed. 

 

Note that FPDS posts a daily report on Recovery Act awards that allows filtering by contracting and funding agency and contracting office.  As more and more Recovery Act awards are being made, searching by contractor DUNs number is one of the most effective means of locating a contract.

 

The Contract Analysis Division shall distribute the Master Quarterly Reporting List, by the fifth business day of the month, to:

-  Procurement Officers (through the Procurement Officers’ distribution list) who will then ensure further distribution to all COs with Recovery Act actions.

-  Mission Directorate POCs

-  NSSC

-  HQ Recovery Act Team

-  Center Recovery Act POCs

 

b.  Contracting Officers are responsible for distributing the Master Quarterly Reporting List to all COTRs appointed on their Recovery Act contracts. 

 

c.  During days 1 – 10, while contractors are reporting at Federal Reporting.gov, the COTR should provide the contracting officer with brief status reports on progress, and quarterly activity. COTRs should provide information that will permit the CO to review contractor’s entries for those data elements identified in paragraph 9 by two asterisks.  NSSC, during days 1 – 10, will post Recovery Act disbursement information to https://www.nssc.nasa.gov/portal/site/customerservice/menuitem.8c0cf94258aa985b48969daf4dd72749/   which COs (except those at NMO/JPL[1]) will use to determine the reasonableness of contractors’ entries on the element in paragraph 9 marked with three asterisks.  It is important to note that contractors are required to report amount invoiced to date, and the information posted by NSSC will be disbursements.  Therefore, the amounts are not expected to match, but taking into consideration a 30 day payment cycle, CO will have the information necessary to conclude whether a contractor’s entry includes a gross error or material omission. There is no mandatory format for the status reports.  It is anticipated that experience during the early reporting periods will result in the development of templates to ease the status reporting activity.

 

During days 1 – 10, and continuing throughout the reporting period, The Contract Analysis Division will distribute automated, agency extract reports to be used as a tool in identifying reporting issues.  The agency extract reports may be accompanied by specific directions or requests for specific actions to be taken.

 

c.       On days 11 - 12, agency personnel may view contractor’s reports.  Agency personnel are encouraged to take advantage of this opportunity to verify that contractors have filed a report and to spot inaccuracies or potential problems.  Bear in mind that contractors may still be making final edits during this two day period, but they must have submitted a report prior to or on day 10. 

 

Beginning on day 13, or as soon thereafter as practical, COs shall review their contractors’ reports at FederalReporting.gov.  COs shall utilize the award information, FPDS and other system information, as necessary, and the status reports from the COTR and web posting by NSSC/Accounts Payable Office to review and determine the accuracy of the contactor’s entries.  

 

COs should utilize days 13 – 29 to notify the contractor, outside of the FederalReproting.gov system, of any gross errors, material omissions, or administrative and technical inaccuracies.  This period is considered an open communication period, during which the CO works with the contractor to ensure that the posted information represents an accurate picture of the Recovery Act project and its current status.  The contractor has the ability, during days 13 – 29, to make edits to their original entries, but is not required to make changes in response to Agency comments.  After the 29th, the contractor’s report is locked for a two day period.

 

e.  The official Agency review and validation must also occur between day 13 and day 29.  While COs should be continuously working with their contractors outside of the system to ensure the accuracy of the report, COs must also work within the automated system to document agency comments and final agency verification.  Therefore, between day 13 and 29, the CO shall complete the Agency’s official review of the contractor’s report in the FederalReporting.gov system.  COs will be presented with three choices:

Reviewed, no comments,

Reviewed with comments, or

Not reviewed.

 

It is NASA policy that all contractor Recovery Act reports will be reviewed.  Therefore, only the first two options are available to COs.   

 

f.  It is anticipated that the communication process that took place between days 13 - 29 was successful and that all necessary edits were made prior to day 29.  Therefore, in the majority of cases, the CO shall assign the status:

 

   Reviewed, no comments

 

This is the appropriate selection even if the Agency had ‘unofficial’ comments, or made official comments in the system prior to day 29.  If, on day 29, the contractor’s report has no gross errors or material omissions, and if it accurately portrays the administrative and technical information, then the official Agency remark should be ‘reviewed, no comment.’

 

g.  If, on day 29, the contractor’s report contains what are considered to be gross errors or material omissions, or if it is otherwise administratively or technically incorrect, then COs shall assign the status as:

  

- Reviewed, with comments

 

This selection will allow the CO to enter summary level remarks.  Agency remarks must be accurate and should be aimed at clarifying the public record by making note of contractor entries that may be unclear or misleading.  The purpose of the Agency comments is to ensure that when they are considered together with the contractor’s entry, the information accurately informs the public and provides transparency which is a key element of the Recovery Act.

 

To facilitate oversight and trend analysis at the Agency level, it is important to maintain and evaluate a record of how frequently and on what issues NASA is ‘reviewing with comments’.  Furthermore, OMB now requires agencies to report on and provide evidence of corrective action relative to contractor’s reports.  Therefore, if the CO’s final review results in ‘reviews with comments’, a copy of the comments shall be provided, before they are posted to FederalReporting.gov, via e-mail, to:  Julie.A.Pollitt@NASA.gov and Leigh.Pomponio@NASA.gov.  The FederalReporting.gov system will electronically deliver all Agency remarks to the Recovery Accountability and Transparency Board.  The Board may make the Agency remarks available for public viewing on Recovery.gov

 

If the CO selects ‘reviewed, with comments’, the system, after closing for maintenance on days 31 and 32, will reopen to a ‘continuous correction’ period from day 33 to day 90.    If the contractor makes edits during this period, the status of the report in the system will automatically change from the ‘reviewed with comments’, as assigned by the CO, to ‘reviewed and resubmitted.’  Therefore, if the CO ‘reviews with comments’, it is important to go back into the system to see if the contractor has ‘reviewed and resubmitted’.  If they have, and assuming the CO is now satisfied with the record, the CO shall enter ‘reviewed, no comment’ at this point.  Such an action locks the report from further changes and ensures that the report that is displayed publically on Recovery.gov accurately reflects that the Agency has no outstanding issues with the contractor’s report.

COs shall notify the Recovery Act Implementation Executive, Julie Pollitt, of any Agency comments that remain unresolved before the close of the standard reporting period on day 29.  Further, COs shall continue to notify the Recovery Act Implementation Executive of all corrective action that continues throughout the ‘continuous correction’ period. 

 

At the close of each reporting period, the Procurement Office, Analysis Division, shall run a master report showing all Agency entries for the reporting period.  Further, the Analysis Division shall run a report identifying all NASA contracts which indicate either ‘not reviewed’ or ‘reviewed with comments’.  These reports are to be provided to the Recovery Act Implementation Executive.

 

The system does not require the contractor to make corrections based on Agency review, or otherwise require Agency approval of the report before it is finalized in the system.  In all instances in which the Agency makes comments on contractors’ reports, either during the informal communication period, or during the formal system comment period, COs  shall ensure that the contract file is documented with a record of the comments, a summary of the communications and final disposition or resolution.

 

h. It is NASA policy that all contractor Recovery Act reports be reviewed.  If the CO does not select either ‘Reviewed, no comments’, or ‘Reviewed with comments’, the system will default to ‘Not reviewed’.  Therefore, it is mandatory that COs select one of the two options.  While the Board may choose to make Agency comments available for viewing in Recovery.gov, at a minimum, the Agency status assignments will be publically displayed.  COs should make every effort to avoid a system default to ‘Not reviewed’.

 

i. Inasmuch as many agency Recovery Act contracts are now either complete or nearing completion, special note should be taken of newly established guidelines on how to determine whether a Recovery Act report is a final report.  Contractors that have complied with their Recovery Act quarterly reporting requirements, in accordance with the clause 52.204-11, will no longer be required to submit Recovery Act reports after their final report, as defined below, is submitted.  A Contractor’s final report is the report submitted for the quarter during which the following circumstances in 1 and 2 occur:

 

 

1(a) The contractor has completed the required Recovery Act-funded deliveries or services (including construction) and

(i) the Government has accepted these supplies or services (including construction); or (ii)  the agency is satisfied that the Recovery Act-funded deliveries or services (including construction) are complete per agency requirements.

 

(b) All Recovery Act funded option provisions, if any, have expired; or

 

(c) The Government has given the contractor a notice of complete termination for the Recovery Act funded contract, order, or portion of the contract or order funded by the Recovery Act, and there were no termination costs paid with Recovery Act funds.  For rental, use, and storage agreements, the Government has given the contractor a notice of complete termination for the Recovery Act funded agreement or portion of the agreement funded by the Recovery Act and there were no termination costs paid with Recovery Act funds or the agreement period has expired.

 

2. The contractor has invoiced for all Recovery Act funded supplies and services (including construction).   The contractor’s final report will indicate a “Y” in the Final Report data field and “Fully Complete” in the Project Status data field in FederalReporting.gov.  Indication of a final Section 1512 report does not replace any other closeout procedures required by the contractor or Federal agency.  For more information on administrative closeout procedures, please see Federal Acquisition Regulation Section 4.804

 

 

11. Please contact Leigh Pomponio, NASA HQ Office of Procurement, with any questions on this process. 

-----------------------------------------------------------------------------------------------------------------

References: 

 

- Section 1512 of ARRA

- FAR, Part 4, and 52.204-11

- Notices and instructions at FederalReporting.gov

 -Federal Register Notice (74 FR 42877) Aug. 25, 2009

- Federal Register Notice (74 FR 48971) Sep 25, 2009

- OFPP Guidance dated Sep 30, 2009, New Requirements for Contracting Officers, American Recovery and Reinvestment Act of 2009

- OMB Guidance dated Nov 30, 2009, M-10-05, Improving Compliance in Recovery Act Recipient Reporting (November 30, 2009) 

-OMB Guidance dated Dec 18, 2009, M-10-08, Updated Guidance on the American Recovery and Reinvestment Act – Data Quality, Non-Reporting Recipients, and Reporting of Job Estimates

- OMB Guidance dated March 22, 2010, M-10-14, Updated Guidance on the American Recovery and Reinvestment Act.

 

Resources/ Links:

 

Recipient Reporting Data Model: 

- https://www.FederalReporting.gov (under the downloads tab)

 

ARRA Recipient Reporting:  Agency Report Review (includes screen shots)

               - www.FederalReporting.gov

FAQs: 

- http://www.whitehouse.gov/omb/recovery_default

- Recovery.gov (link on home page)

 

NASA Recovery Act Reporting Mailbox

 

- HQ-Recovery-Recipient-Reporting@NASA.gov

 

Helpdesk:              877-508-7386, or

                               support@Federalreporting.gov, or

                               live help button at:  https//www.FederalReporting.gov



[1]  Separate instructions for reviewing ‘invoices submitted’ will be provided to NMO-JPL.