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Recovery Act Rules and Reporting Requirements Emerge

April 9, 2009

As the federal government gears up to pump billions of dollars into the economy through the American Recovery and Reinvestment Act of 2009 (Recovery Act), several notices have been released (or are coming soon) detailing quarterly reporting requirements, grant and contract provisions, and more. There is a strong focus on transparency and accountability in the use of these funds, including quarterly reporting on expenditures and outcomes.

Given the urgency of getting rules in place quickly, Federal Register notices implementing the Recovery Act are generally being released as interim final rules with a request for comments. With this type of hybrid notice, the regulations take effect immediately even as the agency actively requests comments and anticipates publishing revised rules in the future.

The following notices and guidance memoranda are now available for review.

Data Elements for Quarterly Reporting Under the Recovery Act

A Federal Register notice was published on April 1 by the Office of Management and Budget (OMB) to provide an opportunity for the public and federal agencies to review and comment on proposed standard data elements that would be used to comply with the reporting requirements in Recovery Act Section 1512. Each federal agency will have to require any recipients of grants, cooperative agreements, or loans to report this data quarterly through a government-wide portal or an agency collection process. The data elements include items such as:

  • Amount of recovery funds received
  • Amount of recovery funds expended
  • Description of project or activity
  • Evaluation of completion status of project or activity
  • Narrative description of employment impact, including an estimate of jobs created or retained

OMB is still working out the details on the mechanisms for reporting to its portal, but hopes to begin collecting this data for the April – June 2009 quarter. By law, the reporting must be in place by the following quarter. The law also specifies a very quick turnaround, with reports due within 10 days of the end of the quarter. Comments on this notice are due May 1.

Office of Management and Budget Memorandum

OMB has issued a memorandum, M-09-15, Updated Implementing Guidance for the American Recovery and Reinvestment Act of 2009 (April 3, 2009), from OMB Director Peter Orszag to federal agencies. This document, which updates an earlier memo released in February, provides government-wide requirements and guidelines to help agencies effectively manage activities under the Recovery Act. According to the memo, its objectives are to ensure that:

  • Funds are awarded and distributed in a prompt, fair, and reasonable manner;
  • The recipients and uses of all funds are transparent to the public, and the public benefits of these funds are reported clearly, accurately, and in a timely manner;
  • Funds are used for authorized purposes and potential for fraud, waste, error, and abuse are mitigated;
  • Projects funded under this Act avoid unnecessary delays and cost overruns; and
  • Program goals are achieved, including specific program outcomes and improved results on broader economic indicators.

The 175-page memo has separate sections addressing grants and cooperative agreements, contracts, and loans and loan guarantees; it also includes a number of other documents as appendices. OMB is particularly interested in receiving comments from the public on Section 2 on recipient reporting. The deadline for comments is April 17.

Interim Final Rules for Recovery Act Financial Assistance Awards

Government-wide guidance and standard award terms for grants, cooperative agreements, and loans awarded under the Recovery Act are provided in interim final rules that will be published in the Federal Register next week. [Note: the notice was published in the Federal Register on April 23.The effective date of the provisions is April 23; there is a sixty-day comment period ending June 22.]

Under the interim final guidance, the standard award terms in the financial assistance awards will:

  • require recipients and first-tier sub-recipients to maintain current registrations in the Central Contractor Registration (CCR) database;
  • require recipients to report quarterly on project or activity status, and sub-grant and subcontract information;
  • notify recipients of the domestic sourcing ("Buy American") requirements that apply to certain iron, steel and manufactured goods for construction projects;
  • notify recipients of the wage rate requirements under the Davis-Bacon Act that apply to certain construction projects; and,
  • ensure proper accounting and reporting of Recovery Act expenditures in single audits.

Contract Provisions in the Federal Acquisition Regulation (FAR)

Several Federal Register notices were published on March 31 amending the FAR to incorporate Recovery Act requirements applicable to contracts. These rules were effective on the date of publication, with comments due June 1.

  • Reporting Requirements--Under section 1512, known as the Jobs Accountability Act, contractors that receive awards under the Recovery Act are required to report quarterly on the use of funds.
  • Publicizing Contract Actions--This notice requires contracting officers to post information on actions funded by the Recovery Act, including pre-award notices, in existing federal systems in certain ways to enhance transparency.
  • Whistleblower Protections--This notice implements Recovery Act Section 1553 which provides protections for state, local, and contractor whistleblowers and prohibits nonfederal employers from discharging, demoting, or discriminating against an employee as reprisal for disclosing information.

NACUBO will provide more information on Recovery Act implementation as it becomes available. Members are encouraged to share their thoughts, concerns, or comments with the staff members listed below.

NACUBO Contacts: Sue Menditto, director of accounting policy, 202.861.2542 and Anne Gross, vice president for regulatory affairs, 202.861.2544.