Section 872 Guidance Creates Headaches by Reordering Provisions

August 27, 2015 | By Jerry Ashworth | Post a Comment

standing-in-line-649896_640Remember when you were in the lunch line in school and some smart aleck, with no regard to those currently waiting, took it upon himself to break in line? Unfortunately, I’ve continued to witness this practice in adult life countless times over. It’s irritating and messes with an orderly system.

Now we can thank the Office of Management and Budget for getting things out of order. As part of a new final guidance released in the July 22 Federal Register related to Section 872 of the Duncan Hunter National Defense Authorization Act of 2009, OMB messed with the order of the uniform guidance. The Section 872 guidance requires federal agencies to take extensive measures to evaluate the integrity of nonfederal entities, affecting both pre-award and post-award processes.

So what did OMB do? It created a new §200.212 under Subtitle C entitled “Reporting a determination that a nonfederal entity is not qualified for a federal award,” and pushed back the existing §200.212 on “Suspension and debarment” to a new §200.313. At first, this might not seem to be that big a deal, just a bit of federal provision reallocating. However, federal agencies that are required to adopt these new regulations and make them applicable by Jan. 1 may have a more difficult task ahead of them.

For example, when the Department of Health and Human Services adopted the uniform grant guidance into its regulation within 45 C.F.R. Part 75, it included several other provisions after the existing §75.212 on suspension and debarment. These include provisions on metric system of measurement (§75.213), disclosure of lobbying activities (§75.214), special provisions for awards to commercial organizations as recipients (§75.215), special provisions for awards to federal agencies (§75.216), and participation by faith-based organizations (§75.217).

Now, I haven’t seen whether HHS is going to shift all these provisions back a number to locate the new provision on “reporting a determination” at §75.212, but it’s quite possible. There may be several other sections within HHS’ regulation that reference provisions within the current §§75.212-75.217 structure, and all of those will need careful review to ensure they are updated accordingly. This, to me, doesn’t seem like the best use of our government resources.

It seems that OMB would have been better off if it had added the new provision as the last one under Subtitle C of the uniform guidance and kept the existing order. This would’ve given the agencies more flexibility in including it in their regulations. This new Section 872 guidance, as we’ve reported in previous blog posts, is a big deal for federal agencies and their grant recipients and maybe the order of the provision won’t make for splashy headlines. But such reordering can cause big headaches.

Let us know how you feel about the new order of provisions in Subtitle C and how that could be confusing when trying to keep up with the regulations.

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