CAPLAW eNews Bulletin - August 2018
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• Newly Increased Procurement Thresholds in the Uniform Guidance
• The Time is Now to Implement the Uniform Guidance’s Procurement Rules
• Wage & Hour Update for CAAs Working with Interns & Volunteers
• Employers Take Note:New NLRB Guidance on Workplace Rules and Employee Handbooks
• Office of Head Start Issues Program Instruction on Enrollment
• Think Before You Solicit: Does Your State Require Registration Before Asking for Contributions?
Newly Increased Procurement Thresholds
in the Uniform Guidance
Effective June 20, 2018, the Office of Management and Budget (OMB) increased the thresholds under the Uniform Guidance, 2 C.F.R. Part 200, for micro-purchases to $10,000 (from $3,500), and for simplified acquisitions to $250,000 (from $150,000) (see OMB memo implementing the change). These thresholds, which are set by the Federal Acquisition Regulation at 48 C.F.R. Subpart 2.1 (Definitions), are periodically adjusted for inflation.
The new thresholds establish maximum levels and federal grant recipients and subrecipients are not obligated to raise the thresholds in their policies to reflect the adjustments. A Community Action Agency (CAA) may raise thresholds for some procurement activities and not others depending on what amount, up to the Uniform Guidance threshold level, best fits the way the organization operates.
Changes to these thresholds are important because they impact the methods of procurement CAAs may use under the Uniform Guidance, 2 C.F.R. § 200.320. For example, a CAA may purchase goods or services that do not exceed the micro-purchase threshold without soliciting competitive quotations, if the CAA considers the price to be reasonable and makes a reasonable effort to distribute the purchases equitably among qualified suppliers. A CAA may also purchase goods or services up to the simplified acquisition threshold without soliciting formal bids, so long as price or rate quotations are obtained from an adequate number of qualified sources.
To take advantage of these higher thresholds, a CAA must update its procurement policies and procedures to reflect the change, in accordance with the Uniform Guidance, 2 C.F.R. § 200.318(a).
The Time is Now to Implement the
Uniform Guidance’s Procurement Rules
(If You Haven’t Already)
While the Uniform Guidance, 2 C.F.R. Part 200, has been the law of the land since December 2014, the Office of Management and Budget (OMB) permitted recipients of federal grant funds to delay the effective date for the Uniform Guidance procurement requirements in Subpart D, Sections 200.317-200.326 for up to three full fiscal years. Grant recipients that wanted to delay implementation of these procurement rules were required to document their decision in their internal procurement policies. For
those recipients that chose to delay implementation, the Uniform Guidance procurement requirements are effective for fiscal years beginning on or after December 26, 2017. To comply with the new requirements, CAAs must implement written policies and procedures that align with the Uniform Guidance’s procurement standards. For an analysis of these rules, see Chapter 3, Section F of CAPLAW’s CAA Leaders’ Legal Guide.
Wage and Hour Update for CAAs Working
with Interns and Volunteers
The U.S. Department of Labor (DOL) issued updated guidance earlier this year that clarifies the analysis public and nonprofit employers must undergo to determine whether work performed by an intern or volunteer triggers federal wage and hour compliance obligations. Even though the DOL guidance, Fact Sheet #71 “Internship Programs Under the Fair Labor Standards Act,” specifically addresses for-profit employers, it has been the main source of general information for all employers regarding whether an employer must treat interns or volunteers as employees under the Federal Fair Labor Standards Act (FLSA) and pay them minimum wage and overtime. The DOL’s update to this guidance not only establish a more flexible test, it also includes a footnote that alleviates much of the burden of the test for nonprofit and public employers.
Employers Take Note: New NLRB Guidance on Workplace Rules and Employee Handbooks
The National Labor Relations Board (NLRB) recently issued new guidance on workplace rules, policies, and employee handbook provisions under the National Labor Relations Act (NLRA). The guidance addresses rules that appear neutral but could unlawfully interfere with an employee’s exercise of NLRA-protected rights. The NLRB has previously held that many workplace rules regulating employee conduct violate an employee’s Section 7 rights when the rules prevent employees
from discussing the conditions of their workplace with other employees. The new guidance promotes a more employer-friendly framework for evaluating workplace rules and employee policies, including social media policies.
Office of Head Start Issues Program
Instruction on Enrollment
On June 5, 2018, the Office of Head Start (OHS) issued Program Instruction (PI) ACF-PI-HS-18-04 to provide guidance on the Head Start Act’s requirement that programs maintain their full funded enrollment level. The PI also addresses grantees that are underenrolled and the process by which OHS can designate programs as “Chronically Underenrolled,” defined as failing to maintain at least 97% funded enrollment over a 12-month period, following an initial 4 consecutive months of underenrollment. OHS can take action against grantees designated as Chronically Underenrolled, including recapturing, withholding, or reducing annual funding and funded enrollment.
Think Before You Solicit: Does Your State Require Registration Before Asking for Contributions?
Getting ready to host your CAA’s annual fundraising gala? Or planning to launch an online giving campaign? Think before you solicit. Many states require charitable organizations to register before soliciting contributions within that state. “Soliciting” usually includes making oral, written or online requests for contributions, which means that your organization may need to register with a particular state even if it does not have a physical presence there.
Read this legal alert from the law firm Venable LLP for more information about charitable solicitation rules that apply to nonprofit CAAs. Additionally, the Pro Bono Partnership of New York, New Jersey and Connecticut issued a Summary Survey of State Charity Registration Requirements in February 2018, which provides a general overview of charitable solicitation requirements in each of the 50 states.
This e-News Bulletin is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number 90ET0467-01-00. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.
The contents of this publication are intended to convey general information only and do not constitute legal advice. Any communication through this publication or through CAPLAW’s website does not constitute or create an attorney-client relationship. If you need legal advice, please contact CAPLAW or another attorney directly.
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