25-8412_Attachment_B_-_PDAT_Compliance_Review_CollierCounty_043025.pdf

PDAT Compliance Review Collier County, FL

Debris Removal RFP

Date: 4/30/2025

Introduction: The Procurement Disaster Assistance Team (PDAT) performed a high-level review of the Request for Proposals (RFP) solicitation document from Collier County (County) to flag any potential noncompliance issues with the federal procurement under grants standards at 2 C.F.R. §§

200.317-200.327. PDAT did not review County procurement policies or its procurement award process as part of this review.

BLUF: In reviewing County’s solicitation document, PDAT noted two additional considerations due to contract provisions and cardinal changes.

Background: County seeks to enter into a debris removal services contract through an RFP. This will be a five year contract with a one time renewal of five years. The dates or price of the contract have not yet been stated.

Federal Procurement Rules Applicable to Local Governments

As a local government, County must follow its own documented procurement procedures, which reflect applicable state, local laws and regulations, provided that the procurement conforms to applicable federal law and the procurement under grant standards set forth at 2 C.F.R. §§ 200.318 to 200.327. County should consider whether it has complied with all applicable procurement standards regarding its procurement and consult with their own legal counsel.

Additional Considerations:

Issue #1 Contract Provisions

As a local government, County is required to include all contract clauses in accordance with 2 C.F.R §

200.327 and outlined in 2 C.F.R. Appendix II to Part 200. Failure to include the required contract provisions in the final agreement and demonstrate acceptance of the terms is a violation of the federal procurement standards. Since the contract has not yet been drafted, County is able to include the required federal contract provisions in their entirety and the suggested language. PDAT recommends that County reference the Contract Provisions Guide for guidance on the inclusion of the missing contract provisions listed below.

The following is a list of required contract provisions that should appear within the executed contract depending on the price and other factors:

• Remedies: Contracts for more than the simplified acquisition threshold ($250,000) must include a remedies clause. FEMA recommends a comprehensive provision which addresses administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms or provide for such sanctions and penalties as appropriate.

• Termination for Cause and Convenience: All contracts in excess of $10,000 must address termination for cause and convenience.

https://www.ecfr.gov/current/title-2/subtitle-A/chapter-II/part-200/subpart-D/subject-group-ECFR45ddd4419ad436d https://www.ecfr.gov/current/title-2/subtitle-A/chapter-II/part-200/subpart-D/subject-group-ECFR45ddd4419ad436d https://www.ecfr.gov/current/title-2/subtitle-A/chapter-II/part-200/subpart-D/subject-group-ECFR45ddd4419ad436d https://www.ecfr.gov/current/title-2/subtitle-A/chapter-II/part-200/subpart-D/subject-group-ECFR45ddd4419ad436d https://www.ecfr.gov/current/title-2/subtitle-A/chapter-II/part-200/subpart-D/subject-group-ECFR45ddd4419ad436d/section-200.327 https://www.ecfr.gov/current/title-2/subtitle-A/chapter-II/part-200/subpart-D/subject-group-ECFR45ddd4419ad436d/section-200.327 https://www.ecfr.gov/current/title-2/subtitle-A/chapter-II/part-200/appendix-Appendix%20II%20to%20Part%20200 https://www.fema.gov/sites/default/files/documents/fema_contract-provisions-guide_fy24.pdf

• Contract Work Hours and Safety Standards Act: This required contract provision applies to all procurements over $100,000 that involve the employment of mechanics, laborers, and construction work.

• Clean Air Act and the Federal Water Pollution Control Act: Contracts in excess of $150,000 must include a provision requiring contractors to comply with the Clean Air Act and the

Federal Water Pollution Control Act.

• Suspension and Debarment: This provision is required for all contracts and subcontracts for

$25,000 or more, all contracts that require the consent of an official of a federal agency, and all contracts for federally required audit services. Local governments, even for procurements under $25,000, must also comply with the regulation requiring local governments to only award contracts to responsible vendors (2 C.F.R. § 200.318(h)).

• Byrd Anti-Lobbying Amendment and Certification: Local governments who intend to award contracts of more than $100,000, and their contractors who intend to award subcontracts of more than $100,000, must include a contract provision prohibiting the use of federal appropriated funds to influence officers or employees of the federal government. Contractors that apply or bid for a contract for more than $100,000 must also file the required certification regarding lobbying.

• Procurement of Recovered Materials: A state agency or agency of a political subdivision of a state and its contractors must include a provision regarding compliance with Section 6002 of the Solid Waste Disposal Act. This includes contracts awarded by a state agency or political subdivision of a state and its contractors for certain items, as designated by the EPA, with a purchase price greater than $10,000.

• Domestic Preferences: For purchases in support of FEMA declarations and awards issued on or after November 12, 2020, all FEMA recipients and subrecipients are required to include this contract provision encouraging domestic preference for procurements in all contracts and purchase orders for work or products.

• Prohibition on Covered Telecommunications or Services: For purchases in support of FEMA declarations and awards issued on or after November 12, 2020, all FEMA recipients and subrecipients, and their contractors and subcontractors, are required to include this contract provision in all FEMA-funded contracts and subcontracts, including any purchase orders.

Issue#2 Cardinal Changes

A cardinal change is a significant modification/deviation in the scope of work, costs, or time that is different from what is described in the original contract. If a recipient performs a cardinal change without meeting the exceptions to competitive procurements, then the recipient is noncompliant with the federal procurement under grant rules. In determining whether a recipient has made a prohibited cardinal change, FEMA generally evaluates whether the change is “within the general scope of the contract” on a case-by-case basis.

In the Term of Contract section on page 3, the RFP states that the County may adjust the price, terms, and other factors at the time of contract renewal or in the event of significant market changes. If any of the adjusted terms exceed the scope of the original contract terms, this could constitute a cardinal change to the original contract. Please see page 87 of the PUG Manual:

Contract Changes/Modifications for more information on cardinal changes.

Documents Reviewed:

• Collier County Request for Proposals Document – 27 pages https://www.fema.gov/sites/default/files/documents/fema_PDAT-field-manual_102021.pdf#page=96 https://www.fema.gov/sites/default/files/documents/fema_PDAT-field-manual_102021.pdf#page=96

Resources: For additional information on the federal procurement standards, please visit the PDAT webpage.

NOTE: It is important to note the Office of Management and Budget (“OMB”) revised sections of OMB

Guidance for Grants and Agreements found in Title 2 of the Code of Federal Regulations. These revisions include changes to the federal procurement standards, which govern how FEMA award recipients and subrecipients purchase property or services under a FEMA award. These revisions are applicable to all FEMA award recipients and subrecipients purchasing under FEMA declarations or awards issued on or after October 1, 2024, unless specifically indicated otherwise.

We are also aware of recent Executive Orders (“EOs”) that may impact aspects of the federal procurement rules. FEMA is actively working with our partners in DHS to update our resources, including terms and conditions, and contract provisions. In lieu of specific guidance, recipients and subrecipients of federal funds are encouraged to consult with their own legal counsel regarding the impact and applicability of EOs.

For additional information, PDAT encourages FEMA award recipients and subrecipients to visit the

PDAT Webpage regarding the Purchasing Under a FEMA Award: 2024 OMB Revisions.

Disclaimer: Any information provided in this review is not legal advice, and this review is neither a

FEMA approval of the procurement documents and/or the associated procurement process nor a determination on reimbursement. The entity should consult its own legal counsel to determine if it has complied fully with the federal procurement under grant standards, other applicable Federal laws and regulations, and its own State and/or local laws.

For example, the entity must also comply with the Cost Principles found in 2 C.F.R Part 200, Subpart

E, to ensure that all costs are reasonable in addition to other relevant federal regulations that relate to FEMA grants. This review does not include an analysis regarding the cost reasonableness of the services provided or compliance with any other federal requirements associated with grants, including eligibility under any corresponding FEMA grant program.

https://www.fema.gov/procurement-disaster-assistance-team https://www.fema.gov/procurement-disaster-assistance-team https://www.fema.gov/sites/default/files/documents/fema_pdat-omb-revisions_factsheet_fy24.pdf https://www.ecfr.gov/on/2024-10-01/title-2/part-200/subpart-E https://www.ecfr.gov/on/2024-10-01/title-2/part-200/subpart-E