Uniform Guidance “Musts” and “Shoulds” Still Cause Confusion

April 17, 2018 | By Jerry Ashworth | Post a Comment

omelette-1330024In an odd way, I found myself thinking about the anti-drug public service announcement campaign from the late 1980s while attending a Grants Training Forum yesterday hosted by Thompson Information Services and the Public Contracting Institute here in Washington, D.C. If you’re part of the younger generation and haven’t seen this rather famous TV commercial, it features a sizzling frying pan, and the announcer says, “OK, last time. This is drugs.” Then an egg comes down on the pan and begins frying, to which the announcer continues, “This is your brain on drugs. Any questions?” The 15-second spot proved a creative metaphor for the dangers of drugs. Now, why did this commercial come to mind when discussing grants? It actually has nothing to do with drugs as much as the start of the commercial — in particular, the phrase, “OK, last time.”

During the opening session of the training forum, which was an overview of key provisions in the Office of Management and Budget’s uniform guidance, one of the attendees asked a question about the difference between provisions that use the word “must” and those that use “should” within the guidance. After covering grants as long as we have, we tend to think that most grantee questions evolve around more confusing details of the guidance, such as determining how to develop and apply an adequate indirect cost rate or what type of procurement steps are necessary to follow in certain circumstances. Now that the guidance has been out for almost five years, one takes for granted that nonfederal entities would already know the “basics,” such as the difference between the “musts” in the guidance compared to the “shoulds.” We even addressed this issue in a blog post almost four years ago.

For example, in §200.321(a), the guidance states that “the nonfederal entity must take all necessary affirmative steps to assure that minority businesses, women’s business enterprises and labor surplus area firms are used when possible.” However, in ¶§200.230 under methods of procurement, the guidance states that, “in order for sealed bidding to be feasible, the following conditions should be present: (i) a complete, adequate, and realistic specification or purchase description is available; (ii) two or more responsible bidders are willing and able to compete effectively for the business; and (iii) the procurement lends itself to a firm fixed price contract and the selection of the successful bidder can be made principally on the basis of price.”

How should nonfederal entities react to these differences in emphasis? To use the line from the antidrug commercial, “OK, last time;” when the word “should” is used, it is alluding to best practices or a recommended approach. However, when the word “must” is used, it is alluding to something that is required. Any questions?

Do you understand the difference between “must” and “should” as used in the uniform guidance? We’d love to hear your thoughts.

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