Procurement Guidance for FEMA Public Assistance Grants

Procurement Overview & Methods

The financial assistance provided through the PA Program is subject to the federal procurement under grant standards under the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards found at 2 C.F.R. §§ 200.317-326. 

As a condition of receiving reimbursement for contractor costs relating to FEMA’s federal assistance program, an NFE must comply with all applicable federal laws, regulations, and executive orders. Each NFE (Applicant) is responsible for managing and administering its federal awards in compliance with the applicable requirements, including but not limited to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards codified at 2 C.F.R. Part 200 (Uniform Rules), which DHS adopted at 2 C.F.R. § 3002.10.  Specifically, the regulations at 2 C.F.R. §§ 200.317-326 set forth the procurement standards that NFEs must follow when using FEMA financial assistance to conduct procurements of real property, goods, or services. 

Failure to follow the Uniform Rules found in 2 C.F.R. Part 200 when procuring and selecting contractors places PA applicants at risk of not receiving full reimbursement for associated disaster costs

The federal procurement under grant standards are relatively brief. They only address certain, limited procurement concepts and do not focus on all possible procurement issues. Where the federal procurement under grant standards do not address a specific procurement issue, a non-state entity must abide by the applicable local, state, and/or Tribal procurement standards or regulations – whichever applies to the particular non-state entity. 

However, where a difference exists between a federal procurement standard and a local, state, and/or Tribal procurement standard or regulation, the non-state entity must apply the rule(s) that allow for compliance with all applicable layers. 

Non-state entities are at risk of not receiving or keeping full reimbursement for associated disaster costs if they fail to comply with the mandatory general procurement under grant standards

Documentation A non-state entity should also include the following documentation in its procurement file, as appropriate: 

  • Acquisition planning information and other pre-solicitation documents; 
  • The statement of work/scope of services; 
  • A list of sources solicited; 
  • Copies of published notices of proposed contract action; 
  • Copies of the solicitation documents, as well as any addenda or amendments; 
  • The notice to unsuccessful bidders or offers and a record of any debriefing; 
  • A record of protests, disputes and claims; 
  • Copies of bid, performance, payment, and other bond documents; 
  • The notice to proceed; and 
  • The steps it took to comply with the affirmative socioeconomic steps required

Rationale for Method of Procurement 

A non-state entity must document its rational for the method of procurement used for each contract (i.e., micro-purchase procedures, small purchase procedures, the sealed bidding method, the competitive proposal method or the noncompetitive proposal method). If utilizing the noncompetitive proposal method, the non-state entity must justify why this method was necessary. The Uniform Guidance breaks down the procurement process into five purchasing methods.

Method #1: Micro-Purchase -

Micro-purchases are the simplest and most informal of the procurement methods. Here are the main points:

  • Purchases are not to exceed was $3500 Now $10,000 
  • No quotations required if the price is reasonable
  • Documentation A non-state entity must document its determination that the price is fair and reasonable, and the basis for that determination. 

 

Method #2: Small Purchase -

Purchases under the simplified acquisition rules (were $150,000 NOW $250,000) the process is still relatively simple and there are not extensive bidding requirements.

  • Purchases are up to $150,000 NOW $250,000 (the limit for the simplified acquisition rules)
  • Get rate quotations from an adequate number of qualified sources (Note, your written procurement procedures should define what is meant by “adequate” for example; more than one.)
  • No cost or price analysis is required for purchases under the simplified acquisition limit

A non-state entity wishing to purchase supplies or services by small purchase should not exceed the simplified acquisition threshold, or the comparable state/local/Tribal threshold, whichever is lowest. In other words, a non-state entity must follow the most restrictive small purchase rules. 

Contracts resulting from small purchase procedures should be fixed price or not-to-exceed cost-reimbursement contracts with assurances that the scope of work can be completed for less than the simplified acquisition threshold. 

  • Documentation A non-state entity must document the procurement history as detailed in 2 C.F.R. § 200.318(i). Documentation should include an independent estimate of the costs of the procurement that indicates the total estimated cost to fall below the simplified acquisition threshold. 

 

Method #3: Sealed Bid - >$250,000

Purchases over was $150,000 NOW $250,000. the process gets more complicated and formalized.

  • Purchases are over was $150,000 NOW $250,000
  • Primarily used in construction projects, such as a firm fixed price contract
  • Price is a major factor and a formal process for bidding is generally required
  • To the extent practicable, distribute purchases equitably among qualified suppliers

The sealed bid method is the preferred method for procuring construction services and is appropriate when the following conditions are present: 

  • Complete, adequate, and realistic specifications or purchase descriptions are available;
  • Two or more responsible bidders are willing and able to compete effectively for the business;
  • The procurement lends itself to a fixed price contract;and 
  • The non-state entity primarily selects the successful bidder on the basis of price. This includes the price-related factors included within the solicitation. Other than the responsibility determination, the non-state entity may not select a contractor on the basis of non-price-related factors. 

  Documentation If using the Sealed Bidding method of procurement, the non-state entity must document the procurement history.127 They may also reject any or all bids if there is a sound documented reason. The regulations do not provide guidance regarding what that entails, but some of the circumstances under which a non-state entity may reject an individual bid include but are not limited to: 

  • The bid fails to conform to the essential requirements or applicable specifications as outlined in the IFB; 
  • The bid fails to conform to the delivery schedule as outlined in the IFB; 
  • The bid imposes conditions that would modify the requirements as outlined in the IFB; 
  • The non-state entity determines that the bid price is unreasonable; 
  • The bid is submitted by a suspended or debarred vendor; and/or 
  • A bidder fails to furnish a bid guarantee when such a guarantee is required. 

Method #4: Competitive Proposals

As like the sealed bid method, competitive proposals mean more requirements and documentation.

  • Purchases are over was $150,000 NOW $250,000
  • Use contracts such as fixed price or cost reimbursement
  • Formal Request for Proposal (RFP) with pre-determined evaluation methods for an adequate number of qualified sources

Competitive proposals are an acceptable method of procurement when: 

  • The nature of the procurement does not lend itself to sealed bidding; 
  • The non-state entity expects more than one source willing and able to submit an offer or proposal; and 
  • Either a fixed-price or cost-reimbursement contract is appropriate.

The solicitation document used is often known as a request for proposals (RFP). Although generally not used for actual construction, alteration, or repair to real property, the competitive proposal method is most often used for professional services related to construction projects. These services include program management, construction management, feasibility studies, preliminary engineering, design, architectural, engineering, surveying, mapping, and related services. The competitive proposals method of procurement is appropriate when the following conditions are present: 

 The non-state entity cannot base the contract award exclusively on price or price-related factors due to the nature or the service or property to be acquired; 

  • The requirements are less definitive, more development work is required, or there is a greater risk of performance; 
  • Technical capability, past performance, and prior experience considerations play a dominant role in source selection; and/or 
  • Separate discussions with individual offerors are expected to be necessary after they have submitted proposals. This is a key distinction from the sealed bidding method of procurement where such discussions with individual bidders are prohibited and the contract will be awarded based on price and price-related factors alone. 

Documentation - Written Method of Evaluation The non-state entity must have a written method for conducting their technical evaluations of the proposals received and for selecting offerors.135 

▪ When evaluating proposals, FEMA expects the non-state entity to consider all evaluation factors specified in its solicitation documents and evaluate offers only on the evaluation factors included in the solicitation documents. 

  • A non-state entity may not modify its evaluation factors after proposals have been submitted without re-opening the solicitation.  
  • In awarding a contract that will include options, FEMA expects the non-state entity to evaluate proposals for any option quantities or periods contained in the solicitation if it intends to exercise those options after the contract is awarded. 

Award The contract will be awarded to the responsible contractor whose proposal is most advantageous to the program with price and other factors considered.

 Method #5: Sole Source

Sometimes because of the uniqueness of the goods or services or the immediacy of the need, competition is NOT as open as required in the normal procurement process.  In these cases, the sole-source method must be followed.

  • This non-competitive method is available for procurements of any dollar amount
  • Because there is no competition it must be authorized by the agency (or Pass-through entity-for sub-recipients)

There are exceptions to methods such as certain unique circumstances or a public emergency.

Regardless of the size of the purchase, these 5 characteristics must be still be met:

  1. The purchase must comply with the non-Federal entity’s documented procurement procedures
  2. The purchase must be necessary to carry out the Federal award.
  3. The purchase must be made with open competition to the extent required.
  4. The organization is in compliance with their conflict of interest policy.
  5. The purchase documentation contains a sufficient and proper history of the purchase.

 Public Emergency or Exigency 

A non-state entity may be able to use the emergency or exigency exception to full and open competition if it determines that a public exigency or emergency will not permit a delay resulting from competitive solicitation.141 The non-state entity may use its own judgment in determining whether this condition has been met but must document its rationale in the procurement record. 

When referring to procurement activity, FEMA defines both exigency and emergency as situations that demand immediate aid or action. The differences between the two situations are outlined below: 

  • Exigency In the case of an exigency, there is a need to avoid, prevent, or alleviate serious harm or injury, financial or otherwise, to the applicant, and use of competitive procurement proposals would prevent the urgent action required to address the situation. Thus, a noncompetitive procurement may be appropriate. 
  • Emergency In the case of an emergency, there is a threat to life, public health or safety, improved property, or some other form of dangerous situation that requires immediate action to alleviate the threat. Emergency conditions are generally more short-lived than exigency circumstances. 

Use of the public exigency or emergency exception is only permissible during the actual exigent or emergency circumstances. Exigent or emergency circumstances will vary for each incident, and therefore, it is difficult to determine in advance or assign a particular time frame when noncompetitive procurements may be warranted. Exigent or emergency circumstances may exist for two days, two weeks, two months, or even longer in some cases. 

Non-state entities must ensure that work performed under the noncompetitively procured contracts is specifically related to the exigent or emergency circumstance in effect at the time of procurement. Importantly, because the exception to competitive procurement is available only while the exigent or emergency circumstances exist, applicants should, upon awarding a noncompetitive contract, immediately begin the process of competitively procuring similar goods and services to transition to the competitively procured contracts as soon as the actual exigent or emergency circumstances cease to exist. 

 

 

 





Determination that a Public Health Emergency Exists. As a result of confirmed cases of 2019 Novel Coronavirus (2019-nCoV), on this date and after consultation with public health officials as necessary, I, Alex M. Azar II, Secretary of Health and Human Services, pursuant to the authority vested in me under section 319 of the Public Health Service Act, do hereby determine that a public health emergency exists and has existed since January 27, 2020, nationwide. 01/31/2020 Date     /s/Alex M. Azar II​

FEMA Guidance on Procurement for COVID-19.

Federal disaster assistance grants are subject to the federal grant regulations at 2 C.F.R. Part 200, including the procurement requirements found within §§ 200.317-326. These regulations generally require competitive procurement of significant contracts unless"the public exigency or emergency for the requirement will not permit delay resulting from competitive solicitation." On March 17, 2020,
FEMA issued guidance confirming that exigent and emergency circumstances currently exist. FEMA outlines, however, the minimum requirements that still apply in the accompanying Fact Sheet (both the memo and fact sheet are available here).

Every year, recovering communities lose millions of dollars because of failure to comply with federal procurement regulations. Avoid common mistakes by checking out the available resources to help you follow the rules for each step of the procurement process. You must follow federal procurement under grants rules when using federal disaster grants for contracted work. Failure to follow these procurement rules may result in the loss of funding. The federal procurement rules are listed in 2 C.F.R. §§ 200.317- 200.326.

COVID-19 Procurement Guidance

Links Below Open in New Tab. Navigate Back to Site Using Browser Back Button

Procurement Sources

Procurement Process & Protocol Resources

Socioeconomic Contracting Resources

In-Depth Reference Materials:

Procurement Under Grants 2.0 Webinar Series

PDAT has put together a series of webinar modules on the rules for procurement under grants. There are eight (8) modules in this series. This webinar series covers the procurement standards under the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (also known as the “Uniform Rules”), which are codified at Title 2 of the Code of Federal Regulations, sections 200.317 through 200.326 (2 C.F.R. §§ 200.317-.326). These blocks of instruction will familiarize you with the procurement standards imposed by Federal regulations on recipients and subrecipients when procuring services and property with funding from any of the Stafford Act grant programs, specifically as interpreted by and applied to the Public Assistance Program. We recommend watching these modules in order if you have not received this training before. If you have received any or all of this training before, these modules can be watched in any order as a refresher.

Procurement Under Grants 2.0 Webinar Module 1: Intro, Background, Terminology, and Key Players

This block of instruction is the first in the series. This module, Module 1, will focus on the general procurement under grants information, including why PDAT and this webinar series were created; common terms you’ll see throughout the series; FEMA’s primary grant law, which is the Stafford Act; and the roles of various Federal and non-Federal entities in the procurement under grants process.

Procurement Under Grants 2.0 Webinar Module 2: States

This block of instruction is the second in the series. This module, Module 2, will focus on the overarching procurement under grants rule applicable to states, including state agencies, instrumentality of the state, and territories, but not local governments.

Procurement Under Grants 2.0 Webinar Module 3A: NFEs Other than States – General Procurement Standards

This block of instruction is the third in the series. Modules 3A-3D discuss the rules that only apply to local governments, tribes, and nonprofits, sometimes collectively referred to as non-Federal Entities (NFEs) other than states. This particular module, Module 3A, will focus on the general procurement standards applicable to NFEs other than states.

Procurement Under Grants 2.0 Webinar Module 3B: NFEs Other than States – Competition and Procurement Methods

This block of instruction is the fourth in the series. Modules 3A-3D discuss the rules that only apply to local governments, tribes, and nonprofits, sometimes collectively referred to as non-Federal Entities (NFEs) other than states. This particular module, Module 3B, will focus on the rules related to competition and procurement methods that apply to NFEs other than states.

Procurement Under Grants 2.0 Webinar Module 3C: NFEs Other than States – Socioeconomic Contracting; Cost and Price

This block of instruction is the fifth in the series. Modules 3A-3D discuss the rules that apply only to local governments, tribes, and nonprofits, sometimes collectively referred to as non-Federal Entities (NFEs) other than states. This particular module, Module 3C, will focus on the rules related to socioeconomic contracting as well as cost and price that apply to NFEs other than states.

Procurement Under Grants 2.0 Webinar Module 3D: NFEs Other than States – Pre-Procurement Document Review and Bonding

This block of instruction is the sixth in the series. Modules 3A-3D discuss the rules that apply only to local governments, tribes, and nonprofits, sometimes collectively referred to as non-Federal Entities (NFEs) other than states. This particular module, Module 3D, will focus on the rules related to pre-procurement document review and bonding requirements that apply to NFEs other than states.

Procurement Under Grants 2.0 Webinar Module 4: Recovered Materials (State & Local NFEs); Contract Provisions (All NFEs)

This block of instruction is the seventh in the series. This particular module, Module 4, discusses rules that either apply to just state and local governments or instead to all non-Federal entities (NFEs). State and local governments must comply with the rule on procurement of recovered materials while all NFEs (i.e., states, local governments, tribes, and nonprofits) must comply with the rule regarding required contract provisions.

Procurement Under Grants 2.0 Webinar Module 5: Differences Between Current and Former Standards

This block of instruction is the eighth and last in the series. This particular module, Module 5, summarizes the key differences between the current procurement standards and the previous procurement standards. For emergency and major disaster declarations issued on or after December 26, 2014, the procurement rules for all non-Federal Entities (NFEs) are located at 2 C.F.R. §§ 200.317-.326. For emergency and major disaster declarations issued before December 26, 2014, the rules for states, local governments, and tribes were located at 44 C.F.R. § 13.36, and the rules for nonprofits were located at 2 C.F.R. §§  215.40-.48.