Sneak Preview: Attorney Panel Discusses OMB’s Proposed Revisions

(The following was excerpted from a recent article in the Federal Grants Management Handbook.) Four attorneys recently discussed various topics related to grants oversight and law, including their concerns about and praise for the revisions to the Office of Management and Budget’s (OMB) uniform guidance proposed in January, during a question-and-answer session as part of the recent National Grants Management Association’s 2020 Virtual Grants Training and Summit.

The panel included Tiffany Kesslar, Esq., partner with Brustein and Manasevit PLLC; Dismas Locaria, partner with Venable LLP; Wendel Askew, assistant general counsel for assistance law for the Environmental Protection Agency (EPA) Office of General Counsel; and Brian Walsh, partner with Wiley Rein LLC. The following article includes abridged responses to questions asked of the panelists.

Q: What do you see as the pros and cons of the proposed revisions to the uniform guidance, and what wasn’t addressed that should have been?

A: Kesslar: Including in the federal award notice a restriction on nonbinding guidance documents (§200.210) is really telling. The addition of less-restrictive conditions being available now for less-risky subgrantees is a nice flexibility, although it calls into question the extent to which the requirements can be waived under the specific conditions provision. Would it apply only to the provisions under that section or could it apply more broadly across the uniform guidance?

One area that is problematic is the proposed removal of the period of performance section now under §200.309. What a lot of entities don’t realize is that is the only section that allows a pass-through entity to award pre-award costs, and in formula flow-through grants, we often see pass-through entities allowing for pre-award costs. Now, that will only be something permissible by the federal awarding agencies. That can become more of an administrative burden than people may realize.

Another proposal that was helpful is the extension of the closeout period from 90 days to 120 days for pass-through entities, because when pass-throughs have only 90 days to close out, it creates some difficulties for state agencies having to shorten the closeout period to meet their 90-day obligation. Giving them 120 days is a nice flexibility to enable them to take advantage of that full closeout period.

Askew: I agree that the flexibility in public policy plays into the notion of [emphasizing] the achievements of the recipient under the award, as opposed to technical compliance in some instances. Loosening administrative minutia for states [with effective long-standing grants] will be a real benefit to reduce burden, while some nonprofits that just started out may need more attention. Allowing us to maneuver between those types of entities is useful both for us and the recipient.

(The full version of this story has now been made available to all for a limited time here.)

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