It has been a little over a year since the American Recovery and Reinvestment Act (ARRA) was passed by Congress in hopes of jolting the slumbering U.S. economy. At first there was no discernable impact on most government contractors, leading many to believe that ARRA was just a parlor trick used to appease the masses, a mere illusion and nothing more.
by Andrew Mohr and C. Kelly Kroll
However, with each passing day a little more of the reported $787 billion stimulus package actually trickles down into the government marketplace, making ARRA and its compliance requirements a reality.
In anticipation of this eventuality, many agencies modified long-term contracts last fall to incorporate the ARRA provisions and specifically its reporting requirements. Thus, ARRA now applies to all GSA Schedules as well as other GWAC programs, such as GSA's Alliant program and NASA SEWP. Under ARRA, whenever a contract action is funded with ARRA dollars, contractors are required to submit reports through the government online site at www.FederalReporting.gov.
The reports are due within 10 days after the close of each federal quarter and include information on ARRA dollars awarded, money spent, jobs created, and general project information, including the location of the work being performed. This data is compiled and made available to the public via recovery.gov so that taxpayers can see where their tax dollars are going.
According to Recovery.gov, for the last quarter ending on Dec. 31, 2009, the vast majority of ARRA fund recipients complied with the reporting requirements. The Website also notes, however, that some reports were untimely filed while a small percentage of reports were apparently not filed at all. While the transgressions appear to be fairly small in scope, it would seem that the Obama Administration has no intentions of treading lightly on the non-compliant few.
In fact, to ensure that contractors comply with the rules, President Obama released a Presidential Memorandum on April 6, 2010, that directed agencies to quickly identify and report contractors who fail to file the required reports. More specifically, President Obama called on agencies to intensify their efforts to improve compliance by "terminating awards; pursuing measures such as suspension and debarment; reclaiming funds; and considering, initiating, and implementing punitive actions." Currently, noncompliant contractors are identified on the Recovery.gov Website for all to see, but in light of the April 6, 2010, memorandum, harsher penalties are more likely in store for those who fail to file.
Many contractors have contacted us wondering how they will know if ARRA funds are being used, thus triggering the reporting requirements. Our response is that it would be hard to miss. The Recovery Accountability and Transparency Board, which oversees ARRA spending, has implemented various procedures to ensure that contractors are aware of the ARRA funding. For example, government contracting personnel have been instructed to include "Recovery" as the first word in the Title field for all FedBizOpps announcements and postings and a special logo has been developed which is included in most ARRA contract documentation. ARRA funded solicitations also include FAR 52.204-11, which implements the ARRA reporting requirements.
When in doubt, of course, it is always advisable to ask the contracting officer for a confirmation. Don't leave to an informal telephone call, but ask for the confirmation in writing, even if only an email. A written confirmation by a contracting officer that your order does not use ARRA funds is an insurance policy well worth taking out.
Andrew Mohr is a partner in the law firm of Cohen Mohr LLP in Washington, D.C. Mohr specializes in government and commercial contracts, including GSA schedules, security clearance, contract administration and compliance, teaming agreements, subcontracts, dealer contracts, regulatory analysis and compliance, bid protests and claims.
C. Kelly Kroll is Of Counsel to Cohen Mohr with extensive experience in GSA Schedule contract proposal preparation, negotiation and administration. Mohr's email firstname.lastname@example.org; Kroll's email email@example.com; and either can be reached at (202) 342-2550, fax (202) 342-6147, and atwww.cohenmohr.com. © Copyright Andrew Mohr & C. Kelly Kroll 2010, All Rights Reserved.