Guidelines for Examination of Entities Receiving Financial Assistance from Governmental Sources

The following definitions apply to this section of the manual:

• Organization.  A provider of goods, services, or other benefits to a governmental unit.
• Contractor.  An organization that receives a contract for the purpose of providing goods and services for the awarding governmental unit's own use.  The contract creates a procurement relationship with the contractor.  [based on 2 CFR 200.22 and 200.330(b)]
• Subrecipient.  An organization that receives a contract for the purpose of carrying out a portion of a governmental unit's grant requirement, statutory responsibility, or plan.  [based on 2 CFR 200.330(a)]
• Entity.  "As used in this article, 'entity' means any provider of goods, services, or other benefits that is:  (1) maintained in whole or in part at public expense; or (2) supported in whole or in part by appropriations or public funds or by taxation.  The term does not include the state or a municipality (as defined in this section)."  [IC 5-11-1-16(e)]

Regardless of the final determination of a contractor or subrecipient relationship, the agreement will be included in the examination procedures applied at the governmental unit level.  The determination that a subrecipient relationship exists may require the "entity" to be examined separately pursuant to IC
5-11-1-9.

Questions Based on Indiana case law:

Affirmative responses in this section may indicate a contractor relationship:

• Does a written agreement between the parties exist?
• Does the document refer to the amounts paid as "fees for services"?
• Is the amount paid negotiated between the parties for services performed?
• Does the document contain an objective measure of performance?
• Is there a direct relationship between the amount paid and the amount of services received?
• Do federal tax forms describe the compensation as fee for service rather than as contri­butions, indirect support, etc.?
• Does the amount paid under the document fluctuate from payment to payment?
• Is an itemized bill submitted to the governmental unit for services performed?

Other factors from Indiana case law to be considered by the Indiana State Board of Accounts to determine whether the arrangement is a fee for service contract or a grant or subsidy situation include:

• Express language of the document creating the arrangement.
• How references to payments are memorialized in Board minutes.
• Whether itemized claims were submitted by the non-profit organization pursuant to IC
  36-10-9-9 if applicable.
• Whether the document requires a fixed percentage of money paid to non-profit organization regardless of non-profit organization's performance.
• Payment amounts were not dependent on non-profit organization's performance, but rather, payments depended on the amount of annual tax collected by the government entity having the arrangement with the organization.

Questions Derived from Uniform Guidance (2 CFR 200.330):

Affirmative responses in this section may indicate a contractor relationship:

• 200.330(b)(4) - Does the organization provide goods or services for the governmental unit's own use?

• 200.330(b)(4) - Does the organization provide services to clients or participants as desig­nated by the governmental unit (or at the direction of the governmental unit) without making programmatic decisions?

• 200.330(b)(5) - Does the governmental unit develop the scope of work and terms and con­ditions of the agreement to meet the governmental unit's needs?

Note regarding answers related to 2 CFR 200.330(b)(5).  If the scope of the contract is per the governmental unit's terms and not general guidance from a grant program, statute, or plan, then the contract may be indicative of a contractor.  

• 200.330(b)(1) - Is the organization's normal business to provide the goods or services being purchased in the agreement?

• 200.330(b)(2) - Does the organization provide similar goods or services to other organiza­tions?

Affirmative responses in this section may indicate a subrecipient relationship.

• 200.330(a)(1) - Does the organization determine who is eligible to participate in a govern­ment grant, program, or plan?

• 200.330(a)(3) - Does the organization have the ability to make decisions about how ser­vices will be provided to participants in a government grant, program, or plan (e.g., delivery of service, operations, or types of assistance provided within the terms of the agreement)?
• 200.330(a)(2) - Are the scope of work and terms and conditions of the contract the same for the organization as they are for the governmental unit that received the funds (e.g., requirements per a grant award, statute, or governmental unit plan)?

• 200.330(a)(2) - Is the organization carrying out completion of the goal of the grant, statute, or plan as stated in the grant, statute, or plan?

Notes for answers related to 2 CFR 200.330(a)(2). The following type of arrangement is an example of what may tend to show a subrecipient relationship:  if the organization is providing a service that carries out a goal within the scope of the grant, statute, or plan.  For example, if the scope of the agreement is per the grant, statute, or plan terms without any specific direction from the governmental unit; the organization makes the decisions on how best to accomplish the goal rather than the governmental unit; or the organization may also provide programmatic or progress reports to ensure compliance with grant, statute, or plan requirements.

Alternatively, if the organization is providing a service for the governmental unit to meet the goal of a grant, statute, or plan, it may indicate a contractor.

Sources:

State Board of Accounts v. Indiana University Foundation, 647 N.E. 2d 342 (Ind. Ct. App. 1995)

Indiana Convention and Visitors Association, Inc. v. Indianapolis Newspaper, Inc., 577 N.E. 2d 208 (Ind. 1991)

Perry County Economic Development Corporation v. Kempf, 712 N.E. 2d 1020 (Ind. Ct. App. 1999)

Indiana Code 5-11-1

Uniform Guidance 2 CFR 200.330

Final Determination - Contractor or Subrecipient Relationship

It will be the determination of the Indiana State Board of Accounts and not the entity as to whether the funding arrangement meets the definition of fees for services.  A copy of the document - grant or contract, and invoices and bills, correspondence between the parties, Board or Trustee meeting minutes, and other information may be required to be submitted and will be reviewed to determine the proper cate­gorization of funding.

Government Providers of Financial Assistance

Government providers of financial assistance to entities are required to include wording in their contracts, agreements, or other funding documents that the entity must allow for audits by our department or on behalf of our department.  Such documents must also require compliance with the annual reporting requirement (Form E‑1) in accordance with IC 5-11-1-4 discussed elsewhere in these Guidelines.

Government providers of financial assistance should also assist recipients and subrecipients, when requested, in determining their audit requirements.  It is also their responsibility to inform entities of any federal funds being passed through to them so the entities can, in turn, report these funds accurately in the annual financial report due in accordance with IC 5-11-1-4 and other financial documents.

By statutory definition, funding received from state and local governments outside of Indiana or from other nongovernmental entities are not considered financial assistance for purposes of defining an entity and the resulting reporting and audit requirements.  Please confirm with the entity that provided you funding their status as a governmental unit or nongovernmental entity if you are uncertain as the ramifi­cations can be significant.

Our involvement in the audit process is triggered by the filing of the Entity Annual Report (E-1) as required by IC 5-11-1-4.  Based on the financial information reported, we advise the entity if an audit is required, or if they qualify for a tentative waiver in accordance with IC 5-11-1-9.  Although we realize many entities begin arranging for their audit prior to their fiscal year end, it is not possible for us to make a final determination prior to reviewing the E‑1.  An entity that routinely requires an audit under our thresholds can submit their audit contract for our review prior to submission of the E-1; however, final audit requirement determination under our statute will be made following the submission of the E-1.

Once an entity is notified of their audit requirement, they should confirm with their funding agencies the type of audit required and begin the process of evaluating and selecting an auditor if they have not already done so.

After the entity has selected an auditor, a copy of the contract (or engagement letter) should be submitted to the Indiana State Board of Accounts for review and approval.  Only contracts that include language that both parties will comply with the provisions of State Examiner Directive 2015-2 and include the same as an attachment to the contract will obtain approval.

The auditor should advise the entity and the Indiana State Board of Accounts of the date, time, and location of the entity's exit conference upon completion of the field work.  The issued audit report and any separate written communication from the auditor to the entity, such as a governance/management letter, is to be submitted to the Indiana State Board of Accounts.  Providing these documents to the Indiana State Board of Accounts is a responsibility of the auditor.  These files should be submitted as an unlocked PDF file either in the upload files section of the Gateway or via email to notforprofit@sboa.in.gov.  Unlocked files allow us to upload the report to our website for public inspection, and separate report and governance/ management letter files lessen the possibility that internal communications not meant for public release become public.

The Indiana State Board of Accounts performs a quality control review of the audit report, during which, we review for sufficiency in scope and adequacy in quality and evaluate any findings of noncom­pliance for further action required of this department.  If we determine an on-site review of the auditor's workpapers is necessary, the auditor will be assessed a fee.

Upon completion of the quality control review, the audit report is made available for public inspec­tion by this department.  In most instances, our review will be separate and distinct from any audit review/ resolution process administered by a funding agency.

The coordination and administration of entity audits is somewhat complex.  Audits may be initiated and administrated by the Indiana State Board of Accounts; by state or local government funding agencies; or by entities themselves. Audits may be performed by the Indiana State Board of Accounts; private exam­iners hired by this department; or private examiners approved by the Indiana State Board of Accounts and hired by funding agencies or entities.  Audit costs are the responsibility of the entity examined regardless of who is performing the audit.

It is unlikely that the Indiana State Board of Accounts will perform many of these audits.  It is also unlikely there will be more than a few instances in which we initiate and administrate the audit process.  However, coordination of these audits with the Indiana State Board of Accounts is required.  We, therefore, require the submission of all entity audit contracts to us for approval. Contracts with no reference to or acknowledgment of the responsibility of the Indiana State Board of Accounts in this process via reference to State Examiner Directive 2015-2 and inclusion of the same as a contract amendment will be rejected.

The primary responsibility for ensuring the appropriateness, timeliness, and completeness of an entity's audit rests with the entity itself.  However, successful completion of the audit process cannot be accomplished without the direct cooperation and assistance of funding agencies, independent auditors, and the Indiana State Board of Accounts.  Due to the complexity of government regulations and the uniqueness of existing arrangements and relationships between funding agencies and entities, it is imperative that entities and their auditors confirm in advance the type and scope of audit necessary to satisfy all parties involved.  This extra effort during the preliminary phase of the audit process will ensure that one and only one audit need be performed.

To be considered for audit services, a respondent must:

1. Be a certified public accountant (CPA) and licensed to practice in the State of Indiana or have a CPA license from a state that has been determined to be in substantial equivalence with the CPA licensure requirements of the State of Indiana in accordance with IC
   25-2.1-4-10(a);
2. Meet independence requirements of the American Institute of Certified Public Accountants (AICPA) and the Generally Accepted Government Auditing Standards (GAGAS) issued by the Comptroller General of the United States, as applicable;
3. If performing audits under GAGAS, meet continuing professional education requirements in accordance with Government Auditing Standards issued by the Comptroller General of the United States;
4. Obtain an external peer review at least once every three years and attain a rating of Pass or Pass with Deficiencies;
5. Understand applicable uniform compliance guidelines, policies, and directives established by the Indiana State Board of Accounts.

State agencies are required to use the RFP process if they contract for audits of entities they fund.  They are required to submit the RFP to the Indiana State Board of Accounts for approval prior to issuance.  In addition, the Indiana State Board of Accounts will review the evaluation method used in selecting the successful respondent.

Local governments contracting for audits of entities they fund and entities contracting for their own audit are not required to issue RFPs. However, the Indiana State Board of Accounts does recommend the RFP process for anyone soliciting audit services.

As discussed previously, the audits of entities receiving financial assistance will be performed pri­marily by Independent Public Accountants (IPAs) authorized or designated by the Indiana State Board of Accounts.

To obtain approval for the audit, the audit contract (or engagement letter) must be submitted to the Indiana State Board of Accounts prior to signing.  The audit organization should also provide their most recent external peer review report and any letter of comment.

All IPAs engaged by the State Examiner or allowed to be engaged in accordance with IC 5-11-1-7(b) must meet the following qualifications:

1. Be a certified public accountant (CPA) and licensed to practice in the State of Indiana or have a CPA license from a state that has been determined to be in substantial equivalence with the CPA licensure requirements of the State of Indiana in accordance with IC
   25-2.1-4-10(a);
2. Meet independence requirements of the American Institute of Certified Public Accountants (AICPA) and the Generally Accepted Government Auditing Standards (GAGAS) issued by the Comptroller General of the United States, as applicable;
3. If performing audits under GAGAS, meet continuing professional education requirements in accordance with Government Auditing Standards issued by the Comptroller General of the United States;
4. Obtain an external peer review at least once every three years and attain a rating of Pass or Pass with Deficiencies;
5. Have no record of performing substandard audits;
6. Understand and comply with applicable uniform compliance guidelines, policies, and direc­tives established by the Indiana State Board of Accounts;
7. Understand the role of the Indiana State Board of Accounts in the audit process and that the IPA is acting as an agent for the State Examiner;

As part of our review of the audit contract, we will review the contract to ensure that the audit being contemplated appears appropriate in relation to the information reported on the E-1 Entity Annual Report.

Upon completion of our review, we will issue a written approval or rejection of the contract.  Our reason(s) for rejecting any audit contract will be stipulated in writing. Contracts with no reference to or acknowledgment of the responsibility of the Indiana State Board of Accounts in this process via reference to State Examiner Directive 2015-2 and inclusion of the same in the contract will be rejected.

Notice to Auditors:

The approval of your audit contract by this department is not an assertion that your audit will satisfy federal funding agencies or other reporting requirements.  Our approval is based on limited knowledge of your client's overall audit requirements and is not to be used as a substitute for thorough planning by you.

The following are the responsibilities of the auditor:

1. The audit will be performed in accordance with auditing standards generally accepted in the United State of America, Government Auditing Standards, (if applicable), and federal Single Audit requirements (if applicable).
2. The Indiana State Board of Accounts will be notified immediately if suspected instances of fraud or abuse are discovered during the course of audit regardless of materiality.
3. The Indiana State Board of Accounts will be notified via email a minimum of five (5) days prior to the date, time, and location of the exit conference.
4. The Indiana State Board of Accounts will be provided a copy of the audit report, as well as any separate communication to the entity's governance and/or management.  The audit report must be submitted in an unlocked pdf file.  These files are to be uploaded in the Gateway (using the Upload Files option) or may be emailed to:  notforprofit@sboa.in.gov.
5. The Indiana State Board of Accounts will be provided the names, postal addresses (prefer­ably office address if they normally receive mail there), and email addresses of the entity's chief executive officer, chief financial officer (if any), and governing board president.
6. Workpapers supporting the audit report will be made available for review by the Indiana State Board of Accounts at the State Examiner's discretion.
7. All correspondence will be via the following email address:  notforprofit@sboa.in.gov.