Jeb Bush
Governor
Tom McGurk
											Director

M E M O R A N D U M

DATE:		May 29, 2001

TO:		All Regional Workforce Boards (RWBs) Executive Directors

FROM:	Robert B. Bradner, Process Manager, Program Development and Guidance

SUBJECT:	Contract Requirements

This is to provide information regarding two areas of concern relative to contracts.  The two areas are the non-discrimination and equal opportunity contract requirements and execution of contracts prior to expenditures of federal and/or state funds.

I.	Contract Requirements Regarding the Non-Discrimination and Equal Opportunity Provisions of the WIA

Recipient’s Obligation

Each recipient of federal funds under Title I of the Workforce Investment Act (WIA), including service providers with whom Regional Workforce Boards (RWBs) may contract, must assure that it complies with the nondiscrimination laws under the WIA.  Federal regulations under the WIA require the following nondiscrimination assurance language appear in each grant application, grant, cooperative agreement, contract or other arrangement, as required by 29 CFR §37.20.

“As a condition to the award of financial assistance from the Department of Labor under Title I of WIA, the grant applicant assures that it will comply fully with the nondiscrimination and equal opportunity provisions of the following laws:

•	Section 188 of the Workforce Investment Act of 1998 (WIA), which prohibits discrimination against all individuals in the United States on the basis of race, color, religion, sex, national origin, age, 
disability, political affiliation or belief, and against beneficiaries on the basis of either citizenship/status as a lawfully admitted immigrant authorized to work in the United States or participation in any WIA Title I-financially assisted program or activity;
•	Title VI of the Civil Rights Act of 1964, as amended, which prohibits discrimination on the bases of race, color and national origin;
•	Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination against qualified individuals with disabilities;
•	The Age Discrimination Act of 1975, as amended, which prohibits discrimination on the basis of age; and,
•	Title IX of the Education Amendments of 1972, as amended, which prohibits discrimination on the basis of sex in educational programs.

The grant applicant also assures that it will comply with 29 CFR Part 37 and all other regulations implementing the laws listed above.  This assurance applies to the grant applicant’s operation of the WIA Title I-financially assisted program or activity, and to all agreements the grant applicant makes to carry out the WIA Title I-financially assisted program or activity.  The grant applicant understands that the United States has the right to seek judicial enforcement of this assurance.”

Access to Information

All recipients of federal financial assistance under the WIA shall provide access to all documents, papers, letters, or other materials, prepared or received by the recipient regarding the subject matter of the contract, to the Program Review Unit, Office of Workforce Program Development and Guidance, and to the Office for Civil Rights upon request.  Staff from the Program Review Unit and the Office for Civil Rights shall have the right to review and copy all such material for use in determining compliance with the nondiscrimination and equal opportunity provisions of the WIA.

Each recipient shall ensure that each of its subcontractors and other employers of participants is aware of and has submitted to the recipient the proper assurance of compliance with federal regulations and laws prohibiting discrimination, as provided above.  The recipient shall maintain a record of notice for review by staff from the Program Review Unit and/or the Office for Civil Rights.

II.	Execution of Contracts Prior to Expenditures of Federal and/or State Funds

Work performed and costs incurred prior to the completion of contracts is included on a list of common problems encountered during procurement reviews by the United States Department of Labor.  The State of Florida concurs with and joins in a practice of the U. S. Department of Labor that allows the use of Memoranda of Agreement or Letters of Intent in order to permit continuation of services to participants in anticipation of executed contracts.  However, the existence of a documented-labeled Memorandum of Agreement or Letter of Intent may not be sufficient to guarantee legality or enforceability.  Therefore, such preliminary agreements should include in their contents an extension provision of the time limit previously stated for the term of the preliminary agreement.

All financial transactions using federal or state funds shall occur only after a signed written agreement has been reached.  Avoidance of court challenges and demonstrated adherence to standard, acceptable operating and accounting methods may be achieved through signed and dated written agreements preceding the beginning of training or delivery of goods and/or services.  Agreements shall not be used as a substitute for the Request for Proposal competitive bidding process.  Agreements may be executed only under extenuating circumstances, and in conjunction with a fully competitive, formal procurement process that culminates in a fully executed contract.

If a Memorandum of Agreement or Letter of Intent is used, its contents shall include (but not be limited to), the following items:
•	A detailed outline of the training to be accomplished or services to be delivered, cost, location of activities, and period covered;
•	A statement to the effect that the abbreviated document will be replaced by a duly executed contract within ninety days;
•	Authorized signatures of the parties with the date of signing for each.

III.	Administrative Procurement Procedures 

Administrative Procurement System

a)	Each local board receiving funds under the WIA shall monitor the performance of providers in complying with the terms of grants, contracts, or other agreements made under WIA. (WIA section 185(c)(3))
b)	A system should be in place to ensure that purchases of unnecessary or duplicative items are avoided. (20 CFR 667.200, 29 CFR 97.36(b)(4), and OMB Circular A-110, Subpart C. 44(a)(1))
c)	Protest procedures should be in place to handle and resolve disputes relating to procurements. (20 CFR 667.200, 29 CFR 97.36 (b)(12), and OMB Circular A-110, Subpart C.41)

Additional contract requirements in relation to major and small purchases can be found in the following reference documents: 20 CFR 667.200, 29 CFR Part 97, 29 CFR Parts 93 and 98, OMB Circular A-110 and Florida Statutes Chapter 445.

Noncompetitive Purchases 

a)	There should be provisions in the approved local plan for purchases that are made utilizing noncompetitive contracts with governmental agencies or accredited, nonprofit post secondary educational institutions. (F.S. Chapter 287.05)
b)	The following must be in place relative to noncompetitive procurements: (20 CFR 667.200, 29 CFR 97.36(d)(4), and OMB Circular A-110, Subpart C.43)
•	The procurement was not possible under small purchase procedures, sealed bids, or competitive proposals and one of the following circumstances applied:
•	The item is available only from a single source;
•	The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation;
•	The awarding agency authorizes noncompetitive proposals;
•	After solicitation of a number of sources, competition was determined inadequate;
•	A cost analysis, i.e., verifying the proposed cost data, the projections of the data, and the evaluation of the specific elements of costs and profits has been completed and documented.

Please call Dianne Parcell at (850) 488-7228, Ext. 1260 (SunCom 278-7228) if there are questions about this memorandum.

RBB/dc

cc:	Lucy Hadi
	Regional Liaisons
	Rick Swaine
	Peter de Haan