CAPLAW General ARRA FAQs
Question:
Do ARRA’s Buy American requirements apply to CAAs?
Answer:
Only if a CAA is using ARRA funds for the construction, alteration, maintenance or repair of a government-owned building.
ARRA’s Buy American provision requires all iron, steel, and “manufactured goods” used for an ARRA-funded project for the construction, alteration, maintenance, or repair of a “public building” or “public work” to be produced in the United States. Pub. L. No. 111-5, § 1605, 123 Stat. 115, 303 (2009)
A “manufactured good” is defined as a good that is brought to the construction site for incorporation into the building or work. 2 CFR §§ 176.140(a)(1), 176.160(a). Therefore, regardless of who is performing the work or who owns the facility on which the work is being performed, vehicles used in performing the work are not considered “manufactured goods” subject to ARRA’s Buy American provisions.
A “public building” or “public work” is defined as a building or work of a governmental entity (the United States; the District of Columbia; commonwealths, territories, and minor outlying islands of the United States; State and local governments; and multi-State, regional, or interstate entities which have governmental functions). 2 CFR §§ 176.140(a)(2), 176.160(a). A federal Office of Management and Budget (OMB) FAQ
clarifies that:
The OMB FAQ’s language about “another exemption under Section 1605” refers to the fact that ARRA provides for waivers of the Buy American requirements in three circumstances: (1) iron, steel, or relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; (2) inclusion of iron, steel, or manufactured goods produced in the United States will increase the cost of the overall project by more than 25 percent; or (3) applying the domestic preference would be inconsistent with the public interest. 2 C.F.R. § 176.60.
If the facility is/will be privately-owned, then the ARRA Buy America[] provision will not apply to it, because it will not be a "public building or public work.” However, if the facility is/will be government-owned, then the ARRA Buy America[] provision will apply to the facility (as a "public building or public work") unless such application would not be “consistent with United States obligations under international agreements” under Section 1605(d) of ARRA or another exemption under Section 1605 applies.
Thus, work done on buildings owned by nonprofit CAAs or other private entities is not subject to ARRA’s Buy American requirements, nor is work done by either private or public CAAs on other privately owned buildings (such as weatherization of private homes or apartment buildings). However, if the work is being performed on a building owned by a government entity, the ARRA Buy American requirements generally would apply, regardless of whether the work is being performed by a public or a private CAA. Examples of these situations include weatherization of units owned by a public housing authority, or repairs or maintenance on a CAA’s headquarters where the building is owned by a city or county. As noted above, however, work done on government-owned buildings may be exempt from the Buy American provision if it qualifies for a waiver or if application of the Buy American provision to that work would not be consistent with U.S. obligations under international trade agreements.
For additional information on this topic, read the OMB regulations on award terms for assistance agreements that include ARRA funds (2 C.F.R. Part 176, Subpart B) see the U.S. Department of Energy’s Office of Management Q&A on ARRA’s Buy American provisions in the context of federal assistance (i.e., federal grants, loans and cooperative agreements); and see a legal alert from the law firm Mayer Brown.
Question:
What do employers need to know about complying with ARRA’s whistleblower protection provision?
Answer:
Non-federal employers receiving ARRA funds must post a notice of employees’ rights and remedies under ARRA’s whistleblower protection provision.
These employers are prohibited from discharging, demoting or otherwise retaliating against an employee for making a disclosure of information the employee reasonably believes is evidence of one of the following:
- a violation of law, rule, or regulation related to an ARRA contract or grant;
- gross mismanagement of an ARRA contract or grant; gross waste of ARRA funds;
- a substantial and specific danger to public health or safety as related to the use of ARRA funds; or
- an abuse of authority related to the use of ARRA funds.
Protected disclosures include those made in the ordinary course of the employee’s duties. These disclosures may be made to a person with supervisory authority over the employee or another person working for the employer who has the authority to investigate, discover, or terminate misconduct. They may also be made to any of the following:
- the Recovery Accountability and Transparency Board;
- the head of a federal agency or his/her representatives;
- a member of Congress;
- a state or federal regulatory or law enforcement agency;
- an Inspector General;
- the Comptroller General; or
- a court or grand jury.
Note that the website www.recovery.gov provides an electronic complaint form for reporting waste, fraud and abuse directly to the Recovery Accountability and Transparency Board.
ARRA’s whistleblower provision may be found at Public Law No. 111-5, § 1553, 123 Stat. 115, 297 (2009).
Question:
Do either the one-time $250 economic recovery payment to recipients of Social Security, SSI, Railroad Retirement and Veterans Disability Compensation Benefits or Making Work Pay Tax Credit payments count as income for purposes of determining a client’s income eligibility for various CAA programs?
Answer:
No. Neither the one-time $250 economic recovery payment to recipients of Social Security, SSI, Railroad Retirement and Veterans Disability Compensation Benefits nor Making Work Pay Tax Credit payments are considered income for purposes of eligibility for benefits or assistance under any federal program or any state or local program funded in whole or in part with federal funds.
In particular, ARRA provides that the one-time $250 economic recovery payment to recipients of Social Security, SSI, Railroad Retirement and Veterans Disability Compensation Benefits “shall not be regarded as income and shall not be regarded as a resource for the month of receipt and the following 9 months, for purposes of determining the eligibility of the recipient (or the recipient’s spouse or family) for benefits or assistance, or the amount or extent of benefits or assistance, under any Federal program or under any State or local program financed in whole or in part with Federal funds.” Pub. L. No. 111-5, § 2201(c), 123 Stat. 115, 452 (2009) .
ARRA further specifies that the Making Work Pay Tax Credit “shall not be taken into account as income and shall not be taken into account as resources for the month of receipt and the following 2 months, for purposes of determining the eligibility of such individual or any other individual for benefits or assistance, or the amount or extent of benefits or assistance, under any Federal program or under any State or local program financed in whole or in part with Federal funds.” Pub. L. No. 111-5, § 1001(c), 123 Stat. 115, 311-12 (2009).
You can also refer to the February 17, 2010 CSBG Information Memorandum No. 119 , which provides guidance for implementing the Making Work Pay Tax Credit.
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