Under the OMB Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, which went into effect on 12/16/2014, the term “vendor” was replaced with “contractor.” The terms vendor and contractor substantially have the same meaning and may be used interchangeably in other guidance. For consistency purposes, when UNH provides funds from a federal award to a non-federal entity, the non-federal entity receiving these funds is classified as a subrecipient or a contractor based on the nature of the agreement and the criteria in 2 CFR §200.330.
Under the Uniform Guidance (2 C.F.R. §200), an organization is considered a subrecipient of a federal award when it:
- Substantive, programmatic work or an important or significant portion of the research program or project is being undertaken by the other entity.
- The research program or project is within the research objectives of the entity.
- The entity participates in a creative way in designing and/or conducting the research.
- The entity retains some element of programmatic control and discretion over how the work is carried out.
- The entity commits to a good faith effort to complete the design or conduct of the research.
- The entity makes independent decisions regarding how to implement the requested activities.
- A principal investigator has been identified at the entity and functions as a “Co-Investigator”.
- There is the expectation that the entity will retain ownership rights in potentially patentable or copyrightable technology or products that it produces in the course of fulfilling its scope of work.
- Publications may be created or co-authored at the entity.
- The entity provides cost sharing or matching funds for which it is not reimbursed by the University of New Hampshire.
- The entity regards itself, and/or is regarded by the University, as “engaged in research” involving human subjects under the Common Rule and therefore requires approval for its interactions with human subjects.
Under the Uniform Guidance (2 C.F.R. §200), an organization is considered a contractor (vendor) when it:
- The entity is providing specified services in support of the research program.
- The entity has not significantly participated in the design of the research itself, but is
- implementing the research plan of the University’s investigator.
- The entity is not directly responsible to the sponsor for the research or for determining research results.
- The entity markets its services to a range of customers, including those in non-academic fields.
- Little or no independent decision-making is involved in the design and conduct of the research work being completed.
- The agreement only specifies the type of goods/services provided and the associated costs.
- The entity commits to deliverable goods or services, which if not satisfactorily completed will result in nonpayment or requirement to redo deliverables.
- The entity does not expect to have its employees or executives credited as co-authors on papers that emerge from the research.
- The expectation is that the work will not result in patentable or copyrightable technology or products that would be owned by the entity.
- In the case of an individual vendor of consulting services, the person has no employment relationship with the University, either academic or administrative in nature.
It is the responsibility of the principal investigator to determine whether the price is competitive and reasonable for agreements with both subrecipients and vendors. In either case; however, the agreed-upon cost is not relevant in determining whether the relationship is that of subrecipient or vendor. It is required by federal grant terms and conditions and by good business practices that competitive bids are sought for goods and services from multiple vendors, whenever possible and when the cost exceeds $35,000. Sole source contractor (vendor) relationships may be prohibited by the conditions of the prime award, and if allowed, are typically subject to specific conditions and procedural requirements.
To comply with the requirements in Uniform Guidance 2 CFR §200.330, UNH must determine whether services provided to further the purposes of an award (grant or contract) should be paid as a contractor (vendor) agreement or subrecipient of the award.
Why It's Important
The nature of the relationship determines whether or not an entity is a subrecipient or a contractor (vendor). Neither the dollar amount of the engagement nor the associated overhead is a determining factor. Careful review of the nature of services to be provided and an appropriate determination as part of the proposal budget review process eliminates post-award problems such as:
- Obtaining sponsor prior approval for unbudgeted subcontracts.
- Delays in processing subcontracts.
- Meeting audit and compliance requirements with for-profit organizations where a contractor (vendor) relationship should exist.
- Appropriate classification as subrecipient or contractor (vendor) also is important to the external entity, since significant audit and compliance requirements are attached to a subrecipient.
How to Comply
Principal investigators are responsible for seeking advice when determining whether an entity that will assist with research under a sponsored award represents a subrecipient or a vendor. Advice may be sought from SPA or Procurement Services.
SPA will review, negotiate and sign subagreements, assuring that appropriate signatures and approvals have been obtained from the other entity. SPA is also available to answer questions and provide consultation on research policies as well as general sponsored practices.
Assistance with bids or other questions regarding vendors can also be provided by Procurement Services.
There may be unusual circumstances or exceptions to the listed characteristics. In determining whether a subrecipient or contractor (vendor) relationship exists, the substance of the relationship is more important than the form of the agreement. It is not expected that all characteristics of either relationship will be present. Classification can be complex and requires the exercise of informed judgment; SPA and USNH Purchasing Staff are available to assist in the interpretation and determination of how an award should be administered.
Final decisions are at the discretion of the Directors of Purchasing and SPA.
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