Sharpen Your Pencils ARRA Procurement Done Right

1. Sharpen Your PencilsARRA Procurement Done Right Rochelle J. Daniels, Attorney 5301 N 36th Court ~ Hollywood, Fl 954 205 2582 danielsrj@aol.com

2. The Rules & Their Exceptions Rochelle Daniels 954 205 2582 danielsrj@aol.com

3. Overall Requirement Under ARRA Rochelle Daniels 954 205 2582 danielsrj@aol.com • WIA rules apply unless otherwise stated in • The ARRA, or • USDOL Guidance, or • State waiver • Note: USDOL asked states to re-submit all current and new waivers for approval by April 15 • Waivers for the new program year are due June 30

4. WIA Procurement Requirements 20 CFR 667.200 Rochelle Daniels 954 205 2582 danielsrj@aol.com State, local, and Indian tribal governments must follow the common rule “Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments'' 29 CFR part 97. Institutions of higher education, hospitals, other non-profit organizations, and commercial organizations must follow the common rule implementing OMB Circular A-110 which is codified at 29 CFR part 95. See: 29 CFR 95.40 et al or 29 CFR 97.36 et al

5. WIA Procurement Requirements 20 CFR 667.200 Rochelle Daniels 954 205 2582 danielsrj@aol.com • WIA Requirement • Contracts between Local Boards and units of State or local governments must be conducted on a cost reimbursement basis. • No provision for profit is allowed.

6. General WIA Procurement Requirements Rochelle Daniels 954 205 2582 danielsrj@aol.com • Minimum standards set by 29 CFR Parts 95 or 97 • In general • States and local boards/governments must follow their own/local procurement requirements • States usually • Allow local governmental entities to follow their own procedures • Require local boards to develop procedures with minimum standards set by the CFR and /or the state

7. Minimum Procurement Requirements Rochelle Daniels 954 205 2582 danielsrj@aol.com • Methods of procurement • Small purchase procedures • Simple and informal procurement methods for securing services, supplies, or other property that does not cost more than $100,000 –most local areas have a lower threshold or small purchases • Price or rate quotations are obtained from an adequate number of qualified sources.

8. Methods of Procurement Rochelle Daniels 954 205 2582 danielsrj@aol.com • Procurement by sealed bids (formal advertising). • Bids are publicly solicited and a firm-fixed-price contract (lump sum or unit price) is awarded to the lowest responsive bid. • Procurement by competitive proposals • Used when conditions are not appropriate for the use of sealed bids.

9. Bids and RFPs Rochelle Daniels 954 205 2582 danielsrj@aol.com Publicly advertised Specifications Identify evaluation factors Solicit from an adequate number of qualified sources Award is to the responsible firm whose proposal is most advantageous to the program, with price and other factors considered

10. Non Competitive Rochelle Daniels 954 205 2582 danielsrj@aol.com • Okay only when • The item is only available from a single source • Public exigency or emergency that does not allow for a competitive solicitation • The grantor agency authorizes it, or • After soliciting from a number of sources, competition is determined inadequate. • Sole source requires a Cost Analysis, • Verifying the proposed cost data, • The projections of the data, • The evaluation of the specific elements of costs and profit

11. The ARRA Message Rochelle Daniels 954 205 2582 danielsrj@aol.com • Use the youth funds for a summer 2009 program • Use adult and dislocated worker funds to • double the number of individuals in training • Provide support services • Try and spend 70% of the funds in year one of the funds award • Remember 30% of the funds must be spent on out of school youth • Exercise accountability and transparency • Procure services

12. Procurement and TEGL 14-08 Rochelle Daniels 954 205 2582 danielsrj@aol.com States and local areas should explore expedited or emergency procurement processes that may be available under current state and local law, provided that these processes comply with 29 CFR Parts 95.40-95.48 and 97.36 In order to implement summer employment during the summer of 2009, ETA recognizes the need for flexibility in the youth procurement requirements in WIA section 123. States have the option of applying for a waiver as detailed in Section 19 of this guidance.

13. ARRA Summer and Procurement Rochelle Daniels 954 205 2582 danielsrj@aol.com • The major activities • Operation of a summer program • Recruitment • Assessment and ISS • Development of the Worksites • Case management (monitoring) of the youth and worksite • Payroll and insurance • Work readiness training • Follow up – optional • Monitoring

14. What summer activities require procurement? Rochelle Daniels 954 205 2582 danielsrj@aol.com • Operation of the summer program or any individual component which do not fall under the exception (see next slide) • Recruitment • Assessment and ISS • Development of the Worksites • Case management (monitoring) of the youth and worksite • Payroll and insurance • Follow up (probably not) • Work readiness training • External Monitoring

15. How is the summer employment opportunities element administered? Sec. 664.610 Rochelle Daniels 954 205 2582 danielsrj@aol.com The chief elected officials (which may include local government units operating as a consortium) are the grant recipients for local youth funds, unless another entity is chosen to be grant recipient or fiscal agent If providers other than the grant recipient/fiscal agent, are used to provide summer youth program activities the providers must be selected on a competitive basis. The selection of employers who are providing unsubsidized employment opportunities are excluded from the competitive process.

16. Procurement Exception # 1 Rochelle Daniels 954 205 2582 danielsrj@aol.com • When is procurement for youth services (summer program) unnecessary under the ARRA? • When the summer program will be delivered by the: • Grant Recipient – Chief Elected Official • The entity designated as the Grant Recipient by the Chief Elected Official(s) or • Fiscal Agent

17. TEGL 14-08 - Procurement • WIA regulations 20 CFR 664.610 • Chief elected officials and local boards are responsible for ensuring summer employment for youth. • Chief elected officials are the grant recipients for local youth funds, unless they choose another entity to be the grant recipient or fiscal agent. • The grant recipient/fiscal agent can administer summer youth employment opportunities themselves. Rochelle Daniels 954 205 2582 danielsrj@aol.com

18. Procurement Exception 2 Rochelle Daniels 954 205 2582 danielsrj@aol.com • NYS has requested a WIA § 123 waiver • To expedite the implementation of a summer youth program under ARRA • If approved the requirement to competitively procure youth providers for the summer program would be waived • Local boards would be able to expand their existing youth contracts by up to 100%

19. Who does this work for? Rochelle Daniels 954 205 2582 danielsrj@aol.com • Local areas • Which have contracted their youth programs – they are not case managing and referring from the one-stop • Which have enough youth providers • Where the providers have the capability of launching a summer program and can hire staff and gear up quickly • Clarification needed – summer may more than double the youth participants ( see waiver language )

20. NYS Proposed Waiver - B Rochelle Daniels 954 205 2582 danielsrj@aol.com If using current providers is not an option NYS also requested a waiver to allow local boards to conduct an expedited, limited competition among providers with existing records of success in providing youth services .

21. Who does this work for? Rochelle Daniels 954 205 2582 danielsrj@aol.com • Local areas with a pool (or at least one or two) youth successful providers • Might not be current WIA providers • Junior Achievement • Boys and Girls Clubs • Can be school system or community college • Must have the capacity and the willingness

22. Caution Rochelle Daniels 954 205 2582 danielsrj@aol.com • The waiver requests are only for the summer 2009 program • Funds not spent on summer will be subject to regular procurement requirements • Even 100% obligation results in some unspent funds. • Exception – NYS has a waiver allowing use of Individual Training Accounts by youth participants • May be important for funds unspent after the summer.

23. The NYS Waiver Rochelle Daniels 954 205 2582 danielsrj@aol.com • US DOL has said they would grant waivers similar to those requested by NYS • But --- if your area is going to operate a summer program time is of the essence • There may not be time to wait • There may not be a pool of existing successful youth providers if the waiver is granted • It’s a risk to act as if the waiver has been granted • Consider all options for implementation of summer • Local areas might want to begin some of the preliminary work while waiting for waiver approval

24. Summer money leftovers Rochelle Daniels 954 205 2582 danielsrj@aol.com • USDOL is not encouraging local areas to save money for next summer • Money left over after the summer is subject to procurement • Estimate 10% – 20% will be unspent because youth will not attend every day

25. Summer money leftovers Rochelle Daniels 954 205 2582 danielsrj@aol.com • Funds were parceled out to existing providers or through a limited competition • Cost reimbursement contracts - money unspent remains in LWIB coffers • Cost reimbursement with advances or draw downs unspent money is all or partially in the coffers of providers • Providers have current contracts • Providers do not have current contracts

26. Summer money leftovers Rochelle Daniels 954 205 2582 danielsrj@aol.com • Did your original RFP state that you could increase (or decrease) the contracts or renegotiate the contracts subject to fund availability? • Did you include that clause in your contracts? • Would funds simply increase the existing activities as opposed to creating new activities not included in the original RFP? • Do your summer contracts provide for recapture or deobligation of unspent funds

27. Summer money leftovers Rochelle Daniels 954 205 2582 danielsrj@aol.com • Best laid plans… • If an area realizes toward the end of the program they will have a surplus after the summer • Why • Youth never attend 100% of the days • Some leave early • Can’t over allocate because you are a governmental entity • You are a large system and do not want to over obligate

28. Summer money leftovers Rochelle Daniels 954 205 2582 danielsrj@aol.com • You have continued as many youth as possible to September 30, 2009 • You have backfilled as many youth as possible • NYS has requested a waiver to allow you to continue the youth 18-24 who are out of school • with Recovery Act funds • receiving work experience only • October 1, 2009 through March 31, 2010. 28

29. The BIG Waiver • The NYS waiver would • Waive the ten (10) program elements • Waive 12 months of follow-up • Allow local areas to determine appropriate assessment and individual service strategy for each youth. • Impact of the waiver if granted - local areas will be able to transition many older youth participants into workforce development activities beyond 3/31/10. Rochelle Daniels 954 205 2582 danielsrj@aol.com 29

30. Summer money leftovers Rochelle Daniels 954 205 2582 danielsrj@aol.com • If there is no legitimate way or no desire to fold funds into existing contracts • Consider advertising an RFP over once the summer program launches • Contracts begin at latest 10/1/09 • One time funds • Define period for expenditure of the • Purpose is to spend the money 30

31. Easy OverSummer money leftovers Rochelle Daniels 954 205 2582 danielsrj@aol.com • NYS – Youth ITA Waiver • Use Individual Training Accounts for Youth Program Participants • Through the one stop • Can hire case managers • Can cost allocate overhead • Through contracted providers – depending upon how RFP and contracts were originally structured • Object is to spend the funds – on appropriate objectives

32. Adults and Dislocated Workers Rochelle Daniels 954 205 2582 danielsrj@aol.com • For many areas formula allocations are doubled • Even using funds • to relieve over crowding in the one stop • To increase ITAs and other training options delivered through the one stop • It may not be enough to spend the ARRA money and regular allocation • Congress and USDOL are watching to see how funds are deployed • Consider an RFP

33. Adult and Dislocated WorkersRFP What? • Where the one-stop is not the intensive services provider … • The intensive services provider must be procured • A separate support services provider would also have to be procured • Will additional intensive services providers be needed • Keep it slim • ARRA says do not use for infrastructure Rochelle Daniels 954 205 2582 danielsrj@aol.com

34. Individual Training Accounts or Class Sized Training Rochelle Daniels 954 205 2582 danielsrj@aol.com • Local boards may award a contract to an institution of higher education or other eligible training provider • if the local board determines that it would facilitate the training of multiple individuals • in high-demand occupations • if such contract does not limit customer choice • AND • Proper Procurement Protocol is Followed

35. If an RFP is Required Rochelle Daniels 954 205 2582 danielsrj@aol.com • Workforce Investment Act you to • 29 CFR Part 95 (See 95.40 through 95.48 • 29 CFR Part 97 (See 95.36 et al) • The same procurement requirements as apply to summer except where ARRA provides anexception

36. What are the ARRA Adult and Dislocated Worker Procurement Exceptions NONE! Rochelle Daniels 954 205 2582 danielsrj@aol.com Other than individual training accounts … Other than OJT, IWT, EWT & CT on an individual basis…

37. How about the exceptions for public post secondary schools? There is none! The ARRA encourages class size training with Institutions of higher learning but provides no waivers of procurement Rochelle Daniels 954 205 2582 danielsrj@aol.com How about it?

38. Training Rochelle Daniels 954 205 2582 danielsrj@aol.com • In general training for WIA adults and dislocated workers must be provided using individual training accounts (ITA) WIA 134 • TEGL 14-08 says • Local areas may consider class size training for adult and dislocated worker services

39. Two Catégories of ITA Exceptions Rochelle Daniels 954 205 2582 danielsrj@aol.com • Employer driven training • OJT ~ On the Job Training • IWT ~ Incumbent Worker Training • EWT~ Employed Worker Training • CT ~ Customized Training • Gaps in the ITA Providers • Contracts for specific target groups • Not enough local providers • No training in green, health or anticipated demand occupations

40. ITA Exceptions Procurement Rochelle Daniels 954 205 2582 danielsrj@aol.com • Employer driven training • OJT -- EWT --IWT - CT • If not done on a one by one basis through the one stop • If delivered by a dedicated provider

41. The Nuances - OJT – EWT - IWT Rochelle Daniels 954 205 2582 danielsrj@aol.com • Not yet clear whether IWT waivers for the local WIBs will be granted • If not delivered by the one-stop operator or procured intensive services provider • If delivered by a provider • Determine whether it was covered by your current procurement • RFP states – local board can increase funds based upon allocation of discretionary grants or additional funds • Even with procured intensive services provider was it an anticipated activity?

42. Adult and Dislocated Worker Services – RFP Considerations • Open RFP • Advertise and accept applications until the money is gone • Review proposals and make awards monthly or every other month • Post changes and additions on your website Rochelle Daniels 954 205 2582 danielsrj@aol.com

43. Adult and Dislocated Worker Services – RFP Considerations Rochelle Daniels 954 205 2582 danielsrj@aol.com • RFP Inclusions – • RFP will be funded on a one-time basis. • Providers should not expect to be funded beyond June 30, 2011. • Contracts awarded will expire June 30, 2011. • Reserve the right to add money or extend if additional stimulus funds are made available following the contract expiration dateor if the activity funded exceeds performance and is determined

44. Adult and Dislocated Worker Services – RFP Consideration Rochelle Daniels 954 205 2582 danielsrj@aol.com • Class-sized training • Must be on the ITA List (TEGL 14 – 08) • Cannot duplicate training on the ITA list. • Allow applications simultaneous with RFP Response • Will you allow curriculum development?

45. Adult and Dislocated Worker Services – RFP Considerations Rochelle Daniels 954 205 2582 danielsrj@aol.com • WIA rules still apply • Adult education, basic or English language education must still be in conjunction with occupational skills training. • Training must be in a demand occupation (anticipated demand) • Consider performance requirements • AT THE END WE NEED A JOB!