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									 American Recovery and
Reinvestment Act (ARRA)


COMPLIANCE TRAINING SERIES
          PROCUREMENT,
  STANDARD CONTRACT PROVISIONS,
 CERTIFICATIONS, WHISTLEBLOWERS
                       Agenda
                           2

I.    Procurement

II.  Standard Contract Provisions


III.  Certifications


IV.  Whistleblowers
I. PROCUREMENT
                   Definition
                          4




Procurement—shall mean the process whereby
Government acquires goods and services at the best
possible total cost from the right source.
               ARRA Section 1554
                             5

  Award fixed-price contracts whenever possible. Using
 other than a fixed-price contract may be appropriate but
 requires Recipients to pay special attention to ensuring
 contractor oversight.

  Engage in competitive bidding with fair and open
 competition. Recipients are expected to follow the same
 competitive procurement requirements in selecting
 contractors for Recovery Act funded contracts as they do
 in expending other funds. Expeditious expenditure of
 the funds does not constitute a sufficient justification to
 support contract award on a non-competitive basis.
     Puerto Rico ARRA Implementation
         Guideline (PRAIG), 09-02
                                6

  Furthermore, PR Government Entities must be guided by
 the following objectives, when procuring goods and services
 using ARRA funds public funds, bearing in mind that they
 are entrusted with the duty to expend these funds
 responsibly and in a transparent manner to further the job
 creation, economic recovery, and other purposes of the
 ARRA:
        •  Transparency and merit-based selection criteria will
           guide their available discretion in committing,
           obligating, or expending funds under ARRA ;
        •  Mitigate schedule, cost, and performance risk;
              PRAIG 09-02
                           7

•  Define contract requirements that deliver meaningful and
   measurable outcomes consistent with agency plans and the
   goals of the ARRA;
•  Obtain maximum practicable competition;
•  Maximize opportunities for small business to compete for
   agency contracts and to participate as subcontractors;
•  Expeditiously award contracts using available streamlining
   flexibilities;
•  Apply sufficient and adequately trained workforce to
   responsibly plan, evaluate, award, and monitor contracts;
•  Ensure resources are available and perform diligent contract
   administration of all contracts until completion and
   appropriate agency oversight is provided at critical decision
   points;
                  PRAIG 09-02
                              8

•  Support projects that have, among other things and to the
   greatest extent:
     •  a demonstrated or potential ability to deliver programmatic
        results;
    •  optimizeeconomic activity and the number of jobs created
     or saved in relation to the dollars obligated;
             long-term public benefits by, for example, investing
    •  achieve
     in technological advances in science and health to increase
     economic efficiency and improve quality of life;
               in transportation, environmental protection, and
    •  investing
     other infrastructure that will provide long-term economic
     benefits;
    •  fostering   energy independence; or improving educational
     quality.
                      PRAIG 09-02
                                  9

  Each PR Government Entity head and Federal Fund Manager
  should review OMB Guidance, each Award Notification and related
  Funding Opportunities Announcement (FOAs) and CFRs to ensure
  compliance with particular and specific procurement requirements
  of each grant.

  It is imperative that no Puerto Rico procurement law or regulation
  be bypassed or not complied with on the account of expediting the
  development of ARRA funded projects.

  When a PR Government Entity understands that such schedule
  compliance is not possible if it follows the same laws, principles,
  procedures, and practices in awarding its usual contracts, the
  agency must consult with AFI according to Act No. 8, which
  empowers AFI to direct assisted entities to follow alternative
  procurement processes.
               ARRA Procurement
                              10

  The prospective contractor must be qualified and eligible
  under applicable Puerto Rico laws and regulations.

  PR Government Entities are reminded that they should
  also review any available list of contractors not qualified
  to do business with the Government of Puerto Rico and
  the Federal Government Excluded Parties List System
  before determining that a prospective contractor is
  responsible. https://www.epls.gov/

  When an acquisition poses unique risks, agencies may
  also use special responsibility standards in the selection
  process to mitigate the risk.
ARRA Procurement
              11




  PR Government Entities
must identify the solicitation
as one funded by the ARRA.
Example: ARRA Procurement Checklist
                 12
II. STANDARD CONTRACT
       PROVISIONS
                            Sources
                                 14

  Specific existing legal requirements typical of contracting with
  the Federal Government have also been included in ARRA and
  have been interpreted to be provisions applicable to recipients
  at the State level (denominated, “flow-down” provisions).
       ARRA Section 902
       ARRA Section 1515

  Specific required contract provisions Stated in memo from AFI
  to agencies and municipalities dated June 8, 2009.

  OMB clarifications regarding allowable costs must be
  considered.

  Puerto Rico ARRA Implementation Guidelines (PRAIG) 09-02
  (September 1st, 2009)
  Required Contract Provision to Implement ARRA
                   Section 902
                         15

  Section 902, of the American Recovery and Reinvestment Act (ARRA) of
  2009, requires that each contract awarded using ARRA funds must
  include a provision that provides the U.S. Comptroller General
  and his representatives with the authority to:
(1) to examine any records of the contractor or any of its subcontractors, or
  any State or local agency administering such contract, that directly pertain
  to, and involve transactions relating to, the contract or subcontract; and
(2) to interview any officer or employee of the contractor or any of its
   subcontractors, or of any State or local Government agency administering
   the contract, regarding such transactions.


  Accordingly, the Comptroller General and his representatives shall have the
  authority and rights as provided under Section 902, of the ARRA with
  respect to this contract, which is funded with funds made available under
  the ARRA. Section 902, further States that nothing in this section shall be
  interpreted to limit or restrict in any way any existing authority of the
  Comptroller General.
   Authority of the Inspector General- ARRA 1515
                          16

  Section 1515(a) of the ARRA provides authority for any
 representatives of the Inspector General to examine any
 records or interview any employee or officers working on
 this contract.

  The contractor is advised that representatives of the
 Inspector General have the authority to examine any
 record and interview any employee or officer of the
 contractor, its subcontractors or other firms working on
 this contract.

  Section 1515(b) further provides that nothing in this
 section shall be interpreted to limit or restrict in any way
 any existing authority of an Inspector General.
                 PRAIG 09-02
                          17

  The requirement to share data for compliance with
 reporting requirements shall be included in contracts
 entered into by PR Government Entities with sub-
 grantees, contractors and subcontractors receiving
 ARRA funds to ensure effective implementation of
 ARRA accountability requirements.
            Document Retention
                           18

  PR Government Entities shall require its subgrantees
 and contractors to, retain all records in connection
 with the project and activity funded with ARRA
 funds for three (3) years after receiving final
 payment under the applicable grant or contract and
 all other pertinent matters are closed.
III. CERTIFICATIONS
          Certifications in General
                           20

Grantee must identify certifications required:

•  Required by Law (example Section 1511); or

•  Required by Grant (or Program Specific)
ARRA Section 1511
        21
                ARRA Section 1511
                                22

•  For funds made available to State or Local
 Governments for infrastructure investments,
 •  the Governor, Mayor, or other Chief Executive, as appropriate,
    must certify that the infrastructure investment has received
    the full review and vetting required by law and that the Chief
    Executive accepts responsibility that the infrastructure
    investment is an appropriate use of taxpayer dollars.
    A description of the investment, estimated total cost, and the
    amount of ARRA funds used shall be provided and published
    on the ARRA Web site. Funds may not be provided to
    State or local agencies until this certification is made
    and posted on this Web site.
                ARRA Section 1511
                              23




  This certification must be completed and
  posted before funds are received.

  Posted = www.buengobiernopr.gov which is linked by:
  www.recovery.gov

  Mr. Fred Gordo will be coordinating these efforts with the
  Web Master at Office of the Governor (Fortaleza).
 Example / Template Certification 1511
                                                 24

                      CERTIFICATION UNDER SECTION 1511 OF
                 THE AMERICAN RECOVERY AND REINVESTMENT ACT

Pursuant to Title XV, Subtitle A, Section 1511 of the American Recovery and
Reinvestment Act (Pub. L. 111-5 (Feb. 17, 2009)) (“ARRA”), I, _______________*,
hereby certify that the infrastructure investment funded by ARRA has received the full
review and vetting required by law and that I accept responsibility that such
investments are appropriate uses of taxpayer dollars. I further certify that the specific
information required by Section 1511 concerning each such investment (a description
of the investment, the estimated cost, and the amount of ARRA funds to be
used) is described below:

Description of Investment                  Estimated Costs              ARRA Funds to be Used

I understand that my State or local agency may not receive ARRA infrastructure investment
funding unless this certification is made and posted.
__________________________
Signature
Signed this ______________, day of ______________, 2009
*In accordance with Section 1511 of ARRA, the Certifying Official may be either the Governor, Mayor,
or other Chief Executive, as appropriate.
         Additional Comments: 1511
                              25

•  Certifications will be posted on the web (Government
   Entity should keep copy for their records)
•  Must check with Grant Award (who is the Grantee:
   Governor/Mayor )
•  “Infrastructure” – Not defined by the statute
•  Guidance indicate to define “Infrastructure” in a broader
   sense
     •  Example: if funds are used to buy door knobs - this
        expenditure will be considered infrastructure
        investment
IV.   WHISTLEBLOWERS
 Federal False Claims Act 31 U.S.C. §§ 3729-3733 and
      ARRA, div. A, Title XV, Subtitle D § 1553
                               27

  No PR Government Entity, nor its sub-grantees or
  contractors or subcontractors shall:
  knowingly present, or cause to be presented to the
  Government of the United States a false claim for payment;
  knowingly make, use, or cause to be made or use, a false
  record or Statement to get a false claim paid or approved by
  the Government;
  conspire to defraud the Government of the United States by
  getting a false claim allowed or paid;
Federal False Claims Act 31 U.S.C. §§ 3729-3733 and
  ARRA, div. A, Title XV, Subtitle D § 1553 (cont.)
                             28

   falsely certify to the United States the type or amount of
   property to be used;
   certify receipt of property on a document without
   completely knowing that the information is true;
   knowingly buy Government of the United States
   property from an unauthorized officer of the
   Government of the United States, or;
   knowingly make, use, or cause to be made or used a false
   record to avoid or decrease an obligation to pay or
   transmit property to the Government of the United
   States.
   Sec. 1553. Protecting State and Local
Government and Contractor Whistleblowers.
                               29

(a) PROHIBITION OF REPRISALS.—An employee of any
    non-Federal employer receiving covered funds may not be
    discharged, demoted, or otherwise discriminated against
    as a reprisal for disclosing, including a disclosure made in
    the ordinary course of an employee’s duties, to the Board,
    an inspector general, the Comptroller General, a member
    of Congress, a State or Federal regulatory or law
    enforcement agency, a person with supervisory authority
    over the employee (or such other person working for the
    employer who has the authority to investigate, discover, or
    terminate misconduct), a court or grand jury, the head of
    a Federal agency, or their representatives.
   Sec. 1553. Protecting State and Local
Government and Contractor Whistleblowers.
                                 30

Information that the employee reasonably believes is evidence of:
(1) gross mismanagement of an agency contract or grant relating to
   covered funds;
(2) a gross waste of covered funds;
(3) a substantial and specific danger to public health or safety
   related to the implementation or use of covered funds;
(4) an abuse of authority related to the implementation or use of
   covered funds; or
(5) a violation of law, rule, or regulation related to an agency
   contract (including the competition for or negotiation of a
   contract) or grant, awarded or issued relating to covered funds.
   Sec. 1553. Protecting State and Local
Government and Contractor Whistleblowers.
                                  31

(b) INVESTIGATION OF COMPLAINTS.—
(1) IN GENERAL.— A person who believes that the person has
   been subjected to a reprisal prohibited by subsection (a) may
   submit a complaint regarding the reprisal to the appropriate
   inspector general. Except as provided under paragraph (3),
   unless the inspector general determines that the complaint is
   frivolous, does not relate to covered funds, or another Federal or
   State judicial or administrative proceeding has previously been
   invoked to resolve such complaint, the inspector general shall
   investigate the complaint and, upon completion of such
   investigation, submit a report of the findings of the investigation
   to the person, the person’s employer, the head of the appropriate
   agency, and the Board.
   Sec. 1553. Protecting State and Local
Government and Contractor Whistleblowers.
                              32

(2) TIME LIMITATIONS FOR ACTIONS.—
(A) IN GENERAL.—Except as provided under subparagraph
   (B), the inspector general shall, not later than 180 days
   after receiving a complaint under paragraph (1)—H. R. 1—
   184
(i) make a determination that the complaint is frivolous, does
   not relate to covered funds, or another Federal or State
   judicial or administrative proceeding has previously been
   invoked to resolve such complaint; or
(ii) submit a report under paragraph (1).
   Sec. 1553. Protecting State and Local
Government and Contractor Whistleblowers.
                               33

(B) EXTENSIONS.—
(i) VOLUNTARY EXTENSION AGREED TO BETWEEN
   INSPECTOR GENERAL AND COMPLAINANT.—If the
   inspector general is unable to complete an investigation
   under this section in time to submit a report within the
   180-day period specified under subparagraph (A) and the
   person submitting the complaint agrees to an extension of
   time, the inspector general shall submit a report under
   paragraph (1) within such additional period of time as shall
   be agreed upon between the inspector general and the
   person submitting the complaint.
   Sec. 1553. Protecting State and Local
Government and Contractor Whistleblowers.
                                    34

(ii) EXTENSION GRANTED BY INSPECTOR GENERAL.—
If the inspector general is unable to complete an investigation under this
   section in time to submit a report within the 180-day period specified
   under subparagraph (A), the inspector general may extend the period
   for not more than 180 days without agreeing with the person
   submitting the complaint to such extension, provided that the inspector
   general provides a written explanation (subject to the authority to
   exclude information under paragraph (4)(C)) for the decision, which
   shall be provided to both the person submitting the complaint and the
   non-Federal employer.
(iii) SEMI-ANNUAL REPORT ON EXTENSIONS.—The inspector general
   shall include in semi-annual reports to Congress a list of those
   investigations for which the inspector general received an extension.
                In Puerto Rico
                          35

Any person shall promptly refer to the Task Force of
the Government of Puerto Rico, with a copy to the
Executive Director of AFI, any credible evidence that
an officer, principal, employee, agent, Contractor,
Subcontractor, or any other person has taken any
action for which such person could be subject to
liability under the Federal False Claims Act or has
committed a criminal or civil violation of laws
pertaining to fraud, conflict of interest, bribery,
gratuity, or similar misconduct involving ARRA Funds.
 Posters: Whistle Blower Protections
                           36

  PR Government Entities shall prepare posters to be
 placed in their facilities to alert employees about the
 Whistle Blower Protections warranted to them.

  PRAIG 09-02 (September 1, 2009) Appendix 2
 shows the poster used by the U.S. Department of
 Transportation which may be used by PR
 Government Entities as a model.
             Contact
                    37


   Antonio Fernández
     Compliance Coordinator
           Tel.: 787.378.7707
           Fax: 787.641.6898
           Fax: 787.641.6850
      afernandez@afi.gobierno.pr

  INFRASTRUCTURE FINANCING AUTHORITY
         (AFI, for its acronym in Spanish)
235 CAPITAL CENTER BUILDING, NORTH TOWER
      ARTERIAL HOSTOS AVE. SUITE 1601
           SAN JUAN, PR 00918-1433

								
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