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. 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.

Contractor or Subrecipient? Does it matter?

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