Disability Determination and Consumer Control

Consumer control is an important foundational philosophy of Independent Living. Centers are required to have more than 50% board members who are people with significant disabilities, and more than 50% staff, and managers, who have disabilities. SILCs must have more than 50% people with disabilities of the full council and of the voting membership who don’t work for a center or the state.

The only requirement of proof of significant disability within Parts B and C is the individual’s affirmation that they have such a disability. Typically this is on an intake form, and they check the box “I have a significant disability”, or the staff person can mark it in the electronic record.

The same is true for the board members and staff who are counted to determine consumer control for the Centers. No medical proof is requested or required. You ask them, perhaps on a board application or in an interview (which is legal since they are not employees) it they have a significant disability.

I suggest, though, that if you feel you have to talk people in to admitting a disability, you are not honoring the IL philosophy of consumer control. The disability community — those of us who openly acknowledge a disability, whether it is visible or not — should be in charge of centers and SILCs. Consumer control — the word control was very intentional in the Rehabilitation Act and should be intentional in your policies and practices. Consumer control isn’t a number. It is a way of thinking that should be evident in consumer services as well as in the board room.

Can we buy T-shirts with our grant and sell them?

Question:
Do you know of any rule or federal law that prohibits us at the State level (SILC) from selling T-shirts or doing any other type of fundraising or collecting donations to our organization. Our funding is minuscule and we are all volunteers. Your help is appreciated.

Answer: The Rehabilitation Act, Title VII, is the law that establishes the SILC and sets out its duties (required) and its authorities (allowed if included in your State Plan for Independent Living (SPIL)).

Man in black T-shirt pointing to his chest.

Section 705 of the Rehab Act includes this language: (2) AUTHORITIES.—The Council may, consistent with the State plan described in section 704, unless prohibited by State law— … (B) conduct resource development activities to support the activities described in this subsection or to support the provision of independent living services by centers for independent living

This means that you are allowed, but not required, to conduct resource development activities that assist the SILC in their duties or that assist the CILs IF the plan for resource development is part of your SPIL.

There are also regulations that apply to whether or not an expense is allowed with federal funds. 75 CFR 403 states that the cost must be necessary and reasonable for the performance of the Federal Award. Then beginning in 75.420 the regulations give a number of examples of costs that are not typically allowed. These include advertising and public relations (§75.421), so T-shirts are not typically allowed. If you purchase them with non-federal funds, of course you can do whatever you want, but you cannot pay for most promotional items with federal dollars. If you want to sell them as a fund raiser it is even more important that funds other than your grant pay for the purchase, and that your proceeds are only the profit you make on the shirts, not the full income.

There is an interesting exception that may apply. You are allowed to purchase whatever you need to perform the goals in your SPIL. If you have a goal in your SPIL related to outreach to youth, for example, you may be able to justify buying T-shirts or other promotional items to reach out to them and assist them in connecting with the IL Network in your state.

One more thing that may or may not apply. You notice the regulation quoted above says you may “conduct resource development activities”. It does NOT say fund raising, and in fact, fund raising is strictly prohibited with federal funds (§75.442). Be very careful that you never say your are “fund raising” with federal dollars. We don’t have a definition for resource development so it is up to each entity to determine what resources in your state can develope and how you want to do that. If it is included in you SPIL you should be able to develop resources.

*CFR =Code of Federal Regulations

Staff training clips from archives

You might find it helpful to utilize some of the on-line resources for your staff meetings and staff training. Some center approach training by doing a short segment during each staff meeting. I suggest up to 30 minutes each. Here are some specific suggestions some basic topics including how you can take one segment of the training that fits that time frame.

Five people of various ages meeting around a table.  One woman is holding a chart and another is gesturing toward the chart. 
   <!-- HTML Credit Code for Can Stock Photo -->
<a href=(c) Can Stock Photo / justmeyo” class=”wp-image-1389″/>

I have mentioned these before, but there are four modules about history and philosophy from 14 to 21 minutes in length, at https://www.ilru.org/il-history-and-philosophy-orientation-for-il-staff  They have audio, video with old photos, etc.

For the following, you can start at a specific slide number and end at another to trim minutes or split content. You click on View the Training, projecting the slides and turning up the sound.

For Information and Referral –https://www.ilru.org/training/get-core-it-best-practices-cil-core-services-information-referral-15-hours  Slides 4 – 11, which is less than 30 minutes.

For IL Skills, you might want to look athttp://ilru.mediasite.com/mediasite/Play/8a1397907e1c4bdfbacbe9febff823f61d  I would do slides only, reading slides 1, 2 then skip to slide 8 and play the audio through slide 11. Audio begins roughly 25 minutes in.

http://ilru.mediasite.com/mediasite/Play/8a1397907e1c4bdfbacbe9febff823f61d has a little more detail and focuses on those leaving institutions.  I would  start it right after the intro/slide 2 through 13 as one segment and start at 18 through 33 for the second part.

This peer support module is a specific model of using volunteers as peers. You don’t want use this link if you aren’t going to consider that model. http://ilru.mediasite.com/mediasite/Play/2aa68ea8934348b9a734d66087f6da4c1d   Slides 5 – 16 describe this model in roughly 30 minutes; Slides 18 – 40 discuss more nuts and bolts for implementing the program.

Youth transition is addressed at https://www.ilru.org/training/creating-wider-vision-for-youth-transition-cils and stop and discuss slide 9. Separate section slides 10 – 21. Then beginning on slide 22, go through the slides through 30 without the audio and brainstorm how you want to provide youth transition at your CIL.

System Advocacy is addressed at https://www.ilru.org/training/get-core-it-best-practices-cil-core-services-systems-advocacy  A nice 20 minute segment can be found at slides 6 – 13. You can skip over the Q and A and do a separate how-to segment starting at 15 – 31.

After your staff watch and discuss these segments they can certainly follow the link and watch the entire presentation.

Hopefully these will get you started.

How do I teach consumer control to staff?

This image has an empty alt attribute; its file name is canstockphoto9530149-1024x1024.jpg

Question: I’m particularly focused on boundaries and personal choice as reminder to existing peers in their work with consumers. As happens with many of us in any human service in our desire to “help,” I’ve had a couple situations in which peer advocates have done far more for consumers than they should have. I figured a refresher training on boundaries, etc. would be good, What other resources might work for us?

I like to start with some philosophy, because the Rehabilitation Act, the first paragraph of Title VII begins with that.  It reads: The purpose of title VII of the Act is to promote a philosophy of independent living (IL), including a philosophy of consumer control, peer support, self-help, self-determination, equal access, and individual and system advocacy, in order to maximize the leadership, empowerment, independence, and productivity of individuals with disabilities, and to promote the integration and full inclusion of individuals with disabilities into the mainstream of American society…

That language – a philosophy of consumer control, self-help, self-determination … in order to maximize leadership, empowerment, independence and productivity – state our goal clearly in terms that emphasize the individual’s control of their life and decisions.

We also have a four-part series of videos around the history and how that philosophy came to be. Each is about 20 minutes and works well as part of a staff meeting. You can find these at https://www.ilru.org/il-history-and-philosophy-orientation-for-il-staff

As you move from philosophy to action,  an Introduction to Consumer Service Records, IL Plans and Service Coordination is always a good foundational piece https://www.ilru.org/introduction-consumer-service-records-independent-living-plans-and-service-coordination-for-cils

Your own written policies and procedures should mirror this philosophy and specifically state that the individual is in charge of their decisions. When it comes to helping staff understand boundaries, no tool is greater than their own experience as people with disabilities. You might help them think about scenarios in their own lives, or give sample situations for discussion and learning.

Those things should get you started. Reach out again when you are ready for more.

What should you do when you discover waste, fraud or abuse of funds?

Businessman, handcuffed hands behind his back, holding $100 bills.

Embezzlement is a very specific type of fraud, and most cases involve taking money from an employer through deceit. Usually the person embezzling is the person who cuts your checks, and often they have developed an elaborate ruse to use the CIL or SILC funds to pay their own bills by altering checks or creating fake vendors or employees. Taking company money for personal use without proper authorization is embezzlement, even if the individual rationalized why the funds should belong to them, or that they were “borrowing”. As recipients of federal funds, embezzlement is a serious issue that can damage your bottom line and the integrity of your center or SILC, and can require that the funds are repaid, either by insurance, through legal steps, or with discretionary funds, back to the funder. If you suspect an employee is stealing from you, you need to handle the matter quickly and carefully. Here are some steps for you to take:

Gather initial evidence: If you suspect an employee is embezzling money or stealing property, the first step is to gather evidence to prove your suspicions. Good internal controls — reconciling the back account, checking payments to credit cards by reviewing detailed receipts, reviewing the vendor list and payroll records for names you don’t know or names that shouldn’t be there — will reveal most embezzlement. Keep a close eye on the books, and make copies of paperwork regarding suspicious transactions. You may want to require inventory of purchases from the office supply, grocery, anywhere that common items can be purchased, to make sure none of the items were snagged by the purchaser before coming into the office. Notice how many credit card bills you are processing, because you may find a new account slipped in without approval and is being used by an employee for personal expenses. There are certain things that are consistent tools used by embezzlers, and your banker or auditor can probably learn fairly quickly if theft has taken place, even before you have a clear idea of how long it has been going on or how much is missing. You want to act quickly enough the employee is not aware of the investigation and can be apprehended.

Seek advice. When you suspect embezzlement, consult with the people who can assist you in a resolution. Those include:

  • Your attorney. You will want legal guidance as you navigate a complex response to a complex employment situation.
  • Your board. The board of directors has a fiduciary responsibility related to your funds. They also need to be aware of all legal matters and of matters that may end up with negative press. Don’t let them be caught unaware
  • Your insurance agent. If you have directors and officers insurance, if your thief was bonded, or have other insurance to protect your organization from theft, his may be your only hope for repayment of the loss for you and your funders.
  • Local law enforcement. They are probably the ones that will make the initial arrest and coordinate with federal law enforcement. Because federal funds were involved, your case will likely also be handled by the FBI.
  • Your project officer at the Administration on Community Living/Independent Living Administration. You must report to your primary grantor plus other agencies whose funds to you may have been affected. You should let them know an investigation is in progress, even before you are sure of the full extent of the theft.
  • A forensic auditor or other auditor to conduct an impartial review and determine the details. To settle the situation you will need to go back several years, and will need to determine not only how much was stolen, but which of your grants were used in this process. You will have to pay your funders back for whatever stolen funds were allocated to specific grants. This repayment cannot be made with federal funds.

Complete a thorough financial review with findings. Start with a review that goes back three years, hoping that the auditor can pinpoint when the theft started. The review will need to include some specific information, including what funder(s) was the victim of the theft with you. While this is costly, it will be required at some point.

Press charges. It is tempting to try to hide the theft. You feel foolish that you were taken advantage of, and hurt and angry that it was by someone you know. You know your Center or SILC’s reputation will take a hit. However, you and your board have a responsibility to the public to assure that justice is done. Press charges and inform your funders so that they can follow up with their legal responsibilities as well. Embezzlement is a crime; and while a case can take several years to prosecute in court — and you may never get the money back, even with a restitution order, choosing to press charges can send a message that you’re serious about theft and help you get closure to a difficult situation.

Strengthen your written policies and procedures. Identify where your practices were week enough to allow the fraud, and tighten up those controls. While it can be difficult to prevent all employee theft, by establishing a training program that clearly outlines a zero-tolerance policy for employee theft, you may deter a potential embezzler. The policy should detail the steps that you’ll take if you discover theft, including prosecution. Having this written policy in place — and a signed declaration of understanding by the employee — gives you a road map for action when there is a problem and removes some of the emotional aspects of the decision.

Eight practices to prevent fraud and theft

Business man pulling a big green dollar sign concept on background

From time to time you hear about theft within non-profit organizations. Usually the organization did not have sufficient internal controls to prevent or catch the situation, and sometimes the thief gets by with it for years. Here are eight practices that will discourage theft, or will catch the thief in the act.

  1. Check references and/or require bonding for personnel who have responsibility for the funds of your organization. You don’t want to hire some e with a history of theft.
  2. Require actual receipts be attached to any credit card bill. The bill itself doesn’t include enough detail for you to assure that all the costs were legitimate.
  3. Take inventory of purchases, so when someone runs to the grocery store or office store, they bring the items in and someone else checks them against the receipt so that no one is siphoning off items for their home. When a package of items is received at the office, two people check off the items and store them for later use.
  4. Reconcile the bank statements by actually viewing the checks or images of the checks and comparing them to the check register in the accounting software. Someone other than the accountant should do this — preferably the executive director or the chair of the finance committee, depending on the size of your organization. This prevents changing the payee, shows gaps in the numbering of checks so you can find the missing ones, and reveals any checks that have been signed fraudulently.
  5. Assure that the person who prepares the checks is not allowed to sign the checks, and no payee should be able to sign their own check.
  6. The person who prepares the checks should put the entire packet together for the signer to review, including all costs covered by the check, the detailed receipt(s) and the allocation of the costs to the proper grant or cost objective. Include the envelop for mailing the checks. Then the checks should be mailed by someone other than the person who prepared them. Again, this assures that the payee isn’t changed.
  7. Secure Directors and Officers insurance and listen to what the insurer has to say about good practices.
  8. Conduct an audit – a single audit if your center spent $750,000 of more in federal funds in the year, and a financial statement audit otherwise.

Take a look at your policies and practices. The board members and management staff are stewards of public funds, and you need to preserve the public trust as well as your organization’s future. Make sure you are doing what you can to prevent the misuse of your assets and preserve your organization.

You can find sample financial policies and procedures on our website. For more information about the audit, check out an earlier post.


Eight topics your new CIL executive director needs


  1. Learn about the history and philosophy behind Independent Living. Go to https://www.ilru.org/il-history-and-philosophy-orientation-for-il-staff if you prefer video. Use https://www.ilru.org/training/introduction-independent-living-history-philosophy-for-new-cil-personnel-online-course if you prefer an on-line course.
  2. Go to https://www.ilru.org/training/know-your-resources-orientation-il-net-and-cil-netorg-and-silc-netorg-0 to learn how to navigate training options and our website. Email Technical Assistance Coordination with questions paulamcelwee.illru@gmail.com
  3. Meet with each staff person and ask them to tell you about their job, then work with them to update it. Check how they fit in the organizational chart. Ask each staff member what you can expect them to accomplish in the next six months. Then follow up!
  4. View financial management presentations at https://www.ilru.org/training/internal-controls-for-centers-for-independent-living and https://www.ilru.org/training/applying-your-indirect-cost-rate-centers-for-independent-living Read your own policies and procedures to see if they meet the requirements. Discuss with your financial manager (whether on staff or contract) what financial concerns they have if any. Review the most recent financial statements with them, including budget to actual comparisons.
  5. Get to know your board. Take the time to talk with each board member to learn what they bring to your board, and why they are involved in Independent Living. Ask who they know in the community that you should meet. This training might also be helpful: https://www.ilru.org/training/supporting-your-cil-board-for-success
  6. Learn about the other Independent Living centers in your state. You might start with the directory you can find at https://www.ilru.org/projects/cil-net/cil-center-and-association-directory Update your own listing by using the “contact us” form on the website. Then see where the other centers are and find out when they meet, if they do. You can find the associations listed at https://www.ilru.org/projects/cil-net/association-directory  or you can check in with another center to learn if your state has an association for centers, and get on their phone/email list. 
  7. Learn about the Statewide Independent Living Council in your state, including who the representative for the Centers is.  You can find contact information here: https://www.ilru.org/projects/silc-net/silc-directory You can learn more about how the CILs and SILC work together here: https://www.ilru.org/training/working-together-building-statewide-il-network-through-cil-silc-collaboration
  8. Complete ACL’s hiring checklist for Executive Directors at https://www.ilru.org/sites/default/files/resources/il_administration/CIL_ED_AOR_Changes_GRANTEE_CHECKLIST.pdf

Your IRS Form 990 Questions Answered

IRS form 990 questions answered. Woman in glasses pulling at her hair, question marks surround her.

by Cassie Strain on March 11, 2019 Reprinted from Blue Avocadohttps://blueavocado.org/finance/your-irs-form-990-questions-answered/

Do you ever have a question about your IRS Form 990 and can’t seem to find the answer? Today we’ll give you some valuable information concerning your filings, written in plain English with links to forms, websites, and information that will hopefully keep your fiscal year-end stresses at bay.

Serious Business

Nobody likes taxes or the IRS, but don’t let that stop you from acknowledging the seriousness of filing your 990 annually. The IRS is the real deal. Like Santa except far more aggressive, they have a list that tells them whether or not your nonprofit has filed its 990 consistently and on time. It’s called the IRS Automatic Revocation of Exemption List.

The IRS website states that “the Internal Revenue Code automatically revokes the exemption of any organization that fails to satisfy its filing requirement(s) for three consecutive years.” This means you have to file your 990 completely and on time each to year to avoid joining the 28,000 nonprofits that are revoked annually on average, of which only 20 percent are reinstated. Keep in mind that even if you’re reinstated after revocation, you remain on this list.

While you may be happier and a great deal less stressed out ignoring your IRS requirements, doing so will not have a happy ending.

Below are the answers to common 990-related questions:

What is a 990?

In “IRS Speak” the 990 Form is the annual reporting tax return document required to be filed by all federally tax-exempt organizations. This form is the way the government (via the IRS) ensures your compliance and evaluates how your institution is doing financially.

In plain English, the 990 is the report card for your nonprofit. Like your personal tax returns, it allows the government and your donors to ascertain whether you are a reliable, honest institution.

Do we have to file?  

If you are a tax-exempt organization, you are probably a 501(c)(3) public charity or private foundation and are required to file a 990.

If your project is a fiscally sponsored initiative within an established nonprofit, it’s on them to file. Finally, if you’re a church or state institution, filing requirements are different—see the hyperlinks I just shared for details.

Which form do we need?

Determining which form to complete is based on the amount of your Gross Receipts. Gross receipts are the total amount your nonprofit received from all sources during your accounting period (fiscal year), without subtracting costs or expenses.

Once you know your Gross Receipts, it’s easy to figure out which form to complete:

  • Smaller nonprofits (Gross Receipts ≤ $50,000) file a 990-N (e-postcard)
  • Mid-size organizations (Gross Receipts < $200,000, and total assets < $500,000) file a 990 or 990-EZ
  • Larger organizations (Gross Receipts ≥ $200,000, or total assets ≥ $500,000) file a 990
  • Private Foundations file a 990-PF

When is our 990 due?

Forms 990 are due on the 15th day of the fifth month following the end of your organization’s taxable year. For nonprofits on a calendar fiscal year, your due date will be May 15th of the following year.

When is our organization’s fiscal year?

You can find your organization’s fiscal year printed on the upper right section of your IRS Determination Letter. It will be listed as “Accounting Period Ending.”

What if we can’t meet the deadline?

To obtain an automatic six-month extension for your 990, simply file a Form 8868, also known as the Application for Extension of Time to File an Exempt Organization Return.

What happens if we don’t file?

Many consequences can come from not filing your 990 return, including (but not limited to):

  • Ineligibility to receive tax-deductible contributions
  • Losing your 501(c)(3) status 
  • Your organization’s name and information being added to the IRS Automatic Revocation List 
  • Liability to pay federal income taxes
  • Fees averaging $20 a day, up to $10,000 
  • Loss of donor confidence, and often donors themselves!

Do I have to file with my state? 

Maybe. Each state has individual requirements for tax-exempt filings, some of which require greater detail or additional forms to accompany your 990 filing. For example, the state of New York requires Form CHAR500 to be filed each year. See the IRS’ list of states and their requirements to ease your journey.

Who can see my organization’s 990?

You are required to make your 990 available for public inspection (without charge, except the cost of any copies printed) at regional and district offices during regular business hours, but this burden can be minimized by posting your 990 to your website. There are numerous websites that provide information on exempt organizations, and many of them provide previously-filed 990’s. Anyone can view the 990 you file—in fact, many donors will specifically search for them and other details prior to making donations. A copy can also be viewed on Guidestar.org or by request through the IRS.

Death and Taxes

The only things certain in life are death and taxes; this is as true now as it was in the 1700’s when Ben Franklin wrote it. For that reason, you should keep your relationship with the IRS a healthy one. If you haven’t had any extenuating issues with them as of yet, 2019 isn’t the year to start! If you have, set a resolution that it won’t happen again.

Although taxes are daunting for many, there are so many resources out there to ease the burden. Can’t find an answer to a 990 question on the IRS website? No problem! Free resources like Blue Avocado and GuideStar offer a helping hand for all of your nonprofit tax questions. Now that you know all the essentials to your 990 filing, you should be ready for a stress-free tax season!

Pop Quiz!

Test your 990 knowledge by answering the following questions and checking the answers at the bottom of the page.

1) What 2 types of organizations do not require filing a 990?

2) What type of 990 should your organization file if:

a) Your gross receipts are less than $50,000 a year?

b) Your gross receipts are less than $200,000 a year but more than $50,000 a year?

c) Your gross receipts are greater than $200,000 a year?

3) When is your 990 due?

4) What form must you file if you cannot meet your 990 deadline?

5) Does your state require any additional documentation to file your 990?

What are the IRS requirements for my CIL?

Just because your non-profit doesn’t pay federal income tax doesn’t mean you have no dealings with the Internal Revenue Service. You are required to file an annual report to the IRS of your standing as a non-profit. This form is called a Form 990, and it is important for all CILs and those SILCs that are not-for-profit to file correctly and on a timely basis. If you don’t you risk losing your non-profit status and if you don’t have that private, non-profit status, your CIL is no longer eligible to receive your federal grant for Independent Living services.

The form 990 is a public document, so when you complete it remember that you are communicating both with the IRS and with the public. Be sure that the board of directors has reviewed your filing document prior to submission. Best practice usually requires that the board chair signs the document on behalf of the organization. It is not unusual for foundations and other private and public funders to check what you’ve said in your Form 990. Take it seriously.

If your tax-exempt organization has gross receipts of more than $200,000 or assets worth $500,000 you must complete a full Form 990. Smaller non-profits with gross receipts of $50,000 or less have an e-Postcard version called the 990-N. Those that fall between $50,000 and $200,000 can file a 990-EZ. Every center is required to be a private, not-for-profit entity so every center must complete the appropriate form annually.

Your timeline for this form is the 15th day of the 5th month after your fiscal year ends (which may or may not match your state or federal fiscal year). If your organization’s fiscal year ends June 30, your 990 is due November 15. If your fiscal year ends September 30, your 990 is due February 15. If your fiscal year ends December 31, your 990 is due May 15. NOTE: if you lose your exempt status by not filing the 990, according to the IRS there is no appeal process. If a CIL loses exempt status, they are no longer eligible for either Sub-chapter B or Sub-chapter C funds through the Rehabilitation Act. It is possible to reinstate your status, but this lengthy process can include paying income taxes during the period you were out of compliance, and other penalties and fees, including not being able to draw funds from your grants.

More soon about the content of the 990.

Your non-profit is also required to withhold both taxes and social security from employee paychecks following the employee’s W4 form, matching social security and providing a report of the withholding on an annual W2 form, which is provided to both the employee and the state and federal tax entities.

You are also required to report any payment you gave to a contractor or other non-employee that was in excess of $600 for the year. This is filed on a 1099.

Contractor or Subrecipient? Does it matter?

In a couple of states the DSE (Designated State Entity) is allowing only overdue reimbursement and not advances or timely payment. Both SILCs  are considered contractors by their state. I wondered if there is enough difference between a contractor and a sub-recipient to make the case that SILCs and CILs are sub-grantees/sub-recipients and not contractors. Here is what I found.

EDGAR, the regulations that most DSE’s fall under, specifies that contractors do not need to be paid an indirect cost rate, while SILCs and CILs are required to have and use a negotiated federal indirect cost rate. I think it is arguable that, since funds are set up in the Rehab Act to go to these entities, that is another argument for sub-recipient status.

Here’s some other criteria that will help you differentiate whether you should be paid as a subrecipient or a contractor, from 2 CFR 200.330 Subrecipient and contractor determinations.

The non-Federal entity may concurrently receive Federal awards as a recipient, a subrecipient, and a contractor, depending on the substance of its agreements with Federal awarding agencies and pass-through entities. Therefore, a pass-through entity must make case-by-case determinations whether each agreement it makes for the disbursement of Federal program funds casts the party receiving the funds in the role of a subrecipient or a contractor. The Federal awarding agency may supply and require recipients to comply with additional guidance to support these determinations provided such guidance does not conflict with this section.

(a)Subrecipients. A subaward is for the purpose of carrying out a portion of a Federal award and creates a Federal assistance relationship with the subrecipient. See § 200.92 Subaward. Characteristics which support the classification of the non-Federal entity as a subrecipient include when the non-Federal entity:

(1) Determines who is eligible to receive what Federal assistance;

(2) Has its performance measured in relation to whether objectives of a Federal program were met;

(3) Has responsibility for programmatic decision making;

(4) Is responsible for adherence to applicable Federal program requirements specified in the Federal award; and

(5) In accordance with its agreement, uses the Federal funds to carry out a program for a public purpose specified in authorizing statute, as opposed to providing goods or services for the benefit of the pass-through entity.

(b)Contractors. A contract is for the purpose of obtaining goods and services for the non-Federal entity‘s own use and creates a procurement relationship with the contractor. See § 200.22 Contract. Characteristics indicative of a procurement relationship between the non-Federal entity and a contractor are when the contractor:

(1) Provides the goods and services within normal business operations;

(2) Provides similar goods or services to many different purchasers;

(3) Normally operates in a competitive environment;

(4) Provides goods or services that are ancillary to the operation of the Federal program; and

(5) Is not subject to compliance requirements of the Federal program as a result of the agreement, though similar requirements may apply for other reasons.

(c)Use of judgment in making determination. In determining whether an agreement between a pass-through entity and another non-Federal entity casts the latter as a subrecipient or a contractor, the substance of the relationship is more important than the form of the agreement. All of the characteristics listed above may not be present in all cases, and the pass-through entity must use judgment in classifying each agreement as a subaward or a procurement contract.


Grants.gov puts it this way in Grants Learning Center’s Terminology page :

Subaward: An award provided by a pass-through entity to a subrecipient for the subrecipient to carry out part of a Federal award received by the pass-through entity. It does not include payments to a contractor or payments to an individual that is a beneficiary of a Federal program. A subaward may be provided through any form of legal agreement, including an agreement that the pass-through entity considers a contract.


So there is a distinction, even if you have a “contract” to describe the relationship. If any of you find this useful in your discussion between the SILC and the DSE, please comment here or let me know what has been helpful.