The American Recovery and Reinvestment Act of 2009

By: Dave Rice, CIS Director of Federal Contracting
daverice@cis-partners.com

On February 17, 2009 the President signed PL 111-5, the “American Recovery and Reinvestment Act of 2009” (ARRA)[1]. The ARRA imposes a number of requirements on Executive Branch departments and agencies receiving Recovery Act funds.

Many FSS contract holders have, or will shortly receive, a voluntary bilateral modification from the National Acquisition Center (NAC)[2] to modify their FSS contracts to incorporate new clauses implementing the ARRA[3]. These clauses include the following:

• 52.203-15 Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009
• 52.204-11 American Recovery and Reinvestment Act – Reporting Requirements
• 52.212-4 Contract Terms and Conditions-Commercial Items
• o Changes ( r) to incorporate bulleted clauses above
  o Provides for the Comptroller General of the United States, IG appointed inspector, or authorized representative to have access to and the right to examine any of the Contractor’s or any sub-contractors’ records that pertain to, and involve transactions relating to this contract; as well as the right to interview any officer or employee regarding such transactions.

Compliance with the ARRA reporting requirements is significant. It requires manufacturers to provide quarterly reports, which are due by the 10th day following the end of the quarter. Reporting elements include:

• Jobs created as a result of funding by the ARRA.
• Jobs retained as a result of funding by the ARRA.
• Total Compensation earned by the executive during the past fiscal year (includes salary, bonus, non-equity incentive plans, change in pension value, deferred compensation, and other compensation).
• Contract numbers
• List of all significant services performed or supplies delivered.
• Narrative description of the employment impact of work funded by the ARRA.
• Many additional elements[4].

Acceptance of the Recovery Act modification and its clauses is voluntary. However, if your firm elects not to accept the modification, your firm WILL NOT be eligible to receive or accept orders that are funded, in whole or in part by the Recovery Act.

The ARRA provides over $59 billion in funding for healthcare. The available funding focuses on modernizing the healthcare system, reducing medical errors and improving quality.

Based on our initial review of ARRA material, and discussion with NAC personnel, it appears that the vast majority of the recovery funds will be geared towards equipment and capital items rather than pharmaceutical purchases. Due to the limited opportunities in the pharmaceutical market, the significant reporting requirements, and the change in FSS contract clauses, we would encourage your firm to evaluate your product opportunities relative to the requirements of these new clauses. We understand that if you elect NOT to accept the modification at this time, it does not preclude you from changing that election in the future.

Sources:
[1] http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h1enr.txt.pdf
[2] http://www1.va.gov/nac/
[3] ARRA Amendment of Solicitation: http://gp.cis-pcx.com/federal-programs/veterans_affairs_health_program,5/guidance_documents,325/
[4] ARRA Q&A Document – June 2009: http://gp.cis-pcx.com/federal-programs/veterans_affairs_health_program,5/guidance_documents,325/