Overview of Key Provisions of the American Recovery and Reinvestment Act

1. Overview of Key Provisions of the American Recovery and Reinvestment Act Presented by: Edward T. Waters, Esquire Stacia Davis Le Blanc, Esquire

2. This webinar has been prepared by the attorneys of Feldesman Tucker Leifer Fidell LLP. The opinions expressed in these materials are solely their views. This presentation is provided with the understanding that the authors are not rendering legal or other professional services. We will be not be covering the Tax Provisions contained in Division B Disclaimer

3. Overview What are the special reporting requirements? What is the Recovery Accountability and Transparency Board? What role will the OIG play? What are the new whistleblower provisions?

4. The Basics

5. The American Recovery and Reinvestment Act of 2009 Multiple Statutory Purposes: Create and save jobs Jump-start the economy Foundation for long-term economic growth Modernize the nation's infrastructure Enhance America's energy independence Expand educational opportunities Increase access to health care Provide tax relief Protect those in greatest need

6. What money is ARRA supplying and where is it going? $787 Billion dollars of spending provisions and tax provisions

7. ARRA Money Allocated to Agencies Thus Far…

8. State Fiscal Stabilization Fund – Title XIV • $53.6 Billion administered by Dept. of Education • No "supplement not supplant" provision applicable to fiscal stability funds. • Upon prior approval from the Secretary, may treat any portion of such fundsas non-Federal funds for the purpose of any requirementto maintain fiscal effort under any other program... • Maintenance of Effort provision may be waived or modified under certain conditions. • Deadline for agency obligation of funds is September 30, 2011.

9. Applicability Recipient Any entity, other than an individual, that receives recovery funds directly from the Federal Government through grant, loan, cooperative agreement or contract Includes a State that receives recovery funds Contractors are “recipients” Recovery Funds Any funds that are made available from appropriations under this Act

10. Definitions “Obligated” vs. “Expended” Obligated means that the federal agencies awarded funds to other entities Expended means that the agencies spent the funds Agencies must obligate or expend funds by September 30, 2010 Recipients do not have to spend the money by Sept. 30, 2010. Remember: The obligation deadline for State Fiscal Stabilization Funds is Sept. 30, 2011.

11. How To Monitor ARRA Implementation • Recovery.Gov • Grants.Gov • FederalSpending.Gov • Federal Funding Opportunities on agency sites • Recovery Act Terms and Conditions • Special Conditions in supplemental awards • Recovery Accountability and Transparency Board Actions • GAO and OMB Reports • IG Findings

12. Reporting Requirements

13. Who Must Report: Prime recipients of Discretionary Funds First tier subawards made by these prime recipients. Recipients of Entitlement or other Mandatory programs are not required to report, except as specifically required by OMB

14. ATTENTION: Separate Accounting of ARRA Funds Recovery Act funds can be used in conjunction with other funding as necessary to complete projects, however . . . tracking and reporting must be separate to meet the reporting requirements of the Recovery Act and OMB Guidance. You will likely need to set up separate cost centers to track Recovery Act money separately from your other grant money

15. What Must Recipients Report? (2) jobs created jobs retained by the project or activity For infrastructure investments made by State and local governments purpose, total cost, and rationale of the agency for funding the project, and name of the person to contact at the agency if there are concerns Subgrants and Subcontracts (FFATA)

16. OMB Guidance on Recipient Reports On Feb. 18, 2009, OMB released Initial Implementing Guidance for ARRA: http://www.recovery.gov/files/Initial%20Recovery%20Act%20Implementing%20Guidance.pdf Within 180 days of enactment, as a condition of continued receipt of funds recipients must have complied with reporting requirements under this Act

17. Administrative Cost Shifting Set-Aside for Reporting and Recordkeeping Costs § 1552 Federal agencies may, after following the notice and comment rulemaking requirements under the APA, reasonably adjust applicable limits on administrative expenditures Help recipients defray the costs of data collection requirements initiated pursuant to the Act

18. Inspectors General: Reviews, Investigations, and Audits

19. ARRA and the Inspectors General $250 million in additional funding for agency IGs to hire experienced auditors and investigators ARRA mandates that an IG shallreview, as appropriate, any concernsraised by the public about specific investments of stimulus funds ARRA provides new authority giving IGs access to records and interviews of contractors or grantees, including their employees and subcontractors or subgrantees

20. Inspector General Reviews What is an IG “Review?” Not an Audit Not an Investigation Is it an “Inspection”? What standards are applied? What is the outcome of an IG “review?” What due process is provided to grantee? IGs will post outcomes on website

21. IG Investigations and Audits ARRA investigations emphasize: preventing and identifying fraud timely investigations when potential criminal activity occurs response to the new sources of whistleblower complaints OMB Circular A-133 Audits will not be sufficient to provide effective feedback on stimulus programs Results of A-133 audits are not available until at least 9 months after fiscal year end Perform risk analyses of those programs to determine the types of testing that should be done

22. Recovery Accountability and Transparency Board

23. Board Membership

24. Functions of the RAT Board Reviewing whether the reporting of contracts and grants meets applicable standards, specifies the purposes, and measures performance; Reviewing whether competition requirements have been satisfied; Auditing or reviewing covered funds to determine wasteful spending, poor contract or grant management, or other abuses and Referring matters appropriate for investigation to the agency IG

25. Functions of the RAT Board (2) Reviewing whether there are sufficient qualified acquisition and grant personnel overseeing covered funds; Reviewing whether personnel whose duties involve acquisitions or grants made with covered funds receive adequate training; and Reviewing whether there are appropriate mechanisms for interagency collaboration relating to covered funds Coordinating and collaborating with the IG Council on Integrity and Efficiency Use website as means for public feedback

26. Whistleblower Provisions and Protections

27. IGs and Whistleblowers – New Protections Federal officials must act on evidence of: gross mismanagement, waste, or illegality related to stimulus expenditures IGs are required to complete these whistleblower investigations within 180 days, subject to certain extensions. A violation of law, rule, or regulation related to the competition for or negotiation of a contract or grant

28. Whistleblower Protections § 1553 “Prohibition of Reprisals – An employee of any non-Federal employer receiving covered funds may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing, including a disclosure made: in the ordinary course of an employee’s duties, to the Board, an inspector general, the Comptroller General, a member of Congress, a State or Federal regulatory or law enforcement agency, a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discovery, or terminate misconduct), a court or grant jury, the head of a Federal agency, or their representatives, information that the employee reasonably believes is evidence of . . .