DATE: July 9, 2020
TO: Tribal IV-D Agencies
SUBJECT: Tribal Property and Uniform Cost Principles
Many tribes house their child support programs in tribally owned property and have asked questions about the allocation of costs of fixed assets. The ACF Office of Administration maintains a ACF Property Guidance website that provides information, guidance, and materials related to real property, tangible property (equipment and supplies), and intangible property (copyrights, patents) in a central location. The information contained on the website is not intended to replace federal regulations. Tribes should review and comply with the guidance as applicable and in accordance with 45 CFR Part 75 and 45 CFR Part 309.
OCSE highlights the following sections, which address the recent questions and concerns raised by tribes regarding tribally owned property.
When an entity owns a building and/or office space and it is claimed or contributed to the award, 45 CFR 75.436 requires that the building and/or office space must be valued using depreciation, whether claimed as an administrative cost or for cost-sharing purposes.
When property is donated, per 45 CFR 75.434(b), the value of the property donated may not be charged to the Federal award either as a direct or indirect (facilities & administration) cost. The value of donated property may be used to meet cost sharing or matching requirements at 45 CFR 75.306. Depreciation on donated assets is permitted in accordance with 45 CFR 75.436, so long as the donated property is not counted towards cost sharing or matching requirements. For information about computing depreciation, see 45 CFR 75.436.
For cost principles applicable to rented or leased property, please see ACF’s guidance on rent/lease arrangements.
Recipients who own land, building, and/or space claimed and/or contributed towards the award, please refer to the Depreciation Guidance for more information.
To better align with ACF’s property guidance and the Uniform Guidance, 45 CFR part 75, OCSE rescinds PIQT-16-01, which provides information on the uniform guidance for tribal child support programs. However, the answers to the following questions still apply.
Question 1: What are the uniform administrative requirements, cost principles, and audit requirements that apply to tribal IV-D programs?
Answer 1: The Interim Final Rule published in the Federal Register, 79 FR 75871, dated December 19, 2014, provided notice that the uniform administrative requirements for states, local governments, and Indian tribal governments were removed from 45 CFR Part 92 and are now contained in 45 CFR Part 75. The cost principles and audit requirements for these governments were removed from 2 CFR Part 225 and OMB Circulars A-87 and A-133 and are now contained in 45 CFR Part 75 Subparts E and F. The notice indicated that HHS made the rule effective on December 26, 2014, to comply with all other federal agency adoption of a similar rule and to ensure consistency in administration of grants. Tribal IV-D programs should review 45 CFR Part 75 (also known as the “Uniform Guidance”) as the rules have been updated to reduce administrative burden on grantees as well as reduce risk of waste, fraud, and abuse in federally funded programs. The tribal regulations at 45 CFR 309 have also been updated to reflect this change.
Question 2: What are the federal requirements for intangible property (patents, copyrights) and procurement that apply to tribal IV-D programs?
Answer 2: Patents and copyrights are a type of intangible property. The general intangible property requirements are located under 45 CFR 75.322, which describes the uniform standards governing management and disposition of this property. A tribe may use its own property management standards and procedures provided that they meet these provisions. In addition, 45 CFR 75.448 identifies and outlines allowable and unallowable costs related to securing patents and copyrights.
If a non-federal entity wishes to enter into a contract arrangement for patents, in accordance with 45 CFR 75.335, the contract must contain the applicable provisions described in Appendix II to this part. Paragraph F of Appendix II to Part 75 pertains to patents and describes the circumstances under which a non-federal entity’s contracts must include patent right provisions consistent with 37 CFR Part 401 for the rights to inventions made under a tribal IV-D contract or agreement. Additionally, tribes must submit their contracts to OCSE for review and approval as part of their tribal IV-D plans in accordance with 45 CFR 309.60(c) (see TDCL-08-02). Please read Appendix II of Part 75 for the full list of contract provisions, and include the applicable provisions in tribal contracts issued under the tribal IV-D plan.
The regulations at 45 CFR 75.326 through 75.340 contain the procurement standards and procedures that apply to tribes. Tribes should review the requirements and ensure that their procurement policies for using IV-D funding comply with the requirements in these sections.
Question 3: Why is it necessary to have patent, copyright, ownership, and confidentiality clauses in contracts used in tribal programs?
Answer 3: In addition to meeting the federal requirements, patent, copyright, ownership, and confidentiality provisions help protect tribes from the loss and unauthorized use and disclosure of information or products used or developed under a tribal IV-D contract. For example, these provisions will ensure that tribes obtain access to working papers, own products or data developed for them, and have the required safeguards for confidential information. Therefore, we recommend that tribes develop standard language to include these provisions in their contracts and procurement policies and procedures. Tribal IV-D programs should review the property standards requirements contained in 45 CFR 75.316 through 75.325.
Question 4: Where in 45 CFR Part 75 is the record retention and access requirements that apply to tribal programs?
Answer 4: The record retention and access requirements for tribal programs are contained in 45 CFR 75.361 through 75.370. The tribal regulations also reference the record retention requirements at 45 CFR 309.85(b). Tribal IV-D programs should review these requirements.
INQUIRIES: ACF OCSE Regional Program Managers
Scott M. Lekan
Office of Child Support Enforcement