steven spillan, esq. [email protected] brustein & manasevit, pllc fall forum 2014

Steven Spillan, [email protected] & Manasevit, PLLCFall Forum 2014

AgendaCurrent RulesOmni-Circular RulesPossible Pushback by Agencies

Brustein & Manasevit, PLLC 2

OMB A-87: Attachment B, Section 27, 42, and 43OMB A-21: Attachment A, Section J, Items 32, 51, and 53


Current Law: A-87 / A-21Costs of meals and travel are

allowable if primary purpose of meeting / conference is dissemination of technical information

The cost of training provided for employee development is allowable


Training and Education (200.472)The cost of training and education provided

for employee development is allowable

Expanded definition to include “education.”OIG concerned the category is too “open

ended”


Conferences (200.432)Conference defined as:

A meeting, retreat, seminar, symposium, workshop or event

Whose primary purposes is the dissemination of technical information beyond the non-federal entity and

Is necessary and reasonable for successful performance under the Federal award


Conferences (cont.)Allowable conference costs may include:

Rental of facilitiesSpeakers’ feesCosts of meals and refreshments*Local transportationOther items incidental to such conferences

unless restricted by terms of federal award


Conferences – Dependent CareCosts of identifying, but not providing, locally

available dependent-care resources are allowable.

Part of OMB’s new “family-friendly” policiesMeant to better enable employees of non-

federal entities with dependent care responsibilities to progress in their careers

Essential for advancing the careers of women in STEM fields


Conferences (cont.)Conference hosts/sponsors must exercise

discretion and judgment in ensuring that conference costs are appropriate, necessary and managed in a manner that minimizes costs to the federal award.


Travel Costs (200.474)Defined: Expenses for transportation,

lodging, subsistence, and related items incurred by employees who are on travel for official business.

May be charged:On a per diem or mileage basis;Actual Costs; or,A combination of the two—provided the method

used is applied to an entire trip and not to selected days of the trip.


Travel (cont.)To charge to Federal award, must show:

Participation of the individual is necessary to the federal award; AND

The costs are reasonable and consistent with the entity’s written travel policy (new requirement).

In the absence of established policy, the rates established under 5 U.S.C. 5701-11, by GSA, or by the President must apply to travel under Federal awards


Travel (cont.)May only pay for the “basic least expensive

unrestricted accommodations class offered by commercial airlines”, UNLESS:Requires circuitous routing;Requires travel during unreasonable hours;Excessively prolongs travel;Results in additional costs that would offset the

transportation savings; or,Not reasonably adequate for traveler’s medical

needs.Must justify and document these conditions on

a case-by-case basis in order for the use of first-class or business-class airfare to be allowable.


Travel – Family FriendlyDependent care costs above and beyond

regular dependent care that directly result from travel to conferences are allowable provided the costs are:Direct result of the individual’s travel for the Federal award;Consistent with entity’s documented travel policy;Temporary during the travel period.

Travel costs for dependents are unallowable, except for travel of duration of six months or more with prior approval.


OIG Concerns – Summer 2014OIGs have found conferences held

by recipients where per-person cost of daily catering was between 189% and 400% of applicable location’s federal per diem for meals and incidental expenses


OIG Concerns (cont.)OMB should limit meal costs to

federal per diem rates and document a cost comparison of at least three sites to determine most cost-advantageous location


ESEA Title II, Part A FAQ ‘Guidance’Issued May 2013 via e-mailAvailable on-line:

http://www2.ed.gov/policy/fund/guid/gposbul/faqs-grantee-conferences-may-2013.doc

ED Effort to take “greater care in enforcing and monitoring” these costs

Title II, Part A office is responsible for the largest amount of grant funds related to professional development

Very high burden of proof to show that paying for food is necessary


Title II, Part A ‘Guidance’ (cont.)Q&A #3: Consider whether hosting a

meeting or conference is the most effective or efficient way to achieve the desired result.

Q&A #6: When hosting a meeting, structure the agenda

so there is time for participants to purchase their own food, beverages, or snacks.

Consider a location in which participants have easy access to food and beverages.


Title II, Part A ‘Guidance’ (cont.)Q&A #7: In virtually all cases, using grant funds

to pay for food and beverages for receptions and “networking” sessions is not justified

Q&As #8, 9: Beware of ‘free’ food and beverages embedded in a contract for meeting space; ask hotel to ‘back out’ such costs.

Q&A #13: May offer meeting participants the option of paying for food and beverages and arrange for items to be available at the meeting.


Weight of this Guidance?Does not meet standard of “Good Guidance”

(OMB Bulletin No. 07-02)SASA Deputy Director clarified applicability

of this guidance in June 2013:This new guidance is generally intended to apply to

professional meetings, including those that you may have with LEA staff, and not to school-based events such as a Title I parent meeting. As a result, as long as there is a connection to a programmatic purpose and the cost is reasonable, an LEA may continue to provide food at Title I parent meetings.


ED Office of General CounselNational Association of State Title I

Directors, February 2014Very high burden of proof to show that

paying for food and beverages with federal funds is necessary to meet the goals and objectives of a federal grant.Structure agenda to allow participants time to

purchase their own foodConsider a location with easy access to food


ED OGC (cont.)“Working Lunch” may be allowable. Factors

to consider:1. Is a working lunch necessary?2. Is the portion of the agenda to be carried out

during lunch substantive and integral to the overall purpose of the meeting?

3. Is there a genuine time constraint that requires the working lunch?

4. If a working lunch is necessary, is the cost of the working lunch reasonable?

5. Has the SEA or LEA carefully documented that a working lunch is both reasonable and necessary?


DISCLAIMERThis presentation is intended solely to provide

general information and does not constitute legal advice or a legal service. This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.


steven spillan, esq. [email protected] brustein & manasevit, pllc fall forum 2014

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