HomeMy WebLinkAboutResolutions - 2021.05.26 - 34515MISCELLANEOUS RESOLUTION #21196 May 26, 2021
BY: Commissioner William Miller, Chairperson, Economic Ueveiopment and Infrastructure Committee
IN RE: ECONOMIC DEVELOPMENT — UNITED STATES ECONOMIC DEVELOPMENT
ADMINISTRATION (U.S. EDA) CARES ACT RECOVERY ASSISTANCE — GRANT ACCEPTANCE
To the Oakland County Board of Commissioners
Chairperson, Ladies and Gentlemen:
WHEREAS the Economic Development (ED) department, in collaboration with the Great Lakes Women's
Business Council and its CEED Lending program, has applied to and been awarded United States
Economic Development Administration (EDA) CARES Act Recovery Assistance Grant funding in the
amount of $3,000,000 to capitalize an Oakland County Revolving Loan Fund (RLF) that will provide loans
to businesses and be open to all eligible applicants, with an initial focus on those impacted by and
recovering from the COVID-19 pandemic for the period April 13, 2021 through April 12, 2024; and
WHEREAS the RLF will be used to provide gap financing to small businesses which cannot access funding
from traditional sources such as banks and credit unions; and
WHEREAS the RLF will also be used to support businesses in economically distressed areas, provide
access to capital for minorities, women, and others who are underrepresented in mainstream financing,
and support businesses that lack sufficient collateral and owners' equity to qualify for mainstream financing;
and
WHEREAS Miscellaneous Resolution #20577 approved the preliminary acceptance of award as Economic
Development was notified by the granting agency that the application was reviewed for merit and selected
for consideration; and
WHEREAS M.R. #20577 authorized Oakland County to provide an unencumbered, committed $1,000,000
match from unassigned fund balance to awarded RLF capital, in addition to $300,000 for oversight and
administrative costs of CEED Lending; and
WHEREAS Great Lakes Women's Business Council and its CEED Lending program will provide on a
regular and periodic basis program performance data to Oakland County; and
WHEREAS Oakland County will enter into an agreement with Great Lakes Women's Business Council and
its CEED Lending program pertaining to this grant; and
WHEREAS acceptance of the grant does not obligate the County to any future commitments over and
above those outlined herein; and
WHEREAS Oakland County Business Development staff will promote the Oakland County Revolving Loan
Fund when appropriate to Oakland County small businesses and partner organizations; and
WHEREAS the grant agreement has completed the Grant Review Process in accordance with the Grants
Policy approved by the Board at their January 21, 2021 meeting.
NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners accepts the
CARES Act Recovery Assistance Grant from the U.S. EDA in the amount of $3,000,000 for the period April
12, 2021 through April 12, 2024.
BE IT FURTHER RESOLVED that the Board Chairperson is authorized to execute the grant agreement
and to approve grant changes and extensions which are consistent with the original agreement.
BE IT FURTHER RESOLVED that the Board Chairperson is authorized to execute the agreements with the
Great Lakes Women's Business Council and its CEED Lending program and to approve grant changes and
extensions which are consistent with the original agreement.
BE IT FURTHER RESOLVED a budget amendment is not required as M.R. #20577 authorized the
acceptance of award amount of $3,000,000 and the one-time funding of $1,300,000 appropriated from the
General Fund Unassigned Fund Balance to Economic Development's Administration Division's Economic
Adjustment Assistance Fund (#29302).
Chairperson, on behalf of the Economic Development and Infrastructure Committee, I move the adoption
of the foregoing resolution.
Commissioner William Miller, District #14
Chairperson, Economic Development and
Infrastructure Committee
ECONOMIC DEVELOPMENT AND INFRASTRUCTURE COMMITTEE VOTE:
Motion carried on a roll call vote with Cavell absent.
FINANCE COMMITTEE VOTE:
Motion carried unanimously on a roll call vote.
GRANT REVIEW SIGN -OFF — Economic Development & Community Affairs
GRANT NAME: FY2020 EDA CARES ACT Recovery Assistance Grant Program
FUNDING AGENCY: U.S. Economic Development Administration
DEPARTMENT CONTACT: Dominique Holmes / (248) 858-0979
STATUS: Grant Acceptance (Greater than $10,000)
DATE: 04/30/21
Please be advised the captioned grant materials have completed internal grant review. Below are the returned comments
The Board of Commissioners' liaison committee resolution and grant acceptance package (which should include this sign -
off and the grant agreement/contract with related documentation) may be requested to be placed on the agenda(s) of the
appropriate Board of Commissioners' committee(s) for grant acceptance by Board resolution.
DEPARTMENT REVIEW
Management and Budget:
Approved by M & B —
The agreement with Great Lakes Women's Business Council must include language that they comply with all
the requirements under the federal program as well as any necessary language that protects the County for the
services they are providing.
The draft resolution requires updates. This will not be in the General Fund and the $3.OM and $1.3M are one-
time. While the grant period is from 4/12/2021 through 04/12/2024, this funding is one-time and the amount is
not each year as reflected by the FY 2021-2024 column heading in the draft resolution (budget amendment
should be FY 2021 only). There is to be a separate fund established for this (not part of the General Fund).
Recommend the $ L3M fund balance use come from the Investing in Oakland's Economy fund balance
assignment (GL Account #383457). — Lynn Sonkiss (04/28/21)
[Department is working with Corporation Counsel to include language. MR has been updated. 04/28/211
Human Resources:
Approved by HR — No position implications — Heather Mason (04/21/21)
Risk Management:
Approved by Risk Management. — Robert Erlenbeck (04/22/21)
Corporation Counsel:
Approved as to no unresolved legal issues. —Robert Rottach (04/26/21)
*
U.S. DEPARTMENT OF COMMERCE
* *
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Economic Development Administration
CHICAGO REGIONAL OFFICE
+ * *
230 SOUTH DEARBORN Street
CHICAGO, ILLINOIS 60604-1512
hi reply refer
to:
Investment No.: 06-79-06265
David Woodward
Chair, Board of Commissioners
Oakland County
2100 Pontiac Lake Road
Building 41 W
Waterford, MI48328-0409
Michelle Richards
Executive Director
Great Lakes Women's Business Council
33109 Schoolcraft Rd.
Livonia, MI 48150-1625
Dear Mr. Woodward and Ms. Richards
I am pleased to inform you that the U.S. Department of Commerce's Economic Development
Administration (EDA) has approved your application for a $3,000,000 EDA investment for the
Oakland County Revolving Loan Fund.
Attached is the Financial Assistance Award. Your agreement to the terms and conditions of the
award should be indicated by the signature of your principal official on the Financial Assistance
Award. Once signed, the executed document should be returned to me, at sbrehnirDkda.eov. If not
signed and returned within 30 days of receipt, EDA may declare the Award null and void.
Upon receipt of this letter please contact Catherine Canavan, Economic Development Specialist,
at 312-789-9755 or ccanavjnwi cda.aov, to schedule your mandatory post -award conference. The
award conference must be scheduled no later than 30 days after award.
The Department of Commerce Office of Inspector General requires that all recipients of awards
under the FY 2020 CARES Act Supplemental Notice of Funding Opportunity participate in Fraud
Awareness Training. All personnel at your organization responsible for overseeing contractors,
sub -contractors, sub -grantees, or who are otherwise responsible managing your organization's
finances are required to take the training. This requirement is satisfied by reading and
understanding the attached PowerPoint presentation. Once you and the appropriate personnel at
your organization have completed the training, please return signed electronic copies of the
certification page (page 38) to EDA within 60 days from the date of award.
Please do not make any commitments in reliance on this award until you have carefully reviewed
and accepted the terms and conditions. Any commitments entered into prior to obtaining the
approval of EDA in accordance with its regulations and requirements will be at your own risk.
EDA's mission is to lead the Federal economic development agenda by promoting innovation and
competitiveness, preparing American regions for growth and success in the worldwide economy.
EDA implements this mission by malting strategic investments in the nation's most economically
distressed communities that encourage private sector collaboration and creation of higher -skill,
higher wage jobs. EDA investments are results driven, embracing the principles of technological
innovation, entrepreneurship and regional development.
1 share your expectations regarding the impact of this investment and look forward to working
with you to meet the economic development needs of your community.
Sincerely,
Susan M. Brehm
Regional Director
FORM CD-450 (MULTI) U.S. DEPARTMENT OF COMMERCE (REV. 10/18)
r GRANT IJ COOPERATIVE AGREEMENT
FINANCIAL ASSISTANCE AWARD
I FEDERAL AWARD ID NUMBER
06-79-06265; URI: 115819
RECIPIENT NAME
PERIOD OF PERFORMANCE
Oakland County, MI
136 Months from Award Date
STREETADDRESS
(FEDERAL SHARE OF COST
2100 Pontiac Lake Road; Building 41 W
$ 3,000,000 "
CITY, STATE, ZIP CODE
(RECIPIENT SHARE OF COST
I $ 1,000,000 '
Waterford, MI 48328-0409
RECIPIENT NAME
(TOTAL ESTIMATED COST
Great Lakes Women's Business Council
$ 4, 000, 000 "
STREETADDRESS
33109 Schoolcraft Rd.
CITY, STATE, ZIP CODE
Livonia, MI 48150-1625
AUTHORITY
Public Works and Economic Development Act of 1965, as amended (42 U.S.C. S 3121 at seq.)
CFDA NO. AND NAME
11.307 Economic Development Adjustment Assistance - CARES Act Supplemental
PROJECT TITLE
Oakland County Revolving Loan Fund
This Award document (Form CD-450) signed by the Grants Officer constitutes an obligation of Federal funding. By signing this Form CD-460, the
Recipient agrees to comply with the Award provisions checked below and attached. Upon acceptance by the Recipient, the Form CD-450 must be
signed by an authorized representative of the Recipient and returned to the Grants Officer. If not signed and returned without modification by the
Recipient within 30 days of receipt, the Grants Officer may unilaterally withdraw this offer and de -obligate the funds.
DEPARTMENT OF COMMERCE FINANCIAL ASSISTANCE STANDARD TERMS AND CONDITIONS (November 2020)
❑ R&DAWARD
❑ FEDERAL -WIDE RESEARCH TERMS AND CONDITIONS, AS ADOPTED BY THE DEPT. OF COMMERCE
0 SPECIFIC AWARD CONDITIONS
59 LINE ITEM BUDGET
[91 2 CFR PART 200, UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES AND AUDIT REQUIREMENTS AS ADOPTED
PURSUANT TO 2 CFR § 1327.101
❑ 48 CFR PART 31, CONTRACT COST PRINCIPLES AND PROCEDURES
❑ MULTI -YEAR AWARD: PLEASE SEE THE MULTI -YEAR SPECIAL AWARD CONDITION.
0 OTHER(S): 1. 13 CFR Chapter III
2. OIG Fraud Awareness Training
3. ASAP Enrollment Form and Instructions
4. U.S. Dept. of Commerce, EDA RLF Standard Terms and Conditions (Nov 2020)
SIGNATURE OF DEPARTMENT OF COMMERCE GRANTS OFFICER DATE
Susan M. Brehm, Regional Director
(PRINTED NAME, PRINTED TITLE, AND SIGNATURE OF AUTHORIZED RECIPIENT OFFICIAL DATE
(David Woodward, Board Chair, Oakland County
IPRINTED NAME, PRINTED TITLE, AND SIGNATURE OF AUTHORIZED RECIPIENT OFFICIAL DATE
IMichelle Richards, Executive Director, GLWBC
SPECIFIC AWARD CONDITIONS
U.S. DEPARTMENT OF COMMERCE
Economic Development Administration (EDA)
REVOLVING LOAN FUND AWARDS: Economic Adjustment Assistance under section 209
of the Public Works and Economic Development Act of 1965, as amended (42 U.S.C. § 3149).
Project Title: Oakland County Revolving Loan Fund
Recipient Names: 1. County of Oakland, MI
2. Great Lakes Women's Business Council
Award Number: 06-79-06265 1 URI: 115819
This Award supports the work described in the approved final scope of work, which is
incorporated by reference into this Award, as the Authorized Scope of Work. All work on this
project should be consistent with the Authorized Scope of Work, unless the Grants Officer has
authorized a modification in writing through an amendment memorialized through execution
of an Amendment of Financial Assistance Award (Form CD-451).
The Authorized Scope of Work for this Award is to capitalize a Revolving Loan Fund (RLF)
to lend to individuals and businesses that have had trouble securing traditional bank financing
in the following geographic region: Oakland County, Michigan. The Scope of Work must be
administered in accordance with the most recent RLF Plan approved by EDA.
2. RECIPIENT INFORMATION:
David Woodward
Chair, Board of Commissioners
Phone: 249-296-5033
Email: woodwarddooalcgov.com
3. EDA INFORMATION:
EDA Project Team
Susan M. Brehm
Regional Director
Phone: 312-799-9749
Email: sbrehm("iieda.gov
Pamela L. Smith
Administrative Director
Phone:312-485-7929
Email: ns111ith2((kda.eov
County of Oakland
2100 Pontiac Lake Road
Building 41 W
Waterford, MI 49328-0409
Roles and Responsibilities
Grants Officer: Authorized to award,
amend, suspend, and terminate financial
assistance awards.
Program Officer: Oversees the
programmatic aspects of this Award.
EDA Specific Award Conditions
Page I
Catherine Canavan
Economic Development Specialist
Phone:312-789-9755
Email: ccanavan(c,eda.eov
4. ADDITIONAL INCLUDED DOCUMENTS:
Proiect Officer: Responsible for day-to-day
administration of this Award; liaises with
Recipient and receives all reports and
payment requests,
In addition to the regulations, documents, or authorities incorporated by reference on the
Financial Assistance Award (Form CD-450), the following additional documents are included
with and considered part of the Award's terms and conditions:
A. Recipient's final completed application (this item not enclosed in the Award package);
B. Initial RLF Plan
Should there be a conflict between the Specific Award Conditions (this document) and the
application, the Specific Award Conditions, including any attachments, shall control.
5. PROJECT DEVELOPMENT TIME SCHEDULE: Recipient agrees to the following
project development time schedule:
Item
Return of executed Financial Assistance Award
Return of O1G Fraud Awareness Training Certificate
Authorized Award End Date
Submission of final reports, including Federal
Financial Report
Due Date
30 days from Date of Award
60 days from Date of Award
36 months from Date ofAward
120 days from Award End Date
Recipient shall diligently pursue the development and implementation of the project upon
receipt of the Award so as to ensure completion within this time schedule. Additionally,
Recipient shall promptly notify EDA in writing of any event which could substantially delay
meeting any of the prescribed time limits for the project set forth in the Award, including those
set forth above. Recipient further acknowledges that failure to meet the development time
schedule may result in EDA taking action to terminate the Award in accordance with the
regulations set forth at 2 CFR §§ 200.339 through 200.343, as applicable.
6. DISBURSEMENT PHASE AND REVOLVING PHASE: The Disbursement Phase of the
Award is considered the period of loan activity where grant funds awarded have not been fully
disbursed to Recipient. The end of the Disbursement Phase coincides with the earlier of the
Authorized Award End Date or immediately after all grant funds have been disbursed to
Recipient. The Revolving Phase commences at the end of the Disbursement Phase and
continues as long as the RLF exists.
7. LOAN CLOSING AND DISTRIBUTION SCHEDULE: Recipient must draw down Award
funds in accordance with the terms of this Award, including deadlines for partial disbursement,
if any; the entire amount of the Award must be disbursed by the Authorized Award End Date
(13 CFR § 307.11(g)(1)). If Recipient fails to do so, EDA may de -obligate part or all of the
non -disbursed balance of the RLF Award. The procedure for Recipient to request an extension
EDA Specific Award Conditions Page 2
to draw down the Award and the factors that EDA will consider in evaluating such a request
are set forth at 13 CFR § 307.11(h).
8. PROJECT REPORTING AND FINANCIAL DISBURSEMENTS INSTRUCTIONS:
A. FINANCIAL DISBURSEMENTS: EDA will make award payments through Electronic
Funds Transfers directly to the Recipient's bank account and in accordance with the
requirements of the Debt Collection Improvement Act of 1996, as amended. The Award
Number must be included on all payment -related correspondence, information, and forms.
Recipient must submit Request for Advance or Reimbursement (Form SF-270) to the
Project Officer in order to draw down Award funds. Award funds may only be used by
Recipient to close a loan or disburse loan funds to a borrower (13 CFR § 307.11(b)).
Recipient must disburse RLF funds to a borrower within 30 days of receipt; any Award
funds not disbursed within the 30-day period must be refunded to EDA (13 CFR §
307.11(e)). Recipient's cash matching share must be used either in proportion to Award
funds or at a faster rate than Award funds (13 CFR § 307.1 1(f)(1)).
Prior to the initial disbursement, Recipient must complete ACH Vendor/Miscellaneous
Payment Enrollment Form (SF-3881) and submit it to NOAA's Accounting Office by FAX
to (301) 528-3675. (FAX is required to secure confidentiality of sensitive information.)
B. REPORTS
FEDERAL FINANCIAL REPORT: Recipient must submit the Federal Financial
Report (Form SF-425) on a semiannual basis during the period of performance of this
Award. The Report must be submitted within 30 calendar days of the midpoint and end
of Recipient's fiscal year (this means that Recipient's first such Report will be due no
later than seven months after the effective date of the Award, and possibly sooner,
depending on Recipient's fiscal year). Form SF-425 and instructions for completing
the Form are available at: httos://www.arants.vov/web/erants/forms/post-award-
renortine-forms.html.
A final Form SF-425 must be submitted within 120 calendar days after the Authorized
Award End Date (i.e., the Award end date specified on Form CD-450 or the most recent
Form CD-451), unless an extension is granted in writing by EDA pursuant to 2 CFR §
200.344. The final financial report should follow the guidance outlined in the
instructions for submitting mid-term financial reports, but should ensure that all fields
accurately reflect the total outlays for the entire period of performance, and that all
matching share and program income (if applicable) are fully reported. Determination
of the final Brant rate and balances owed to the Qovernment will be made based on the
information in the final Form SF-425, so it is imperative that this final financial report
is submitted in a timely and accurate manner.
2. RLF FINANCIAL REPORT: Recipient must submit an RLF Financial Report (using
the Form ED-209 or in another format as directed by EDA), including a Portfolio Loan
List, on a semiannual basis during the period of performance of this Award. The Report
must be submitted within 30 calendar days of the midpoint and end of Recipient's fiscal
EDA Specific Award Conditions Page 3
year. However, after the period of performance of this Award (during the Revolving
Phase), EDA may allow high -performing RLFs, as evaluated through the Risk Analysis
System, to submit the RLF Financial Report on an annual basis, generally within 90
days of Recipient's fiscal year end. The Report must be submitted as long as the RLF
exists (i.e., during the Disbursement Phase and the subsequent Revolving Phase).
3. PROJECT PROGRESS REPORTS: The Recipient agrees to provide the Project
Officer with project progress reports, which will communicate the important activities
and accomplishments of the Project. Each report must be submitted within 30 calendar
days of the midpoint and end of Recipient's fiscal year (this means that Recipient's
first such Report will be due no later than seven months after the effective date of the
Award, and possibly sooner, depending on Recipient's fiscal year).
Performance progress reports should be submitted to EDA in an electronic format no
later than the dates outlined above in a concise, clear format, and containing the
following information in no more than 4 pages in length:
a. Provide a clear, concise overview of the activities undertaken during the semi-
annual reporting project period;
b. Document accomplishments, benefits, and impacts that the project and
activities are having. The Recipient should note where activities have led to
specific outcomes such as job creation/retention, private investment, increased
regional collaboration, engagement with historically excluded groups or
regions, enhanced regional capacity, and other positive economic benefits;
c. Highlight any upcoming or potential press events or opportunities for
collaborative press events that would highlight the benefits of the EDA
investment;
d. Compare progress with the project timeline, explaining any departures from the
targeted schedule, identifying how these departures are going to be remedied,
and projecting the course of work for the next semi-annual reporting period;
e. Outline challenges that currently impact or could impact progress on the Award
over the next semi-annual reporting period and identify ways to mitigate this
risk; and
f. Outline any areas where EDA assistance is needed to support the project or any
other key information that would be helpful for your EDA Project Officer to
know.
Final Project Reports may be posted on EDA's website, used for promotional materials
or policy reviews, or may be otherwise shared. Recipients should not include any
copyrighted or other sensitive business information in these reports. Reports should
concisely communicate key project information, and should:
a. Outline the specific regional need that the project was designed to address and
update progress made during the award period that will mitigate need and
advance economic development;
b. Provide a high-level overview of the activities undertaken;
EDA Specific Award Conditions Page 4
c. Detail lessons learned during the project period that may be of assistance to
EDA or other communities undertaking similar efforts;
d. Outline the expected and actual economic benefits of the project as of the time
that the report is written; and
e. Any other key information from the project.
9. ALLOWABLE COSTS AND AUTHORIZED BUDGET: The Line Item Budget is the
authorized budget for this Award. Total allowable costs will be determined at the conclusion
of the period of performance in accordance with the applicable authorities specified in the
Financial Assistance Award (Form CD-450), including the Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal Awards at 2 CFR part 200.
A. Under the terns of this Award, the total approved/authorized Budget is:
Federal Share (EDA) $3,000,000
Non -Federal Matching Share $1,000,000
Total Project Cost $4,000,000
B. Under the terms of this Award, the total approved Line Item Budget is:
Personnel
Fringe Benefits
Travel
Equipment
Supplies
Contractual
Construction
Other $4,000,000
Total Direct Charges $4,000,000
Indirect Charges
Total $4,000,000
10. RLF ADMINISTRATIVE EXPENSES: Expenses for the administration of this Award are
not included in the Line Item Budget. Recipient is responsible for such expenses, although
RLF Income may be used to pay for some such administrative expenses (13 CFR § 307.12(a)).
IL FEDERAL SHARE: The EDA participation in total eligible project costs will be limited to
the lesser of the EDA grant amount or the EDA share of total allowable project costs (as stated
on Form CD-450 or the most recent Form CD-451).
12. MATCHING SHARE: The Recipient agrees to provide the Recipient's non -Federal
Matching Share contribution for eligible project expenses in proportion to the Federal share
requested for such project expenses. By accepting the Award, the Recipient also certifies that
the Matching Share of the project costs is committed to the project, is not encumbered in any
way that would prevent its use for the project, and will be available as needed for the project.
EDA Specific Award Conditions Page 5
13. VOLUNTARILY CONTRIBUTED CAPITAL: If Recipient wishes to inject additional
capital into the RLF Capital Base to augment the amount of resources available to lend,
Recipient must submit a written request to EDA which specifies the source of the funds to be
added. Once approved by EDA, any additional capital injected into the RLF becomes an
irrevocable part of the RLF Capital Base and may not be subsequently withdrawn or separated
from the RLF (13 CFR § 307.12(d)).
14. REQUIREMENTS PRIOR TO INITIAL DISBURSEMENT: In accordance with 13 CFR
§ 307.11(a), within sixty calendar days prior to the initial disbursement of the Award, Recipient
must submit in a form acceptable to EDA the following items:
A. Certification signed by an authorized representative of the Recipient that Recipient's
accounting system is adequate to identify, safeguard, and account for the entire RLF
Capital Base, outstanding RLF loans, and other RLF operations. Recipient is required to
maintain the adequacy of the RLF's accounting system for the duration of the RLF's
operation.
B. Evidence of fidelity bond coverage for persons authorized to handle funds under the RLF
Award in an amount sufficient to protect the interests of EDA and the RLF. At a minimum,
the amount of coverage must be the maximum loan amount allowed for in the EDA-
approved RLF Plan. Recipient must maintain sufficient fidelity bond coverage for the
duration of the RLF's operation.
C. Certification signed by an authorized representative of Recipient that standard RLF loan
documents reasonably necessary or advisable for lending are in place, and a certification
from Recipient's legal counsel that the standard RLF loan documents are adequate and
comply with the terms and conditions of the RLF Award, RLF Plan, and applicable State
and local law. Recipient is required to maintain and appropriately update standard RLF
loan documents at all times for the duration of the RLF's operation. The standard loan
documents must include, at a minimum, the following:
1. Loan application;
2. Loan agreement;
3. Board of directors' meeting minutes approving the RLF loan;
4. Promissory note;
5. Security agreement(s);
6. Deed of trust or mortgage (as applicable);
7. Agreement of prior lien holder (as applicable); and
8. Evidence demonstrating that credit is not otherwise available on terms and conditions
that permit the completion or successful operation of the activity to be financed.
15. REFUND CHECKS, INTEREST, OR UNUSED FUNDS: Treasury has given EDA two
options for having payments deposited to EDA's account:
A. The first is the pay.gov website. This option allows the payee to pay EDA through the
internet. The payee will have the option to make a one-time payment or to set up an account
to make regular payments.
EDA Specific Award Conditions Page 6
B. The second is paper check conversion. All checks must include on their face the name of
the DOC agency funding the Award, the Award Number, and a description of no more than
two words identifying the reason for the refund or check. A copy of the check should be
provided to the EDA Project Officer. This option allows the payee to send a check to
NOAA's Accounting Office, which processes EDA's accounting functions, at the
following address:
U.S. Department of Commerce
National Oceanic and Atmospheric Administration
Finance Office, AOD, EDA Grants
20020 Century Boulevard
Germantown, MD 20874
The accounting staff will scan the checks in to an encrypted file and transfer the file to the
Federal Reserve Bank, where the funds will be deposited in EDA's account. While this
process will not be an issue with most payees, there are occasionally issues for entities
remitting funds to EDA via check. If you are remitting funds to EDA via check, please
make note of the following:
1. If a check is sent to EDA, it will be converted into an electronic funds transfer by
copying the check and using the account information to electronically debit your
account for the amount of the check. The debit from your account will usually occur
within 24 hours and will appear on your regular account statement.
2. EDA will not return your original check; the original will be destroyed and a copy will
be maintained in our office. If the Electronic Funds Transfer (EFT) cannot be processed
for technical reasons, the copy will be processed in place of the original check. If the
EFT cannot be completed because of insufficient funds, EDA will charge you a one-
time fee of $25.00, which will be collected by EFT.
Regardless of the method used, Recipient shall contact the Project Officer prior to
processing any payments as described in this Specific Award Condition.
16. PLANNING COORDINATION: In keeping with regional economic development
principles, Recipient should coordinate economic development planning and implementation
projects with other economic development organizations affecting the area, especially EDA-
funded recipients such as State and urban planning grantees, adjoining Economic Development
Districts (EDDs) and Indian Tribes, and University Centers (UCs).
17. PROCUREMENT: Recipient agrees that all procurement transactions shall be in accordance
with the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for
Federal Awards at 2 CFR §§ 200.317 through 200.327.
18. NONRELOCATION: By accepting this Award of financial assistance, Recipient attests that
EDA funding is not intended by the Recipient to assist efforts to induce the relocation or the
movement of existing jobs from one region to another region in competition with those jobs.
In the event that EDA determines that its assistance was used for such purposes, EDA reserves
EDA Specific Award Conditions Page 7
the right to pursue appropriate enforcement actions, including suspension of disbursements,
termination of the Award for convenience or cause (which may include the establishment of a
debt requiring the Recipient to reimburse EDA), and disallowance of any costs attributable,
directly or indirectly, to the relocation.
19. PERFORMANCE MEASURES: The Semi -Annual Program Outputs Questionnaire for
EDA Grantees (Non -infrastructure programs) (Form ED-916) must be submitted by
Recipient to EDA on a semi-annual basis during the period of performance of this Award
(during the Disbursement Phase), or as otherwise directed by EDA. Throughout the period of
performance, or any portion thereof if applicable, EDA will provide Recipient with the
electronic Outputs Questionnaire approximately midway through Recipient's fiscal year and
at the end of Recipient's fiscal year. Recipient must complete and submit to EDA each
electronic Outputs Questionnaire within 30 days of receipt.
The Annual Capacity Outcomes Questionnaire for EDA Grantees Serving Clients (Non -
Infrastructure Programs) (Form ED-917) must be submitted by Recipient to EDA on an
annual basis for five years, or as otherwise directed by EDA. EDA will first provide Recipient
with the electronic Outcomes Questionnaire either midway through Recipient's fiscal year or
at the end of Recipient's fiscal year, and on an annual basis thereafter for a total of five years,
notwithstanding the end of the period of performance. Recipient must complete and submit to
EDA each Outcomes Questionnaire within 30 days of receipt.
EDA may revise or replace the Outputs Questionnaire and/or the Outcomes Questionnaire at
any time during or following the period of performance of this Award. Recipient agrees to
report on program performance measures and program outcomes in such form and at such
intervals as may be prescribed by EDA in compliance with the Government Performance and
Results Act (GPRA) of 1993 and the Government Performance and Results Modernization Act
of 2010 (collectively, GPRA Reports). Recipient must collect sufficient data and retain
sufficient documentation to enable Recipient to complete required GPRA Reports. Failure to
submit to EDA required GPRA Reports might adversely impact the ability of the Recipient to
secure future funding from EDA.
20. REAFFIRMATION OF APPLICATION: Recipient acknowledges that Recipient's
application for this Award may have been submitted to the Government and signed by
Recipient, or by an authorized representative of Recipient, electronically. Regardless of the
means by which Recipient submitted its application to the Government or whether Recipient
or an authorized representative of Recipient submitted its application to the Government, the
Recipient hereby reaffirms and states that:
A. All data in the application and documents submitted with the application are true and
correct as of the date the application was submitted and remain true and correct as of the
date of this Award;
B. The application was, as of the date of submission and the date of this Award, duly
authorized as required by local law by the governing body of the Recipient; and
„ ... .
EDA Specific Award Conditions Page 8
C. Recipient has read, understood, and will comply with all terms of this Award, including
the Assurances and Certifications submitted with, or attached to, the application.
The term "application" includes all documentation and any information provided to the
Government as part of, and in furtherance to, the request for finding, including submissions
made in response to information requested by the Government after submission of initial
application.
21. AMERICAN-MADE EQUIPMENT AND PRODUCTS: Recipient is hereby notified that
Recipient is encouraged, to the greatest extent practicable, to purchase American -made
equipment and products with funding provided under the RLF Award.
22. ALLOWABLE CASH PERCENTAGE: The Allowable Cash Percentage is the average
percentage of the RLF Capital Base maintained as RLF Cash Available for Lending by RLF
Recipients in the EDA Regional Office's portfolio of RLF Grants over the previous year (13
CFR § 307.8, definition of Allowable Cash Percentage). In general, EDA will notify Recipient
on an annual basis of the Allowable Cash Percentage that is applicable to lending during
Recipient's ensuing fiscal year.
During operation of the RLF during the Revolving Phase, Recipient must manage its loan
repayment and lending schedule in order to avoid exceeding the Allowable Cash Percentage
(13 CFR § 307.17(b)). Additionally, Recipient must not hold RLF Cash Available for Lending
so that it is 50 percent or more of the RLF Capital Base for 24 months without an EDA-
approved extension request based on other EDA risk analysis factors or extenuating
circumstances (13 CFR § 307.20(e)).
23. RISK ANALYSIS SYSTEM: EDA will evaluate Recipient's management and operation of
the RLF Award using a Risk Analysis System that measures a variety of factors, including but
not limited to capital, assets, management, earnings, liquidity, and strategic results. EDA plans
to provide Recipient a risk analysis rating of the RLF on at least an annual basis (13 CFR §
307.16(a)).
24. ENVIRONMENTAL REVIEW: In accordance with 13 CFR 307.10(a) and Part II, section
D)7), of the RLF Standard Terms and Conditions, Recipient must adopt and the RLF Plan must
include procedures for compliance with applicable environmental laws and regulations,
including to review the impacts of prospective loan proposals on the physical environment.
25. AUDIT REQUIREMENTS: Recipient must comply with the audit requirements set forth at
subpart F of 2 CFR part 200 and Appendix XI to 2 CFR part 200 (the Compliance Supplement),
as appropriate. Generally, if Recipient expends $750,000 or more in federal awards during
Recipient's fiscal year, Recipient must have a single or program -specific audit conducted for
that fiscal year.
Pursuant to Part 1I, section E)8), of the RLF Standard Terms and Conditions, if Recipient is
under the $750,000 federal expenditure threshold and was not otherwise required to arrange
for a single or program -specific audit for the fiscal year, the Recipient is required to submit to
EDA a program -specific independent audit that fulfills the requirements of 2 CFR § 200.507
and adheres to the Compliance Supplement for the fiscal year, unless such requirement is
.. . .... ..........
EDA Specific Award Conditions Page 9
waived by EDA. If there is insufficient RLF income to pay for such all audit, Recipient may
seek EDA approval to use RLF Capital Base funds to cover such audit costs, and EDA approval
will not be unreasonably withheld.
26. RLF PLAN: Recipient agrees to administer this Award in accordance with the EDA-approved
RLF Plan (13 CFR § 307.9). Recipient may not make RLF loans prior to EDA approval of
Recipient's initial RLF Plan. Should there be a conflict between the terms and conditions of
the Award and the RLF Plan, the terms and conditions of the Award shall control.
Recipient's RLF Plan must be updated once every five years, or sooner if necessary to adapt
to changing economic conditions. However, EDA may require Recipient to update the RLF
Plan at any time to incorporate new approaches, to align with an updated CEDS, or as otherwise
required by EDA. Recipient must submit any updates or modifications to the RLF Plan for
EDA approval, and EDA may condition such approval on any changes that EDA deems
necessary (13 CFR § 307.9(c)).
27. NON -DUPLICATION OF FEDERAL SUPPORT: Recipients shall adopt procedures to
detect and prevent RLF borrowers from obtaining funding from multiple federal funding
sources (including federal grants, federal loans, and federally guaranteed loans) for identical
expenses. At a minimum, Recipients shall require loan applicants (1) to disclose any other
federal funding sources that the applicant has applied for or received for purposes related to
the purpose for which the RLF loan is being sought and (2) to certify that no RLF loan proceeds
will be used to fund expenses for which the applicant has received other federal funding.
Should the Recipients determine that a borrower has received federal funding from multiple
sources for identical expenses, the Recipients shall demand immediate repayment of the
portion of the RLF loan allocable to those expenses and may take any other action against the
borrower permitted by the loan documents, the RLF plan, and applicable law, as the Recipients
deem appropriate for prudent management of the loan portfolio.
28. WASTE, FRAUD, AND ABUSE: Consistent with 2 CFR part 200, Recipient personnel
responsible for managing the Recipient's finances and overseeing any contractors, sub-
contractors or sub -grantees, will complete the training entitled "Compliance with EDA
CARES Act Program Requirements" and return the signed Certificate of Training Completion
(page 38 of the training) to EDA within 60 days of receipt.
Further, Recipient will monitor award activities for common fraud schemes, such as:
• false claims for materials and labor,
• bribes related to the acquisition of materials and labor,
• product substitution,
• mismarking or mislabeling on products and materials, and
• time and materials overcharging.
Should Recipient detect any suspicious activity, Recipient will contact EDA staff listed above
and the Office of Inspector General, as indicated at https://www.oig.doe.gov/Pages/Contact-
Us.aspx, as soon as possible.
...
EDA Specific Award Conditions Page 10
29. LEAD RECIPIENT DESIGNATION AND OBLIGATIONS: This Award is made to
multiple Recipients as identified in the Financial Assistance Award Form CD-450 to which
these Special Award Conditions are attached. EDA requested that one of the Recipients be
designated as the lead recipient to facilitate the administration of this Award. The Recipient
named first in the Recipient name block on the CD-450 has agreed in writing to be
designated as lead recipient. The co -Recipients acknowledge, agree with and consent to this
designation. The co -Recipients agree that all funds available pursuant to this Award will be
disbursed by EDA to the Lead Recipient. The Lead Recipient agrees to be responsible for the
further disbursement of all such funds received from EDA to the co -Recipients in accordance
with the Budget attached to this Award. Such disbursement by the Lead Recipient to the co -
Recipients will be made in accordance with all applicable Federal requirements as identified
and set forth on the Financial Assistance Award Form CD-450. The Lead Recipient further
agrees to be responsible for accumulating all necessary information for and the submission of
all reports required to be submitted to FDA pursuant to this Award.
EDA Specific Award
a d Conditions Page 11
DEPARTMENT OF COMMERCE
FINANCIAL ASSISTANCE
STANDARD TERMS AND CONDITIONS
OF
co
14
�O
STATES OF
13 Novem1)er � 0 '
DEPARTMENT OF COMMERCE
UUOATIOJ�OS1 1 ' JLCAA1
Table of Contents
PREFACE.......................................................................................................................................
5
A.
PROGRAMMATIC
REQUIREMENTS................................................................................
6
.01
Reporting Requirements..................................................................................................
6
.02
Revisions of Program Plans.............................................................................................
8
.03
Other Federal Awards with Similar Programmatic Activities .........................................
9
.04
Prohibition against Assignment by a Non -Federal Entity ...............................................
9
.05
Disclaimer Provisions......................................................................................................
9
.06
Unsatisfactory Performance or Non -Compliance with Award Provisions ......................
9
B.
FINANCIAL REQUIREMENTS..........................................................................................
10
.01
Financial Management...................................................................................................
10
.02
Award Payments............................................................................................................
10
.03
Federal and Non -Federal Sharing..................................................................................
12
.04
Budget Changes and Transfer of Funds among Categories ...........................................
12
.05
Program Income.............................................................................................................
13
.06
Indirect or Facilities and Administrative Costs.............................................................
13
.07
Incurring Costs or Obligating Federal Funds Before and After the Period of
Performance...................................................................................................................
15
.08
Tax Refunds...................................................................................................................
16
.09
Internal Controls............................................................................................................
16
C.
PROPERTY
STANDARDS..................................................................................................
16
.01
Standards........................................................................................................................16
.02
Real and Personal Property............................................................................................
16
.03
Intellectual Property Rights...........................................................................................
17
D.
AUDITS
................................................................................................................................
19
.01
Organization -Wide, Program -Specific, and Project Audits ...........................................
19
.02
Audit Resolution Process...............................................................................................
20
E.
DEBTS..................................................................................................................................
21
.01
Payment of Debts Owed to the Federal Government....................................................
21
.02
Late Payment Charges...................................................................................................
21
.03
Barring Delinquent Federal Debtors from Obtaining Federal Loans or Loan Insurance
Guarantees......................................................................................................................
22
1 1 12 November 2020
F
11
.04
Effect of Judgment Lien on Eligibility for Federal Grants, Loans, or Programs...........
22
CONFLICT
OF INTEREST, CODE OF CONDUCT AND OTHER REQUIREMENTS
PERTAINING TO DOC FINANCIAL ASSISTANCE AWARDS, INCLUDING
SUBAWARD AND PROCUREMENT ACTIONS.............................................................
22
.01
Conflict of Interest and Code of Conduct......................................................................
22
.02
Nonprocurement Debarment and Suspension................................................................
23
.03
Requirements for Subawards.........................................................................................
23
.04
Requirements for Procurements.....................................................................................
23
.05
Whistleblower Protections.............................................................................................
24
.06
Small Businesses, Minority Business Enterprises and Women's Business Enterprises 24
NATIONAL
POLICY REQUIREMENTS...........................................................................
25
.01
United States Laws and Regulations..............................................................................
25
.02
Non -Discrimination Requirements................................................................................
25
a.
Statutory Provisions.......................................................................................................25
b.
Other Provisions.............................................................................................................
26
c.
Title VII Exemption for Religious Organizations.........................................................
27
.03
LOBBYING RESTRICTIONS......................................................................................
27
a.
Statutory Provisions.......................................................................................................
27
b.
Disclosure of Lobbying Activities.................................................................................
27
.04
Environmental Requirements.........................................................................................
27
a.
The National Environmental Policy Act (42 U.S.C. §§ 4321 et seq.)...........................
28
b.
The National Historic Preservation Act (16 U.S.C. §§ 470 el seq.) ..............................
28
c.
Executive Order 11988 (Floodplain Management) and Executive Order 11990
(Protection of Wetlands)................................................................................................
29
d.
Clean Air Act (42 U.S.C. §§ 7401 et seq. ), Federal Water Pollution Control Act (33
U.S.C. §§ 1251 etseq.) (Clean Water Act), and Executive Order 11738 ("Providing
for
administration of the Clean Air Act and the Federal Water Pollution Control Act with
respect to Federal contracts, grants or loans")...............................................................
29
e.
The Flood Disaster Protection Act (42 U.S.C. §§ 4002 etseq.)....................................
29
f.
The Endangered Species Act (16 U.S.C. §§ 1531 et seq.).............................................
29
g.
The Coastal Zone Management Act (16 U.S.C. §§ 1451 et seq.)..................................
29
h.
The Coastal Barriers Resources Act (16 U.S.C. §§ 3501 el seq.)..................................
30
i.
The Wild and Scenic Rivers Act (16 U.S.C. §§ 1271 et seq.).......................................
30
j.
The Safe Drinking Water Act of 1974, as amended, (42 U.S.C. §§ 300f et seq.).........
30
k.
The Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 el seq.).................
30
2 1 12 November 2020
The Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA, commonly known as Superfund) (42 U.S.C. §§ 9601 et seq.) and the
Community Environmental Response Facilitation Act (42 U.S.C. § 9601 note et seq.)30
m.
Executive Order 12898 ("Federal Actions to Address Environmental Justice in
Minority Populations and Low Income Populations")..................................................
30
n.
The Magnuson -Stevens Fishery Conservation and Management Act (16 U.S.C. § 1801
etseq.)............................................................................................................................
30
o,
Clean Water Act (CWA) Section 404 (33 U.S.C. § 1344)............................................
31
p.
Rivers and Harbors Act (33 U.S.C. § 407)....................................................................
31
q.
The Migratory Bird Treaty Act (16 U.S.C. §§ 703-712), Bald and Golden Eagle
Protection Act (16 U.S.C. § 668 et seq.), and Executive Order 13186 (Responsibilities
of Federal Agencies to Protect Migratory Birds, January 10, 2001) .............................
31
r.
Executive Order 13112 (Invasive Species, February 3, 1999)......................................
31
s.
Fish and Wildlife Coordination Act (16 U.S.C. § 661 etseq.)......................................
31
.05
OTHER NATIONAL POLICY REQUIREMENTS.....................................................
32
a.
Buy -American Preferences............................................................................................
32
b.
Criminal and Prohibited Activities................................................................................
32
c.
Drug -Free Workplace....................................................................................................
33
d.
Foreign Travel................................................................................................................
33
e.
Increasing Seat Belt Use in the United States................................................................
34
f.
Federal Employee Expenses and Subawards or Contracts Issued to Federal Employees
orAgencies..........................................................................................................................
34
g.
Minority Serving Institutions Initiative.........................................................................
34
h.
Research Misconduct.....................................................................................................
35
i.
Research Involving Human Subjects.............................................................................
35
j.
Care and Use of Live Vertebrate Animals.....................................................................
36
k.
Management and Access to Data and Publications.......................................................
37
1.
Homeland Security Presidential Directive.....................................................................
38
to.
Compliance with Department of Commerce Bureau of Industry and Security Export
Administration Regulations...........................................................................................
38
n.
The Trafficking Victims Protection Act of 2000 (22 U.S.C. § 7104(g)), as amended,
and the implementing regulations at 2 C.F.R. Part 175.................................................
40
o.
The Federal Funding Accountability and Transparency Act (FFATA) (31 U.S.C. §
6101 note)......................................................................................................................
42
p.
Recipient Integrity and Performance Matters (Appendix X1I to 2 C.F.R. Part 200).....
47
q.
Never Contract with the Enemy (2 C.F.R Part 183; 2 C.F.R. § 200.215) .....................
49
3 112 November 2020
r. Prohibition on certain telecommunications and video surveillance services or
equipment (Public Law 115-232, section 889; 2 C.F.R. 8 200.216) ............................. 50
s. Federal Financial Assistance Planning During a Funding Hiatus or Government
Shutdown....................................................................................................................... 51
4 112 November 2020
01TWEM
This document sets out the standard terms and conditions (ST&Cs) applicable to this U.S.
Department of Commerce (DOC or Commerce) financial assistance award (hereinafter referred
to as the DOC ST&Cs or Standard Terms). A non -Federal entity receiving a DOC financial
assistance award must, in addition to the assurances made as part of the application, comply and
require each of its subrecipients, contractors, and subcontractors employed in the completion of
the project to comply with all applicable statutes, regulations, executive orders (E.O.$), Office of
Management and Budget (OMB) circulars, provisions of the OMB Uniform Administrative
Requirements. Cost Principles, and Audit Requirements for Federal Awards (codified at 2 C.F.R.
Part 200) (OMB Uniform Guidance), provisions of these Standard Terms, and any other terms
and conditions incorporated into this DOC financial assistance award. In addition, unless
otherwise provided by the terms and conditions of this DOC financial assistance award, Subparts
A through E of 2 C.F.R. Part 200 and the Standard Terms are applicable to for -profit entities,
foreign public entities and to foreign organizations that carry out a DOC financial assistance
award. -
This award is subject to the laws and regulations of the United States. Any inconsistency or
conflict in terms and conditions specified in the award will be resolved according to the
following order of precedence: federal laws and regulations, applicable notices published in the
Federal Register, E.O.s, OMB circulars, DOC ST&Cs, agency standard award conditions (if
any), and specific award conditions. A specific award condition may amend or take precedence
over a Standard Term on a case -by -case basis, when indicated by the specific award condition.
Some of the Standard Terms herein contain, by reference or substance, a summary of the
pertinent statutes, regulations published in the Federal Register or Code of Federal Regulations
(C.F.R.), E.O.s, OMB circulars, or the certifications and assurances provided by applicants
through Standard Forms (e.g., SF-424s) or through DOC forms (e.g. Form CD-511). To the
extent that it is a summary, such Standard Term provision is not in derogation of, or an
amendment to, any such statute, regulation, E.O., OMB circular, certification, or assurance.
Note that the OMB Uniform Guidance uses the term "non -Federal entity" to generally refer to an entity that carries
out a Federal award as a recipient or subrecipient. Because some of the provisions of these DOC ST&Cs apply to
recipients rather than subrecipients, or vice versa, for clarity, these DOC ST&Cs use the terms "non -Federal entity,"
"recipient," and "subrecipient' consistent with their meanings in the OMB Uniform Guidance. In addition, the
OMB Uniform Guidance uses the term "pass -through entity" to refer to a non -Federal entity that makes a subaward.
As defined at 2 C.F.R. § 200. I:
"Non -Federal entity" is "a state, local government, Indian tribe, institution of higher education (11-IE), or nonprofit
organization that carries out a Federal award as a recipient or subrecipient,"
"Recipient" is "an entity, usually but not limited to non -Federal entities, that receives a Federal award directly from
a Federal awarding agency. The term recipient does not include subrecipients or individuals that are beneficiaries of
the award."
"subrecipient" is "an entity, usually but not limited to non -Federal entities, that receives a subaward from a pass -
through entity to carry out part of a Federal award; but does not include an individual that is a beneficiary of such
award. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency."
"Pass -through entity" is "a non -Federal entity that provides a subaward to a subrecipient to carry out part of a
Federal program."
See 2 C.F.R. § 200.1 for the definitions of "foreign public entity" and "foreign organization."
5 112 November 2020
DOC commenced implementation of the Research Terms and Conditions (RT&Cs) for Federal
awards effective October 1, 2017; the RT&Cs address and implement the Uniform Guidance
issued by OMB. For awards designated on the Form CD-450 (Financial Assistance Award) as
Research, both the DOC ST&Cs and the RT&Cs as implemented by DOC apply to the award.
The RT&Cs as well as the DOC implementation statement, agency specific requirements, prior
approval matrix, subaward requirements, and national policy requirements are posted on the
National Science Foundation's website—https://www.nsf.gov/awards/managing/rte.jsp. The
DOC ST&Cs and the RT&Cs are generally intended to harmonize with each other; however,
where the DOC ST&Cs and the RT&Cs differ in a Research award, the RT&Cs prevail, unless
otherwise indicated in a specific award condition.
A. PROGRAMMATIC REQUIREMENTS
.01 Repol-ting Requirernents
a. Recipients must submit all reports as required by DOC, electronically or, if unable to
submit electronically, in hard copy, as outlined below and as may be supplemented by the terms
and conditions of a specific DOC award.
b. Performance (Technical) Reports. Recipients must submit performance (technical)
reports to the Program Officer. Performance (technical) reports should be submitted in the same
frequency as the Form SF-425 (Federal Financial Report), unless otherwise directed by the
Grants Officer.
1. Performance (technical) reports must contain the information prescribed in 2 C.F.R. §
200.329 (Monitoring and reporting program performance), unless otherwise specified in the
award conditions.
2. As appropriate and in accordance with the format provided by the Program Officer (or
other OMB -approved information collections, including the Research Program Performance
Report [RPPR] as adopted by DOC for use in research awards), recipients are required to
relate financial data to the performance accomplishments of this Federal award. When
applicable, recipients must also provide cost information to demonstrate cost effective
practices (e.g., through unit cost data). The recipient's performance will be measured in a
way that will help DOC to improve program outcomes, share lessons learned, and spread the
adoption of best or promising practices. As described in 2 C.F.R. § 200.211 (Information
contained in a Federal award), DOC will identify the timing and scope of expected
performance by the recipient as related to the outcomes intended to be achieved by the
Federal program.
3. Recipients (or pass -through entities as applicable) must submit a final performance report
within 120 calendar days after the expiration of the period of performance. The subrecipient
is required to submit its final performance report to the pass -through entity within 90
calendar days unless an extension has been granted.
6 112 November 2020
c. Financial Reports. In accordance with 2 C.F.R. § 200.328 (Financial reporting), the
recipient must submit a Form SF-425 (Federal Financial Report) or any successor form on a
semi-annual basis for the periods ending March 31 and September 30, or any portion thereof,
unless otherwise specified in a specific award condition. Reports must be submitted to DOC as
directed by the Grants Officer, in accordance with the award conditions and are due no later than
30 calendar days following the end of each reporting period. Recipients (or pass -through entities
as applicable) must submit a final Form SF-425 within 120 calendar days after the expiration of
the period of performance. The subrecipient is required to submit its financial report to the pass -
through entity within 90 calendar days unless an extension has been granted. A recipient may
submit a final financial report in lieu of an interim financial report due at the end of the period of
performance (e.g., in lieu of submitting a financial report for the last semi-annual or other
reporting under an award, a recipient may submit a final (cumulative) financial report covering
the entire award period).
d. Real Property, Tangible Personal Property and Intangible Property Reports and Requests
for Dispositions. Unless otherwise required by the terms and conditions of a DOC financial
assistance award, where real property, tangible personal property or intangible property is
acquired or improved (in the case of real property or tangible personal property), or produced or
acquired (in the case of intangible property), pursuant to a DOC award, non -Federal entities are
required to submit the following real property, tangible personal property and intangible property
reports (as appropriate):
1. Real Property Status Reports and Requests for Dispositions: Non -Federal entities must
submit reports using Form SF-429 (Real Property Status Report) or any successor form,
including appropriate attachments thereto, at least annually disclosing the status of real
property that is Federally -owned property or real property in which the Federal Government
retains a Federal Interest, unless the Federal Interest in the real property extends 15 years or
longer. In cases where the Federal Interest attached is for a period of 15 years or more, the
DOC or pass -through entity, at its option, may require the non -Federal entity to report at
various multi -year frequencies (e.g., every two years or every three years, not to exceed a
five-year reporting period; or, the DOC or pass -through entity may require annual reporting
for the first three years of a Federal award and thereafter require reporting every five years).
In addition, DOC or a pass -through entity may require a non -Federal entity to submit Form
SF-429, with appropriate attachments, relating to a non -Federal entity's request to acquire,
improve or contribute real property under a DOC financial assistance award.
Non -Federal entities wishing to dispose of real property acquired or improved, in whole or in
part, pursuant to a DOC award must request disposition instructions, including the
submission of Form SF-429, with appropriate attachments, from the Grants Officer in
accordance with the requirements set forth in 2 C.F.R. § 200.311(c). See also the real
property standards set forth in Section C. of these Standard Terms (Property Standards).
2. Tangible Personal Property Status Reports and Requests for Dispositions: DOC or a
pass -through entity may also require a non -Federal entity to submit periodic reports using
Form SF-428 (Tangible Personal Property Report) or any successor form, including
appropriate attachments thereto, concerning tangible personal property that is Federally -
owned or tangible personal property in which the Federal Government retains an interest. In
7 112 November 2020
addition, DOC or a pass -through entity may require a non -Federal entity to submit Form SF-
428 in connection with a non -Federal entity's request to dispose of tangible personal property
acquired under a DOC financial assistance award. Non -Federal entities wishing to dispose of
tangible personal property acquired or improved, in whole or in part, pursuant to a DOC
award must request disposition instructions, including the submission of Form SF-428, with
appropriate attachments, from the Grants Officer in accordance with the requirements set
forth in 2 C.F.R. § 200.313(e). See also the tangible property standards set forth in Section
C. of these Standard Terms (Property Standards).
3. Intangible Property Status Reports and Requests for Dispositions: The specific
requirements governing the development, reporting, and disposition of rights to intangible
property, including inventions and patents resulting from DOC awards, are set forth in 37
C.F.R. Part 401, which is hereby incorporated by reference into this award. Non -Federal
entities are required to submit their disclosures, elections, and requests for waiver from any
requirement for substantial U.S. manufacture, electronically using the Interagency Edison
extramural invention reporting system (iEdison) at www.iedison.gov. Non -Federal entities
may obtain a waiver of this electronic submission requirement by providing to the Grants
Officer compelling reasons for allowing the submission of paper reports. When no longer
needed for the originally authorized purpose, disposition of the intangible property must
occur in accordance with the provisions in 2 C.F.R. § 200.313(e). See also the intangible
property standards set forth in Section C. of these Standard Terms (Property Standards).
e. Subawards and Executive Compensation Reports. For reporting requirements on
subawards and Executive Compensation, see paragraph G.05.o of these Standard Terms (The
Federal Funding Accountability and Transparency Act (FFATA) (31 U.S.C. § 6101 note)).
f. Recipient Integrity and Performance Matters. For reporting requirements pertaining to
integrity and performance matters, see paragraph G.05.p of these Standard Terms (Recipient
Integrity and Performance Matters (Appendix XII to 2 C.F.R. Pail 200)).
g. Research Performance Progress Reports. All research awards shall submit the Research
Performance Progress Report (RPPR) in accordance with instructions set forth in the following
link: RPPR Instructions.
02 Revisions ol'Progranr Plans
In accordance with 2 C.F.R. § 200.309 (Revision of budget and program plans) and 2 C.F.R.
§ 200,407 (Prior written approval (prior approval)), the recipient must obtain prior written
approval from the DOC Grants Officer for certain proposed programmatic change requests,
unless otherwise provided by the terms and conditions of a DOC award. Requests for prior
approval for changes to program plans must be submitted to the Federal Program Officer (or
electronically for awards administered through Grants Online). Requests requiring prior DOC
approval are not effective unless and until approved in writing by the DOC Grants Officer.
8 1 12 November 2020
03 Other Federal Awards with Similar Programmatic Activities
The recipient must immediately provide written notification to the DOC Program Officer and
the DOC Grants Officer if, subsequent to receipt of the DOC award, other financial assistance is
received to support or fund any portion of the scope of work incorporated into the DOC award.
DOC will not pay for costs that are funded by other sources.
04 Prohibition against Assignnterrt by a Non -Federal Entity
A non -Federal entity must not transfer, pledge, mortgage, assign, encumber or hypothecate a
DOC financial assistance award or subaward, or any rights to, interests therein or claims arising
thereunder, to any party or parties, including but not limited to banks, trust companies, other
financing or financial institutions, or any other public or private organizations or individuals
without the express prior written approval of the DOC Grants Officer or the pass -through entity
(which, in turn, may need to obtain prior approval from the DOC Grants Officer).
0S Disclaimer Provisions
a. The United States expressly disclaims all responsibility or liability to the non -Federal
entity or third persons (including but not limited to contractors) for the actions of the non -Federal
entity or third persons resulting in death, bodily injury, property damages, or any other losses
resulting in any way from the performance of this award or any subaward, contract, or
subcontract under this award.
b. The acceptance of this award or any subaward by the non -Federal entity does not in any
way constitute an agency relationship between the United States and the non -Federal entity or
the non -Federal entity's contractors or subcontractors.
06 tlrisatisfactory Performance or Non-Conipliarice with Award provisions
a. Failure to perform the work in accordance with the terms of the award and maintain
satisfactory performance as determined by DOC may result in the imposition of additional award
conditions pursuant to 2 C.F.R. § 200.208 (Specific conditions) or other appropriate enforcement
action as specified in 2 C.F.R. § 200.339 (Remedies for noncompliance).
b. Failure to comply with the provisions of an award will be considered grounds for
appropriate enforcement action pursuant to 2 C.F.R. § 200.339 (Remedies for noncompliance),
including but not limited to: the imposition of additional award conditions in accordance with 2
C.F.R. § 200.208 (Specific conditions); temporarily withholding award payments pending the
correction of the deficiency; changing the payment method to reimbursement only; the
disallowance of award costs and the establishment of an accounts receivable; wholly or partially
suspending or terminating an award; initiating suspension or debarment proceedings in
accordance with 2 C.F.R. Parts 180 and 1326; and such other remedies as may be legally
available.
c. 2 C.F.R. §§ 200.340 (Termination) through 200.343 (Effects of suspension and
termination) apply to an award that is terminated prior to the end of the period of performance
9 1 12 November 2020
due to the non-federal entity's material failure to comply with the award terms and conditions.
In addition, the failure to comply with the provisions of a DOC award may adversely impact the
availability of funding under other active DOC or Federal awards and may also have a negative
impact on a non -Federal entity's eligibility for future DOC or Federal awards.
B. FINANCIAL REQUIREMENTS
.01 Financial Management
a. In accordance with 2 C.F.R. § 200.302(a) (Financial Management), each State must
expend and account for the Federal award in accordance with State laws and procedures for
expending and accounting for the State's own funds. In addition, the State's and any other non -
Federal entity's financial management systems, including records documenting compliance with
Federal statutes, regulations, and the terms and conditions of the Federal award, must be
sufficient to permit the preparation of reports required by general and program -specific terms
and conditions; and the tracing of funds to a level of expenditures adequate to establish that such
funds have been used in accordance with Federal statutes, regulations, and the terms and
conditions applicable to the Federal award. See also 2 C.F.R. § 200.450 (Lobbying) for
additional management requirements to verify that Federal funds are not used for unallowable
lobbying costs.
b. The financial management system of each non -Federal entity must provide all
information required by 2 C.F.R. § 200.302(b). See also 2 C.F.R. §§ 200.334 (Retention
requirements for records); 200.335 (Requests for transfer of records); 200.336 (Methods for
collection, transmission and storage of information); 200.337 (Access to records); and 200.338
(Restrictions on public access to records).
.02 Award Payments
a. Consistent with 2 C.F.R. § 200305(a) (Federal payment), for States, payments are
governed by Treasury -State Cash Management Improvement Act (CMIA) agreements and
default procedures codified at 31 C.F.R. Part 205 (Rules and Procedures for Efficient Federal -
State Funds Transfers) and Treasury Financial Manual Volume 1, 4A-2000 (Overall Disbursing
Rules for All Federal Agencies).
b. Consistent with 2 C.F.R. § 200.305(b), for non -Federal entities other than States,
payment methods must minimize the amount of time elapsing between the transfer of funds from
the U.S. Treasury or the pass -through entity and the disbursement by the non -Federal entity.
1. The Grants Officer determines the appropriate method of payment and, unless otherwise
stated in a specific award condition, the advance method of payment must be authorized.
Advances must be limited to the minimum amounts needed and be timed to be in accordance
with the actual, immediate cash requirements of the non -Federal entity in carrying out the
purpose of the approved program or project. Unless otherwise provided by the terms and
conditions of a DOC award, non -Federal entities must time advance payment requests so that
Federal funds are on hand for a maximum of 30 calendar days before being disbursed by the
10 112 November 2020
non -Federal entity for allowable award costs.
2. If a non -Federal entity demonstrates an unwillingness or inability to establish procedures
that will minimize the time elapsing between the transfer of funds and disbursement by the
non -Federal entity or if a non -Federal entity otherwise fails to continue to qualify for the
advance method of payment, the Grants Officer or the pass -through entity may change the
method of payment to reimbursement only.
c. Unless otherwise provided for in the award terms, payments from DOC to recipients
under this award will be made using the Department of Treasury's Automated Standard
Application for Payment (ASAP) system. Under the ASAP system, payments are made through
preauthorized electronic funds transfers directly to the recipient's bank account, in accordance
with the requirements of the Debt Collection Improvement Act of 1996. To receive payments
under ASAP, recipients are required to enroll with the Department of Treasury, Financial
Management Service, Regional Financial Centers, which allows them to use the on-line and
Voice Response System (VRS) method of withdrawing funds from their ASAP established
accounts. The following information will be required to make withdrawals under ASAP:
1. ASAP account number —the Federal award identification number found on the cover
sheet of the award;
2. Agency Location Code (ALC); and
3. Region Code.
d. Recipients enrolled in the ASAP system do not need to submit a Form SF-270 (Request
for Advance or Reimbursement) for payments relating to their award. Awards paid under the
ASAP system will contain a specific award condition, clause, or provision describing enrollment
requirements and any controls or withdrawal limits set in the ASAP system.
e. When the Form SF-270 or successor form is used to request payment, the recipient must
submit the request no more than monthly, and advances must be approved for periods to cover
only expenses reasonably anticipated over the next 30 calendar days. Prior to receiving
payments via the Form SF-270, the recipient must complete and submit to the Grants Officer the
Form SF-3881 (ACH Vendor Miscellaneous Payment Enrollment Form) or successor form along
with the initial Form SF-270. Form SF-3881 enrollment must be completed before the first
award payment can be made via a Form SF-270 request.
f. The Federal award identification number must be included on all payment -related
correspondence, information, and forms.
g. Non -Federal entities receiving advance award payments must adhere to the depository
requirements set forth in 2 C.F.R. §§ 200.305(b)(7) through (b)(I 1). Interest amounts up to $500
per non -Federal entity's fiscal year may be retained by the non -Federal entity for administrative
expenses.
11 1 12 November 2020
.03 Federal and Ikon -Federal Sharing
a. Awards that include Federal and non -Federal sharing incorporate a budget consisting of
shared allowable costs If actual allowable costs are less than the total approved budget, the
Federal and non -Federal cost shares must be calculated by applying the approved Federal and
non -Federal cost share ratios to actual allowable costs. If actual allowable costs exceed the total
approved budget, the Federal share must not exceed the total Federal dollar amount authorized
by the award.
b. The non -Federal share, whether in cash or third -party in -kind contributions, is to be paid
out at the same general rate as the Federal share, Exceptions to this requirement may be granted
by the Grants Officer based on sufficient documentation demonstrating previously determined
plans for, or later commitment of, cash or third -party in -kind contributions. In any case, the
recipient must meet its cost share commitment as set forth in the terms and conditions of the
award; failure to do so may result in the assignment of specific award conditions or other further
action as specified in Standard Term A.06 (Unsatisfactory Performance or Non -Compliance with
Award Provisions). The non -Federal entity must create and maintain sufficient records
justifying all non -Federal sharing requirements to facilitate questions and audits; see Section D
of these Standard Terms (Audits), for audit requirements. See 2 C.F.R. § 200.306 for additional
requirements regarding cost sharing.
.04 Budget Changes and Transfer of Funds among Categories
a. Recipients are required to report deviations from the approved award budget and request
prior written approval from DOC in accordance with 2 C.F.R. § 200.308 (Revision of budget and
program plans) and 2 C.F.R. § 200.407 (Prior written approval (prior approval)). Requests for
such budget changes must be submitted to the Grants Officer (or electronically for awards
serviced through Grants Online) who will notify the recipient of the final determination in
writing. Requests requiring prior DOC approval do not become effective unless and until
approved in writing by the DOC Grants Officer.
b. In accordance with 2 C.F.R. § 200.308(f), transfers of finds by the recipient among direct
cost categories are permitted for awards in which the Federal share of the project is equal to or
less than the simplified acquisition threshold. For awards in which the Federal share of the
project exceeds the simplified acquisition threshold, transfers of funds among direct cost
categories must be approved in writing by the Grants Officer when the cumulative amount of
such direct costs transfers exceeds 10 percent of the total budget as last approved by the Grants
Officer. The 10 percent threshold applies to the total Federal and non -Federal funds authorized
by the Grants Officer at the time of the transfer request. This is the accumulated amount of
Federal funding obligated to date by the Grants Officer along with any non -Federal share. The
same requirements apply to the cumulative amount of transfer of funds among programs,
functions, and activities. This transfer authority does not authorize the recipient to create new
budget categories within an approved budget without Grants Officer approval. Any transfer that
causes any Federal appropriation, or part thereof, to be used for an unauthorized purpose is not
and will not be permitted. In addition, this provision does not prohibit the recipient from
requesting Grants Officer approval for revisions to the budget. See 2 C.F.R. § 200.308 (Revision
12 1 12 November 2020
of budget and program plans) (as applicable) for specific requirements concerning budget
revisions and transfer of funds between budget categories.
.05 Program Income
Unless otherwise indicated in the award terms, program income may be used for any required
cost sharing or added to the project budget, consistent with 2 C.F.R. § 200.307 (Program
income).
.06 Indirect or Facilities and Administrative Costs
a. Indirect costs (or facilities and administration costs (F&A)) for major institutions of
higher education and major nonprofit organizations can generally be defined as costs incurred for
a common or joint purpose benefitting more than one cost objective, and not readily assignable
to the cost objectives specifically benefited, without effort disproportionate to the results
achieved. Indirect costs will not be allowable charges against an award unless permitted under
the award and specifically included as a line item in the award's approved budget.
b. Unrecovered indirect costs, including unrecovered indirect costs on cost sharing or
matching, may be included as part of cost sharing or matching as allowed under 2 C.F.R. §
200.306(c) (Cost sharing or matching) or the terms and conditions of a DOC award.
c. Cognizant Agency for Indirect (F&A) Costs. OMB established the cognizant agency
concept, under which a single agency represents all others in dealing with non -Federal entities in
common areas. The cognizant agency for indirect costs reviews and approves non -Federal
entities' indirect cost rates. In accordance with Appendices III — VII to 2 C.F.R. Part 200 the
cognizant agency for indirect costs reviews and approves non -Federal entities' indirect cost rates.
With respect to for -profit organizations, the term cognizant Federal agency generally is defined
as the agency that provides the largest dollar amount of negotiated contracts, including options.
See 48 C.F.R. § 42.003. If the only Federal funds received by a commercial organization are
DOC award funds, then DOC becomes the cognizant Federal agency for indirect cost
negotiations.
1. General Review Procedures Where DOC is the Cognizant Agency.
i. Within 90 calendar days of the award start date, the recipient must submit to the
Grants Officer any documentation (indirect cost proposal, cost allocation plan, etc.)
necessary to allow DOC to perform the indirect cost rate proposal review. Below are two
sources available for guidance on how to put an indirect cost plan together:
(A) Department of Labor: littns://www.dol.kov/oasam/boc/cicd/nu-comni-auide.litm
or
(B) Department of the Interior: liuDs://www.cioi,aov/ibc/serN,ices/finance/indirect-
Cost- Sery ices/.
ii. The recipient may use the rate proposed in the indirect cost plan as a provisional rate
until the DOC provides a response to the submitted plan.
13 112 November 2020
iii. The recipient is required to annually submit indirect cost proposals no later than six
months after the recipient's fiscal year end, except as otherwise provided by 2 C.F.R. §
200.414(g).
2, When DOC is not the oversight or cognizant Federal agency, the recipient must provide
the Grants Officer with a copy of a negotiated rate agreement or a copy of the transmittal
letter submitted to the cognizant or oversight Federal agency requesting a negotiated rate
agreement within 30 calendar days of receipt of a negotiated rate agreement or submission of
a negotiated rate proposal.
3. If the recipient is proposing indirect costs as part of a project budget, but is not required
to have a negotiated rate agreement pursuant to 2 C.F.R. Part 200, Appendix VII, Paragraph
D.l.b (i.e., a governmental department or agency that receives $35 million or less in direct
Federal funding), the recipient may be required to provide the Grants Officer with a copy of
its Certificate of Indirect Costs as referenced in 2 C.F.R. Part 200, Appendix VII, Paragraph
D.3. or such other documentation, acceptable in form and substance to the Grants Officer,
sufficient to confirm that proposed indirect costs are calculated and supported by
documentation in accordance with 2 C.F.R. Part 200, Appendix VII. In cases where the
DOC is the recipient's cognizant Federal agency, the DOC reserves the right, pursuant to 2
C.F.R. Part 200, Appendix VII, Paragraph D.Lb, to require the recipient to submit its indirect
cost rate proposal for review by DOC.
d. If the recipient fails to submit required documentation to DOC within 90 calendar days of
the award start date, the Grants Officer may amend the award to preclude the recovery of any
indirect costs under the award. If the DOC, oversight, or cognizant Federal agency determines
there is a finding of good and sufficient cause to excuse the recipient's delay in submitting the
documentation, an extension of the 90-day due date may be approved by the Grants Officer.
e. The maximum dollar amount of allocable indirect costs for which DOC will reimburse
the recipient is the lesser of:
1. The line item amount for the Federal share of indirect costs contained in the approved
award budget, including all budget revisions approved in writing by the Grants Officer; or
2. The Federal share of the total indirect costs allocable to the award based on the indirect
cost rate approved by the cognizant agency for indirect costs and applicable to the period in
which the cost was incurred, in accordance with 2 C.F.R 200 Appendix III, C.7, provided
that the rate is approved on or before the award end date.
f. In accordance with 2 CFR § 200.414(c)(3), DOC set forth policies, procedures, and
general decision -making criteria for deviations from negotiated indirect cost rates. These
policies and procedures are applicable to all Federal financial assistance programs awarded and
administered by DOC bureaus as Federal awarding agencies and may be found at
httn://www.osee.doc.aov/oam/erants manaeenient/nolicv/documents/FAM` ,202015-02.udf.
141 12 November 2020
g. In accordance with 2 CFR § 200.414(g), any non -Federal entity that has a negotiated
indirect cost rate may apply to the entity's cognizant agency for indirect costs for a one-time
extension of a currently negotiated indirect cost rate for a period of up to four years, reducing the
frequency of rate calculations and negotiations between an institution and its cognizant agency.
h. In accordance with 2 CFR § 200.414(f), any non -Federal entity that does not have a
current negotiated (including provisional) rate, except for those non -Federal entities described in
paragraph D.l.b of Appendix VIl to 2 CFR Part 200, may elect to charge a de minimis rate of 10
percent of modified total direct costs. No documentation is required to justify the 10 percent de
minimis indirect cost rate.
.07 lnctirring Costs or Obligating Federal Funds Before ,and After- the Period
of 1'erfortnnnce
a. In accordance with 2 C.F.R. § 200.309 (Modifications to Period of Performance) and the
terms and conditions of a DOC award, a non -Federal entity may charge to the Federal award
only allowable costs incurred during the period of performance, which is established in the
award document. As defined at 2 C.F.R. § 200.1, the "period of performance" means the total
estimated time interval between the start of an initial Federal award and the planned end date,
which may include one or more funded portions, or budget periods. Identification of the Period
of Performance in the Federal award per § 200.211(b)(5) does not commit the awarding agency
to fund the award beyond the currently approved budget period." The period of performance
may sometimes be referred to as the project period or award period. This Standard Term is
subject to exceptions for allowable costs pertaining to: (i) pre -award costs (see 2 C.F.R. §
200.458); (ii) publication and printing costs (see 2 C.F.R. § 200.461); and administrative costs
incurred relating to the close-out of an award (see 2 C.F.R. § 200.344).
b. Reasonable, necessary, allowable and allocable administrative award closeout costs are
authorized for a period of up to 120 calendar days following the end of the period of
performance. For this purpose, award closeout costs are those strictly associated with close-out
activities and are typically limited to the preparation of final progress, financial, and required
project audit reports, unless otherwise approved in writing by the Grants Officer. A nun -Federal
entity may request an extension of the 120-day closeout period, as provided in 2 C.F.R. §
200.344 (Closeout).
c. Unless authorized by a specific award condition, any extension of the period of
performance may only be authorized by the Grants Officer in writing. This is not a delegable
authority. Verbal or written assurances of funding from anyone other than the Grants Officer
does not constitute authority to obligate funds for programmatic activities beyond the end of the
period of performance.
d. The DOC has no obligation to provide any additional prospective funding. Any
amendment of the award to increase funding and to extend the period of performance is at the
sole discretion of DOC.
151 12 November 2020
.08 Tax IRefrinds
The non -Federal entity shall contact the Grants Officer immediately upon receipt of the
refund of any taxes, including but not limited to Federal Insurance Contributions Act (FICA)
taxes, Federal Unemployment Tax Act (PUTA) taxes, or Value Added Taxes (VAT) that were
allowed as charges to a DOC award, regardless of whether such refunds are received by the non -
Federal entity during or after the period of performance. The Grants Officer will provide written
disposition instructions to the non -Federal entity, which may include the refunded taxes being
credited to the award as either a cost reduction or a cash refund, or may allow the non -Federal
entity to use such refunds for approved activities and costs under a DOC award. See 2 C.F.R. §
200.470 (Taxes (including Value Added Tax)).
09 Internal Controls
Each recipient must comply with standards for internal controls described at 2 C.F.R. §
200.303 (Internal controls). The "Standards for Internal Control in the Federal Government"
issued by the Comptroller General of the United States referenced in § 200.303 are available
online at httn://www.¢ao.kov/assets/80/76455.r)df and the "Internal Control Integrated
Framework" issued by the Committee of Sponsoring Organizations of the Treadway
Commission (COSO) is available online at Internal Control Guidance.
AJ��
,03 Standards
Each non -Federal entity must comply with the Property Standards set forth in 2 C.F.R. §§
200.310 (Insurance coverage) through 200.316 (Property trust relationship).
.02 Real and personal property
a. In accordance with 2 C.F.R. § 200.316 (Property trust relationship), real property,
equipment, and other personal property acquired or improved with a Federal award must be held
in trust by the non -Federal entity as trustee for the beneficiaries of the project or program under
which the property was acquired or improved. This trust relationship exists throughout the
duration of the property's estimated useful life, as determined by the Grants Officer in
consultation with the Program Office, during which time the Federal Government retains an
undivided, equitable reversionary interest in the property (Federal Interest). During the duration
of the Federal Interest, the non -Federal entity must comply with all use and disposition
requirements and restrictions as set forth in 2 C.F.R. §§ 200.310 (Insurance coverage) through
200.316 (Property trust relationship), as applicable, and in the terms and conditions of the
Federal award.
b. The Grants Officer may require a non -Federal entity to execute and to record (as
applicable) a statement of interest, financing statement (form UCC-1), lien, mortgage or other
public notice of record to indicate that real or personal property acquired or improved in whole
or in part with Federal funds is subject to the Federal Interest, and that certain use and disposition
16 112 November 2020
requirements apply to the property. The statement of interest, financing statement
(Form UCC 1), lien, mortgage or other public notice must be acceptable in form and substance to
the DOC and must be placed on record in accordance with applicable State and local law, with
continuances re -filed as appropriate. In such cases, the Grants Officer may further require the
non -Federal entity to provide the DOC with a written statement from a licensed attorney in the
jurisdiction where the property is located, certifying that the Federal Interest has been protected,
as required under the award and in accordance with applicable State and local law. The
attorney's statement, along with a copy of the instrument reflecting the recordation of the Federal
Interest, must be returned to the Grants Officer. Without releasing or excusing the non -Federal
entity from these obligations, the non -Federal entity, by execution of the financial assistance
award or by expending Federal financial assistance funds (in the case of a subrecipient),
authorizes the Grants Officer and/or program office to file such notices and continuations as it
determines to be necessary or convenient to disclose and protect the Federal Interest in the
property. The Grants Officer may elect not to release any or a portion of the Federal award
funds until the non -Federal entity has complied with this provision and any other applicable
award terms or conditions, unless other arrangements satisfactory to the Grants Officer are made.
.03 Intellectwi al property Rights
a. General. The rights to any work or other intangible property produced or acquired under
a Federal award are determined by 2 C.F.R. § 200.315 (Intangible property). The non -Federal
entity owns any work produced or purchased under a Federal award subject to the DOC's
royalty -free, nonexclusive, and irrevocable right to obtain, reproduce, publish, or otherwise use
the work or authorize others to receive, reproduce, publish, or otherwise use the work for
Government purposes.
b. Inventions. Unless otherwise provided by law, the rights to any invention made by a
non -Federal entity under a DOC financial assistance award are determined by the Bayh-Dole
Act, Pub. L. No. 96-517, as amended, and as codified in 35 U.S.C. § 200 et serf., and modified by
E.O. 12591 (52 FR 13414), as amended by E.O. 12618 (52 FR 48661). 35 U.S.C. § 201(h)
defines "small business firm" as "a small business concern as defined at section 2 of Public Law
85-536 (15 U.S.C. 632) and implementing regulations of the Administrator of the Small
Business Administration." Section 1(b)(4) of E.O. 12591 extended the Bayh-Dole Act to non -
Federal entities "regardless of size" to the extent permitted by law. The specific requirements
governing the development, reporting, and disposition of rights to inventions and patents
resulting from Federal awards are described in more detail in 37 C.F.R. Part 401, which
implements 35 U.S.C. 202 through 204 and includes standard patent rights clauses in 37 C.F.R. §
401.14, which is hereby incorporated by reference into this award.
The Bayh-Dole regulations set forth in 37 C.F.R. pans 401 and 404 were amended by 83 FR
15954, with an effective date of May 14, 2018 (Amended Bayh-Dole Regulations). The
Amended Bayh-Dole Regulations apply to all new financial assistance awards issued on or after
May 14, 2018. The Amended Bayh-Dole Regulations do not apply to financial assistance
awards issued prior to May 14, 2018, including amendments made to such awards, unless an
award amendment includes a specific condition incorporating the Amended Bayh-Dole
Regulations into the terms and conditions of the subject award.
17 J 12 November 2020
1. Ownership. A non -Federal entity may have rights to inventions in accordance with 37
C.F.R. Part 401, These requirements are technical in nature and non -Federal entities are
encouraged to consult with their Intellectual Property counsel to ensure the proper
interpretation of and adherence to the ownership rules. Unresolved questions pertaining to a
non -Federal entities' ownership rights may further be addressed to the Grants Officer.
2. Responsibilities - iEdison. The non -Federal entity must comply with all the requirements
of the standard patent rights clause and 37 C.F.R. Part 401, including the standard patent
rights clause in 37 C.F.R. § 401.14. Non -Federal entities are required to submit their
disclosures, elections, and requests for waiver from any requirement for substantial U.S.
manufacture, electronically using the Interagency Edison extramural invention reporting
system (iEdison) at www.iedison.gov. Non -Federal entities may obtain a waiver of this
electronic submission requirement by providing the Grants Officer with compelling reasons
for allowing the submission of paper reports.
c. Patent Notification Procedures. Pursuant to E.O. 12889 (58 FR 69681), the DOC is
required to notify the owner of any valid patent covering technology whenever the DOC or a
non -Federal entity, without making a patent search, knows (or has demonstrable reasonable
grounds to know) that technology covered by a valid United States patent has been or will be
used without a license from the owner. To ensure proper notification, if the non -Federal entity
uses or has used patented technology under this award without a license or permission from the
owner, the non -Federal entity must notify the Grants Officer.
This notice does not constitute authorization or consent by the Government to any copyright or
patent infringement occurring under the award.
d. A non -Federal entity may copyright any work produced under a Federal award, subject to
the DOC's royalty -free, nonexclusive, and irrevocable right to obtain, reproduce, publish, or
otherwise use the work, or authorize others to do so for Government purposes. Works jointly
authored by DOC and non -Federal entity employees may be copyrighted, but only the part of
such works authored by the non -Federal entity is protectable in the United States because, under
17 U.S.C. § 105, copyright protection is not available within the United States f'or any work of
the United States Government. On occasion and as permitted under 17 U.S.C. § 105, DOC may
require the non -Federal entity to transfer to DOC a copyright in a particular work for
Government purposes or when DOC is undertaking primary dissemination of the work.
e. Freedom of Information Act (FOIA). In response to a FOIA request for research data
relating to published research findings (as defined by 2 C.F.R. § 200.315(e)(2)) produced under a
Federal award that were used by the Federal government in developing an agency action that has
the force and effect of law, the DOC will request, and the non -Federal entity must provide,
within a reasonable time, the research data so that they can be made available to the public
through the procedures established under the FOIA.
18 1 12 November 2020
D. AUDITS
Under the Inspector General Act of 1978, as amended, 5 U.S.C. App. 3, §§ 1 et seq., an audit
of the award may be conducted at any time. The Inspector General of the DOC, or any of his or
her duly authorized representatives, must have the right to access any pertinent books,
documents, papers, and records of the non -Federal entity, whether written, printed, recorded,
produced, or reproduced by any electronic, mechanical, magnetic, or other process or medium, to
make audits, inspections, excerpts, transcripts, or other examinations as authorized by law. This
right also includes timely and reasonable access to the nun -Federal entity's personnel for
interview and discussion related to such documents. See 2 C.F.R. § 200.337 (Access to records).
When the DOC Office of inspector General (OIG) requires a program audit on a DOC award, the
OIG will usually make the arrangements to audit the award, whether the audit is performed by
OIG personnel, an independent accountant under contract with DOC, or any other Federal, State,
or local audit entity.
.t) I Organization -Wide, Pr ograin-Specific, and Project Audits
a. A recipient must, within 90 days of the end of its fiscal year, notify the Grants Officer of
the amount of Federal awards, including all DOC and non-DOC awards, that the recipient
expended during its fiscal year.
b. Recipients that are subject to the provisions of Subpart F of 2 C.F.R. Part 200 and that
expend $750,000 or more in a year in Federal awards during their fiscal year must have an audit
conducted for that year in accordance with the requirements contained in Subpart F of 2 C.F.R.
Part 200. Within the earlier of 30 calendar days after receipt of the auditor's report(s), or nine
months after the end of the audit period, unless a different period is specified in a program -
specific audit guide, a copy of the audit must be submitted electronically to the Federal Audit
Clearinghouse (FAC) through the FAC's Internet Data Entry System (IDES)
(httos://Iiarvester.census.vov/f,icides/). In accordance with 2 C.F.R. § 200.425 (Audit services),
the recipient may include a line item in the budget for the allowable costs associated with the
audit, which is subject to the approval of the Grants Officer.
c. Unless otherwise specified in the terms and conditions of the award, entities that are not
subject to Subpart F of 2 C.F.R. Part 200 (e.g., for -profit entities, foreign public entities and
foreign organizations) and that expend $750,000 or more in DOC funds during their fiscal year
(including both as a recipient and a subrecipient) must submit to the Grants Officer either: (i) a
financial related audit of each DOC award or subaward in accordance with Generally Accepted
Government Auditing Standards (GAGAS); or (ii) a project specific audit for each award or
subaward in accordance with the requirements contained in 2 C.P.R. § 200.507. Within the
earlier of 30 calendar days after receipt of the auditor's report(s), or nine months after the end of
the audit period, unless a different period is specified in a program -specific audit guide, a copy of
the audit must be submitted to the Grants Officer. In accordance with 2 C.F.R. § 200.425, the
recipient may include a line item in the budget for the allowable costs associated with the audit,
which is subject to the approval of the Grants Officer. Entities that are not subject to Subpart F
of 2 C.F.R. Part 200 and that expend less than $750,000 in DOC finds in a given fiscal year are
19 112 November 2020
not required to submit an audit(s) for that year, but must make their award -related records
available to DOC or other designated officials for review and audit.
d. Recipients are responsible for compliance with the above audit requirements and for
informing the Grants Officer of the status of their audit, including when the relevant audit has
been completed and submitted in accordance with the requirements of this section. Failure to
provide audit reports within the timeframes specified above may result in appropriate
enforcement action, up to and including termination of the award, and may jeopardize eligibility
for receiving future DOC awards.
e. In accordance with 2 C.F.R. § 200.332(d)(3), pass -through entities are responsible for
issuing a management decision for applicable audit findings pertaining only to the Federal award
provided by the pass -through entity to a subrecipient.
,02 Audit Resolution Process
a. An audit of the award may result in the disallowance of costs incurred by the recipient
and the establishment of a debt (account receivable) due to DOC. For this reason, the recipient
should take seriously its responsibility to respond to all audit findings and recommendations with
adequate explanations and supporting evidence whenever audit results are disputed.
b. A recipient whose award is audited has the following opportunities to dispute the
proposed disallowance of costs and the establishment of a debt:
1. The recipient has 30 calendar days from the date of the transmittal of the draft audit
report to submit written comments and documentary evidence.
2. The recipient has 30 calendar days from the date of the transmittal of the final audit
repo to submit written comments and documentary evidence.
3. The DOC will review the documentary evidence submitted by the recipient and will
notify the recipient of the results in an Audit Resolution Determination Letter. The recipient
has 30 calendar days from the date of receipt of the Audit Resolution Determination Letter to
submit a written appeal, unless this deadline is extended in writing by the DOC. The appeal
is the last opportunity for the recipient to submit written comments and documentary
evidence to the DOC to dispute the validity of the audit resolution determination.
4. An appeal of the Audit Resolution Determination does not prevent the establishment of
the audit -related debt nor does it prevent the accrual of applicable interest, penalties and
administrative fees on the debt in accordance with 15 C.F.R. Part 19. If the Audit Resolution
Determination is overruled or modified on appeal, appropriate corrective action will be taken
retroactively.
5. The DOC will review the recipient's appeal and notify the recipient of the results in an
Appeal Determination Letter. After the opportunity to appeal has expired or after the appeal
determination has been rendered, DOC will not accept any further documentary evidence
from the recipient. No other administrative appeals are available in DOC.
20 112 November 2020
L. DEBTS
.01 Payment of Debts Owed to the Federal Govertttnetit
a. The non -Federal entity must promptly pay any debts determined to be owed to the
Federal Government. Any funds paid to a non -Federal entity in excess of the amount to which
the non -Federal entity is finally determined to be entitled under the terms of the Federal award
constitute a debt to the Federal government. In accordance with 2 C.F.R. § 200.346 (Collection
of amounts due), if not paid within 90 calendar days after demand, DOC may reduce a debt owed
to the Federal Government by:
1. Making an administrative offset against other requests for reimbursement;
2. Withholding advance payments otherwise due to the non -Federal entity; or
3. Taking any other action permitted by Federal statute.
The foregoing does not waive any claim on a debt that DOC may have against another entity,
and all rights and remedies to pursue other parties are preserved.
b. DOC debt collection procedures are set out in 15 C.F.R. Part 19. In accordance with 2
C.F.R. § 200.346 (Collection of amounts due) and 31 U.S.C. § 3717, failure to pay a debt owed
to the Federal Government must result in the assessment of interest, penalties and administrative
costs in accordance with the provisions of 31 U.S.C. § 3717 and 31 C.F.R. § 901.9. Commerce
entities will transfer any Commerce debt that is delinquent for more than 120 calendar days to
the U.S. Department of the Treasury's Financial Management Service for debt collection
services, a process known as cross -servicing, pursuant to 31 U.S.C. § 3711(g), 31 C.F.R. §
285.12, and 15 C.F.R. § 19.9. DOC may also take further action as specified in DOC ST&C
A.06 (Unsatisfactory Performance or Non -Compliance with Award Provisions). Funds for
payment of a debt must not come from other Federally -sponsored programs, and the DOC may
conduct on -site visits, audits, and other reviews to verify that other Federal funds have not been
used to pay a debt.
M2 Late Payment Charges
a. Interest will be assessed on the delinquent debt in accordance with section 11 of the Debt
Collection Act of 1982, as amended (31 U.S.C. § 3717(a)). The minimum annual interest rate to
be assessed is the U.S. Department of the Treasury's Current Value of Funds Rate (CVFR). The
CVFR is available online at httns://www.fiscal.treasury.eov/fsreuortSAnt/cvlr/cvfr home.him
and also published by the Department of the Treasury in the Federal Register
(htto://\VWNV.!-'po.!"ov/fclsys/browse/collection.action?collection('o(le=FR) and in the Treasiny
Financial Manual Bulletin. The assessed rate must remain fixed for the duration of the
indebtedness.
b. Penalties will accrue at a rate of not more than six percent per year or such other higher
rate as authorized by law.
21 112 November 2020
c. Administrative charges, i.e., the costs of processing and handling a delinquent debt, will
be determined by the Commerce entity collecting the debt, as directed by the Office of the Chief
Financial Officer and Assistant Secretary for Administration.
.03 Barring Delinquent Federal Debi ors frona Obtaining; Federal Lotaras or�
Loma, Insur-zrnce Guarantees
Pursuant to 31 U.S.C. § 3720B and 31 C.P.R. § 901.6, unless waived by DOC, the DOC is
not permitted to extend financial assistance in the form of a loan, loan guarantee, or loan
insurance to any person delinquent on a nontax debt owed to a Federal agency. This prohibition
does not apply to disaster loans.
.0 Effect of Judgment Lieu on Eligibility for federal Grants, Loaras, or,
Pursuant to 28 U.S.C. § 3201(e), unless waived by the DOC, a debtor who has a judgment
lien against the debtor's property for a debt to the United States is not eligible to receive any
grant or loan that is made, insured, guaranteed, or financed directly or indirectly by the United
States or to receive funds directly from the Federal Government in any program, except funds to
which the debtor is entitled as beneficiary, until the judgment is paid in full or otherwise
satisfied.
F. CONFLICT OF INTEREST, CODE OF CONDUCT AND OTHER
REQUIREMENTS PERTAINING TO DOC FINANCIAL ASSISTANCE AWARDS,
INCLUDING SUBAWARD AND PROCUREMENT ACTIONS
.01I Conflict of luterest and Code of Conduct
a. DOC Conflict of Interest Policy. In accordance with 2 C.F.R. § 200.112 (Conflict of
interest), the non -Federal entity must disclose in writing any potential conflict of interest to the
DOC or pass -through entity. In addition, a non -Federal entity will establish and maintain written
standards of conduct that include safeguards to prohibit employees from using their positions for
a purpose that constitutes or presents the appearance of personal or organizational conflict of
interest, or personal gain in the administration of an award. It is the DOC's policy to maintain
the highest standards of conduct and to prevent real or apparent conflicts of interest in
connection with DOC financial assistance awards.
b. A conflict of interest generally exists when an interested party participates in a matter that
has a direct and predictable effect on the interested parry's personal or financial interests. A
financial interest may include employment, stock ownership, a creditor or debtor relationship, or
prospective employment with the organization selected or to be selected for a subaward. A
conflict also may exist where there is an appearance that an interested party's objectivity in
performing his or her responsibilities under the project is impaired. For example, an appearance
of impairment of objectivity may result from an organizational conflict where, because of other
activities or relationships with other persons or entities, an interested party is unable to render
22 112 November 2020
impartial assistance, services or advice to the recipient, a participant in the project or to the
Federal Government. Additionally, a conflict of interest may result from non -financial gain to an
interested party, such as benefit to reputation or prestige in a professional field. For purposes of
the DOC Conflict of Interest Policy, an interested party includes, but is not necessarily limited to,
any officer, employee or member of the board of directors or other governing board of a non -
Federal entity, including any other parties that advise, approve, recommend, or otherwise
participate in the business decisions of the recipient, such as agents, advisors, consultants,
attorneys, accountants or shareholders. This also includes immediate family and other persons
directly connected to the interested party by law or through a business arrangement.
c. Procurement -related conflict of interest. In accordance with 2 C.F.R. § 200.318 (General
procurement standards), non -Federal entities must maintain written standards of conduct
covering conflicts of interest and governing the performance of their employees engaged in the
selection, award and administration of contracts. See paragraph F.04 of these Standard Terms
(Requirements for Procurements).
.02 1Nouprrocurenrent Debarment and Suspension
Non -Federal entities must comply with the provisions of 2 C.F.R. Part 1326
(N on procurement Debarment and Suspension), which generally prohibit entities that have been
debarred, suspended, or voluntarily excluded from participating in Federal nonprocurement
transactions either through primary or lower tier covered transactions, and which set forth the
responsibilities of recipients of Federal financial assistance regarding transactions with other
persons, including subrecipients and contractors.
.03 Requircutents for Strbawards
a. The recipient or pass -through entity must require all subrecipients, including lower tier
subrecipients, to comply with the terms and conditions of a DOC financial assistance award,
including applicable provisions of the OMB Uniform Guidance (2 C.F.R. Part 200), and all
associated Terms and Conditions set forth herein. See 2 C.F.R. § 200.101(b)(2) (Applicability to
different types of Federal awards), which describes the applicability of 2 C.F.R. Pact 200 to
various types of Federal awards and §§ 200.331-333 (Subrecipient monitoring and management).
b. The recipient or pass through entity may have more restrictive policies for the RTC
waived prior approvals (no -cost extensions, re -budgeting, etc.) for their subaward recipients.
Such restrictive policies must be addressed in their subaward agreements and in accordance with
§200.331.
.04 Requirements for Procurements
a. States. Pursuant to 2 C.P.R. § 200.317 (Procurements by states), when procuring
property and services under this Federal award, a State must follow the same policies and
procedures it uses for procurements from its non -Federal funds. The State must comply with 2
C.F.R. §§ 200.321 (Contracting with small and minority businesses, women's business
enterprises, and labor surplus area firms), 200.322 (Domestic preferences for procurements), and
23 112 November 2020
200.323 (Procurement of recovered materials), and ensure that every purchase order or other
contract includes any clauses required by 2 C.F.R. § 200.327 (Contract provisions).
b. Other Non -Federal Entities. All other non -Federal entities, including subrecipients of a
State. must follow the procurement standards in 2 C.F.R. §§ 200.318 (General procurement
standards) through 200.327 (Contract provisions) which include the requirement that non -
Federal entities maintain written standards of conduct covering conflicts of interest and
governing the performance of their employees engaged in the selection, award, and
administration of contracts. No employee, officer, or agent may participate in the selection,
award, or administration of a contract supported by a Federal award if he or she has a real or
apparent conflict of interest.
.obi Whistleblatwer Protections
This award is subject to the whistleblower protections afforded by 41 U.S.C. § 4712
(Enhancement of contractor protection from reprisal for disclosure of certain information), which
generally provide that an employee or contractor (including subcontractors and personal services
contractors) of a non -Federal entity may not be discharged, demoted, or otherwise discriminated
against as a reprisal for disclosing to a person or body information that the employee reasonably
believes is evidence of gross mismanagement of a Federal award, subaward, or a contract under
a Federal award or subaward, a gross waste of Federal funds. an abuse of authority relating to a
Federal award or subaward or contract under a Federal award or subaward, a substantial and
specific danger to public health or safety, or a violation of law, rule, or regulation related to a
Federal award, subaward, or contract tinder a Federal award or subaward. These persons or
bodies include:
a. A Member of Congress or a representative of a committee of Congress.
b. An Inspector General.
c. The Government Accountability Office.
d. A Federal employee responsible for contract or grant oversight or management at the
relevant agency.
e. An authorized official of the Department of Justice or other law enforcement agency.
f. A court or grand jury.
g. A management official or other employee of the contractor, subcontractor, or grantee
who has the responsibility to investigate, discover, or address misconduct.
Non -Federal entities and contractors under Federal awards and subawards must inform their
employees in writing of the rights and remedies provided under 41 U.S.C. § 4711 in the
predominant native language of the workforce.
M6 Stnaall Btlsiryessa�s, Minority Business Enterprises aml Wonieti s 13ttsiness
Enteh,prises
In accordance with 2 C.F.R. § 200.321 (Contracting with small and minority businesses,
women's business enterprises, and labor surplus area firms), the recipient must take all necessary
affirmative steps to assure that minority businesses, women's business enterprises, and labor
surplus area firms are used when possible. DOC encourages non -Federal entities to use small
24 112 November 2020
businesses, minority business enterprises and women's business enterprises in contracts under
financial assistance awards. The Minority Business Development Agency within the DOC will
assist non -Federal entities in matching qualified minority business enterprises with contract
opportunities. For further information visit MBDA's website at httD:Hwww.mbda.L ov. If you
do not have access to the Internet, you may contact MBDA via telephone or mail:
U.S. Department of Commerce
Minority Business Development Agency
Herbert C. Hoover Building
14th Street and Constitution Avenue, N.W.
Washington, D.C. 20230
(202)482-0101
G. NATIONAL POLICY REQUIREMENTS
J)A United States Laws and Regulations
This award is subject to the laws and regulations of the United States. The recipient must
comply with all applicable requirements of all other Federal laws, executive orders, regulations
and policies governing this program.
M2 N na-Discrintination RegnWenlentS
No person in the United States may, on the ground of race, color, national origin, handicap,
age, religion, or sex, be excluded from participation in, be denied the benefits of, or be subject to
discrimination under, any program or activity receiving Federal financial assistance. The
recipient agrees to comply with the non-discrimination requirements below:
a. Statutory Provisions
1. Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) and DOC
implementing regulations published at 15 C.F.R. Part 8 prohibiting discrimination on the
grounds of race, color, or national origin Linder programs or activities receiving Federal
financial assistance;
2. Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681 et seq.) prohibiting
discrimination on the basis of sex under Federally assisted education programs or activities;
3. The Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.) prohibiting
discrimination on the basis of disability under programs, activities, and services provided or
made available by State and local governments or instrumentalities or agencies thereto, as
well as public or private entities that provide public transportation;
4. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), and DOC
implementing regulations published at 15 C.F.R. Part 8b prohibiting discrimination on the
25 112 November 2020
basis of handicap under any program or activity receiving or benefiting from Federal
assistance.
For purposes of complying with the accessibility standards set forth in 15 C.F.R. §
8b.18(c), non-federal entities must adhere to the regulations, published by the U.S.
Department of Justice, implementing Title Il of the Americans with Disabilities Act
(ADA) (28 C.F.R. part 35; 75 FR 56164, as amended by 76 FR 13285) and Title III of the
ADA (28 C.F.R. part 36; 75 FR 56164, as amended by 76 FR 13286). The revised
regulations adopted new enforceable accessibility standards called the "2010 ADA
Standards for Accessible Design' (2010 Standards), which replace and supersede the
former Uniform Federal Accessibility Standards for new construction and alteration
projects;
5. The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et sect.), and DOC
implementing regulations published at 15 C.F.R. Part 20 prohibiting discrimination on the
basis of age in programs or activities receiving Federal financial assistance; and
6. Any other applicable non-discrimination law(s).
h. Other Provisions
1. Parts 11 and III of E.O. 11246 (Equal Employment Opportunity, 30 FR 12319),3 which
requires Federally assisted construction contracts to include the nondiscrimination provisions
of §§ 202 and 203 of E.O. 11246 and Department of Labor regulations implementing E.O.
11246 (41 C.F.R. § 60-1.4(b)).
2. E.O. 13166 (65 FR 50121, Improving Access to Services for Persons with Limited
English Proficiency), requiring Federal agencies to examine the services provided, identify
any need for services to those with limited English proficiency (LEP), and develop and
implement a system to provide those services so LEP persons can have meaningful access to
them. The DOC issued policy guidance on March 24, 2003 (68 FR 14180) to articulate the
Title VI prohibition against national origin discrimination affecting LEP persons and to help
ensure that non -Federal entities provide meaningful access to their LEP applicants and
beneficiaries.
3, In accordance with E.0 13798 and Office of Management and Budget, M-20-09 —
Guidance Regarding Federal Grants, states or other public grantees may not condition sub -
awards of Federal grant money in a manner that would disadvantage grant applicants based
on their religious character.
'As amended by E.O. 11375(32 FR 14303), E.O. 11478 (34 FR 12985), E.O. 12086 (43 FR 46501), E.O. 12107 (44
FR 1055), E.O. 13279 (F67 FR 77141), E.O. 13665 (79 FR 20749), and E.O. 13672 (79 FR 42971).
26 112 November 2020
c. Title V11 Exemption for Religions Organizations
Generally, Title VIl of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et sett., provides
that it is an unlawful employment practice for an employer to discharge any individual or
otherwise to discriminate against an individual with respect to compensation, teams,
conditions, or privileges of employment because of such individual's race, color, religion,
sex, or national origin. However, Title VIL 42 U.S.C. § 2000e-l(a), expressly exempts from
the prohibition against discrimination based on religion, "a religious corporation, association,
educational institution, or society with respect to the employment of individuals of a
particular religion to perform work connected with the carrying on by such corporation,
association, educational institution, or society of its activities."
.03 LOBBYING IMSTRICTIONS
a. Statutory Provisions
Non -Federal entities must comply with 2 C.F.R. § 200.450 (Lobbying), which
incorporates the provisions of 31 U.S.C. § 1352; and OMB guidance and notices on lobbying
restrictions. In addition, non -Federal entities must comply with the DOC regulations
published at 15 C.F.R. Part 28, which implement the New Restrictions on Lobbying. These
provisions prohibit the use of Federal fiords for lobbying the executive or legislative branches
of the Federal Government in connection with the award and require the disclosure of the use
of non -Federal funds for lobbying. Lobbying includes attempting to improperly influence,
meaning any influence that induces or tends to induce a Federal employee or officer to give
consideration or to act regarding a Federal award or regulatory matter on any basis other than
the merits of the matter, either directly or indirectly. Costs incurred to improperly influence
are unallowable. See 2 C.F.R. § 200.450(b) and (c).
h. Disclosiii�e of Li)ljbyiiig Aci:ivitie,s
Any recipient that receives more than $100,000 in Federal funding and conducts lobbying
with non-federal funds relating to a covered Federal action must submit a completed Form
SF-LLL (Disclosure of Lobbying Activities). The Form SF-LLL must be submitted within
30 calendar days following the end of the calendar quarter in which there occurs any event
that requires disclosure or that materially affects the accuracy of the information contained in
any disclosure form previously filed. The recipient must submit any required SF-LLL forms,
including those received from subrecipients, contractors, and subcontractors, to the Grants
Officer.
04 Environniental Requirements
Environmental impacts must be considered by Federal decision makers in their decisions
whether or not to approve: (1) a proposal for Federal assistance; (2) the proposal with mitigation;
or (3) a different proposal having less adverse environmental impacts. Federal environmental
laws require that the funding agency initiate an early planning process that considers potential
impacts that projects funded with Federal assistance may have on the environment. Each non-
federal entity must comply with all environmental standards, to include those prescribed under
27 112 November 2020
the following statutes and E.O.s and must identify to the awarding agency any impact the award
may have on the environment. In some cases, award funds can be withheld by the Grants Officer
under a specific award condition requiring the non -Federal entity to submit additional
environmental compliance information sufficient to enable the DOC to make an assessment on
any impacts that a project may have on the environment.
a. The National Environmental Policy Act (22 0&C. §§ 4321. et seq.)
The National Environmental Policy Act (NEPA) and the Council on Enviromnental
Quality (CEQ) implementing regulations (40 C.P.R. Parts 1500 through 1508) require that an
environmental analysis be completed for all major Federal actions to determine whether they
have significant impacts on the environment. NEPA applies to the actions of Federal
agencies and may include a Federal agency's decision to fund non -Federal projects under
grants and cooperative agreements when the award activities remain subject to Federal
authority and control. Non -Federal entities are required to identify to the awarding agency
any direct, indirect or cumulative impact an award will have on the quality of the human
environment and assist the agency in complying with NEPA. Non -Federal entities may also
be requested to assist DOC in drafting an environmental assessment or environmental impact
statement if DOC determines such documentation is required, but DOC remains responsible
for the sufficiency and approval of the final documentation. Until the appropriate NEPA
documentation is complete and in the event that any additional information is required during
the period of performance to assess project environmental impacts, funds can be withheld by
the Grants Officer under a specific award condition requiring the non -Federal entity to
submit the appropriate environmental information and NEPA documentation sufficient to
enable DOC to make an assessment on any impacts that a project may have on the
environment.
h. The National Historic Preservation Act (16 U.S.C, §§ 470 el seq.)
Section 106 of the National Historic Preservation Act (NIIPA) (16 U.S.C. § 470f) and the
Advisory Council on Historic Preservation (ACHP) implementing regulations (36 C.F.R.
Part 800) require that Federal agencies take into account the effects of their undertakings on
historic properties and, when appropriate, provide the ACHP with a reasonable opportunity
to comment. Historic properties include but are not necessarily limited to districts, buildings,
structures, sites and objects. In this connection, archeological resources and sites that may be
of traditional religious and cultural importance to Federally -recognized Indian Tribes,
Alaskan Native Villages and Native Hawaiian Organizations may be considered historic
properties. Non -Federal entities are required to identify to the awarding agency any effects
the award may have on properties included on or eligible for inclusion on the National
Register of Historic Places. Non -Federal entities may also be requested to assist DOC in
consulting with State or Tribal Historic Preservation Officers, ACHPs or other applicable
interested parties necessary to identify, assess, and resolve adverse effects to historic
properties. Until such time as the appropriate NF1PA consultations and documentation are
complete and in the event that any additional information is required during the period of
performance in order to assess project impacts on historic properties, funds can be withheld
by the Grants Officer under a specific award condition requiring the non -Federal entity to
28 1 12 November 2020
submit any information sufficient to enable DOC to make the requisite assessment under the
N H PA.
Additionally, non -Federal entities are required to assist the DOC in assuring compliance
with the Archeological and Historic Preservation Act of 1974 (54 U.S.C. § 312502 et seq.,
formerly 16 U.S.C. § 469a-I et seq.); Executive Order 11593 (Protection and Enhancement
of the Cultural Environment, May 13, 1971); Executive Order 13006 (Locating Federal
Facilities on Historic Properties in Our Nation's Central Cities, May 21, 1996); and
Executive Order 13007 (Indian Sacred Sites, May 24, 1996).
(. Executive Oa,dea, 1l9ti8 (Floo(lplainn Managennent) aarxai lixer.antive.Ordea, 119r10
(Protection of Wetlands)
Non -Federal entities must identify proposed actions in Federally defined floodplains and
wetlands to enable DOC to decide whether there is an alternative to minimize any potential
harm.
d. Clean Air Act (42 U.S.C. §§ 7401 et seq.), Federal Water Pollution Control Act
(33 U.S.C. §§ 1251 et seq.) (Clean Water Act), annd Executive Order 11 738 ("Providinng
for adruhanstration of the CleanAir Act and tine Federal Water Pollution Control Act
with respect to Federal contracts, grants or loans")
Non -Federal entities must comply with the provisions of the Clean Air Act (42 U.S.C. §§
7401 et serf.), Clean Water Act (33 U.S.C. §§ 1251 et seq.), and E.O. 11738 (38 FR 25161),
and must not use a facility on the Excluded Parties List (EPL) (located on the System for
Award Management (SAM) website, SAM.gov) in performing any award that is nonexempt
under 2 C.F.R. § 1532, and must notify the Program Officer in writing if it intends to use a
facility that is on the EPL or knows that the facility has been recommended to be placed on
the EPL.
e. The flood Disaster Protection Act (4Z U.S.C. %4002 etse(J.)
Flood insurance, when available, is required for Federally assisted construction or
acquisition in flood -prone areas. Per 2 C.F.R. § 200.447(a), the cost of required flood
insurance is an allowable expense, if it is reflected in the approved project budget.
f. The Endangered Species Act (6 U.S.C. §§ 1S3'1 et seq.)
Non -Federal entities must identify any impact or activities that may involve a threatened
or endangered species. Federal agencies have the responsibility to ensure that no adverse
effects to a protected species or habitat occur from actions under Federal assistance awards
and conduct the reviews required under the Endangered Species Act, as applicable.
l;. The Coastal Zone Management Act (16 U.5.C. §§ '1451 et seq.)
Funded projects must be consistent with a coastal State's approved management program
for the coastal zone.
29 112 November 2020
IL 'the Coastal Barriers Resources Act (16 U,S.C. §§ 3501 et seq.)
Only in certain circumstances can Federal funding be provided for actions within a
Coastal Barrier System.
i. The Wild and Scenic Itivers A(A (16 i1,S,C. §§ 1271 el seq.)
This Act applies to awards that may affect existing or proposed components of the
National Wild and Scenic Rivers system.
j. The Safe Drinking Water Act of 1974, as amended, (42 U.S.C. §§ 300f et scar. )
This Act precludes Federal assistance for any project that the EPA determines may
contaminate a sole source aquifer which threatens public health.
1c. The Resource Conservation and Recovery Act (42 0.S.C. §§ 6901 et seq.)
This Act regulates the generation, transportation, treatment, and disposal of hazardous
wastes, and provides that non -Federal entities give preference in their procurement programs
to the purchase of recycled products pursuant to EPA guidelines.
1. The Comprehensive Environmental Response, Conipens.ation, and Liability Act
(URCLA, commonly known as Superfund) (42 I1.S.C, §§ 9601 N seq.) and the
Conrnrunity ruvironmental Response facilitation Act (42 ILS.C. § 9601 note et .seq.)
These requirements address responsibilities related to hazardous substance releases,
threatened releases and environmental cleanup. There are also reporting and community
involvement requirements designed to ensure disclosure of the release or disposal of
regulated substances and cleanup of hazards to state and local emergency responders.
rn. Executive Order 129911 ("Federal Actions to Address fnvironniental Jnstice in
Minority populations and Low Income Populations")
Federal agencies are required to identify and address the disproportionately high and
adverse human health or environmental effects of Federal programs, policies, and activities
on low income and minority populations.
rr. Tlrt� Magurrson-Stevens fis4rery Coarsedvatiorr ;anti Mauaagearrent Art (1ta Ci..S.C, §
11101 et sett.)
Non -Federal entities must identify to DOC any effects the award may have on essential
fish habitat (EFH). Federal agencies which fund, permit, or carry out activities that may
adversely impact EFH are required to consult with the National Marine Fisheries Service
(NMFS) regarding the potential effects of their actions and respond in writing to NMFS
recommendations. These recommendations may include measures to avoid, minimize,
mitigate, or otherwise offset adverse effects on EFH. In addition, NMFS is required to
comment on any state agency activities that would impact EFH. Provided the specifications
outlined in the regulations are met, EFH consultations will be incorporated into interagency
30 1 12 November 2020
procedures previously established under NEPA, the ESA, Clean Water Act, Fish and
Wildlife Coordination Act, or other applicable statutes.
o. Clean Water Act (CWA) Secl-ion 404 (33 V.S.C. § 1344)
C WA Section 404 regulates the discharge of dredged or fill material into waters of the
United States, including wetlands. Activities in waters of the United States regulated under
this program include fill for development, water resource projects (such as levees and some
coastal restoration activities), and infrastructure development (such as highways and
airports). C WA Section 404 requires a permit from the U.S. Army Corps of Engineers
before dredged or till material may be discharged into waters of the United States, unless the
activity is exempt from Section 404 regulation (e.g., certain farming and forestry activities).
1r. Rivers and harbors Act (33 U,S.C. § 407)
A permit may be required from the U.S. Army Corps of Engineers if the proposed
activity involves any work in, over or under navigable waters of the United States.
Recipients must identify any work (including structures) that will occur in, over or under
navigable waters of the United States and obtain the appropriate permit, if applicable.
al. The Migratory Bird rreaaty Act (16 U.S.C. §§ 703-712), Bald aand Golden Eagle
Protection Act (16 U.S.C. § 668 et se(J.), and Executive Ordeia 13106 (Responsibilities;
of Federal Agencies to Protect Migratory Bit-&, J:nruary 1(), 2001)
Many prohibitions and limitations apply to projects that adversely impact migratory birds
and bald and golden eagles. Executive Order 13186 directs Federal agencies to enter a
Memorandum of Understanding with the U.S. Fish and Wildlife Service to promote
conservation of migratory bird populations when a Federal action will have a measurable
negative impact on migratory birds.
r, Executive Oi der 13112 ( lrrvasive Species, February 3, 1999)
Federal agencies must identify actions that may affect the status of invasive species and
use relevant programs and authorities to: (i) prevent the introduction of invasive species; (ii)
detect and respond rapidly to and control populations of such species in a cost-effective and
environmentally sound manner; (iii) monitor invasive species populations accurately and
reliably; (iv) provide for restoration of native species and habitat conditions in ecosystems
that have been invaded; (v) conduct research on invasive species and develop technologies to
prevent introduction and provide for environmentally sound control of invasive species; and
(vi) promote public education on invasive species and the means to address them. In
addition, an agency may not authorize, fund, or carry out actions that it believes are likely to
cause or promote the introduction or spread of invasive species in the United States or
elsewhere.
s. Fish and, Wildlife Coordination Act (16 U.S.C. § 661 el seq.)
During the planning of water resource development projects, agencies are required to
give fish and wildlife resources equal consideration with other values. Additionally, the U.S.
31 1 12 November 2020
Fish and Wildlife Service and fish and wildlife agencies of states must be consulted
whenever waters of any stream or other body of water are "proposed or authorized, permitted
or licensed to be impounded, diverted... or otherwise controlled or modified" by any agency
under a Federal permit or license.
tY,"r OTHER NATIONAL POLICV REt`9E IRE,IVIENTS
di. Buy American Preferences
Strengthening Buy -American Preferences for Infrastructure Projects. Recipients of
covered programs (as defined in Executive Order 13858, 31 January 2019, and 2 C.F.R.
§200.322 (Domestic preferences for procurements)) are hereby notified that they are
encouraged to use, to the greatest extent practicable, iron and aluminum as well as steel,
cement, and other manufactured products produced in the United States in every contract,
subcontract, purchase order, or subaward that is chargeable under this Award.
ii. ta•inrinarl and Prohibited Activities
1. The Program Fraud Civil Remedies Act (31 U.S.C. § 3801 et seq.), provides for the
imposition of civil penalties against persons who make false, fictitious, or fraudulent claims
to the Federal Government for money (including money representing grants, loans, or other
benefits).
2. The False Claims Amendments Act of 1986 and the False Statements Accountability Act
of 1996 (18 U.S.C. §§ 287 and 1001, respectively), provide that whoever makes or presents
any false, fictitious, or fraudulent statement, representation, or claim against the United
States must be subject to imprisonment of not more than five years and must be subject to a
fine in the amount provided by 18 U.S.C. § 287.
3. The Civil False Claims Act (31 U.S.C. §§ 3729 - 3733), provides that suits can be
brought by the government, or a person on behalf of the government, for false claims made
under Federal assistance programs.
4. The Copeland Anti -Kickback Act (18 U.S.C. § 874), prohibits a person or organization
engaged in a Federally supported project from enticing an employee working on the project
from giving up a part of his compensation under an employment contract. The Copeland
Anti -Kickback Act also applies to contractors and subcontractors pursuant to 40 U.S.C. §
3145.
5. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970
(42 U.S.C. § 4601 et seq.) and implementing regulations issued at 15 C.F.R. Part 11, which
provides for fair and equitable treatment of displaced persons or persons whose property is
acquired as a result of Federal or Federally -assisted programs, These requirements apply to
all interests in real property acquired for project purposes regardless of Federal participation
in purchases.
32 112 November 2020
6. The Hatch Act (5 U.S.C. §§ 1501-1508 and 7321-7326), which limits the political
activities of employees or officers of state or local governments whose principal employment
activities are funded in whole or in part with Federal funds.
7. To ensure compliance with Federal law pertaining to financial assistance awards, an
authorized representative of a non -Federal entity may be required to periodically provide
certain certifications to the DOC regarding Federal felony and Federal criminal tax
convictions, unpaid federal tax assessments, delinquent Federal tax returns and such other
certifications that may be required by Federal law.
c. Dr•rrg-Free Workplace
The non -Federal entity must comply with the provisions of the Drug -Free Workplace Act
of 1988 (41 U.S.C. § 8102) and DOC implementing regulations published at 2 C.P.R. Part
1329 (Requirements for Drug -Free Workplace (Financial Assistance)), which require that the
non -Federal entity take certain actions to provide a drug -free workplace.
al. Foreign,rr:avel
1. Each non -Federal entity must comply with the provisions of the Fly America Act (49
U.S.C. § 40118). The implementing regulations of the Fly America Act are found at 41
C.F.R. §§ 301-10.131 through 301-10.143.
2. The Fly America Act requires that Federal travelers and others performing U.S.
Government -financed air travel must use U.S. flag air carriers, to the extent that service by
such carriers is available. Foreign air carriers may be used only in specific instances, such as
when a U.S. flag air carrier is unavailable or use of U.S. flag air carrier service will not
accomplish the agency's mission.
3. One exception to the requirement to fly U.S. flag carriers is transportation provided under
a bilateral or multilateral air transport agreement, to which the United States Government and
the government of a foreign country are parties, and which the Department of Transportation
has determined meets the requirements of the Fly America Act pursuant to 49 U.S.C. §
40118(b). The United States Government has entered into bilateral/multilateral "Open Skies
Agreements" (U.S. Government Procured Transportation) that allow federal funded
transportation services for travel and cargo movements to use foreign air carriers under
certain circumstances. There are multiple "Open Skies Agreements" currently in effect. For
more information about the current bilateral and multilateral agreements, visit the GSA
website. Information on the Open Skies agreements (U.S. Government Procured
Transportation) and other specific country agreements may be accessed via the Department
of State's website.
4. If a foreign air carrier is anticipated to be used for any portion of travel under a DOC
financial assistance award, the non -Federal entity must receive prior approval from the
Grants Officer. When requesting such approval, the non -Federal entity must provide a
justification in accordance with guidance provided by 41 C.F.R. § 301-10.142, which
requires the non -Federal entity to provide the Grants Officer with the following: name; dates
33 112 November 2020
of travel; origin and destination of travel; detailed itinerary of travel; name of the air carrier
and flight number for each leg of the trip; and a statement explaining why the non -Federal
entity meets one of the exceptions to the regulations. If the use of a foreign air carrier is
pursuant to a bilateral agreement, the non -Federal entity must provide the Grants Officer with
a copy of the agreement or a citation to the official agreement available on the GSA website.
The Grants Officer must make the final determination and notify the non -Federal entity in
writing (which may be done through the recipient in the case of subrecipient travel). Failure
to adhere to the provisions of the Fly America Act will result in the non -Federal entity not
being reimbursed for any transportation costs for which any non -Federal entity improperly
used a foreign air carrier.
Note: When using code -sharing flights (two or more airlines having flight numbers
assigned to the same flight) involving U.S. flag carriers and non-U.S. flag carriers, the airline
symbol and flight number of the U.S, flag carrier must be used on the ticket to qualify as a
U.S. flag carrier (e.g. "Della Airlines Flight AMIX, operated by KLNI ). Conversely, if the
ticket shows "[Foreign Air Carrier] AMV, operated by Delta," that travel is using a foreign
air carrier and is subject to the Fly America Act and must receive prior approval from the
Grants Officer as outlined in paragraph G.05.d.4.
e, Increasing Seat Belt Use, in I:tie united States
Pursuant to E.O. 13043 (62 FR 19217), non -Federal entities should encourage employees
and contractors to enforce on-the-job seat belt policies and programs when operating
company -owned, rented, or personally owned vehicles.
E. Federal Gtrepioyee Lxlretases and Sttbaw.rrds or Con[r acts Isstted to Ferleral
I'miployees Or Agencies
1. Use of award funds (Federal or non -Federal) or the non -Federal entity's provision of in -
kind goods or services for the purposes of transportation, travel, or any other expenses for
any Federal employee may raise appropriation augmentation issues. In addition, DOC policy
may prohibit the acceptance of gifts, including travel payments for federal employees, from
non -Federal entities regardless of the source. Therefore, before award funds may be used by
Federal employees, non -Federal entities must submit requests for approval of such action to
the Federal Program Officer who must review and make a recommendation to the Grants
Officer. The Grants Officer will notify the non -Federal entity in writing (generally through
the recipient) of the final determination.
2. A non -Federal entity or its contractor may not issue a subaward, contract or subcontract
of any part of a DOC award to any agency or employee of DOC or to other Federal
employee, department, agency, or instrumentality, without the advance prior written approval
of the DOC Grants Officer.
±;. lWinol•ity Sa�i'virtp; InstiiiitiOtis lnitiative
Pursuant to E.O.s 13555 (White House Initiative on Educational Excellence for
Hispanics) (75 FR 65417), 13592 (Improving American Indian and Alaska [native
34 112 November 2020
Educational Opportunities and Strengthening Tribal Colleges and Universities) (76 FR
76603), and 13779 (White House Initiative to Promote Excellence and Innovation at
Historically Black Colleges and Universities) (82 FR 12499), DOC is strongly committed to
broadening the participation of minority serving institutions (MSIs) in its financial assistance
programs. DOC's goals include achieving full participation of MSIs to advance the
development of human potential, strengthen the Nation's capacity to provide high -quality
education, and increase opportunities for MSIs to participate in and benefit from Federal
financial assistance programs. DOC encourages all applicants and non -Federal entities to
include meaningful participation of MSIs. Institutions eligible to be considered MSIs are
listed on the Department of Education website.
9E. liesearch Misconduct
The DOC adopts, and applies to financial assistance awards for research, the Federal
Policy on Research Misconduct (Federal Policy) issued by the Executive Office of the
President's Office of Science and Technology Policy on December 6, 2000 (65 FR 76260).
As provided for in the Federal Policy, research misconduct refers to the fabrication,
falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting
research results. Research misconduct does not include honest errors or differences of
opinion. Non -Federal entities that conduct extramural research funded by DOC must foster
an atmosphere conducive to the responsible conduct of sponsored research by safeguarding
against and resolving allegations of research misconduct. Non -Federal entities also have the
primary responsibility to prevent, detect, and investigate allegations of research misconduct
and, for this purpose, may rely on their internal policies and procedures, as appropriate, to do
so. Non -Federal entities must notify the Grants Officer of any allegation that meets the
definition of research misconduct and detail the entity's inquiry to determine whether there is
sufficient evidence to proceed with an investigation, as well as the results of any
investigation. The DOC may take appropriate administrative or enforcement action at any
time under the award, up to and including award termination and possible suspension or
debarment, and referral to the Commerce O1G, the U.S. Department of Justice, or other
appropriate investigative body.
i. Itt>se.irch Involving Hitnian Subjects
1. All proposed research involving human subjects must be conducted in accordance with
15 C.F.R. Part 27 (Protection of Human Subjects). No research involving human subjects is
permitted under this award unless expressly authorized by specific award condition, or
otherwise in writing by the Grants Officer.
2. Federal policy defines a human subject as a living individual about whom an investigator
(whether professional or student) conducting research (1) Obtains information or
biospecimens through intervention or interaction with the individual, and uses, studies, or
analyzes the information or biospecimens; or (2) Obtains, uses, studies, analyzes, or
generates identifiable private information or identifiable biospecimens. Research means a
systematic investigation, including research development, testing and evaluation, designed to
develop or contribute to generalizable knowledge.
35 112 November 2020
3. DOC regulations at 15 C.F.R. Part 27 require that non -Federal entities maintain
appropriate policies and procedures for the protection of human subjects. In the event it
becomes evident that human subjects may be involved in this project, the non -Federal entity
(generally through the recipient) must submit appropriate documentation to the Federal
Program Officer for approval by the appropriate DOC officials. As applicable, this
documentation must include:
i. Documentation establishing approval of an activity in the project by an Institutional
Review Board (IRB) under a Federal wide Assurance issued by Department of Health
and Human Services or other Federal agency guidelines (see also 15 C.F.R. § 27.103);
ii. Documentation to support an exemption for an activity in the project under 15 C.F.R
§ 27.104(d);
iii. Documentation of IRB approval of any modification to a prior approved protocol or
to an informed consent form;
iv. Documentation of an IRB approval of continuing review approved prior to the
expiration date of the previous IRB determination; and
v. Documentation of any reportable events, such as serious adverse events,
unanticipated problems resulting in risk to subjects or others, and instances of
noncompliance.
4. No work involving human subjects may be undertaken, conducted, or costs incurred
and/or charged for human subjects research, until the appropriate documentation is approved
in writing by the Grants Officer. In accordance with 15 C.F.R. § 27.118, if research
involving human subjects is proposed after an award is made, the non -Federal entity must
contact the Federal Program Officer and provide required documentation. Notwithstanding
this prohibition, work may be initiated or costs incurred and/or charged to the project for
protocol or instrument development related to human subjects research.
I. Care. and Use of Live Vertebrate Animals
Non -Federal entities must comply with the Laboratory Animal Welfare Act of 1966, as
amended, (Pub. L. No. 89-544, 7 U.S.C. §§ 2131 et seq.) (animal acquisition, transport, care,
handling, and use in projects), and implementing regulations (9 C.F.R. Parts 1, 2, and 3); the
Endangered Species Act (16 U.S.C. §§ 1531 et seq.); Marine Mammal Protection Act (16
U.S.C. §§ 1361 et seq.) (taking possession, transport, purchase, sale, export or import of
wildlife and plants); the Nonindigenous Aquatic Nuisance Prevention and Control Act (16
U.S.C. §§ 4701 et seq.) (ensure preventive measures are taken or that probable harm of using
species is minimal if there is an escape or release); and all other applicable statutes pertaining
to the care, handling, and treatment of warm-blooded animals held for research, teaching, or
other activities supported by Federal financial assistance. No research involving vertebrate
animals is permitted under any DOC financial assistance award unless authorized by the
Grants Officer.
36 1 12 November 2020
It. Management anti Access to Data mol P iblication%
1. in General. The recipient acknowledges and understands that information and data
contained in applications for financial assistance, as well as information and data contained
in financial, performance and other reports submitted by recipients, may be used by the DOC
in conducting reviews and evaluations of its financial assistance programs. For this purpose,
recipient information and data may be accessed, reviewed and evaluated by DOC employees,
other Federal employees, Federal agents and contractors, and/or by non -Federal personnel,
all of who enter into appropriate or are otherwise subject to confidentiality and nondisclosure
agreements covering the use of such information. Recipients are expected to support
program reviews and evaluations by submitting required financial and performance
information and data in an accurate and timely manner, and by cooperating with DOC and
external program evaluators. In accordance with 2 C.F.R. § 200.303(e), recipients are
reminded that they must take reasonable measures to safeguard protected personally
identifiable information and other confidential or sensitive personal or business information
created or obtained relating to a DOC financial assistance award.
2. Scientific Data. Non -Federal entities must comply with the data management and access
to data requirements established by the DOC finding agency as set forth in the applicable
Notice of Funding Opportunity and/or in Specific Award Conditions.
Publications, Videos, and Acknowledgment of Sponsorship.
i. Publication of results or findings inappropriate professional journals and production
of video or other media is encouraged as an important method of recording, reporting and
otherwise disseninatnng information and expanding public access to federally -funded
projects (e.g., scientific research). Non -Federal entities must comply with the data
management and access to data requirements established by the DOC funding agency as
set forth in the applicable Notice of Funding Opportunity and/or in Specific Award
Conditions.
ii. Non -Federal entities may be required to submit a copy of any publication materials,
including but not limited to print, recorded, or Internet materials, to the funding agency.
iii. When releasing information related to a funded project, non -Federal entities must
include a statement that the project or effort undertaken was or is sponsored by DOC and
must also include the applicable financial assistance award number.
iv. Non -Federal entities are responsible for assuring that every publication of material
based on, developed under, or otherwise produced pursuant to a DOC financial assistance
award contains the following disclaimer or other disclaimer approved by the Grants
Officer:
This [report/videoletc.] was prepared by [recipient name] using Federal finds under
award [number] from [ncnne of operating unit], U.S. Department of'Commerce. The
statements, findings, conclusions, and recommendations are those of'the author(s) and do
37 112 November 2020
not necessarily reflect the views of'the [name of operating unit] or the U.S. Department
of Commerce.
1. llonretan(l sear➢city Pt,esi(lerrtiaf I)ii,ective
If the performance of this DOC financial assistance award requires non -Federal entity
personnel to have routine access to Federally -controlled facilities and/or Federally -controlled
information systems (for purpose of this term "routine access" is defined as more than 180
calendar days), such personnel must undergo the personal identity verification credential
process. In the case of foreign nationals, the DOC will conduct a check with U.S.
Citizenship and Immigration Services' (USCIS) Verification Division, a component of the
Department of Homeland Security (DHS), to ensure the individual is in a lawful immigration
status and that he or she is eligible for employment within the United States. Any items or
services delivered under a financial assistance award must comply with DOC personal
identity verification procedures that implement Homeland Security Presidential Directive 12
(Policy for a Common identification Standard for Federal Employees and Contractors),
Federal Information Processing Standard (FIPS) PUB 201, and OMB Memorandum M-05-
24. The recipient must ensure that its subrecipients and contractors (at all tiers) performing
work under this award comply with the requirements contained in this term. The Grants
Officer may delay final payment under an award if the subrecipient or contractor fails to
comply with the requirements listed in the term below. The recipient must insert the
following term in all subawards and contracts when the subaward recipient or contractor is
required to have routine physical access to a Federally -controlled facility or routine access to
a Federally -controlled information system:
The subrecipient or contractor must comply with DOC personal identity verification
procedures identified in the subaward or contract that implement Homeland Security
Presidential Directive 12 (HSPD-12), Office of Management and Budget (OMB)
Guidance D7 05-2d, as amended, and Federal Injbrination Processing Standards
Publication (FIPS PUB) Number 201, as amended, for all employees under this
subaward or contract who require routine physical access to a Federally -controlled
facility or routine access to a Federally -controlled ufrrrnation system.
The subrecipient or contractor must account for all forms of'Government provided
identification issued to the subrecipient or contractor entplovees in connection with
performance under this subaward or contract. The subrecipient or contractor must
return such identification to the issuing agencv at the earliest of any of the following,
unless otherwise determined by DOC: (1) When no longer needed for .subaward or
contract pet forntance; (?) Upon completion of the subrecipient or contractor employee's
eniplgvnent; (3) Upon subaward or contract completion or termination.
an. Compliance with Department of (.nn➢n➢er cL 13111-pan of lutfrrsory;md Security
Ilxlror 1, Adminislr alion Regulations
1. This clause applies to the extent that this financial assistance award encompasses
activities that involve export -controlled items.
38 112 November 2020
2. In performing this financial assistance award, a non -Federal entity may participate in
activities involving items subject to export control (export -controlled items) under the
Export Administration Regulations (EAR). The non -Federal entity is responsible for
compliance with all applicable laws and regulations regarding export -controlled items,
including the EAR's deemed exports and re-exports provisions. The non -Federal entity
must establish and maintain effective export compliance procedures at DOC and non-DOC
facilities, including facilities located abroad, throughout performance of the financial
assistance award. At a minimum, these export compliance procedures must include
adequate restrictions on export -controlled items, to guard against any unauthorized exports,
including in the form of releases or transfers to foreign nationals. Such releases or transfers
may occur through visual inspection, including technology transmitted electronically, and
oral or written communications.
3. Definitions
Export -controlled items. Items (commodities, software, or technology), that are
subject to the EAR (15 C.F.R. §§ 730-774), implemented by the DOC's Bureau of
Industry and Security. These are generally known as "dual -use" items, items with
a military and commercial application. The export (shipment, transmission, or
release/transfer) of export -controlled items may require a license from DOC.
Deemed Export/Re-export. The EAR defines a deemed export as a release or transfer
of export -controlled items (specifically, technology or source code) to a foreign person
(foreign national) in the U.S. Such release is "deemed" to be an export to the foreign
person's most recent country of citizenship or permanent residency (see 15 C.F.R. §
734.13(a)(2) & (b)). A release may take the form of visual inspection or oral or
written exchange of information. See 15 C.F.R. § 734.15(a). If such a release or
transfer is made abroad to a foreign person of a country other than the country where
the release occurs, it is considered a deemed re-export to the foreign person's most
recent country of citizenship or permanent residency. See 15 C.F.R. § 734.14(a)(2).
Licenses from DOC may be required for deemed exports or re-exports. An act
causing the release of export -controlled items to a foreign person (e.g., providing or
using an access key or code) may require authorization from DOC to the same extent
that an export or re-export of such items to the foreign person would. See 15 C.F.R. §
734.15(b).
4. The non -Federal entity must secure all export -controlled items that it possesses or that
comes into its possession in performance of this financial assistance award, to ensure that
the export of such items, including in the form of release or transfer to foreign persons, is
prevented, or licensed, as required by applicable Federal laws, E.O.s, and/or regulations,
including the EAR.
5. As applicable, non -Federal entity personnel and associates at DOC sites will be informed of
any procedures to identify and protect export -controlled items from unauthorized export.
39 1 12 November 2020
6. To the extent the non -Federal entity wishes to release or transfer export -controlled items to
foreign persons, the non -Federal entity will be responsible for obtaining any necessary
licenses, including licenses required under the EAR for deemed exports or deemed re-
exports. Failure to obtain any export licenses required under the EAR may subject the non -
Federal entity to administrative or criminal enforcement. See 15 C.F.R. part 764.
7. Nothing in the terms of this financial assistance award is intended to change, supersede, or
waive the requirements of applicable Federal laws, E.O.s or regulations.
8. Compliance with this term will not satisfy any legal obligations the non -Federal entity may
have regarding items that may be subject to export controls administered by other agencies
such as the Department of State, which has jurisdiction over exports and re-exports of
defense articles and services subject to the International Traffic in Arms Regulations
(ITAR) (22 C.F.R. §§ 120-130), including the release of defense articles to foreign persons
in the United States and abroad.
The non -Federal entity must include the provisions contained in this term in all lower tier
transactions (subawards, contracts, and subcontracts) under this financial assistance award
that may involve research or other activities that implicate export -controlled items.
ae. 17ae Trsafficking Victims Protection Act of 2000 (22 U.S.C. § 7104(g)), as
.amended, and the implementing vegnlations at 2 C.l+K Part 175
The Trafficking Victims Protection Act of 2000 authorizes termination of financial assistance
provided to a private entity, without penalty to the Federal Government, if any non -Federal entity
engages in certain activities related to trafficking in persons. The DOC hereby incorporates the
following award term required by 2 C.F.R. § 175.15(b):
Trafficking in persons.
a. Provisions applicable to a recipient that is a private entity.
1. You as the recipient, your employees, subrecipients under this award, and subrecipients
employees may not—
i. Engage in severe forms of trafficking in persons (taring the period of tinge that the
award is in effect;
ii. Procure a commercial sex act during the period of time that the award is in effect; or
iii. Use forced labor in the peu fornance of the award or subrnvards under the award.
40 112 November 2020
2. bVe as the Federal orvat•ding agency ntay unilaterally terminate this award, without
penalty, ifyou or a subrecipient that is a private entity —
i. Is determined to have violated a prohibition itr paragraph a.I of this award term; or
ii. Has an employee who is determined by the agency official authorized to terminate the
award to have violated a prohibition in paragraph a.] of this award term through conduct
that is either•— (A) Associated with performance under this award; or (B) Imputed to you
or the subrecipient using the standards and due process for imputing the conduct of an
individual to an organization that are provided in 2 C.F.R. Part 180 (OMB Guidelines to
Agencies on Governmentwide Debarment and Suspension—Nonprocurement), as
implemented by DOC at 2 C.F.R. Part 1326 (NonprocurementDebarment and
Suspension).
b. Provision applicable to a recipient other titan a private entity. We as• the Federal
awarding agency mqv unilaterally terminate this award, without penalty, if a subrecipient that is
a private entity
1. Is determined to have violated an applicable prohibition inparagraph aph a.] of this award
term; or
2. Has mr employee who is determined by the agency official authorized to terminate the
award to have violated an applicable prohibition in paragraph a.I of this award term
through conduct that is either
i. Associated with performance under this award; or
ii. Imputed to the subrecipient using the standards and due process for imputing the
conduct of at? individual to an organization that are provided in 2 C.F.R. Part 180 (OMB
Guidelines to Agencies on Governmentwide Debarment and Suspension —
Nooprocurement), as implemented by DOC at 2 C.F.R. Part 1326, (Nonprocurement
Debarment and Suspens•ion).
c. Provisions applicable to any recipient.
1. You must inform us immediately of cry it formation you receive from arnv source
alleging a violation of a prohibition in paragraph a.1 of this award term.
2. Our right to terminate unilaterally that is described in paragraph a.2 or b of this
section:
i. Implements section 106(g) of'the Trafficking Victims Protection Act of 2000 (TVPA),
as amended (22 U.S.C. 7104(g)), and
ii. Is in addition to all other remedies for noncompliance that are available to its under
this award.
41 1 12 November 2020
3. Yon Hurst include the requirements oj'pa•agraph a.1 of this award term in any subawa•d
you make to a private entity.
d Definitions. For purposes of this award tern:
Employee " means either,
i. Ali individual employed by you or a subrecipient who is engaged in the performance of
the project or program under this award; or
it. Another person engaged in the performance of the project or progn•am under this
award and not compensated by you including, but not limited to, a volunteer or individual
whose services are contributed by a third party as an in -kind contribution toward cost
sharing or matching requirements.
2. "Forced labor" mews labor obtained by any of the following methods: the recruitment,
harboring, h•onspoi,tation, provisioti, or obtaining of a person, for• labor or services, through
the rise of foirce, fi•aitd, or coeicion for the purpose of subjection to involzrntai,v servitude,
peonage, debt bondage, or slavery.
3. "Private entity":
i. Means any entity other than a State, local government, Indian tribe, or _foreign public
entity, as those terms are defined in 2 C.F.R. § 175.25:
ii. Inc•ludes: (A) A nonprofit organization, including any nonprofit institution of higher
education, hospital, or tribal organization other than one included itu the definition of
Indian tribe at 2 C.F.R. § 175.25(b); and (B) A jor-profit organization.
4. "Severe forms of tryfficking in persons, " "commercial sex act, " and "coercion" have the
meanings given at section 103 of the TVPA, as amended (22 U.S.C. S 7102).
o. The Federal funding Account, -ability and Transparency Act (F ATA) (31 U.S.C:.
6'1-01 name)
1. Reporting Subawards and Executive Compensation. Under FFATA, recipients of
financial assistance awards of $30,000 or more are required to report periodically on executive
compensation and subawards, as described in the following term from 2 C.F.R. Part 170,
Appendix A, which is incorporated into this award:
Reporting Subawards and Executive Compensation
a. Reporting of first -tier Subawards.
1. Applicability. Unless voltare exempt as provided irr par•agraplr d. of this award term,
your must report each action that equals or exceeds $30, 000 in Federal jimds for a subaward
42 112 November 2020
to a non -Federal entity or Federal agency (see definitions• in paragraph e, of this award
term).
2. Where and when to report.
i. You must report each obligating action described in paragraph a,1, of this airard term
to lntlu;;'u rrrr. fsrs. eor.
ii. For snbaward information, report no later than the end of the month following the
month in which the obligation was made. (For ea:oniple., tf the obligation was made on
November 7, 2010, the obligation must be reported by no Icier than December 31, 2010.)
3. What to report You must report the information about each obligating action that the
submission instructions posted at huo:;'.'wwwt tsrs, vov specify.
b. Reporting Total Compensation of Recipient Executives for non -Federal entities.
1. Applicability and what to report. You must report total compensation• for each of your
five most highly compensated executives for the preceding completed fiscal year, if''
i. the total Federalfinding authorized to date under this Federal award equals or
exceeds $30, 000 as defined in 2 C.F.R § 170.320;
ii, in the preceding fiscal year, you received —
(A) 80 percent or more ofvour annual gross revenues firom Federal procurement
contracts (crud subcontracts) and Federal financial assistance subject to the
Transparency Act, as defined at 2 C.F.R. § 170.320 (and subawards), and
A $25, 000, 000 or more ita annual gross revenues from Federal procurement contracts
(ail subcontracts) and Federalfinancial assistance subject to the Transparency
Act, as defined at 2 C.F.R. § 170.320 (cad subawards); and,
iii. The public does not have access to information about the compensation of the
executives tln-oungln periodic reports filed under section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (15 U.S.C. § 78m(cn), 78o(d)) or section 6104 of the Internal Revenue
Code of 1986. (To determine if the public has access to the compensation information, see
the U.S. Security and Exchange Connnission total compensation filings of
Intro:!;'wi-rw.sec.aor/ansu�ersiexeconnn.hhnr 1
2. Where and when to report. You must report executive total compensation described in
paragraph b.1. of this award term:
i. As pco•t of youur regisu�ation prof le found at the Svstenn jor Awa-d Managennernt (SAAII)
z+�ebsite located nt /runs:;%wurr.scrm.t=ay.
43 112 November 2020
ii. By the end of the month following the month in which this award is made, and
annually therectier.
c. Reporting of Total Compensation of Subrec•ipient Executives.
1. Applicability aril what to r•epor7. Unless You are exempt as provided in paragraph d. oj'
this award term, for each first -tier non -Federal entity subrecipient under this award, you
shall report the names and total compensation of each oj'the subrecipient's five most highly
compensated executives for the subreeipient's pf•ececlitig completed jiscal vecn•, if
i. in the sttbrecipient's preceding fiscal year, the subrecipient received —
(A) 80 percent or more of'its annual gross revemtes,fn•om Federal procurement
contracts (and subcontracts) and Federal financial assistance subject to the
Transparency Act, as defined at 2 C.F.R. Q' 170.320 (crud subawards) and,
(B) $25,000,000 or more in annual gross revenues•fi•om Federal procurement contracts
(and subcontracts), and Federal financial assistance subject to the Transparency
Act (and subawards); and
ii. The public does not have access to information about the compensation of the
executives through periodic reports filed under section 13(a) or 15(d) of the Securities
Exchange Act oj'1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue
Code of 1986. (To determine if the pahlic has access to the compensation information, see
the U.S. Security and Exchange Commission total compensation filings at
him: /hru�u�.ser. eov/an.swers�'e.ceconrt�. hhn. ).
,See also 2 C.F.R. § 200.300(b).
2. Where and when to report. You mast report subrecipient executive total compensation
described in paragraph c.l. of this award tern:
i. To the recipient.
ii. By the end of the nonth,following the month during which you make the subaward.
For example, if a subaward is obligated on any date during the month of October of a
given year (i.e., behreen October 1 and 31), you must report a'v required compensation
information of the subrecipient by November 30 of that year.
d. Exemptions. If, in the previous tax year, You had gross income, fr•ona all sources, under
$300, 000, you are exempt fr•orn the requirements to report: i. Subawa•ds, and ii. The total
compensation of the five most highly compensated executives of any subrecipient.
44 112 November 2020
e. Definitions. For proposes of this award term:
1. Federal Agency means a Federal agencv as defined at 5 U.S.C. 551(1) and fin -then
clarified by 5 U.S.C. 5520.
2. Non -Federal entity means all of the following, as defined in 2 CFR. Part 25:
i. A Governmental organisation, which is a State, local government, or Indian tribe;
ii. A foreign public entity;
iii. A domestic or foreign nonprofit organization; and,
iv. A domestic or foreign for-prrofit organization.
3. Exectitiye means offlcers, niaihaging partners, or any other enhplovees in nianagenient
positions.
4. Subaward:
i. This term means a legal instrument to provide support for the perjorinance ol'anv
portion of the substantive projector program for which you received this award and that
you as the recipient award to ath eligible subrecipient.
ii. The term does not include your procurement of property and services needed to early
out the project or program (for f irther explanation, see 2 C.FR S 200.331).
iii. A subaward rutty be provided through any legal agreement, including an agreement
that you or a subrecipient considers a contract.
5. Subrecipient means a non -Federal entity or Federal agency that:
i. Receives a Mibaward from you (the recipient) under this award; and
ii. Is accountable to you for the use of the Federal fhinds provided by the subaward.
6. Total compensation means the cash and noncash dollar value earned by the executive
(tiring the recipient's or• subrecipient's pieceding fiscal year and includes the following (for
more injbrmation see 17 C.F.R. ,S 229.402(c)(2)):
i. Salaii, and bonus.
ii. Awards oj'stock, stock options, and stock appreciation rights. Use the dollar cnnourht
recognized for jlnaneial statement reporting purposes with respect to the fiscal year in
accordance with the Statement of Financial Accounting Standards No. 123 (Revised 20041)
(FAS 123R), Shared Based Payments,
45 112 November 2020
iii. Earnings for services urnler non -equity incentive plans. This does not include group
life, health, hospitalization or medical reimbursement plans that do not discriminate in
favor of executives, and are available generally to all salaried emplovees.
iv. Change in pension valise. This is the change in present valise of'defined benefit and
actuarial pension plans.
v. Above -market earnings oil deferred compensation which is not tax-guali/red.
vi. Other compensation, if the aggregate value of all such other compensation (e.g.
severance, termination pavnients, value of life insurance paid on behalf of the employee,
perquisites or property) for the executive exceeds $10, 000.
2. Svstem for Award Management (SAM) and Universal Identifier Requirements --as
described in 2 CRR. Part 25, Appendix A, which is incorporated into this award:
System for Award Management (SAM) and UniversalldentrTer Requirements
a. Requirement for System for Award Management. Unless you are exempted fi^om this
requirement antler 2 C.F.R. ,¢ 15.110, you as the recipient inutst ntaintain current information in
the SAM. This includes information on your innnediate and highest level owner and
subsidiaries, as well as on all of your predecessors that have been awarded a Federal contract
or Federal financial assistance within tlhe last three years, if applicable, ztntil you szzbntit the
final financial report required under this Federal award or receive the final payment, whichever
is later. This requires that you review and update the information at least annually after the
initial registration, and more frequently if regzired by changes in )'our information or crrlother
Federal award term.
b. Requirement far Unique Entity Identifier. if vote are authorized to make subawards
under this Federal award, you:
1. Allitst riotifv potential szibrecipients that no entity (see definition in paragraph e of this
award term) ma(v receive a subaward fi-on you until the entity has provided its Unique Entity
Identifier toort.
2. Mary not make a subaward to ern entity unless the entity has provided its Unique Entity
Identifier to you. Snbrecipients are not required to obtain all active SAMregkmation, but
must obtain a Unique Entity Identifier.
c. Definitionsfn-purposesofthisterm:
1. SAM means the Federal repository into which a recipient must provide information
required for the conduct of business as a recipient. Additional information about
registration procedures may be found at the SAM Internet site (currently at
.env-.SAlLv-ov1.
46 112 November 2020
2. Unique Entity Identifier means the identifier assigned by SAMto uniquely identify
business entities.
3. Entity includes non -Federal entities as defined at 2 CF.R. § 200.1 and also includes all
of the following, for• purposes of this part:
i. A foreign organization;
ii. A foreign public entity;
iii. A domestic,for profit organizalion: and
iv. A Federal agencv.
4. Subaward has the rneaninggiven in 2 C.F.R S 200.1.
5. Subrecipient has the meaning given in 2 C.FR § 200.1.
See also 2 C.F.R. § 200.300(b).
p. ltecipierit irxiegr-itv ae,tl Periirrtayatice Matters (rlpirer7tlix Xil to 2 C,F.It. Palm
zoo)
Reporting of'Matters Related to Recipient Integrity and Performance
1. General Reporting Requirement. If the total value of your currently active grants,
cooperative agreements, and procurement contracts from all Federal awarding agencies
exceeds $10,000,000 for any period of time during the period of performance of this Federal
award, then you as the recipient during that period of time must maintain the currency of
information reported to the System for Award Management (SAM) that is made available in
the designated integrity and performance system (currently the Federal Awardee
Performance and Integrity Information System (FAPIIS)) about civil, criminal, or
administrative proceedings described in paragraph 2 of this award term and condition. This
is a statutory requirement under section 872 of Public Law 110-417, as amended (41 U.S.C.
2313). As required by section 3010 of Public Law 111-212, all information posted in the
designated integrity and performance system on or after April 15, 2011, except past
performance reviews required for Federal procurement contracts, will be publicly available.
2. Proceedings About Which You Must Report. Submit the information required about
each proceeding that:
i. Is relating to the award or performance of a grant, cooperative agreement, or
procurement contract from the Federal Government;
ii. Reached its final disposition during the most recent five-year period; and
47 1 12 November 2020
iii. Is one of the following:
(A)A criminal proceeding that resulted in a conviction, as defined in paragraph 5 of this
award term and condition;
(B) A civil proceeding that resulted in a finding of fault and liability and payment of a
monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more;
(C) An administrative proceeding, as defined in paragraph 5 of this award term and
condition, that resulted in a finding of fault and liability and your payment of either
a monetary fine or penalty of $5,000 or more or reimbursement, restitution, or
damages in excess of $100,000; or
(D)Any other criminal, civil, or administrative proceeding if:
1. It could have led to an outcome described in paragraph 2.c.(1), (2), or (3) of this
award term and condition;
II. It had a different disposition arrived at by consent or compromise with an
acknowledgment of fault on your part; and
III. The requirement in this award term and condition to disclose information about
the proceeding does not conflict with applicable laws and regulations.
3. Reporting Procedures. Enter in the SAM Entity Management area the information that
SAM requires about each proceeding described in paragraph 2 of this award term and
condition. You do not need to submit the information a second time under assistance awards
that you received if you already provided the information through SAM because you were
required to do so under Federal procurement contracts that you were awarded.
4. Reporting Frequency. During any period when you are subject to the requirement in
paragraph 1 of this award term and condition, you must report proceedings information
through SAM for the most recent five-year period, either to report new information about any
proceeding(s) that you have not reported previously or affirm that there is no new
information to report. Recipients that have Federal contract, grant, and cooperative
agreement awards with a cumulative total value greater than $10,000,000 must disclose
semiannually any information about the criminal, civil, and administrative proceedings.
5. Definitions. For purposes of this award term and condition:
i. Administrative proceeding means a non judicial process that is adjudicatory in nature
to make a determination of fault or liability (e.g., Securities and Exchange Commission
Administrative proceedings, Civilian Board of Contract Appeals proceedings, and Armed
Services Board of Contract Appeals proceedings). This includes proceedings at the Federal
and State level but only in connection with performance of a Federal contract or grant. It
does not include audits, site visits, corrective plans, or inspection of deliverables.
48 112 November 2020
ii, Conviction, for purposes of this award term and condition, means a judgment or
conviction of a criminal offense by any court of competent jurisdiction, whether entered
upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere.
iii. Total value of currently active grants, cooperative agreements, and procurement
contracts includes:
(A) Only the Federal share of the funding under any Federal award with a recipient cost
share or match; and
(B) The value of all expected funding increments under a Federal award and options,
even if not yet exercised.
cl. Never Contract with the Enemy (2 C.f.lt Part 1€13; 2 CP,it. § 200.215)
Under 2 C.F.R. § 200.215 (Never contract with the enemy) Federal awarding agencies and
recipients are subject to the regulations implementing Never Contract with the Enemy in 2
C.F.R. Part 183. These regulations affect covered contracts, grants and cooperative agreements
that are expected to exceed $50,000 within the period of performance, are performed outside the
United States and its territories, and are in support of a contingency operation in which members
of the Armed Forces are actively engaged in hostilities.
1. ADDlicability. This term applies only to recipients of covered grants or cooperative
agreements, as defined in 2 C.F.R. § 183.35 Definitions.
2. Reauirements. As applicable, recipients must fulfill the requirements as described in the
following terms from 2 C.F.R. Part 183, Appendix A, which is incorporated into this award:
a. Term I. Prohibition on Providing Funds to the Enemy.
1. The recipient must —
Exercise clue diligence to ensure that none ofthe,f nds, including supplies and services,
received under this grant or cooperative abn,eenrent are provided directly or indirectly
(including through subawards or contracts) to a person or entity who is actively
opposing the United States or coalition forces involved in a contingency operation in
which members of the Armed Forces are actively engaged in hostilities, which must be
completed through 2 CFR Part 180.300 prior to issuing a subaward or contract and;
ii. Terminate or void in whole or in part any subaward or contract tirith a person or entity,
listed in SAM as a prohibited or restricted source pursuant to subtitle E of'Tille VIR of
the NDAA for FY 2015, unless the Federal awarding agency provides written approval to
continue the subaward or contract.
49 112 November 2020
2. The recipient may include the substance of'this clause, including this paragraph (1), in
subawards under this grant or cooperative agreement that have an estimated value over
$50, 000 and will be performed outside the United States, including its outlying areas.
3. The Federal awarding agency has the authority to terminate or void this grant or
cooperative agreement, in whole or in part, jf the Federal awarding agency becomes aware
that the recipient failed to exercise due diligence as• required by paragraph (1) of this clause
or if the Federal awarding agency, becomes aware that anvfnrnds received under this grant
or cooperative agreement have been provided directly, or indirectly to a person or entity who
is actively opposing coalition forces involved in a contingency operation in which members
of the Armed Forces are actively engaged in hostilities
b. Ternr 2. Additional Access to Recipient Records.
1. In addition to any other existing examination -of -records authority, the Federal
Government is authorifed to exanune any records of the recipient and its subawards or
contracts to the extent neeessary to ensure thatfunds, including supplies and services,
available under this grant at, cooperative agreement are not provided, directly or indirectly,
to a person or entity that is actively opposing United States or coalition•forc•es involved in a
contingency operation in which members of the Armed Forces are actively engaged in
hostilities, except fire awards awarded by the Department of Defense on or before Dec 19,
2017 that will be perforned in the United States Central Command (USCENTCOM) theater
of operations
2. The substance gf'this clause, including this paragraph (2), is required to be included in
subawards or contracts under this grant at, cooperative agreement that have an estimated
value over $50, 000 and it -ill be performed outside the United States, including its outlying
areas.
r. iyrohiiritrota ocr certain leiccourtueacticaatiotus sdrxti videa sru•veili:rnc e services or
equipment (Public Law 115-232, section 809; 2 CAR. 6 200.216)
(a) Recipients and subrecipients are prohibited from obligating or expending loan or grant
finds to:
(1) Procure or obtain,
(2) Extend or renew a contract to procure or obtain, or
(3) Enter into a contract (or extend or renew a contract) to procure or obtain equipment,
services or systems that uses covered telecommunications equipment or services as a
substantial or essential component of any system, or as critical technology as part of any
system.
50 112 November 2020
As described in Public Law 115-232, section 889, covered telecommunications
equipment is telecommunications equipment produced by Huawei Technologies
Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
(i). For the purpose of public safety, security of government facilities, physical
security surveillance of critical infrastructure, and other national security
purposes, video surveillance and telecommunications equipment produced by
Hytera Communications Corporation, Hangzhou Hikvision Digital Technology
Company, or Dalian Technology Company (or any subsidiary or affiliate of such
entities).
(ii). Telecommunications or video surveillance services provided by such entities or
using such equipment.
(iii). Telecommunications or video surveillance equipment or services produced or
provided by an entity that the Secretary of Defense, in consultation with the
Director of the National Intelligence or the Director of the Federal Bureau of
Investigation, reasonably believes to be an entity owned or controlled by, or
otherwise connected to, the government of a covered foreign country.
(b) In implementing the prohibition under Public Law 115-232, section 889, subsection (f),
paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs shall
prioritize available funding and technical support to assist affected businesses, institutions and
organizations as is reasonably necessary for those affected entities to transition from covered
communications equipment and services, to procure replacement equipment and services, and to
ensure that communications service to users and customers is sustained.
(c) See Public Law 1 15-232, section 889 for additional information.
(d) See also §200,471.
s. E'C[lf'C�il 1'lnnlYClal /4ssistdilYre f`l.i lilil➢Yg. t)➢lY'C➢"t:➢ 1'YiiYdllifs Ei Ya1➢I:s i➢i' (e0'VE�i'➢YY➢Ye➢Yt
Shutdown
This term sets forth initial guidance that will be implemented for Federal assistance awards in
the event of a lapse in appropriations, or a government shutdown. The Grants Officer may issue
further guidance prior to an anticipated shutdown.
1. Unless there is an actual rescission of fiends for specific grant or cooperative agreement
obligations, non -Federal entities under Federal financial assistance awards for which funds
have been obligated generally will be able to continue to perform and incur allowable
expenses under the award during a funding hiatus. Non -Federal entities are advised that
ongoing activities by Federal employees involved in grant or cooperative agreement
administration (including payment processing) or similar operational and administrative
work cannot continue when there is a funding lapse. Therefore, there may be delays,
including payment processing delays, in the event of a shutdown.
51 1 12 November 2020
2. All award actions will be delayed during a government shutdown; if it appears that a non -
Federal entity's performance under a grant or cooperative agreement will require agency
involvement, direction, or clearance during the period of a possible government shutdown,
the Program Officer or Grants Officer, as appropriate, may attempt to provide such
involvement, direction, or clearance prior to the shutdown or advise non -Federal entities that
such involvement, direction, or clearance will not be forthcoming during the shutdown.
Accordingly, non -Federal entities whose ability to withdraw funds is subject to prior agency
approval, which in general are non -Federal entities that have been designated high risk, non -
Federal entities under construction awards, or are otherwise limited to reimbursements or
subject to agency review, will be able to draw funds down from the relevant Automatic
Standard Application for Payment (ASAP) account only if agency approval is given and
coded into ASAP prior to any government shutdown or closure. This limitation may not be
lifted during a government shutdown. Non -Federal entities should plan to work with the
Grants Officer to request prior approvals in advance of a shutdown wherever possible. Non -
Federal entities whose authority to draw down award funds is restricted may decide to
suspend work until the government reopens.
3. The ASAP system should remain operational during a government shutdown. Non -
Federal entities that do not require any Grants Officer or agency approval to draw down
advance funds from their ASAP accounts should be able to do so during a shutdown. The
30-day limitation on the drawdown of advance funds will still apply notwithstanding a
government shutdown (see section B.02.b.1 of these terms).
52 1 12 November 2020
U.S. DEPARTMENT OF COMMERCE
ECONOMIC DEVELOPMENT ADMINISTRATION
REVOLVING LOAN FUND
STANDARD TERMS AND CONDITIONS
November t2, 2020
TABLE OF CONTENTS
PART 1: GENERAL PROVISIONS ...............................................
A) RLF Award................................................................................
B) Authorities..................................................................................
1) In General...............................................................................
2) PWEDA..................................................................................
3) EDA Regulations....................................................................
4) Conflicts Among Authorities .................................................
C) Updates to Authorities..............................................................
1) Updates to Regulations..........................................................
2) Effective Date of RLF Standard Terms & Conditions..........
D) Recipient as Trustee..................................................................
E) Additional Funding...................................................................
F) Definitions.................................................................................
PART 11: RECIPIENT'S OPERATION OF THE RLF.................
A) RLF Plan...................................................................................
1) General Requirements...........................................................
2) Format and Content. (13 CFR § 307.9(a))............................
3) EDA Evaluation of RLF Plan. (13 CFR § 3079(b)).............
4) Updates and Modifications. (13 CFR § 307.9(c)).................
B) Pre -Disbursement Requirements ..............................................
1) Accounting Certification. (13 CFR § 307.11(a)(1)(i))..........
2) Loan Document Certifications. (13 CFR § 307.11(a)(1)(ii))
3) Fidelity Bond Coverage. (13 CFR § 307.11(a)(1)(iii))........,
C) Disbursement of RLF Funds .....................................................
1) Purpose of Disbursements. (13 CFR § 307.1l(b))...............
2) Amount of Disbursement. (13 CFR § 307.11(c)) ................
3) Interest -bearing Account. (13 CFR § 307.11(d)).................
4) Delays. (13 CFR § 307.11(e))..............................................
5) Local Share. (13 CFR § 307.11(t))......................................
6) Disbursement Schedule. (13 CFR § 307.11(g))...................
7) Method of Disbursement......................................................
........... 1
............ 1
............ 1
............ 1
............ 1
............ 1
............ 1
............ 2
............ 2
............ 2
............ 2
............ 2
............ 2
............ 3
............ 3
............ 3
............. 3
............. 3
............. 4
............. 4
............. 4
............. 4
............. 5
............. 5
............. 5
............. 5
............. 5
............. 5
............. 6
............. 6
............. 6
8)
DOC Standard Terms and Conditions..............................................................................
6
D) Lending
................................................................................................................................7
1)
Prudent Lending Practices. (13 CFR § 307.8).................................................................
7
2)
Lending Area. (13 CFR § 307.18(a))...............................................................................
7
3)
Interest Rates. (13 CFR § 307.15(b))...............................................................................
7
4)
Purpose of Loans and Use of RLF Cash Available for Lending.
(L3 CFR § 307.17(c)). 7
5)
Credit Not Otherwise Available.... ...................................................................................
9
6)
RLF Leveraging. (13 CFR § 307.15(c))...........................................................................
9
7)
Environmental Impact. (13 CFR § 307.10(a)).................................................................
9
8)
Protection of RLF Assets. (13 CFR § 307.10(b))............................................................
9
9)
Hold Harmless Provision. (13 CFR § 307.10(c))...........................................................
10
10)
Requirements Relating to RLF Loans Funding Construction ....................................
10
L) Financial
Administration of the RLF.................................................................................
10
1)
2)
3)
4)
5)
6)
7)
S)
F)
2)
3)
4)
G)
1)
2)
3)
4)
5)
GeneralRequirements.................................................................................................... 10
RLF Cash Available for Lending. (13 CFR § 307.17(a)).............................................. I 1
RLF Income. (13 CFR § 307.12(a))............................................................................... I I
Cost Principles. (13 CFR § 307.12(b))........................................................................... 11
Priority of Payments on Defaulted RLF Loans. (13 CFR § 307.12(c)) ......................... l l
Voluntarily Contributed Capital. (13 CFR § 307.12(d))................................................ 12
Accounting Principles. (13 CFR § 307.15(a))................................................................ 12
Audits. (13 CFR § 307.12(b)(3)).................................................................................... 12
RLF Reports. (13 CFR § 307.14)....................................................................................... 13
Frequencyof Reports..................................................................................................... 13
ReportCertification........................................................................................................ 13
Government Performance and Results Act Reporting.
DOC Standard Terms and Conditions ..........................
EDA Evaluation and Oversight of the RLF Award........,
Allowable Cash Percentage. (13 CFR § 307.17(b))....,
Risk Analysis System. (13 CPR § 307.16(a))..............
Corrective Action. (13 CFR § 307.16(b)) ....................
Noncompliance. (13 CFR §§ 307.20, 307.21) .............
Suspension. (13 CFR § 30721(c)) ...............................
6)
Termination. (2 CFR § 200.340)....................................................................................
15
H)
Consolidation and Merger of RLF Awards. (13 CFR § 307.18(b))..................................
16
1)
Consolidation of Recipient's Awards............................................................................
16
2)
Merger of Recipient and Other Recipients' Awards ......................................................
16
1)
Conflicts of Interest...........................................................................................I................16
1)
Definitions. (13 CFR § 300.3)........................................................................................
16
2)
Conflicts of interest Generally, (13 CFR § 302.17(a))..................................................
16
3)
Conflicts of Interest Rules Specific to RLFs. (13 CFR § 302.17(c)).............................
16
4)
Duty to Disclose. (2 CFR § 200.112).............................................................................
17
5)
Written Standards of Conduct........................................................................................
17
6)
DOC Standard Terms and Conditions............................................................................
17
7)
Other Conflicts of Interest Rules....................................................................................
17
J)
Records and Retention.......................................................................................................
18
1)
Closed Loan Files and Related Documents. (13 CFR § 307.13(a)) ...............................
18
2)
Administrative Records. (13 CFR § 307.13(b)).............................................................
18
3)
Other Records Requirements. (2 CFR § 200.334).........................................................
19
K)
Other EDA Requirements..................................................................................................
20
1)
Other Award Requirements............................................................................................20
2)
Freedom of Information Act..........................................................................................
21
3)
Lobbying Restrictions....................................................................................................
21
4)
Codes of Conduct and Sub -Award, Contract and Subcontract Provisions ....................
21
5)
Property Management....................................................................................................24
6)
American -Made Equipment and Products.....................................................................
24
PART
III: DEPARTMENT OF COMMERCE STANDARD TERMS & CONDITIONS....
25
PART I:
GENERAL PROVISIONS
A) RLF Award.
This financial assistance award, executed by the Economic Development Administration
(EDA) and the recipient (Recipient), is awarded for the purpose of establishing a Revolving
Loan Fund (the RLF Award).
B) Authorities.
1) In General.
Recipient must administer the RLF Award in conformance with the terms of the RLF
Award, including any properly executed amendment thereto, the EDA-approved budget
and scope of work, these RLF Standard Terms and Conditions, and any Special Award
Conditions or Specific Award Conditions; relevant policies issued by EDA; applicable
Federal statutes, regulations, and Executive Orders; and the provisions of the Office of
Management and Budget Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards codified at 2 CFR part 200 (OMB Uniform
Guidance).
2) PWEDA.
The RLF Program is authorized under section 209 of the Public Works and Economic
Development Act of 1965 (42 U.S.C. § 3149) (PWEDA).
3) EDA Regulations.
The regulations implementing PWEDA are contained in chapter III of 13 CFR, and apply
in full to this RLF Award. The regulations specific to the RLF Program can be found at
subpart B of 13 CFR part 307.
4) Conflicts Among Authorities.
Any inconsistency or conflict among the authorities governing Recipient's administration
of the RLF Award will be resolved in the following order of precedence: public laws,
regulations (including the OMB Uniform Guidance), applicable notices published in the
Federal Register, Executive Orders, these RLF Standard Terms and Conditions, Special
Award Conditions and Specific Award Conditions, and any written policy guidance
issued by EDA. However, a Special Award Condition or Specific Award Condition may
amend or take precedence over a provision of the RLF Standard Terms and Conditions on
a case -by -case basis, when warranted by the specific circumstances of the RLF Award. In
the event of a conflict between Part 1 or Part 11 of these RLF Standard Terms and
Conditions and Part Bl, Department of Commerce Standard Terms and Conditions, Part I
and Part 11 will control.
C) Updates to Authorities.
1) Updates to Regulations.
EDA may issue changes from time to time to the regulations in chapter III of 13 CFR and
OMB may issue changes from time to time to the regulations at 2 CFR part 200.
Recipient must adhere to any such regulatory change in administering the RLF Award as
of the effective date of such change. However, RLF loans made by Recipient prior to the
effective date of the change are not affected unless so required by law. In the event of a
conflict between these RLF Standard Terms and Conditions and the regulations in
chapter III of 13 CFR or 2 CFR part 200, the regulations will control.
2) Effective Date of RLF Standard Terms & Conditions.
These RLF Standard Terms and Conditions are effective as of the date of execution of the
RLF Award or, if attached to the RLF Award by amendment, as of the date of execution
of such amendment.
D) Recipient as Trustee.
Recipient holds RLF Award funds in trust to serve the purposes of the RLF Award.
Recipient's obligation to the Federal Government continues as long as the Federal assets
continue to exist. The Federal assets may include cash, receivables, Personal Property, Real
Property, and notes or other financial instruments acquired through the use of RLF Award
funds. if EDA determines that Recipient has failed to meet any of its obligations under this
RLF Award, the agency may assert its equitable reversionary interest, or the Federal Interest,
in the RLF assets. However, EDA's non -assertion of its Federal Interest does not constitute a
waiver thereof.
E) Additional Funding.
EDA has no obligation to provide any additional funding in connection with the RLF Award.
Any amendment of the RLF Award to increase funding or to extend the period of
performance is at the sole discretion of EDA and must be memorialized in writing.
F) Definitions.
Capitalized terms used but not otherwise defined in these RLF Standard Terms and
Conditions have the meanings ascribed to them at 13 CPR §§ 300.3, 307.8, and 314.1.
"Days" as used herein means calendar days unless expressly stated otherwise.
PART 11:
RECIPIENT'S OPERATION OF THE RLF
A) RLF Plan.
1) General Requirements.
Recipient must administer the RLF in accordance with an EDA-approved RLF Plan.
Recipient must develop an RLF Plan and submit it to EDA for approval. EDA will
evaluate the RLF Plan, and EDA may require changes before approving the RLF Plan.
Recipient may not make RLF loans prior to EDA approval of Recipient's initial RLF
Plan.
2) Format and Content, (13 CFR § 307.9(a))
a) Title Page: The RLF Plan must begin with a title page that includes the name of
Recipient and the date that the Plan was adopted by Recipient.
b) Part 1: The RLF Plan must include a Part I entitled "Revolving Loan Fund Strategy,"
which summarizes the following:
(i) the Comprehensive Economic Development Strategy (CEDS) or EDA-approved
economic development plan for the region in which the RLF operates;
(ii) the business development objectives of the RLF; and
(iii)the financing strategy, policy, and portfolio standards of the RLF.
c) Part U: The RLF Plan must include a Part 1I entitled "Operational Procedures," to
serve as the internal operating manual for the RLF and include procedures to ensure
Recipient and borrowers comply with applicable laws and regulations, including but
not limited to 13 CFR part 307. Part 11 must also include the following:
(i) administrative procedures for operating the RLF consistent with "Prudent
Lending Practices," as defined at 13 CFR § 307.8;
(ii) environmental review and compliance procedures as set forth at 13 CFR § 307.10;
and
(iii)conflicts of interest rules set forth at 13 CFR § 302.17.
3) EDA Evaluation of RLF Plan. (13 CFR § 307.9(b))
In evaluating an RLF Plan, EDA will ensure that the RLF Plan:
a) Demonstrates consistency with the CEDS or EDA-approved development plan for the
region in which the RLF is located;
b) Does not contravene EDA's conflict of interest rules;
c) Identifies the strategic purpose of the RLF and the considerations influencing the
selection of its financing strategy and lending criteria, including:
(i) An analysis of the local capital market and the financing needs of the targeted
businesses; and
(ii) Financing policies and portfolio standards which are consistent with EDA's
policies and requirements;
d) Demonstrates an adequate understanding of commercial loan portfolio management
procedures, including loan processing, underwriting, closing, disbursement, servicing,
collection, monitoring, and foreclosure; and
e) Provides sufficient administrative procedures to prevent conflicts of interest, require
accountability, safeguard RLF assets, and ensure compliance with Federal, State, and
local laws.
4) Updates and Modifications. (13 CFR § 307.9(c))
Recipient's RLF Plan must be updated once every five years, or sooner if necessary to
adapt to changing economic conditions. However, EDA may require Recipient to update
the RLF Plan at any time to incorporate new approaches, align with an updated CEDS, or
as otherwise required by EDA. Recipient must submit any updates or modifications to the
RLF Plan for EDA approval, and EDA may condition such approval on any changes that
EDA deems necessary.
B) Pre -Disbursement Requirements.
1) Accounting Certification. (13 CFR § 307.11(a)(1)(i))
Within 60 days before the initial disbursement of EDA funds, Recipient must provide in a
form acceptable to EDA a certification signed by an authorized representative of
Recipient certifying that Recipient's accounting system is adequate to identify, safeguard,
and account for the entire RLF Capital Base, outstanding RLF loans, and other RLF
operations. Recipient is required to maintain the adequacy of the RLF's accounting
system for the duration of the RLF's operation.
2) Loan Document Certifications. (13 CFR § 307.11(a)(1)(ii))
Within 60 days before the initial disbursement of EDA funds, Recipient must provide in a
form acceptable to FDA a certification signed by an authorized representative of
Recipient that standard RLF loan documents reasonably necessary or advisable for
lending are in place, and a certification from Recipient's legal counsel that the standard
RLF loan documents are adequate and comply with the terms and conditions of the RLF
Award, RLF Plan, and applicable State and local law. Recipient is required to maintain
and appropriately update standard RLF loan documents at all times for the duration of the
RLF's operation. The standard loan documents must include, at a minimum, the
following:
(i) Loan application;
(ii) Loan agreement;
(iii) Board of directors' meeting minutes approving the RLF loan;
(iv) Promissory note;
(v) Security agreement(s);
(vi) Deed of trust or mortgage (as applicable);
(vii) Agreement of prior lien holder (as applicable); and
(viii) Evidence demonstrating that credit is not otherwise available on terms and
conditions that permit the completion or successful operation of the activity to
be financed.
3) Fidelity Bond Coverage. (13 CFR § 307.11(a)(1)(iii))
Within 60 days before the initial disbursement of EDA finds, Recipient must provide in a
form acceptable to EDA evidence of fidelity bond coverage for persons authorized to
handle funds under the RLF Award in an amount sufficient to protect the interests of
EDA and the RLF. At a minimum, the amount of coverage must be the maximum loan
amount allowed for in the EDA-approved RLF Plan. Recipient must maintain sufficient
fidelity bond coverage as described in this Subsection for the duration of the RLF's
operation.
C) Disbursement of RLF Funds.
1) Purpose of Disbursements. (13 CFR § 307.11(b))
RLF Award funds disbursed by EDA to Recipient may only be used by Recipient to close
a loan or otherwise disburse loan funds to a borrower.
2) Amount of Disbursement. (13 CFR § 307.1 l (c))
EDA will only disburse to Recipient an amount of RLF Award funds equal to the amount
required to meet the Federal Share requirement of a new RLF loan. Recipient need not
apply RLF Income earned or principal repaid to new RLF loans during the Disbursement
Phase of the RLF Award, unless otherwise specified in the temis of the RLF Award.
3) Interest -bearing Account. (13 CFR § 307.11(d))
Recipient must hold in an interest -bearing account all RLF Award funds that have been
disbursed by FDA to Recipient but that have not yet been disbursed to a borrower by
Recipient. (RLF Cash Available for Lending must also be held in an interest -bearing
account, as discussed further in Section E, Financial Administration of the RLF.)
4) Delays. (13 CFR § 307.11(e))
All RLF Award funds disbursed by EDA to Recipient must in turn be disbursed by
Recipient to a borrower within 30 days of Recipient's receipt of the RLF Award funds.
Recipient must refund to EDA any RLF Award funds not disbursed to a borrower within
the 30-day period, pursuant to the procedures set forth at 13 CFR § 307.1 l(e). However,
RLF Award funds returned to EDA pursuant to this Subsection may be available to
Recipient for future draw -downs.
5) Local Share. (13 CFR § 307.11(o)
Recipient's matching funds required pursuant to the RLF Award are lmown as the Local
Share. Recipient must maintain the Local Share committed to the RLF Award, available
as needed, and not conditioned or encumbered in any way that precludes its use
consistent with the RLF Award.
Recipient must use its cash Local Share of the RLF Award for lending purposes only.
Recipient's cash Local Share must be used either in proportion to the RLF Award funds
or at a faster rate than the RLF Award funds. Any in -kind share provided by Recipient as
part of the RLF Award must be treated in accordance with the procedures set forth at 13
CFR § 307,11(f)(2).
6) Disbursement Schedule. (13 CFR § 307.11(g))
Recipient must draw down RLF Award funds in accordance with the terms of RLF
Award, including any draw -down schedule in the Special Award Conditions or Specific
Award Conditions. If Recipient fails to adhere to any of these terms, EDA may de -
obligate part or all of the non -disbursed balance of the RLF Award. Factors that EDA
may consider in choosing whether to de -obligate part or all of the non -disbursed balance
are set forth at 13 CFR § 307.11(g)(2). Additionally, the procedure for Recipient to
request an extension to draw down the RLF Award and the factors that EDA will
consider in evaluating such a request are set forth at 13 CFR § 307.1 1(h).
7) Method of Disbursement.
FDA will determine the method by which RLF Award funds will be disbursed to
Recipient. EDA generally disburses RLF funds using an Electronic Funds Transfer rather
than the ASAP system discussed at Section B., Financial Requirements, Subsection .02,
Award Payments, of the DOC Standard Terms and Conditions (incorporated into these
RLF Standard Terms and Conditions in Part Ill). Recipient must include the RLF Award
number on all payment -related correspondence, information, and forms.
8) DOC Standard Terms and Conditions.
See the DOC Standard Terms and Conditions, Section B., Financial Requirements,
Subsection .02, Award Payments (incorporated into these RLF Standard Terms and
Conditions in Part II1), for additional information related to disbursement, including
special disbursement procedures for States and procedures for requesting disbursements.
D) Lending.
1) Prudent Lending Practices. (13 CFR § 307.8)
Recipient must administer the RLF in accordance with Prudent Lending Practices, which
means generally accepted underwriting and lending practices for public loan programs
based on sound judgment to protect Federal and Recipient interests. Prudent Lending
Practices must be applied to loan processing, documentation, loan approval, servicing,
administrative procedures, collateral protection, collections, and recovery actions, as well
as compliance with local laws and filing requirements to perfect and maintain a security
interest in RLF collateral.
2) Lending Area. (13 CFR § 307.18(a))
a) General Requirement. Recipient may make loans only within the EDA-approved
lending area, as set forth and defined in the RLF Award and the RLF Plan.
b) Modification of Lending Area. Recipient may add an additional lending area to its
existing lending area to create a new lending area only with EDA's prior written
approval and subject to the provisions and conditions set forth at 13 CFR § 307.18(a).
3) Interest Rates. (13 CPR § 307.15(b))
a) Recipient may make loans to eligible borrowers at interest rates and under conditions
determined by Recipient to be appropriate in achieving the goals of the RLF, subject
to the minimum interest rate requirement in Subsection b), below.
b) The minimum interest rate that Recipient may charge is four (4) percentage points
below the lesser of the current money center prime rate quoted in the Wall Street
Journal or the maximum interest rate allowed under State law. In no event shall an
interest rate be less than the lower of four (4) percent or 75 percent of the prime
interest rate listed in the Wall Street Journal. However, should the prime interest rate
listed in the Wall Street Journal exceed fourteen (14) percent, the minimum RLF
interest rate is not required to be raised above ten (10) percent if doing so
compromises the ability of Recipient to implement its financing strategy.
4) Purpose of Loans and Use of RLF Cash Available for Lending. (13 CFR § 307.17(c))
a) Recipient shall not use RLF Award funds to:
(i) Acquire an equity position in a private business.
(ii) Subsidize interest payments on an existing RLF loan.
(iii) Provide a loan to a borrower for the purpose of meeting the requirements of
equity contributions under another Federal agency's loan program.
(iv) Enable a borrower to acquire an interest in a business either through the
purchase of stock or through the acquisition of assets, unless sufficient
justification is provided in the loan documentation. Sufficient justification may
include acquiring a business to save it from imminent closure or to acquire a
business to facilitate a significant expansion or increase in investment with a
significant increase in jobs. The potential economic benefits must be clearly
consistent with the strategic objectives of the RLF.
(v) Provide funds to a borrower for the purpose of investing in interest -bearing
accounts, certificates of deposit, or any investment unrelated to the RLF.
(vi) Refinance existing debt, unless:
(a) Recipient sufficiently demonstrates in the loan documentation a "sound
economic justification' for the refinancing (e.g., the refinancing will support
additional capital investment intended to increase business activities). For this
purpose, reducing the risk of loss to an existing lenders) or lowering the cost
of financing to a borrower shall not, without other indicia, constitute a sound
economic justification; or
(b) RLF funds will finance the purchase of the rights of a prior lien holder during
a foreclosure action which is necessary to preclude a significant loss on an
RLF loan. RLF funds may be used for this purpose only if there is a high
probability of receiving compensation from the sale of assets sufficient to
cover an RLF's costs plus a reasonable portion of the outstanding RLF loan
within a reasonable time frame approved by EDA following the date of
refinancing.
(vii) Serve as collateral to obtain credit or any other type of financing without EDA's
prior written approval (e.g., loan guarantees).
(viii) Support operations or administration of the RLF Recipient.
(ix) Undertake any activity that would violate EDA Property regulations found at 13
CFR part 314.
(x) Finance gambling activity, performances or products of a prurient sexual nature,
or any illegal activity, including the cultivation, distribution, or sale of
marijuana that is illegal under Federal law.
b) Nomelocation. Recipient must not use RLF Award funds to induce the relocation of
existing jobs within the U.S. that are located outside of Recipient's jurisdiction to
within its jurisdiction in competition with other U.S. jurisdictions for those same jobs.
In the event that EDA determines that RLF Award funds were used for such
purposes, EDA may pursue appropriate enforcement action, including suspension of
disbursements and termination of the RLF Award, which may include the
establishment of a debt requiring the Recipient to reimburse EDA.
c) Each loan agreement must clearly and in detail state the purpose of each loan.
5) Credit Not Otherwise Available.
Recipient must explicitly determine and demonstrate in the loan documentation for each
RLF loan that credit is not otherwise available on terms and conditions that permit the
completion or successful operation of the activity to be financed.
6) RLF Leveraging. (13 CFR § 307.15(c))
a) Unless otherwise specified in the terms of the RLF Award, Recipient must leverage
additional investment of at least two (2) dollars for every one (1) dollar of RLF loans.
This leveraging requirement applies to the RLF portfolio as a whole rather than to
individual loans and is effective for the duration of the RLF's operation. To be
classified as leveraged, additional investment must be made within twelve months of
approval of an RLF loan closing, as part of the same business development project,
and may include:
(i) Capital invested by the borrower or others;
(ii) Financing from private entities;
(iii)The non -guaranteed portions and ninety (90) percent of the guaranteed
portions of any Federal loan; or
(iv)Loans from other State and local lending programs.
b) Accrued equity in a borrower's assets may not be included in the calculation of
leveraged additional investment.
7) Environmental Impact. (13 CFR § 30710(a))
Recipient must adopt and the RLF Plan must include procedures for compliance with
applicable environmental laws and regulations, including to review the impacts of
prospective loan proposals on the physical environment. Recipient must also comply
with, and ensure that potential borrowers comply with, applicable environmental laws
and regulations. See the DOC Standard Terms and Conditions, Section G., National
Policy Requirements, Subsection .04, Environmental Requirements (incorporated into
these RLF Standard Terms and Conditions in Part 111), for additional information related
to environmental requirements.
8) Protection of RLF Assets. (13 CFR § 307.10(b))
Recipient must ensure that prospective borrowers, consultants, and contractors are aware
of and comply with the Federal, State, and local statutory and regulatory requirements
that apply to activities carried out with RLF loans. RLF loan agreements must include
applicable Federal, State, and local requirements to ensure compliance, and Recipient
must adopt procedures to diligently correct instances of non-compliance, including loan
call stipulations.
9) Hold Harmless Provision. (13 CFR § 307.10(c))
All RLF loan documents and procedures must protect and hold the Federal Government
harmless from and against all liabilities that the Federal Government may incur as a result
of providing an award to assist (directly or indirectly) in site preparation or construction,
as well as the direct or indirect renovation or repair of any facility or site. These
protections apply to the extent that the Federal Government may become potentially
liable as a result of ground water, surface, soil or other natural or man-made conditions
on the property caused by operations of Recipient or any of its borrowers, predecessors or
successors.
10) Requirements Relating to RLF Loans Funding Construction.
a) Davis -Bacon. In accordance with section 602 ofPWEDA (42 U.S.C. § 3212), all
laborers and mechanics employed by contractors or subcontractors on construction -
related projects receiving investment assistance under P WEDA shall be paid wages
not less than those prevailing on similar construction in the locality, as determined by
the U.S. Secretary of Labor in accordance with subchapter IV of chapter 31 of title
40, United States Code. See 13 CFR § 302.13. Therefore, Recipient must comply
with, and must further ensure that any borrower, contractor, or subcontractor
complies with Davis -Bacon prevailing wage rates where construction work is
financed in whole or in part with RLF Award funds. Where the land facilitating
construction is purchased in part or in whole with RLF Award funds, this requirement
extends to construction work, including that which is not directly paid for with RLF
Award funds.
b) The Contract Work Hours and Safety Standards Act. Recipient must ensure that any
borrower, contractor, or subcontractor complies with the Contract Work Hours and
Safety Standards Act (40 U.S.C. § 3701, et seq.), which provides work hour standards
for every laborer and mechanic employed by a contractor or subcontractor in the
performance of certain work financed at least in part with Federal funds.
E) Financial Administration of the RLF.
1) General Requirements.
Recipient is responsible for the administrative costs associated with operating the RLF.
Any future funding to recapitalize the RLF Award is dependent upon the successful
management of the RLF Award from both a programmatic and financial perspective,
future Congressional appropriations to support the program, and Recipient securing a
competitive award of FDA funds.
10
2) RLF Cash Available for Lending. (13 CPR § 307.17(a))
a) Defined. RLF Cash Available for Lending means the portion of the RLF Capital Base
that is held as cash and available to make loans. RLF Cash Available for Lending
does not include cash committed to loans that have been approved but have not yet
been funded.
b) General Requirements. Recipient must deposit and hold all RLF Cash Available for
Lending in an interest -bearing account. (RLF funds that have been disbursed by EDA
to Recipient but that have not yet been disbursed to a borrower by Recipient must
also be held in an interest -bearing account, as discussed further in Section C,
Disbursement of RLF Funds). RLF Cash Available for Lending must be used only for
the purpose of making RLF loans, or such other purpose as approved in writing by
EDA,
3) RLF Income. (13 CFR § 307.12(a))
a) Defined. RLF Income means interest earned on outstanding loan principal and
accounts holding RLF funds, all fees and charges received by the RLF, and other
income generated from RLF operations.
b) Use of RLF Income. Recipient may use RLF Income to pay for RLF administrative
costs, provided the RLF Income is earned and the administrative costs are accrued in
the same fiscal year of Recipient. Recipient must add to the RLF Capital Base any
RLF Income that is not used for administrative costs during the same fiscal year of
Recipient that it was earned.
c) Administrative Costs Exceeding RLF Income, Recipient shall not use funds from the
RLF Capital Base to pay for or reimburse administrative costs unless EDA has
approved such use in writing.
a) Cost Principles. (13 CFR § 307.12(b))
When charging costs against RLF Income, Recipient must comply with the cost
principles of the OMB Uniform Guidance set forth at 2 CFR part 200 subpart E — Cost
Principles.
5) Priority of Payments on Defaulted RLF Loans. (13 CFR § 307.12(c))
a) When Recipient receives proceeds on a defaulted or written off RLF loan, Recipient
must apply such proceeds in the following order of priority;
(i) First, towards any costs of collection;
(ii) Second, towards outstanding penalties and fees;
(iii)Third, towards any accrued interest to the extent due and payable; and
(iv)Fourth, towards any outstanding principal balance.
6) Voluntarily Contributed Capital. (13 CFR § 307.12(d))
If Recipient wishes to inject additional capital into the RLF Capital Base to augment the
amount of resources available to lend, Recipient must submit a written request to FDA
which specifies the source of the funds to be added. Once approved by EDA, any
additional capital injected into the RLF becomes an irrevocable part of the RLF Capital
Base and may not be subsequently withdrawn or separated from the RLF. Upon
termination, the Federal Share will be calculated by applying the Investment Rate to the
entire RLF Capital Base, including any such additional capital, unless otherwise
approved by the EDA Grants Officer.
7) Accounting Principles. (13 CFR § 307.15(a))
a) Recipient must operate the RLF in accordance with generally accepted accounting
principles (GAAP) as in effect in the United States and the provisions outlined in the
audit requirements set out as subpart F to 2 CFR part 200 and the Compliance
Supplement, which is appendix XI to 2 CFR part 200, as applicable.
b) In accordance with GAAP, a loan loss reserve may be recorded in Recipient's
financial statements to show the fair market value of the RLF's loan portfolio,
provided this loan loss reserve is non -funded and represented by a non -cash entry.
However, a loan loss reserve may not be used to reduce the value of the RLF in the
Schedule of Expenditures of Federal Awards (SEFA) required as part of Recipient's
audit requirements under 2 CFR part 200 or in reporting to EDA in the RLF Financial
Report (Form ED-209).
8) Audits. (13 CFR § 307.12(b)(3))
a) In General. Recipient must comply with the audit requirements set out as subpart F to
2 CFR part 200, which applies to audits of Recipient's fiscal years beginning on or
after December 26, 2014. In addition, the Compliance Supplement, which is appendix
XI to 2 CFR part 200, applies as appropriate. Generally, if Recipient expends
$750,000 or more in Federal awards during Recipient's fiscal year, Recipient must
have a single or program -specific audit conducted for that fiscal year.
b) Audit Requirement if Recipient is under the $750,000 Threshold.
(i) If Recipient was not otherwise required to arrange for a single or program -specific
audit for the fiscal year preceding the effective date of these RLF Standard Terms
and Conditions, either because Recipient expends less than $750,000 in Federal
awards annually or for any other reason, Recipient is hereby required to submit to
EDA a program -specific independent audit that fulfills the requirements of 2 CFR
12
§ 200.507 and adheres to the Compliance Supplement in appendix XI to 2 CFR
part 200 for the fiscal year preceding the effective date of these RLF Standard
Terms and Conditions, unless such requirement is waived by EDA.
(i i) In lieu of the program -specific audit required under Subsection (i) of this Section,
Recipient may submit an organization -wide independent audit to EDA. FDA will
inform Recipient whether such audit fulfills Recipient's obligations under this
Section. If EDA determines that Recipient's organization -wide audit is not an
adequate substitute for the program -specific audit, Recipient must submit a
program -specific audit that meets the requirements of Subsection (i) of this
Section.
(iii)EDA may require a program -specific audit that meets the requirements of
Subsection (i) of this Section as frequently as once per Recipient fiscal year, or
less frequently as EDA determines appropriate.
(iv)Such program -specific audit or organization -wide audit must be submitted to
EDA within the earlier of 30 days after receipt of the auditor's report, or nine
months after the end of the audit period (i.e., Recipient's fiscal year).
(v) RLF Income may be used to pay for a program -specific audit required under
Subsection (i) of this Section. If Recipient has insufficient RLF income to pay for
such an audit, Recipient may seek EDA approval to use RLF Capital Base funds
to cover such audit costs, and EDA approval will not be unreasonably withheld.
c) DOC Standard Terms and Conditions. See the DOC Standard Terms and Conditions,
Section D., Audits (incorporated into these RLF Standard Terms and Conditions in
Part III), for additional information related to audit requirements.
F) RLF Reports. (13 CFR § 307.14)
1) Frequency of Reports.
Recipient must complete and submit an RLF report, using Form ED-209, at a frequency
as required by EDA. EDA may allow high -performing RLFs, as evaluated through the
Risk Analysis System outlined in Section G, to report on an annual basis, with Form ED-
209 generally due within 90 days of Recipient's fiscal year end. Other RLFs will
generally report on a semiannual basis, with Form ED-209 generally due within 30 days
of Recipient's fiscal year end and again six months later.
2) Report Certification.
Recipient must certify to EDA as part of the RLF report that the information provided is
complete and accurate, and that the RLF is operating in accordance with the applicable
EDA-approved RLF Plan. This certification is included on Form ED-209.
3) Government Performance and Results Act Reporting.
Recipient must report to EDA on RLF performance for Government Performance and
Results Act (GPRA) purposes as required by EDA. Recipient shall provide required data
13
on a standardized foam provided by EDA. Data used by Recipient in preparing such
repots must be accurate and from independent sources whenever possible.
4) DOC Standard Terms and Conditions.
See the DOC Standard Terms and Conditions, Section A., Programmatic Requirements,
Subsection .01, Reporting Requirements (incorporated into these RLF Standard Terms
and Conditions in Part III), for additional information related to reporting requirements.
In particular, note that the Federal Financial Report (Form SF-425) must be submitted
regularly during the Disbursement Phase of the RLF Award.
G) EDA Evaluation and Oversight of the RLF Award.
1) Allowable Cash Percentage. (13 CFR § 307.17(b))
a) In General. EDA will notify Recipient on an annual basis of the Allowable Cash
Percentage that is applicable to lending during Recipient's ensuing fiscal year. During
the Revolving Phase, Recipient must manage its loan repayment and lending schedule
in order to avoid exceeding the Allowable Cash Percentage.
b) Noncompliance. Recipient must not hold RLF Cash Available for Lending so that it is
50 percent or more of the RLF Capital Base for 24 months without an EDA-approved
extension request based on other EDA risk analysis factors or extenuating
circumstances.
2) Risk Analysis System. (13 CFR § 307.16(a))
EDA will evaluate Recipient's management and operation of the RLF Award using a
Risk Analysis System that measures a variety of factors, including but not limited to
capital, assets, management, earnings, liquidity, and strategic results. EDA plans to
provide to Recipient a risk analysis rating of the RLF on at least an annual basis.
3) Corrective Action. (13 CFR § 307.16(b))
Recipient will generally be allowed a reasonable period of time to increase its
performance relative to risk factors identified by FDA through the Risk Analysis System.
However, persistent noncompliance with risk factors identified through the Risk Analysis
System will result in EDA seeking appropriate remedies for noncompliance, including
those set forth at 13 CFR § 307.21.
4) Noncompliance. (13 CFR §§ 307.20, 307.21)
Recipient must operate the RLF in accordance with the terms of the RLF Award, these
RLF Standard Terms and Conditions, the RLF Plan, and any other requirements that may
apply to the RLF. If Recipient fails to operate the RLF accordingly, including through
one of the types of noncompliance set forth at 13 CFR § 307.20, FDA may pursue one or
more of the remedies for noncompliance set forth at 13 CFR § 307.21, including
14
suspension or termination of the RLF Award (discussed in more detail in paragraphs 5)
and 6) below).
5) Suspension. (13 CFR § 307.21(c))
EDA may suspend an RLF Award when EDA determines that circumstances warrant
temporarily stopping all activity under the RLF Award, including making payments to
Recipient, until Recipient takes corrective action as specified by EDA. Upon suspension,
Recipient would be prohibited from engaging in new lending activity, although normal
loan servicing and collection efforts would continue. Recipient might also be subject to
restrictions on the use of RLF Income and directed to take specific actions to protect the
RLF assets, as appropriate.
6) Termination. (2 CFR § 200.340)
The RLF Award may be terminated in whole or in part as follows:
a) Termination by EDA for Recipient's Failure to Comply with the Terms of the RLF
Award. EDA may terminate the RLF Award, in whole or in part, if Recipient fails to
materially comply with the terms of the RLF Award, including, but not limited to,
persistent noncompliance with risk factors identified through the Risk Analysis
System or the types of noncompliance described at 13 CFR § 307.20.
b) Termination by EDA for no longer effectuating program goals or agency priorities.
To the greatest extent authorized by law, EDA may terminate the RLF Award if the
RLF Award no longer effectuates the RLF program's goals or EDA's priorities.
c) Termination Upon Mutual Agreement. EDA and Recipient may mutually agree to
terminate the RLF Award in whole or in part. In such cases, EDA and Recipient must
agree upon the termination conditions, including the effective date and, in the case of
partial termination, the portion to be terminated.
d) Termination by Recipient. Recipient may terminate the RLF Award in whole or in
part upon sending the EDA Grants Officer for the RLF Award written notification
setting forth the reasons for such termination, the effective date, and, in the case of
partial termination, the portion to be terminated. However, if EDA determines in the
case of partial termination that the reduced or modified portion of the RLF Award
will not accomplish the purposes for which the RLF Award was made, EDA may
terminate the RLF Award in its entirety.
e) If the RLF Award is wholly or partially terminated, Recipient remains responsible for
compliance with the Closeout and Post -closeout adjustments and continuing
responsibilities requirements as described at 2 CFR §§ 200.344 and 200.345.
15
H) Consolidation and Merger of RLF Awards. (13 CFR § 307.18(b))
1) Consolidation of Recipient's Awards.
With EDA's prior written approval, and provided Recipient satisfies the conditions set
forth at 13 CFR § 307.18(b)(1), Recipient may consolidate two or more of its EDA-
funded RLFs into one surviving RLF.
2) Merger of Recipient and Other Recipients' Awards.
With FDA's prior written approval, and provided that the conditions set forth at 13 CFR
§ 307.18(b)(2) are satisfied, Recipient may merge its RLF Award(s) with another
recipient's EDA-funded RLF award(s), resulting in one surviving RLF.
I) Conflicts of Interest.
1) Definitions. (13 CFR § 300.3)
An "Interested Party" is any officer, employee or member of the board of directors or
other governing board of Recipient, including any other parties that advise, approve,
recommend or otherwise participate in the business decisions of Recipient, such as
agents, advisors, consultants, attorneys, accountants or shareholders. An Interested Party
also includes such a person's "Immediate Family" (defined as a person's spouse,
significant other or partner in a domestic relationship, parents, grandparents, siblings,
children and grandchildren, but not distant relatives, such as cousins, unless the distant
relative lives in the same household as the person) and other persons directly connected
to that person by law or through a business arrangement.
2) Conflicts of Interest Generally. (13 CPR § 302.17(a))
a) A conflict of interest generally exists when an Interested Party participates in a matter
that has a direct and predictable effect on the Interested Party's personal or financial
interests or there is an appearance that an Interested Party's objectivity in performing
his or her responsibilities under the Project is impaired.
b) An appearance of impairment of objectivity could result from an organizational
conflict where, because of other activities or relationships with other persons or
entities, an Interested Party is unable or potentially unable to render impartial
assistance, services, or advice to the Recipient. It also could result from non -financial
gain to an Interested Party, such as benefit to reputation or prestige in a professional
field.
3) Conflicts of Interest Rules Specific to RLFs. (13 CFR § 302.17(c))
Recipient must adhere to EDA conflicts of interest rules set forth at 13 CFR § 302.17,
including the following rules specific to RLFs:
16
a) An Interested Party of Recipient shall not receive, directly or indirectly, any personal
or financial interest or benefit resulting from the disbursement of RLF loans. A
financial interest or benefit may include employment, stock ownership, a creditor or
debtor relationship, or prospective employment with the organization selected or to be
selected for a subaward.
b) Recipient shall not lend RLF funds to an Interested Party.
c) Former board members of Recipient and members of their Immediate Family may not
receive a loan from the RLF for a period of two years from the date that the board
member last served on the board of directors.
4) Duty to Disclose. (2 CFR § 200.112)
Recipient must, in a timely fashion, disclose to EDA in writing any actual or potential
conflict of interest.
5) Written Standards of Conduct.
a) Recipient must maintain written standards of conduct to establish safeguards to
prohibit employees from using their positions for a purpose that constitutes or
presents the appearance of a personal or organizational conflict of interest or personal
gain in the administration of the RLF Award.
b) Recipient must maintain written standards of conduct covering conflicts of interest
and governing the performance of its employees engaged in the selection, award and
administration of contracts. See Section K, Other FDA Requirements, Subsection 4.,
Codes of Conduct and Sub -Award, Contract and Subcontract Provisions, Subsection
d), Competition and Codes of Conduct for Subawards.
6) DOC Standard Terms and Conditions.
Recipient must also adhere to the requirements for conflicts of interest set forth in the
DOC Standard Terms and Conditions, Section F., Conflict of Interest, Code of Conduct
and other Requirements Pertaining to DOC Financial Assistance Awards, Including
Subawards and Procurements Actions, Subsection .01, Conflict of Interest and Code of
Conduct (incorporated into these RLF Standard'ferms and Conditions in Part Ill).
7) Other Conflicts of Interest Rules.
Recipient must adhere to any state or local conflicts of interest rules, as well as any
industry -specific conflicts of interest rules.
17
,n Records and Retention.
1) Closed Loan Files and Related Documents. (13 CFR § 307.13(a))
Recipient must maintain closed loan files and all related documents, books of account,
computer data files and other records over the term of the closed loan and for a three-year
period from the date of final disposition of the closed loan. The date of final disposition
of a closed loan is the date:
a) Principal, interest, fees, penalties, and all other costs associated with the closed loan
have been paid in full; or
b) Final settlement or discharge and cessation of collection efforts of any unpaid
amounts associated with the closed loan have occurred.
2) Administrative Records. (13 CFR § 307.13(b))
a) Recipient must maintain adequate accounting records and source documentation to
substantiate the amount and percent of RLF income expended for eligible RLF
administrative costs.
b) Recipient must retain records of administrative costs incurred for activities and
equipment relating to the operation of the RLF for three years from the actual
submission date of the report that covers the fiscal year in which such costs were
claimed.
c) For the duration of RLF operations, Recipient must maintain records to demonstrate:
(i) The adequacy of the RLF's accounting system to identify, safeguard, and account
for the entire RLF Capital Base, outstanding RLF loans, and other RLF
operations;
(ii) That standard RLF loan documents reasonably necessary or advisable for lending
are in place; and
(iii) Evidence of fidelity bond coverage for persons authorized to handle funds under
the RLF Award in an amount sufficient to protect the interests of EDA and the
RLF. At a minimum, the amount of coverage shall be the maximum loan amount
allowed for in the EDA-approved RLF Plan.
d) Recipient must make retained records available for inspection to the parties set forth
at 13 CFR § 302.14(b), including those retained for longer than the required period.
Records must be made available in a timely and reasonable manner. See 2 CFR §
200.337. The record retention periods described in this Section are minimum periods
and such prescription does not limit any other record retention obligation required by
law or agreement. EDA will not question any claimed administrative costs that are
more than three years old, unless fraud is at issue.
18
3) Other Records Requirements. (2 CFR § 200.334)
a) If any litigation, claim, or audit is started before the expiration of the record retention
period, Recipient shall retain all records related to or necessary for such action until
all litigation, claims, or audit findings involving the records have been resolved and
final actions taken.
b) If Recipient is notified in writing by EDA, the cognizant agency for either audit or
indirect costs, or the oversight agency for audit, Recipient must retain the records as
directed.
c) If Recipient obtains real property or equipment with RLF funds, Recipient must retain
records related to such property or equipment for three years after the final
disposition of such real property or equipment. "Equipment' is defined as set forth at
2 CFR § 200.1: tangible personal property (including information technology
systems) having a useful life of more than one year and a per -unit acquisition cost
which equals or exceeds the lesser of the capitalization level established by Recipient
for financial statement purposes, or $5,000.
d) When records are transferred to EDA or maintained by EDA, the three-year retention
requirement is not applicable to Recipient.
e) Indirect cost rate proposals and cost allocations plans. This Subsection applies to the
following types of documents and their supporting records: indirect cost rate
computations or proposals, cost allocation plans, and any similar accounting
computations of the rate at which a particular group of costs is chargeable (such as
computer usage chargeback rates or composite fringe benefit rates).
(i) If submitted for negotiation. If the proposal, plan, or other computation is required
to be submitted to the Federal Government (or to the pass -through entity) to form
the basis for negotiation of the rate, then the three-year retention period for its
supporting records starts from the date of such submission.
(ii) if not submitted for negotiation. If the proposal, plan, or other computation is not
required to be submitted to the Federal Government (or to the pass -through entity)
for negotiation purposes, then the three-year retention period for the proposal,
plan, or computation and its supporting records starts from the end of the fiscal
year (or other accounting period) covered by the proposal, plan, or other
computation.
f) Recipient is responsible for monitoring any subrecipients and contractors to ensure
their compliance with the records retention requirements. Recipient must immediately
notify EDA if records are lost, destroyed, or are otherwise no longer available, or if
19
Recipient anticipates that it will not be able to comply with the record retention
requirements under the RLF Award for the general retention periods noted above.
K) Other EDA Requirements.
1) Other Award Requirements.
a) Unauthorized Use of RLF Award Funds. Recipient must promptly notify EDA if
Recipient or a borrower expends RLF Award funds for an Unauthorized Use,
including a use that violates the terms of the RLF Award or the certifications and
assurances of a loan agreement. (This does not apply to routine loan defaults where
such defaults are due to business reasons and RLF Award funds have not been
expended for an Unauthorized Use.) If directed by EDA, Recipient must restore funds
to the RLF Capital Base or compensate the Federal Government for the Federal Share
of the RLF Award funds expended for an Unauthorized Use. See 13 CPR §§ 314.4
and 314.5.
b) Prohibition on Use of Third Parties to Secure Award. Unless otherwise specified in
any Special Award Condition or Specific Award Condition of the RLF Award,
Recipient warrants that no person or selling agency has been employed or retained to
solicit or secure the RLF Award upon an agreement or understanding for a
commission, percentage, brokerage, or contingent fee, excepting bona fide
employees, or bona fide established commercial or selling agencies maintained by
Recipient for the purpose of securing business. For breach or violation of this
warrant, EDA has the right to terminate the RLF Award without liability, or at its
discretion, to deduct from the RLF Award sum, or otherwise recover, the full amount
of such commission, percentage, brokerage, or contingent fee.
e) Payment of Attorneys' or Consultants' Fees. No RLF Award funds shall be used,
directly or indirectly, to reimburse attorneys' or consultants' fees incurred in
connection with obtaining investment assistance under PWEDA, such as, for
example, preparing the Application. See 13 CFR § 302.10(a). However, ordinary and
reasonable attorneys' and consultants' fees incurred for meeting RLF Award
requirements (e.g., conducting a title search) may be eligible costs and may be paid
out of RLF Award funds, provided such costs are otherwise eligible. See 2 CFR §
200.459.
d) Recipient's Duty to Refrain from Employing Certain Government Employees.
Pursuant to section 606(2) of PWEDA (42 U.S.C. § 3216), for the two-year period
beginning on the date EDA executes the RLF Award, if Recipient is a nonprofit
organization, District Organization, or for -profit entity, Recipient agrees that it will
not employ, offer any office or employment to, or retain for professional services any
person who:
20
(i) On the date EDA executes the RLF Award or within the one-year period ending
on that date, served as an officer, attorney, agent, or employee of the Department
of Commerce, and
(ii) Occupied a position or engaged in activities that the Assistant Secretary for
Economic Development determines involved discretion with respect to the
awarding of investment assistance under PWEDA.
2) Freedom of Information Act.
EDA must comply with the Freedom of Information Act (FOIA) (5 U.S.C. § 552). DOC
regulations at 15 CFR part 4 set forth the requirements and procedures that EDA must
follow in order to make requested material, information, and records publicly available.
Unless prohibited by law and to the extent required under the FOIA, contents of the
Application and other information submitted by Recipient may be released in response to
a FOIA request. Recipient should be aware that EDA may make certain Application and
other submitted information publicly available. Accordingly, as set forth in 15 CFR § 4.9,
Recipient should identify any "business information" it believes to be protected from
disclosure pursuant to 5 U.S.C. § 552(b)(4).
3) Lobbying Restrictions.
a) In General. Recipient must comply with the lobbying restrictions described in the
DOC Standard Terms and Conditions, Section G., National Policy Requirements,
Subsection .03, Lobbying Restrictions (incorporated into these RLF Standard Terms
and Conditions in Part III).
b) Special Provisions Relating to Indian Tribes. As set out in 31 U.S.C. § 1352, there are
special provisions applicable to Indian Tribes, tribal organizations, or other Indian
organizations eligible to receive Federal contracts, grants, loans, or cooperative
agreements. In accordance with DOC policy, EDA recognizes Tribal Employment
Rights Ordinances (TEROs), which may provide for preferences in contracting and
employment, in connection with its financial assistance awards. Tribal ordinances
requiring preference in contracting, hiring, tiring, and the payment of a TERO fee
generally are allowable provisions under Federal awards granted to American Indian
and Alaska Native tribal governments. The payment of the TERO fee, which supports
the tribal employment rights office to administer the preferences, should generally be
allowable as an expense that is "necessary and reasonable for proper and efficient
performance and administration" of an RLF Award, as provided at 2 CFR § 200.403.
4) Codes of Conduct and Sub -Award, Contract and Subcontract Provisions.
a) In General. Recipient may subaward RLF Award funds only with prior EDA approval
pursuant to 13 CFR § 309.2(a) and subject to the conditions at 13 CFR § 309.2(b). A
subaward includes any award from Recipient or another pass -through entity to a
21
subrecipient for the subrecipient to carry out part of the RLF Award. Beneficiaries of
the RLF Award, including loan borrowers, are not subrecipients. See the definition of
"subaward" at 2 CFR § 200.1.
b) Applicability of RLF Award Provisions to Subrecipients. Recipient shall require any
subrecipients under the RLF Award, including lower tier subrecipients, to comply
with the provisions of the RLF Award, including applicable provisions of the OMB
Uniform Guidance, and all associated terms and conditions. See 2 CFR § 200.101(b),
which describes the applicability of the OMB Uniform Guidance to various types of
Federal awards and 2 CFR §§ 200.331 through 200.333, which describes subrecipient
monitoring and management.
c) Competition and Codes of Conduct for Subawards.
(i) Recipient must be alert to organizational conflicts of interest as well as other
practices among subrecipients that may restrict or eliminate competition.
(i i) Recipient shall maintain written standards of conduct governing the performance
of its employees engaged in the award and administration of subawards. No
employee, officer, or agent shall participate in the selection, award, or
administration of a subaward supported by Federal fiords if a real or apparent
conflict of interest would be involved. Such a conflict would arise when the
employee, officer, or agent, any member of his or her immediate family, his or her
partner, or an organization in which he or she serves as an officer or which
employs or is about to employ any of the parties mentioned in this Subsection, has
a financial interest or other interest in the organization selected or to be selected
for a subaward. The officers, employees, and agents of Recipient shall neither
solicit nor accept anything of monetary value from subrecipients. However,
Recipient may set standards for situations in which the financial interest is not
substantial or the gift is an unsolicited item of nominal value. The standards of
conduct shall provide for disciplinary actions to be applied for violations of such
standards by officers, employees, or agents of Recipient.
(iii)A financial interest may include employment, stock ownership, a creditor or
debtor relationship, or prospective employment with the organization selected or
to be selected for a subaward. An appearance of impairment of objectivity could
result from an organizational conflict where, because of other activities or
relationships with other persons or entities, a person is unable or potentially
unable to render impartial assistance or advice. It could also result from non-
financial gain to the individual, such as benefit to reputation or prestige in a
professional field.
d) Applicability of Provisions to Subawards, Contracts, and Subcontracts.
(i) Recipient shall include the following notice in each request for applications or
bids for a subaward, contract, or subcontract, as applicable:
22
Applicants/bidders for a lower tier covered transaction (except procurement
contracts for goods and services under $25,000 not requiring the consent of a
DOC official) are subject to subpart C of 2 CFR part 180, "OMB Guidelines to
Agencies on Governmentwide Debarment and Suspension (Nonprocurement)." In
addition, applicants/bidders for a lower tier covered transaction for a subaward,
contract, or subcontract greater than $100,000 of Federal funds at any tier are
subject to 15 CFR part 28, "New Restrictions on Lobbying."
Applicants/bidders should familiarize themselves with these provisions, including
the certification requirement. Therefore, Applications for a lower tier covered
transaction must include a Form CD-512, "Certification Regarding Lobbying —
Lower Tier Covered Transactions," completed without modification.
(ii) Recipient shall include a term or condition in all lower tier covered transactions
(subawards, contracts, and subcontracts) requiring lower tier participants to
comply with subpart C of 2 CFR part 180, "OMB Guidelines to Agencies on
Governmentwide Debarment and Suspension (Nonprocurement)."
(iii)Required subaward and contractual provisions:
(a) Recipient shall include a statement in all lower tier covered transactions
(subawards, contracts, and subcontracts) exceeding $100,000 in Federal funds
that the subaward, contract, or subcontract is subject to 31 U.S.C. § 1352, as
implemented at 15 CFR part 28 ("New Restrictions on Lobbying"). Recipient
shall further require the subrecipient, contractor, or subcontractor to submit a
completed "Disclosure of Lobbying Activities" (Form SF-LLL) regarding the
use of non -Federal finds for lobbying. The Form SF-LLL shall be submitted
within 15 days following the end of the calendar quarter in which there occurs
any event that requires disclosure or that materially affects the accuracy of the
information contained in any disclosure form previously filed. The Form SF-
LLL shall be submitted from tier to tier until received by Recipient. Recipient
must submit all disclosure forms received, including those that report
lobbying activity on its own behalf, to the Project Officer within 30 days
following the end of the calendar quarter.
(b) In addition to other provisions required by the Federal agency or Recipient, in
accordance with 2 CFR § 200.327, all contracts made by Recipient under this
Award must contain the applicable provisions set out in Appendix 11 to 2 CFR
part 200, which address various contractual requirements including remedies,
termination for cause and convenience, Equal Employment Opportunity, the
Davis -Bacon Act, the Contract Work Hours and Safety Standards Act, rights
to inventions, environmental quality, energy efficiency, debarment and
suspension, the Byrd Anti -Lobbying Amendment, and procurement of
recovered materials. See Appendix 11 to 2 CFR part 200 for a full explanation
of these requirements.
23
5) Property Management.
With respect to any Property acquired or improved in whole or in part with RLF Award
funds, Recipient shall comply with the Property Standards set forth at 2 CFR §§ 200.310
through 200.316 and EDA's regulations at 13 CFR part 314. Property acquired or
improved in whole or in part by Recipient under this RLF Award may consist of real
property; personal property, including equipment and supplies; and intangible property,
such as money, notes, and security interests. Any property reports required under 2 CFR
§§ 200.310 through 200.316, such as periodic inventories and requests for disposition
instructions, must be submitted to the Grants Officer through the Project Officer on Form
SF-428 and/or SF-429, as applicable. For the purposes of this Section only, these
requirements do not apply to Property acquired or improved by a borrower with RLF
Award funds, including loan collateral to which Recipient has taken title pursuant to
collection activities on a defaulted loan.
6) American -Made Equipment and Products.
Recipient is hereby notified that Recipient is encouraged, to the greatest extent
practicable, to purchase American -made equipment and products with funding provided
under the RLF Award.
24
PART III:
DEPARTMENT OF COMMERCE
STANDARD TERMS & CONDITIONS
The Department of Commerce Standard Terms and Conditions dated November 12, 2020,
are incorporated herein as Part III of these RLF Standard Terms and Conditions.
In the event of a conflict between Part I or Part 11 of these RLF Standard Terms and
Conditions and the Part Ill Department of Commerce Standard Terms and Conditions, Part I
and Part 11 will control.
25
DEPARTMENT OF COMMERCE
FINANCIAL ASSISTANCE
STANDARD TERMS AND CONDITIONS
OF co
�0
STATES OF
11 November 311i11
DEPARTMENT OF COMMERCE
,,I ,
Table of Contents
PREFACE.......................................................................................................................................
5
A.
PROGRAMMATIC
REQUIREMENTS................................................................................
6
.01
Reporting Requirements..................................................................................................
6
.02
Revisions of Program Plans.............................................................................................
8
.03
Other Federal Awards with Similar Programmatic Activities .........................................
9
.04
Prohibition against Assignment by a Non -Federal Entity ...............................................
9
.05
Disclaimer Provisions......................................................................................................
9
.06
Unsatisfactory Performance or Non -Compliance with Award Provisions ..........
I........... 9
B.
FINANCIAL
REQUIREMENTS..........................................................................................
10
.01
Financial Management...................................................................................................
10
.02
Award Payments............................................................................................................
10
.03
Federal and Non -Federal Sharing..................................................................................
12
.04
Budget Changes and Transfer of Funds among Categories ...........................................
12
.05
Program Income.............................................................................................................
13
.06
Indirect or Facilities and Administrative Costs.............................................................
13
.07
Incurring Costs or Obligating Federal Funds Before and After the Period of
Performance...................................................................................................................
15
.08
Tax Refunds ...................................................................................................................16
.09
Internal Controls............................................................................................................
16
C.
PROPERTY STANDARDS..................................................................................................
16
.01
Standards........................................................................................................................16
.02
Real and Personal Property............................................................................................
16
.03
Intellectual Property Rights...........................................................................................
17
D.
AUDITS
................................................................................................................................
t9
.01
Organization -Wide, Program -Specific, and Project Audits ...........................................
19
.02
Audit Resolution Process...............................................................................................
20
E.
DEBTS
..................................................................................................................................
21
.01
Payment of Debts Owed to the Federal Government....................................................
21
.02
Late Payment Charges.., ........... I .................. I'll, ....... _ ..................... ...... _ ...
.......... 21
.03
Barring Delinquent Federal Debtors from Obtaining Federal Loans or Loan Insurance
Guarantees......................................................................................................................
22
1 1 12 November 2020
F
N
.04
Effect of Judgment Lien on Eligibility for Federal Grants, Loans, or Programs...........
22
CONFLICT
OF INTEREST, CODE OF CONDUCT AND OTHER REQUIREMENTS
PERTAINING TO DOC FINANCIAL ASSISTANCE AWARDS, INCLUDING
SUBAWARD AND PROCUREMENT ACTIONS.............................................................
22
.01
Conflict of Interest and Code of Conduct......................................................................
22
.02
Nonprocurement Debarment and Suspension................................................................
23
.03
Requirements for Subawards.........................................................................................
23
.04
Requirements for Procurements.....................................................................................
23
.05
Whistleblower Protections.............................................................................................
24
.06
Small Businesses, Minority Business Enterprises and Women's Business Enterprises
24
NATIONAL
POLICY REQUIREMENTS...........................................................................
25
.01
United States Laws and Regulations..............................................................................
25
.02
Non -Discrimination Requirements................................................................................
25
a.
Statutory Provisions.......................................................................................................25
b.
Other Provisions.............................................................................................................
26
c.
Title VII Exemption for Religious Organizations.........................................................
27
.03
LOBBYING RESTRICTIONS......................................................................................
27
a.
Statutory Provisions.......................................................................................................27
b.
Disclosure of Lobbying Activities.................................................................................
27
.04
Environmental Requirements.........................................................................................
27
a.
The National Environmental Policy Act (42 U.S.C. §§ 4321 etseq.)...........................28
b.
The National Historic Preservation Act (16 U.S.C. §§ 470 et seq.) ..............................
28
c.
Executive Order 11988 (Floodplain Management) and Executive Order 11990
(Protection of Wetlands)................................................................................................
29
d.
Clean Air Act (42 U.S.C. §§ 7401 et seq.), Federal Water Pollution Control Act (33
U.S.C. §§ 1251 et seq.) (Clean Water Act), and Executive Order 11739 ("Providing for
administration of the Clean Air Act and the Federal Water Pollution Control Act with
respect to Federal contracts, grants or loans")...............................................................
29
e.
The Flood Disaster Protection Act (42 U.S.C. §§ 4002 et seq.)....................................
29
f.
The Endangered Species Act (16 U.S.C. §§ 1531 et seq.).............................................
29
g.
The Coastal Zone Management Act (16 U.S.C. §§ 1451 et seq.)..................................
29
h.
The Coastal Barriers Resources Act (16 U.S.C. §§ 3501 et seq.)..................................
30
i.
The Wild and Scenic Rivers Act (16 U.S.C. §§ 1271 et seq.).......................................
30
j.
The Safe Drinking Water Act of 1974, as amended, (42 U.S.C. §§ 300f et seq.) .........
30
k.
The Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 etseq.).................
30
2 112 November 2020
1. The Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA, commonly known as Superfund) (42 U.S.C. §§ 9601 et seq.) and the
Community Environmental Response Facilitation Act (42 U.S.C. § 9601 note et seq.)30
m. Executive Order 12898 ("Federal Actions to Address Environmental Justice in
Minority Populations and Low Income Populations").................................................. 30
n. The Magnuson -Stevens Fishery Conservation and Management Act (16 U.S.C. § 1801
etseq.)............................................................................................................................ 30
o. Clean Water Act (CWA) Section 404 (33 U.S.C. § 1344)............................................ 31
p. Rivers and Harbors Act (33 U.S.C. § 407).................................................................... 31
q. The Migratory Bird Treaty Act (16 U.S.C. §§ 703-712), Bald and Golden Eagle
Protection Act (16 U.S.C. § 668 et seq.), and Executive Order 13186 (Responsibilities
of Federal Agencies to Protect Migratory Birds, January 10, 2001) ............................. 31
r. Executive Order 13112 (Invasive Species, February 3, 1999)...................................... 31
s. Fish and Wildlife Coordination Act (16 U.S.C. § 661 et seq.)...................................... 31
.05 OTHER NATIONAL POLICY REQUIREMENTS
a. Buy -American Preferences ................
b. Criminal and Prohibited Activities....
c. Drug -Free Workplace ........................
d. Foreign Travel ....................................
e. Increasing Seat Belt Use in the United States................................................................ 34
f. Federal Employee Expenses and Subawards or Contracts Issued to Federal Employees
orAgencies.......................................................................................................................... 34
g. Minority Serving Institutions Initiative......................................................................... 34
h. Research Misconduct..................................................................................................... 35
i. Research Involving Human Subjects............................................................................. 35
j. Care and Use of Live Vertebrate Animals..................................................................... 36
k. Management and Access to Data and Publications....................................................... 37
1. Homeland Security Presidential Directive..................................................................... 38
m. Compliance with Department of Commerce Bureau of Industry and Security Export
Administration Regulations...........................................................................................38
n. The Trafficking Victims Protection Act of 2000 (22 U.S.C. § 7104(g)), as amended,
and the implementing regulations at 2 C.F.R. Part 175................................................. 40
o. The Federal Funding Accountability and Transparency Act (FFATA) (31 U.S.C. §
6101 note)...................................................................................................................... 42
p. Recipient Integrity and Performance Matters (Appendix XII to 2 C.F.R. Part 200)..... 47
q. Never Contract with the Enemy (2 C.F.R Part 183; 2 C.F.R. § 200.215) ..................... 49
3 112 November 2020
r. Prohibition on certain telecommunications and video surveillance services or
equipment (Public Law 115-232, section 889; 2 C.F.R. 6 200.216) ............................. 50
s. Federal Financial Assistance Planning During a Funding Hiatus or Government
Shutdown....................................................................................................................... 51
4 112 November 2020
This document sets out the standard terms and conditions (ST&Cs) applicable to this U.S.
Department of Commerce (DOC or Commerce) financial assistance award (hereinafter referred
to as the DOC ST&Cs or Standard Terms). A non -Federal entityl receiving a DOC financial
assistance award must, in addition to the assurances made as part of the application, comply and
require each of its subrecipients, contractors, and subcontractors employed in the completion of
the project to comply with all applicable statutes, regulations, executive orders (E.O.$), Office of
Management and Budget (OMB) circulars, provisions of the OMB Uniform Administrative
Reundrements, Cost PrinciWe.s, and Andit Reanirenients for Federal Awards (codified at 2 C.F.R.
Part 200) (OMB Uniform Guidance), provisions of these Standard Terms, and any other terms
and conditions incorporated into this DOC financial assistance award. In addition, unless
otherwise provided by the terms and conditions of this DOC financial assistance award, Subparts
A through E of 2 C.F.R. Part 200 and the Standard Terms are applicable to for -profit entities,
foreign public entities and to foreign organizations that carry out a DOC financial assistance
award.'
This award is subject to the laws and regulations of the United States. Any inconsistency or
conflict in terms and conditions specified in the award will be resolved according to the
following order of precedence: federal laws and regulations, applicable notices published in the
Federal Register, E.O.s, OMB circulars, DOC ST&Cs, agency standard award conditions (if
any), and specific award conditions. A specific award condition may amend or take precedence
over a Standard Term on a case -by -case basis, when indicated by the specific award condition.
Some of the Standard Terms herein contain, by reference or substance, a summary of the
pertinent statutes, regulations published in the Federal Register or Code of Federal Regulations
(C.F.R.), E.O.s, OMI3 circulars, or the certifications and assurances provided by applicants
through Standard Forms (e.g., SF-424s) or through DOC forms (e.g. Form CD-511). To the
extent that it is a summary, such Standard Term provision is not in derogation of, or an
amendment to, any such statute, regulation, E.O., OMB circular, certification, or assurance.
' Note that the OMB Uniform Guidance uses the tern "non -Federal entity" to generally refer to an entity that carries
out a Federal award as a recipient or subrecipient. Because some of the provisions of these DOC ST&Cs apply to
recipients rather than subrecipients, or vice versa, for clarity, these DOC ST&Cs use the terms "non -Federal entity,"
"recipient," and "subrecipient" consistent with their meanings in the OMB Uniform Guidance. In addition, the
OMB Uniform Guidance uses the term "pass -through entity" to refer to a non -Federal entity that makes a subaward.
As defined at 2 C.F.R. § 200.1:
"Non -Federal entity" is "a state, local government, Indian tribe, institution of higher education (IHE), or nonprofit
organization that carries out a Federal award as a recipient or subrecipient."
"Recipient" is "an entity, usually but not limited to non -Federal entities, that receives a Federal award directly from
a Federal awarding agency. The term recipient does not include subrecipients or individuals that are beneficiaries of
the award."
"Subrecipient" is "an entity, usually but not limited to non -Federal entities, that receives a subaward from a pass -
through entity to carry out part of a Federal award; but does not include an individual that is a beneficiary of such
award. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency."
"Pass -through entity" is "a non -Federal entity that provides a subaward to a subrecipient to carry out part of a
Federal program."
' See 2 C.F.K. § 200.1 for the definitions of "foreign public entity" and "foreign organization."
5 112 November 2020
DOC commenced implementation of the Research Terms and Conditions (RT&Cs) for Federal
awards effective October 1, 2017; the RT&Cs address and implement the Uniform Guidance
issued by OMB. For awards designated on the Form CD-450 (Financial Assistance Award) as
Research, both the DOC ST&Cs and the RT&Cs as implemented by DOC apply to the award.
The RT&Cs as well as the DOC implementation statement, agency specific requirements, prior
approval matrix, subaward requirements, and national policy requirements are posted on the
National Science Foundation's website — https://www.nsf.gov/awards/managing/rtc.jsp. The
DOC ST&Cs and the RT&Cs are generally intended to harmonize with each other; however,
where the DOC ST&Cs and the RT&Cs differ in a Research award, the RT&Cs prevail, unless
otherwise indicated in a specific award condition.
A. PROGRAMMATIC REQIUIREMENTS
.o t wt:: turfing Require enents
a. Recipients must submit all reports as required by DOC, electronically or, if unable to
submit electronically, in hard copy, as outlined below and as may be supplemented by the terms
and conditions of a specific DOC award.
b. Performance (Technical) Reports. Recipients must submit performance (technical)
reports to the Program Officer. Performance (technical) reports should be submitted in the same
frequency as the Form SF-425 (Federal Financial Report), unless otherwise directed by the
Grants Officer.
1. Performance (technical) reports must contain the information prescribed in 2 C.F.R. §
200.329 (Monitoring and reporting program performance), unless otherwise specified in the
award conditions.
2. As appropriate and in accordance with the format provided by the Program Officer (or
other OMB -approved information collections, including the Research Program Performance
Report [RPPR] as adopted by DOC for use in research awards), recipients are required to
relate financial data to the performance accomplishments of this Federal award. When
applicable, recipients must also provide cost information to demonstrate cost effective
practices (e.g., through unit cost data). The recipient's performance will be measured in a
way that will help DOC to improve program outcomes, share lessons learned, and spread the
adoption of best or promising practices. As described in 2 C.P.R. § 200.211 (Information
contained in a Federal award), DOC will identify the timing and scope of expected
performance by the recipient as related to the outcomes intended to be achieved by the
Federal program.
3. Recipients (or pass -through entities as applicable) must submit a final performance report
within 120 calendar days after the expiration of the period of performance. The subrecipient
is required to submit its final performance report to the pass -through entity within 90
calendar days unless an extension has been granted.
6 112 November 2020
c. Financial Reports. In accordance with 2 C.F.R. § 200.328 (Financial reporting), the
recipient must submit a Form SF-425 (Federal Financial Report) or any successor form on a
semi-annual basis for the periods ending March 31 and September 30, or any portion thereof,
unless otherwise specified in a specific award condition. Reports must be submitted to DOC as
directed by the Grants Officer, in accordance with the award conditions and are due no later than
30 calendar days following the end of each reporting period. Recipients (or pass -through entities
as applicable) must submit a final Form SF-425 within 120 calendar days after the expiration of
the period of performance. The subrecipient is required to submit its financial report to the pass -
through entity within 90 calendar days unless an extension has been granted. A recipient may
submit a final financial report in lieu of an interim financial report due at the end of the period of
performance (e.g., in lieu of submitting a financial report for the last semi-annual or other
reporting under an award, a recipient may submit a final (cumulative) financial report covering
the entire award period).
d. Real Property, Tangible Personal Property and Intangible Property Reports and Requests
for Dispositions. Unless otherwise required by the terms and conditions of a DOC financial
assistance award, where real property, tangible personal property or intangible property is
acquired or improved (in the case of real property or tangible personal property), or produced or
acquired (in the case of intangible property), pursuant to a DOC award, non -Federal entities are
required to submit the following real property, tangible personal property and intangible property
reports (as appropriate):
1. Real Property Status Reports and Requests for Dispositions: Non -Federal entities must
submit reports using Form SF-429 (Real Property Status Report) or any successor form,
including appropriate attachments thereto, at least annually disclosing the status of real
property that is Federally -owned property or real property in which the Federal Government
retains a Federal Interest, unless the Federal Interest in the real property extends 15 years or
longer. In cases where the Federal Interest attached is for a period of 15 years or more, the
DOC or pass -through entity, at its option, may require the non -Federal entity to report at
various multi -year frequencies (e.g., every two years or every three years, not to exceed a
five-year reporting period; or, the DOC or pass -through entity may require annual reporting
for the first three years of a Federal award and thereafter require reporting every five years).
In addition, DOC or a pass -through entity may require a non -Federal entity to submit Form
SF-429, with appropriate attachments, relating to a non -Federal entity's request to acquire,
improve or contribute real property under a DOC financial assistance award.
Non -Federal entities wishing to dispose of real property acquired or improved, in whole or in
part, pursuant to a DOC award must request disposition instructions, including the
submission of Form SF-429, with appropriate attachments, from the Grants Officer in
accordance with the requirements set forth in 2 C.F.R. § 200.311(c). See also the real
property standards set forth in Section C. of these Standard Terms (Property Standards).
2. Tangible Personal Property Status Reports and Requests for Dispositions: DOC or a
pass -through entity may also require a nun -Federal entity to submit periodic reports using
Form SF-428 (Tangible Personal Property Report) or any successor form, including
appropriate attachments thereto, concerning tangible personal property that is Federally -
owned or tangible personal property in which the Federal Government retains an interest. In
7 112 November 2020
addition, DOC or a pass -through entity may require a non -Federal entity to submit Form SF-
428 in connection with a non -Federal entity's request to dispose of tangible personal properly
acquired under a DOC financial assistance award. Non -Federal entities wishing to dispose of
tangible personal properly acquired or improved, in whole or in part, pursuant to a DOC
award must request disposition instructions, including the submission of Form SF-428, with
appropriate attachments, from the Grants Officer in accordance with the requirements set
forth in 2 C.F.R. § 200.313(e). See also the tangible property standards set forth in Section
C. of these Standard Terms (Property Standards).
3. Intangible Property Status Reports and Requests for Dispositions: The specific
requirements governing the development, reporting, and disposition of rights to intangible
property, including inventions and patents resulting from DOC awards, are set forth in 37
C.F.R. Part 401, which is hereby incorporated by reference into this award. Non -Federal
entities are required to submit their disclosures, elections, and requests for waiver from any
requirement for substantial U.S, manufacture, electronically using the Interagency Edison
extramural invention reporting system (iEdison) at www.iedison.gov. Non -Federal entities
may obtain a waiver of this electronic submission requirement by providing to the Grants
Officer compelling reasons for allowing the submission of paper reports. When no longer
needed for the originally authorized purpose, disposition of the intangible property must
occur in accordance with the provisions in 2 C.F.R. § 200.313(e). See also the intangible
property standards set forth in Section C. of these Standard Terms (Property Standards).
e. Subawards and Executive Compensation Reports. For reporting requirements on
Subawards and Executive Compensation, see paragraph G.05.o of these Standard Terms (The
Federal Funding Accountability and Transparency Act (FFATA) (31 U.S.C. § 6101 note)).
I. Recipient Integrity and Performance Matters. For reporting requirements pertaining to
integrity and performance matters, see paragraph G.05.p of these Standard Terms (Recipient
Integrity and Performance Matters (Appendix XII to 2 C.F.R, Part 200)).
g. Research Performance Progress Reports. All research awards shall submit the Research
Performance Progress Report (RPPR) in accordance with instructions set forth in the following
link: RPPR Instructions.
.02 Revisiulis o I'rograin Nails
In accordance with 2 C.F.R. § 200,308 (Revision of budget and program plans) and 2 C.F.R.
§ 200.407 (Prior written approval (prior approval)), the recipient must obtain prior written
approval from the DOC Grants Officer for certain proposed programmatic change requests,
unless otherwise provided by the terms and conditions of a DOC award. Requests for prior
approval for changes to program plans must be submitted to the Federal Program Officer (or
electronically for awards administered through Grants Online). Requests requiring prior DOC
approval are not effective unless and until approved in writing by the DOC Grants Officer.
8 112 November 2020
'03 Other Federal Awards with Similar Progrannnatic Activities
The recipient must immediately provide written notification to the DOC Program Officer and
the DOC Grants Officer if, subsequent to receipt of the DOC award, other financial assistance is
received to support or fund any portion of the scope of work incorporated into the DOC award.
DOC will not pay for costs that are funded by other sources.
.041 prohibition against Assignment by a Nora -Federal Entity
A non -Federal entity must not transfer, pledge, mortgage, assign, encumber or hypothecate a
DOC financial assistance award or subaward, or any rights to, interests therein or claims arising
thereunder, to any party or parties, including but not limited to banks, trust companies, other
financing or financial institutions, or any other public or private organizations or individuals
without the express prior written approval of the DOC Grants Officer or the pass -through entity
(which, in turn, may need to obtain prior approval from the DOC Grants Officer).
.0S Disclaimer Provisions
a. The United States expressly disclaims all responsibility or liability to the non -Federal
entity or third persons (including but not limited to contractors) for the actions of the non -Federal
entity or third persons resulting in death, bodily injury, property damages, or any other losses
resulting in any way from the performance of this award or any subaward, contract, or
subcontract under this award.
b. The acceptance of this award or any subaward by the non -Federal entity does not in any
way constitute an agency relationship between the United States and the non -Federal entity or
the non -Federal entity's contractors or subcontractors.
.06 Unsatisfactory performance or Nora -Compliance with Award Provisions
a. Failure to perform the work in accordance with the terms of the award and maintain
satisfactory performance as determined by DOC may result in the imposition of additional award
conditions pursuant to 2 C.P.R. § 200.208 (Specific conditions) or other appropriate enforcement
action as specified in 2 C.F.R. § 200.339 (Remedies for noncompliance).
b. Failure to comply with the provisions of an award will be considered grounds for
appropriate enforcement action pursuant to 2 C.F.R. § 200.339 (Remedies for noncompliance),
including but not limited to: the imposition of additional award conditions in accordance with 2
C.F.R. § 200.208 (Specific conditions); temporarily withholding award payments pending the
correction of the deficiency; changing the payment method to reimbursement only; the
disallowance of award costs and the establishment of an accounts receivable; wholly or partially
suspending or terminating an award; initiating suspension or debarment proceedings in
accordance with 2 C.F.R. Parts 180 and 1326; and such other remedies as may be legally
available.
c. 2 C.F.R. §§ 200.340 (Termination) through 200.343 (Effects of suspension and
termination) apply to an award that is terminated prior to the end of the period of performance
9 1 12 November 2020
due to the non-federal entity's material failure to comply with the award terms and conditions.
In addition, the failure to comply with the provisions of a DOC award may adversely impact the
availability of funding under other active DOC or Federal awards and may also have a negative
impact on a non -Federal entity's eligibility for future DOC or Federal awards.
01 Financial Nisniagenu=nt
a. In accordance with 2 C.F.R. § 200.302(a) (Financial Management), each State must
expend and account for the Federal award in accordance with State laws and procedures for
expending and accounting for the State's own funds. In addition, the State's and any other non -
Federal entity's financial management systems, including records documenting compliance with
Federal statutes, regulations, and the terms and conditions of the Federal award, must be
sufficient to permit the preparation of reports required by general and program -specific terms
and conditions; and the tracing of funds to a level of expenditures adequate to establish that such
funds have been used in accordance with Federal statutes, regulations, and the terms and
conditions applicable to the Federal award. See also 2 C.F.R. § 200.450 (Lobbying) for
additional management requirements to verify that Federal funds are not used for unallowable
lobbying costs.
b. The financial management system of each non -Federal entity must provide all
information required by 2 C.F.R. § 200.302(b). See also 2 C.F.R. §§ 200.334 (Retention
requirements for records); 200.335 (Requests for transfer of records); 200.336 (Methods for
collection, transmission and storage of information); 200.337 (Access to records); and 200.338
(Restrictions on public access to records).
02 Awarti PayniLnts
a. Consistent with 2 C.F.R. § 200.305(a) (Federal payment), for States, payments are
governed by Treasury -State Cash Management Improvement Act (CMIA) agreements and
default procedures codified at 31 C.F.R. Part 205 (Rules and Procedures for Efficient Federal -
State Funds Transfers) and Treasury Financial Manual Volume 1, 4A-2000 (Overall Disbursing
Rules for All Federal Agencies).
b. Consistent with 2 C.F.R. § 200.305(b), for non -Federal entities other than States,
payment methods must minimize the amount of time elapsing between the transfer of funds from
the U.S. Treasury or the pass -through entity and the disbursement by the non -Federal entity.
1. The Grants Officer determines the appropriate method of payment and, unless otherwise
stated in a specific award condition, the advance method of payment must be authorized.
Advances must be limited to the minimum amounts needed and be timed to be in accordance
with the actual, immediate cash requirements of the non -Federal entity in carrying out the
purpose of the approved program or project. Unless otherwise provided by the terms and
conditions of a DOC award, non -Federal entities must time advance payment requests so that
Federal funds are on hand for a maximum of 30 calendar days before being disbursed by the
10 112 November 2020
non -Federal entity for allowable award costs.
2. If a non -Federal entity demonstrates an unwillingness or inability to establish procedures
that will minimize the time elapsing between the transfer of funds and disbursement by the
non -Federal entity or if a non -Federal entity otherwise fails to continue to qualify for the
advance method of payment, the Grants Officer or the pass -through entity may change the
method of payment to reimbursement only.
c. Unless otherwise provided for in the award terms, payments from DOC to recipients
under this award will be made using the Department of Treasury's Automated Standard
Application for Payment (ASAP) system. Under the ASAP system, payments are made through
preauthorized electronic funds transfers directly to the recipient's bank account, in accordance
with the requirements of the Debt Collection Improvement Act of 1996. To receive payments
under ASAP, recipients are required to enroll with the Department of Treasury, Financial
Management Service, Regional Financial Centers, which allows them to use the on-line and
Voice Response System (VRS) method of withdrawing funds from their ASAP established
accounts. The following information will be required to make withdrawals under ASAP:
1. ASAP account number —the Federal award identification number found on the cover
sheet of the award;
2. Agency Location Code (ALC); and
3. Region Code.
d. Recipients enrolled in the ASAP system do not need to submit a Form SF-270 (Request
for Advance or Reimbursement) for payments relating to their award. Awards paid under the
ASAP system will contain a specific award condition, clause, or provision describing enrollment
requirements and any controls or withdrawal limits set in the ASAP system.
e. When the Form SF-270 or successor form is used to request payment, the recipient must
submit the request no more than monthly, and advances must be approved for periods to cover
only expenses reasonably anticipated over the next 30 calendar days. Prior to receiving
payments via the Form SF-270, the recipient must complete and submit to the Grants Officer the
Form SF-3881 (ACH Vendor Miscellaneous Payment Enrollment Form) or successor form along
with the initial Form SF-270. Form SF-3881 enrollment must be completed before the first
award payment can be made via a Form SF-270 request.
f. The Federal award identification number must be included on all payment -related
correspondence, information, and forms.
g. Non -Federal entities receiving advance award payments must adhere to the depository
requirements set forth in 2 C.F.R. §§ 200.305(b)(7) through (b)(11). Interest amounts up to $500
per non -Federal entity's fiscal year may be retained by the non -Federal entity for administrative
expenses.
11 1 12 November 2020
.03 Feder -al and Nora -Federal Sharing
a. Awards that include Federal and non -Federal sharing incorporate a budget consisting of
shared allowable costs If actual allowable costs are less than the total approved budget, the
Federal and non -Federal cost shares must be calculated by applying the approved Federal and
non -Federal cost share ratios to actual allowable costs. If actual allowable costs exceed the total
approved budget, the Federal share must not exceed the total Federal dollar amount authorized
by the award.
b. The non -Federal share, whether in cash or third -party in -kind contributions, is to be paid
out at the same general rate as the Federal share. Exceptions to this requirement may be granted
by the Grants Officer based on sufficient documentation demonstrating previously determined
plans for, or later commitment of, cash or third -party in -kind contributions. In any case, the
recipient must meet its cost share commitment as set forth in the terms and conditions of the
award; failure to do so may result in the assignment of specific award conditions or other further
action as specified in Standard Term A.06 (Unsatisfactory Performance or Non -Compliance with
Award Provisions). The non -Federal entity must create and maintain sufficient records
justifying all non -Federal sharing requirements to facilitate questions and audits; see Section D
of these Standard Terms (Audits), for audit requirements. See 2 C.F.R. § 200.306 for additional
requirements regarding cost sharing.
.04 Budget Changes and Ti-ansfer of Funds among Categovies
a. Recipients are required to report deviations from the approved award budget and request
prior written approval from DOC in accordance with 2 C.F.R. § 200.308 (Revision of budget and
program plans) and 2 C.F.R. § 200.407 (Prior written approval (prior approval)). Requests for
such budget changes must be submitted to the Grants Officer (or electronically for awards
serviced through Grants Online) who will notify the recipient of the final determination in
writing. Requests requiring prior DOC approval do not become effective unless and until
approved in writing by the DOC Grants Officer.
b. In accordance with 2 C.F.R. § 200.308(f), transfers of funds by the recipient among direct
cost categories are permitted for awards in which the Federal share of the project is equal to or
less than the simplified acquisition threshold. For awards in which the Federal share of the
project exceeds the simplified acquisition threshold, transfers of funds among direct cost
categories must be approved in writing by the Grants Officer when the cumulative amount of
such direct costs transfers exceeds 10 percent of the total budget as last approved by the Grants
Officer. The 10 percent threshold applies to the total Federal and non -Federal funds authorized
by the Grants Officer at the time of the transfer request. This is the accumulated amount of
Federal funding obligated to date by the Grants Officer along with any non -Federal share. The
same requirements apply to the cumulative amount of transfer of funds among programs,
functions, and activities. This transfer authority does not authorize the recipient to create new
budget categories within an approved budget without Grants Officer approval. Any transfer that
causes any Federal appropriation, or part thereof, to be used for an unauthorized purpose is not
and will not be permitted. In addition, this provision does not prohibit the recipient from
requesting Grants Officer approval for revisions to the budget. See 2 C.F.R. § 200.308 (Revision
12 112 November 2020
of budget and program plans) (as applicable) for specific requirements concerning budget
revisions and transfer of funds between budget categories.
,05 Program Income
Unless otherwise indicated in the award terms, program income may be used for any required
cost sharing or added to the project budget, consistent with 2 C.F.R. § 200.307 (Program
income).
M6 Indirect or Facilities and AtIministrartive Costs
a. Indirect costs (or facilities and administration costs (F&A)) for major institutions of
higher education and major nonprofit organizations can generally be defined as costs incurred for
a common or joint purpose benefitting more than one cost objective, and not readily assignable
to the cost objectives specifically benefited, without effort disproportionate to the results
achieved. Indirect costs will not be allowable charges against an award unless permitted under
the award and specifically included as a line item in the award's approved budget.
b. Unrecovered indirect costs, including unrecovered indirect costs on cost sharing or
matching, may be included as part of cost sharing or matching as allowed under 2 C.F.R. fi
200.306(c) (Cost sharing or matching) or the terms and conditions of a DOC award.
c. Cognizant Agency for Indirect (F&A) Costs. OMB established the cognizant agency
concept, under which a single agency represents all others in dealing with non -Federal entities in
common areas. The cognizant agency for indirect costs reviews and approves non -Federal
entities' indirect cost rates. In accordance with Appendices III — VII to 2 C.F.R. Part 200 the
cognizant agency for indirect costs reviews and approves non -Federal entities' indirect cost rates.
With respect to for -profit organizations, the term cognizant Federal agency generally is defined
as the agency that provides the largest dollar amount of negotiated contracts, including options.
See 48 C.F.R. § 42.003. If the only Federal funds received by a commercial organization are
DOC award funds, then DOC becomes the cognizant Federal agency for indirect cost
negotiations.
1. General Review Procedures Where DOC is the Cognizant Agency.
i. Within 90 calendar days of the award start date, the recipient must submit to the
Grants Officer any documentation (indirect cost proposal, cost allocation plan, etc.)
necessary to allow DOC to perform the indirect cost rate proposal review. Below are two
sources available for guidance on how to put an indirect cost plan together:
(A) Department of Labor: httns://www.dol.ecrv/oasam/boe/ciccl/nn-eonmi-euicle.litm
or
(B) Department of the Interior: httns://www.doi.eoN,/ibc/services/finance/indirect-.
Cost -Services/.
ii. The recipient may use the rate proposed in the indirect cost plan as a provisional rate
until the DOC provides a response to the submitted plan.
13 112 November 2020
iii. The recipient is required to annually submit indirect cost proposals no later than six
months after the recipient's fiscal year end, except as otherwise provided by 2 C.F.K. §
200.414(g).
2. When DOC is not the oversight or cognizant Federal agency, the recipient must provide
the Grants Officer with a copy of a negotiated rate agreement or a copy of the transmittal
letter submitted to the cognizant or oversight Federal agency requesting a negotiated rate
agreement within 30 calendar days of receipt of a negotiated rate agreement or submission of
a negotiated rate proposal.
3. If the recipient is proposing indirect costs as part of a project budget, but is not required
to have a negotiated rate agreement pursuant to 2 C.F.R. Part 200, Appendix VIT, Paragraph
D.1.b (i.e., a governmental department or agency that receives $35 million or less in direct
Federal funding), the recipient may be required to provide the Grants Officer with a copy of
its Certificate of Indirect Costs as referenced in 2 C.F.R. Part 200, Appendix VII, Paragraph
D.3. or such other documentation, acceptable in form and substance to the Grants Officer,
sufficient to confirm that proposed indirect costs are calculated and supported by
documentation in accordance with 2 C.F.R. Pail 200, Appendix VII. In cases where the
DOC is the recipient's cognizant Federal agency, the DOC reserves the right, pursuant to 2
C.F.R. Part 200, Appendix VII, Paragraph D.l.b, to require the recipient to submit its indirect
cost rate proposal for review by DOC.
d. If the recipient fails to submit required documentation to DOC within 90 calendar days of
the award start date, the Grants Officer may amend the award to preclude the recovery of any
indirect costs under the award. If the DOC, oversight, or cognizant Federal agency determines
there is a finding of good and sufficient cause to excuse the recipient's delay in submitting the
documentation, an extension of the 90-day due date may be approved by the Grants Officer.
e. The maximum dollar amount of allocable indirect costs for which DOC will reimburse
the recipient is the lesser of:
1. The line item amount for the Federal share of indirect costs contained in the approved
award budget, including all budget revisions approved in writing by the Grants Officer; or
2. The Federal share of the total indirect costs allocable to the award based on the indirect
cost rate approved by the cognizant agency for indirect costs and applicable to the period in
which the cost was incurred, in accordance with 2 C.F.R 200 Appendix 1II, C.7, provided
that the rate is approved on or before the award end date.
f. In accordance with 2 CPR § 200.414(c)(3), DOC set forth policies, procedures, and
general decision -making criteria for deviations from negotiated indirect cost rates. These
policies and procedures are applicable to all Federal financial assistance programs awarded and
administered by DOC bureaus as Federal awarding agencies and may be found at
httD://www.osec.cloc.aov/oam/krauts manaeenient/oolicV/documents/FANI`%202015-02.pdf.
14 112 November 2020
g. In accordance with 2 CFR § 200.414(g), any non -Federal entity that has a negotiated
indirect cost rate may apply to the entity's cognizant agency for indirect costs for a one-time
extension of a currently negotiated indirect cost rate for a period of up to four years, reducing the
frequency of rate calculations and negotiations between an institution and its cognizant agency.
h. In accordance with 2 CFR § 200.414(f), any non -Federal entity that does not have a
current negotiated (including provisional) rate, except for those non -Federal entities described in
paragraph D.l.b of Appendix VII to 2 CFR Part 200, may elect to charge a de minimis rate of 10
percent of modified total direct costs. No documentation is required to justify the 10 percent de
minimis indirect cost rate.
M7 Ir,ctrtritrg Costs or Obligaiiiig Federal Funds Before and After the Period
of, Performaoce
a. In accordance with 2 C.F.R. § 200.309 (Modifications to Period of Performance) and the
terns and conditions of a DOC award, a non -Federal entity may charge to the Federal award
only allowable costs incurred during the period of performance, which is established in the
award document. As defined at 2 C.F.R. § 200.1, the "period of performance" means the total
estimated time interval between the start of an initial Federal award and the planned end date,
which may include one or more funded portions, or budget periods. Identification of the Period
of Performance in the Federal award per § 200.21 1(b)(5) does not commit the awarding agency
to fund the award beyond the currently approved budget period." The period of performance
may sometimes be referred to as the project period or award period. This Standard Term is
subject to exceptions for allowable costs pertaining to: (i) pre -award costs (see 2 C.P.R. §
200.458); (ii) publication and printing costs (see 2 C.F.R. § 200.461); and administrative costs
incurred relating to the close-out of an award (see 2 C.P.R. § 200.344).
b. Reasonable, necessary, allowable and allocable administrative award closeout costs are
authorized for a period of up to 120 calendar days following the end of the period of
performance. For this purpose, award closeout costs are those strictly associated with close-out
activities and are typically limited to the preparation of final progress, financial, and required
project audit reports, unless otherwise approved in writing by the Grants Officer. A non -Federal
entity may request an extension of the 120-day closeout period, as provided in 2 C.P.R. §
200.344 (Closeout).
c. Unless authorized by a specific award condition, any extension of the period of
performance may only be authorized by the Grants Officer in writing. This is not a delegable
authority. Verbal or written assurances of funding from anyone other than the Grants Officer
does not constitute authority to obligate funds for programmatic activities beyond the end of the
period of performance.
d. The DOC has no obligation to provide any additional prospective funding. Any
amendment of the award to increase finding and to extend the period of performance is at the
sole discretion of DOC.
15 1 12 November 2020
M8 Tax Refunds
The non -Federal entity shall contact the Grants Officer immediately upon receipt of the
refund of any taxes, including but not limited to Federal Insurance Contributions Act (FICA)
taxes, Federal Unemployment Tax Act (FUTA) taxes, or Value Added Taxes (VAT) that were
allowed as charges to a DOC award, regardless of whether such refunds are received by the non -
Federal entity during or after the period of performance. The Grants Officer will provide written
disposition instructions to the non -Federal entity, which may include the refunded taxes being
credited to the award as either a cost reduction or a cash refund, or may allow the non -Federal
entity to use such refunds for approved activities and costs under a DOC award. See 2 C.F.R. §
200.470 (Taxes (including Value Added Tax)).
09 Intel-al,el Conti-els
Each recipient must comply with standards for internal controls described at 2 C.F.R. §
200.303 (Internal controls). The "Standards for Internal Control in the Federal Government"
issued by the Comptroller General of the United States referenced in § 200.303 are available
online at httn://www,eao.2ov/assets/80/76455.pdf and the "Internal Control Integrated
Framework" issued by the Committee of Sponsoring Organizations of the Treadway
Commission (COSO) is available online at Internal Control Guidance.
.01 Slaaard,aaAs
Each non -Federal entity must comply with the Property Standards set forth in 2 C.F.R. §§
200.310 (Insurance coverage) through 200.316 (Property trust relationship).
.112; Real tassel PeiNonatl Pia op rty
a. In accordance with 2 C.F.R. § 200.316 (Property trust relationship), real property,
equipment, and other personal property acquired or improved with a Federal award must be held
in trust by the non -Federal entity as trustee for the beneficiaries of the project or program under
which the property was acquired or improved. This trust relationship exists throughout the
duration of the property's estimated useful life, as determined by the Grants Officer in
consultation with the Program Office, during which time the Federal Government retains an
undivided, equitable reversionary interest in the property (Federal Interest). During the duration
of the Federal Interest, the non -Federal entity must comply with all use and disposition
requirements and restrictions as set forth in 2 C.F.R. §§ 200.310 (Insurance coverage) through
200.316 (Property trust relationship), as applicable, and in the terms and conditions of the
Federal award.
b. The Grants Officer may require a non -Federal entity to execute and to record (as
applicable) a statement of interest, financing statement (form UCC-1), lien, mortgage or other
public notice of record to indicate that real or personal property acquired or improved in whole
or in part with Federal funds is subject to the Federal Interest, and that certain use and disposition
16 1 12 November 2020
requirements apply to the property. The statement of interest, financing statement
(Form UCC 1), lien, mortgage or other public notice must be acceptable in form and substance to
the DOC and must be placed on record in accordance with applicable State and local law, with
continuances re -filed as appropriate. In such cases, the Grants Officer may further require the
non -Federal entity to provide the DOC with a written statement from a licensed attorney in the
jurisdiction where the property is located, certifying that the Federal Interest has been protected,
as required under the award and in accordance with applicable State and local law. The
attorney's statement, along with a copy of the instrument reflecting the recordation of the Federal
Interest, must be returned to the Grants Officer. Without releasing or excusing the non -Federal
entity from these obligations, the non -Federal entity, by execution of the financial assistance
award or by expending Federal financial assistance funds (in the case of a subrecipient),
authorizes the Grants Officer and/or program office to file such notices and continuations as it
determines to be necessary or convenient to disclose and protect the Federal Interest in the
property. The Grants Officer may elect not to release any or a portion of the Federal award
funds until the non -Federal entity has complied with this provision and any other applicable
award terms or conditions, unless other arrangements satisfactory to the Grants Officer are made.
.03 Intellectual Property Rights
a. General. The rights to any work or other intangible property produced or acquired under
a Federal award are determined by 2 C.P.R. § 200.315 (Intangible property). The non -Federal
entity owns any work produced or purchased under a Federal award subject to the DOC's
royalty -free, nonexclusive, and irrevocable right to obtain, reproduce, publish, or otherwise use
the work or authorize others to receive, reproduce, publish, or otherwise use the work for
Government purposes.
b. Inventions. Unless otherwise provided by law, the rights to any invention made by a
non -Federal entity under a DOC financial assistance award are determined by the Bayh-Dole
Act, Pub. L. No. 96-517, as amended, and as codified in 35 U.S.C. § 200 et seq., and modified by
E.O. 12591 (52 FR 13414), as amended by E.O. 12618 (52 FR 48661). 35 U.S.C. § 201(h)
defines "small business firm" as "a small business concern as defined at section 2 of Public Law
85-536 (15 U.S.C. 632) and implementing regulations of the Administrator of the Small
Business Administration." Section 1(b)(4) of E.O. 12591 extended the Bayh-Dole Act to non -
Federal entities "regardless of size" to the extent permitted by law. The specific requirements
governing the development, reporting, and disposition of rights to inventions and patents
resulting from Federal awards are described in more detail in 37 C.F.R. Part 401, which
implements 35 U.S.C. 202 through 204 and includes standard patent rights clauses in 37 C.F.R. §
401.14, which is hereby incorporated by reference into this award.
The Bayh-Dole regulations set forth in 37 C.F.R. parts 401 and 404 were amended by 83 FR
15954, with an effective date of May 14, 2018 (Amended Bayh-Dole Regulations). The
Amended Bayh-Dole Regulations apply to all new financial assistance awards issued on or after
May 14, 2018. The Amended Bayh-Dole Regulations do not apply to financial assistance
awards issued prior to May 14, 2018, including amendments made to such awards, unless an
award amendment includes a specific condition incorporating the Amended Bayh-Dole
Regulations into the terms and conditions of the subject award.
171 12 November 2020
1. Ownership. A non -Federal entity may have rights to inventions in accordance with 37
C.F.R. Part 401. These requirements are technical in nature and non -Federal entities are
encouraged to consult with their Intellectual Property counsel to ensure the proper
interpretation of and adherence to the ownership rules. Unresolved questions pertaining to a
non -Federal entities' ownership rights may further be addressed to the Grants Officer.
2. Responsibilities - iEdison. The non -Federal entity must comply with all the requirements
of the standard patent rights clause and 37 C.F.R. Part 401, including the standard patent
rights clause in 37 C.F.R. § 401.14. Non -Federal entities are required to submit their
disclosures, elections, and requests for waiver from any requirement for substantial U.S.
manufacture, electronically using the Interagency Edison extramural invention reporting
system (iEdison) at www.iedison.gov. Non -Federal entities may obtain a waiver of this
electronic submission requirement by providing the Grants Officer with compelling reasons
for allowing the submission of paper reports.
c. Patent Notification Procedures. Pursuant to E.O. 12889 (58 FR 69681), the DOC is
required to notify the owner of any valid patent covering technology whenever the DOC or a
non -Federal entity, without making a patent search, knows (or has demonstrable reasonable
grounds to know) that technology covered by a valid United States patent has been or will be
used without a license from the owner. To ensure proper notification, if the non -Federal entity
uses or has used patented technology under this award without a license or permission from the
owner, the non -Federal entity must notify the Grants Officer.
This notice does not constitute authorization or consent by the Government to any copyright or
patent infringement occurring under the award.
d. A non -Federal entity may copyright any work produced under a Federal award, subject to
the DOC's royalty -free, nonexclusive, and irrevocable right to obtain, reproduce, publish, or
otherwise use the work, or authorize others to do so for Government purposes. Worksjointly
authored by DOC and non -Federal entity employees may be copyrighted, but only the part of
such works authored by the non -Federal entity is protectable in the United States because, under
17 U.S.C. § 105, copyright protection is not available within the United States for any work of
the United States Government. On occasion and as permitted under 17 U.S.C. § 105, DOC may
require the non -Federal entity to transfer to DOC a copyright in a particular wort. for
Government purposes or when DOC is undertaking primary dissemination of the work.
e. Freedom of Information Act (FOIA). In response to a FOIA request for research data
relating to published research findings (as defined by 2 C.F.R. § 200.315(e)(2)) produced under a
Federal award that were used by the Federal government in developing an agency action that has
the force and effect of law, the DOC will request, and the non -Federal entity must provide,
within a reasonable time, the research data so that they can be made available to the public
through the procedures established under the FOIA.
18 112 November 2020
D. AUDITS
Under the Inspector General Act of 1978, as amended, 5 U.S.C. App. 3, §§ 1 et seq., an audit
of the award may be conducted at any time. The Inspector General of the DOC, or any of his or
her duly authorized representatives, must have the right to access any pertinent books,
documents, papers, and records of the non -Federal entity, whether written, printed, recorded,
produced, or reproduced by any electronic, mechanical, magnetic, or other process or medium, to
make audits, inspections, excerpts, transcripts, or other examinations as authorized by law. This
right also includes timely and reasonable access to the non -Federal entity's personnel for
interview and discussion related to such documents. See 2 C.F.R. § 200.337 (Access to records).
When the DOC Office of Inspector General (OIG) requires a program audit on a DOC award, the
OIG will usually make the arrangements to audit the award, whether the audit is performed by
OIG personnel, an independent accountant under contract with DOC, or any other Federal, State,
or local audit entity.
.0.i Organization -Wide, Program -Specific, anti Project Audil;s
a. A recipient must, within 90 days of the end of its fiscal year, notify the Grants Officer of
the amount of Federal awards, including all DOC and non-DOC awards, that the recipient
expended during its fiscal year.
b. Recipients that are subject to the provisions of Subpart F of 2 C.F.R. Part 200 and that
expend $750,000 or more in a year in Federal awards during their fiscal year must have an audit
conducted for that year in accordance with the requirements contained in Subpart F of 2 C.F.R.
Part 200. Within the earlier of 30 calendar days after receipt of the auditor's report(s), or nine
months after the end of the audit period, unless a different period is specified in a program -
specific audit guide, a copy of the audit must be submitted electronically to the Federal Audit
Clearinghouse (FAC) through the FAC's Internet Data Entry System (IDES)
(littns://harvester.cellsnS.i!OV/f,icides/). In accordance with 2 C.F.R. § 200.425 (Audit services),
the recipient may include a line item in the budget for the allowable costs associated with the
audit, which is subject to the approval of the Grants Officer.
c. Unless otherwise specified in the terms and conditions of the award, entities that are not
subject to Subpart F of 2 C.F.R. Part 200 (e.g., for -profit entities, foreign public entities and
foreign organizations) and that expend $750,000 or more in DOC funds during their fiscal year
(including both as a recipient and a subrecipient) must submit to the Grants Officer either: (i) a
financial related audit of each DOC award or subaward in accordance with Generally Accepted
Government Auditing Standards (GAGAS); or (ii) a project specific audit for each award or
subaward in accordance with the requirements contained in 2 C.P.R. § 200.507. Within the
earlier of 30 calendar days after receipt of the auditor's report(s), or nine months after the end of
the audit period, unless a different period is specified in a program -specific audit guide, a copy of
the audit must be submitted to the Grants Officer. In accordance with 2 C.F.R. § 200.425, the
recipient may include a line item in the budget for the allowable costs associated with the audit,
which is subject to the approval of the Grants Officer. Entities that are not subject to Subpart F
of 2 C.F.R. Part 200 and that expend less than $750,000 in DOC funds in a given fiscal year are
19 112 November 2020
not required to submit an audit(s) for that year, but must make their award -related records
available to DOC or other designated officials for review and audit.
d. Recipients are responsible for compliance with the above audit requirements and for
informing the Grants Officer of the status of their audit, including when the relevant audit has
been completed and submitted in accordance with the requirements of this section. Failure to
provide audit reports within the timeframes specified above may result in appropriate
enforcement action, up to and including termination of the award, and may jeopardize eligibility
for receiving future DOC awards.
e. In accordance with 2 C.F.R. § 200.332(d)(3), pass -through entities are responsible for
issuing a management decision for applicable audit findings pertaining only to the Federal award
provided by the pass -through entity to a subrecipient.
M2 Andil Resolution Process
a. An audit of the award may result in the disallowance of costs incurred by the recipient
and the establishment of a debt (account receivable) due to DOC. For this reason, the recipient
should take seriously its responsibility to respond to all audit findings and recommendations with
adequate explanations and supporting evidence whenever audit results are disputed.
b. A recipient whose award is audited has the following opportunities to dispute the
proposed disallowance of costs and the establishment of a debt:
1. The recipient has 30 calendar days from the date of the transmittal of the draft audit
report to submit written comments and documentary evidence.
2. The recipient has 30 calendar days from the date of the transmittal of the final audit
repo to submit written comments and documentary evidence.
3. The DOC will review the documentary evidence submitted by the recipient and will
notify the recipient of the results in an Awlit Resolution Determination Letter. The recipient
has 30 calendar days from the date of receipt of the Audit Resolution Determination Letter to
submit a written appeal, unless this deadline is extended in writing by the DOC. The appeal
is the last opportunity for the recipient to submit written comments and documentary
evidence to the DOC to dispute the validity of the audit resolution determination.
4. An appeal of the Audit Resolution Determination does not prevent the establishment of
the audit -related debt nor does it prevent the accrual of applicable interest, penalties and
administrative fees on the debt in accordance with 15 C.F.R. Part 19. If the Audit Resolution
Determination is overruled or modified on appeal, appropriate corrective action will be taken
retroactively.
5. The DOC will review the recipient's appeal and notify the recipient of the results in an
Aplieal Determination Letter. After the opportunity to appeal has expired or after the appeal
determination has been rendered, DOC will not accept any further documentary evidence
from the recipient. No other administrative appeals are available in DOC.
20 112 November 2020
.0_t Paaynient of Debts Owed to the Federal Government
a. The non -Federal entity must promptly pay any debts determined to be owed to the
Federal Government. Any funds paid to a non -Federal entity in excess of the amount to which
the non -Federal entity is finally determined to be entitled under the terms of the Federal award
constitute a debt to the Federal government. In accordance with 2 C.F.R. § 200.346 (Collection
of amounts due), if not paid within 90 calendar days after demand, DOC may reduce a debt owed
to the Federal Govermnent by:
1. Making an administrative offset against other requests for reimbursement;
2. Withholding advance payments otherwise due to the non -Federal entity; or
3. Taking any other action permitted by Federal statute.
The foregoing does not waive any claim on a debt that DOC may have against another entity,
and all rights and remedies to pursue other parties are preserved.
b. DOC debt collection procedures are set out in 15 C.F.R. Part 19. In accordance with 2
C.P.R. § 200.346 (Collection of amounts due) and 31 U.S.C. § 3717, failure to pay a debt owed
to the Federal Government must result in the assessment of interest, penalties and administrative
costs in accordance with the provisions of 31 U.S.C. § 3717 and 31 C.P.R. § 901.9. Commerce
entities will transfer any Commerce debt that is delinquent for more than 120 calendar days to
the U.S. Department of the Treasury's Financial Management Service for debt collection
services, a process known as cross -servicing, pursuant to 31 U.S.C. § 3711(g), 31 C.F.R. §
285.12, and 15 C.F.R. § 19.9. DOC may also take further action as specified in DOC ST&C
A.06 (Unsatisfactory Performance or Non -Compliance with Award Provisions). Funds for
payment of a debt must not come from other Federally -sponsored programs, and the DOC may
conduct on -site visits, audits, and other reviews to verify that other Federal funds have not been
used to pay a debt.
.02 hate Payment Charges
a. Interest will be assessed on the delinquent debt in accordance with section 11 of the Debt
Collection Act of 1982, as amended (31 U.S.C. § 3717(a)). The minimum annual interest rate to
be assessed is the U.S. Department of the Treasury's Current Value of Funds Rate (CVFR). The
CVFR is available online at httos:H/"vw.tiscal.treasurv.aov/fsrenorts/rut/evit�/evfr home.hun
and also published by the Department of the Treasury in the Federal Register
(httD://www.eoo.uov/tc]sN,s/Browse/collection.action'?collectioilCode=FR1 and in the Treasury
Financial Manual Bullelin. The assessed rate must remain fixed for the duration of the
indebtedness.
b. Penalties will accrue at a rate of not more than six percent per year or such other higher
rate as authorized by law.
21 1 12 November 2020
c. Administrative charges, i.e., the costs of processing and handling a delinquent debt, will
be determined by the Commerce entity collecting the debt, as directed by the Office of the Chief
Financial Officer and Assistant Secretary for Administration.
M3 Barring Delinquent Federal Debtors from Obtairrinl; Federal Loans or
loa►► Insurance Guarantees
Pursuant to 31 U.S.C. § 3720B and 31 C.F.R. § 901.6, unless waived by DOC, the DOC is
not permitted to extend financial assistance in the form of a loan, loan guarantee, or loan
insurance to any person delinquent on a nontax debt owed to a Federal agency. This prohibition
does not apply to disaster loans.
.04 Effect of )vidgnrent lien on Eligibility for Federal Grants, Loaors, or
Program►s
Pursuant to 28 U.S.C. § 3201(e), unless waived by the DOC, a debtor who has ajudgment
lien against the debtor's property for a debt to the United States is not eligible to receive any
grant or loan that is made, insured, guaranteed, or financed directly or indirectly by the United
States or to receive funds directly from the Federal Government in any program, except funds to
which the debtor is entitled as beneficiary, until the judgment is paid in full or otherwise
satisfied.
.tll Conflict of Int►:r"l. and Cade of Couduct
a. DOC Conflict of Interest Policy. In accordance with 2 C.F.R. § 200.112 (Conflict of
interest), the non -Federal entity must disclose in writing any potential conflict of interest to the
DOC or pass -through entity. In addition, a non -Federal entity will establish and maintain written
standards of conduct that include safeguards to prohibit employees from using their positions for
a purpose that constitutes or presents the appearance of personal or organizational conflict of
interest, or personal gain in the administration of an award. It is the DOC's policy to maintain
the highest standards of conduct and to prevent real or apparent conflicts of interest in
connection with DOC financial assistance awards.
b. A conflict of interest generally exists when an interested party participates in a matter that
has a direct and predictable effect on the interested party's personal or financial interests. A
financial interest may include employment, stock ownership, a creditor or debtor relationship, or
prospective employment with the organization selected or to be selected for a subaward. A
conflict also may exist where there is an appearance that an interested party's objectivity in
performing his or her responsibilities under the project is impaired. For example, an appearance
of impairment of objectivity may result from an organizational conflict where, because of other
activities or relationships with other persons or entities, an interested party is unable to render
22 112 November 2020
impartial assistance, services or advice to the recipient, a participant in the project or to the
Federal Government. Additionally, a conflict of interest may result from non -financial gain to an
interested party, such as benefit to reputation or prestige in a professional field. For purposes of
the DOC Conflict of Interest Policy, an interested party includes, but is not necessarily limited to,
any officer, employee or member of the board of directors or other governing board of a non -
Federal entity, including any other parties that advise, approve, recommend, or otherwise
participate in the business decisions of the recipient, such as agents, advisors, consultants,
attorneys, accountants or shareholders. This also includes immediate family and other persons
directly connected to the interested party by law or through a business arrangement.
c. Procurement -related conflict of interest. In accordance with 2 C.F.R. § 200.318 (General
procurement standards), non -Federal entities must maintain written standards of conduct
covering conflicts of interest and governing the performance of their employees engaged in the
selection, award and administration of contracts. See paragraph F.04 of these Standard Terms
(Requirements for Procurements).
02 Nonprocrnrenient Debarrrrent and Suspension
Non -Federal entities must comply with the provisions of 2 C.F.R. Part 1326
(Nonprocurement Debarment and Suspension), which generally prohibit entities that have been
debarred, suspended, or voluntarily excluded from participating in Federal nonprocurement
transactions either through primary or lower tier covered transactions, and which set forth the
responsibilities of recipients of Federal financial assistance regarding transactions with other
persons, including subrecipients and contractors.
A3 Requirernenis for Snb.rwards
a. The recipient or pass -through entity must require all subrecipients, including lower tier
subrecipients, to comply with the terms and conditions of a DOC financial assistance award,
including applicable provisions of the OMB Uniform Guidance (2 C.F.R. Part 200), and all
associated Terms and Conditions set forth herein. See 2 C.F.R. § 200.101(b)(2) (Applicability to
different types of Federal awards), which describes the applicability of 2 C.F.R. Part 200 to
various types of Federal awards and §§ 200.331-333 (Subrecipient monitoring and management).
b. The recipient or pass through entity may have more restrictive policies for the RTC
waived prior approvals (no -cost extensions, re -budgeting, etc.) for their subaward recipients.
Such restrictive policies must be addressed in their subaward agreements and in accordance with
§200.331.
.()! Requirements for Procuretnetets
a. States. Pursuant to 2 C.F.R. § 200.317 (Procurements by states), when procuring
property and services under this Federal award, a State must follow the same policies and
procedures it uses for procurements from its non -Federal funds. The State must comply with 2
C.F.R. §§ 200.321 (Contracting with small and minority businesses, women's business
enterprises, and labor surplus area firms), 200.322 (Domestic preferences for procurements), and
23 112 November 2020
200.323 (Procurement of recovered materials), and ensure that every purchase order or other
contract includes any clauses required by 2 C.F.R. § 200.327 (Contract provisions).
b. Other Non -Federal Entities. All other non -Federal entities, including subrecipients of a
State, must follow the procurement standards in 2 C.F.R. §§ 200.318 (General procurement
standards) through 200.327 (Contract provisions) which include the requirement that non -
Federal entities maintain written standards of conduct covering conflicts of interest and
governing the performance of their employees engaged in the selection, award, and
administration of contracts. No employee, officer, or agent may participate in the selection,
award, or administration of a contract supported by a Federal award if he or she has a real or
apparent conflict of interest.
0)5 Whistlehlower Protections
This award is subject to the whistleblower protections afforded by 41 U.S.C. § 4712
(Enhancement of contractor protection from reprisal for disclosure of certain information), which
generally provide that an employee or contractor (including subcontractors and personal services
contractors) of a non -Federal entity may not be discharged, demoted, or otherwise discriminated
against as a reprisal for disclosing to a person or body information that the employee reasonably
believes is evidence of gross mismanagement of a Federal award, subaward, or a contract under
a Federal award or subaward, a gross waste of Federal funds, an abuse of authority relating to a
Federal award or subaward or contract under a Federal award or subaward, a substantial and
specific danger to public health or safety, or a violation of law, rule, or regulation related to a
Federal award, subaward, or contract under a Federal award or subaward. These persons or
bodies include:
a. A Member of Congress or a representative of a committee of Congress.
b. An Inspector General.
c. The Government Accountability Office.
d. A Federal employee responsible for contract or grant oversight or management at the
relevant agency.
e. An authorized official of the Department of Justice or other law enforcement agency.
f. A court or grand jury.
g. A management official or other employee of the contractor, subcontractor, or grantee
who has the responsibility to investigate, discover, or address misconduct.
Non -Federal entities and contractors under Federal awards and subawards must inform their
employees in writing of the rights and remedies provided under 41 U.S.C. § 4712, in the
predominant native language of the world'orce.
M6 Small Businesses, Minority Business Enterprises and Wome.n's Busitbess
Enterprises
In accordance with 2 C.F.R. § 200.321 (Contracting with small and minority businesses,
women's business enterprises, and labor surplus area firms), the recipient must take all necessary
affirmative steps to assure that minority businesses, women's business enterprises, and labor
surplus area firms are used when possible. DOC encourages non -Federal entities to use small
24 112 November 2020
businesses, minority business enterprises and women's business enterprises in contracts under
financial assistance awards. The Minority Business Development Agency within the DOC will
assist non -Federal entities in matching qualified minority business enterprises with contract
opportunities. For further information visit MBDA's website at httn://www.mbda.aov. If you
do not have access to the Internet, you may contact MBDA via telephone or mail:
U.S. Department of Commerce
Minority Business Development Agency
Herbert C. Hoover Building
14th Street and Constitution Avenue, N.W.
Washington, D.C. 20230
(202)482-0101
M1 Oiaiterl States Laws and Regulations
This award is subject to the laws and regulations of the United States. The recipient must
comply with all applicable requirements of all other Federal laws, executive orders, regulations
and policies governing this program.
M2 Mora -Discrimination Requireinents
No person in the United States may, on the ground of race, color, national origin, handicap,
age, religion, or sex, be excluded from participation in, be denied the benefits of, or be subject to
discrimination under, any program or activity receiving Federal financial assistance. The
recipient agrees to comply with the non-discrimination requirements below:
;a. Statutory Provisions
1. Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d etseq.) and DOC
implementing regulations published at 15 C.F.R. Part 8 prohibiting discrimination on the
grounds of race, color, or national origin under programs or activities receiving Federal
financial assistance;
2. Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681 et seq.) prohibiting
discrimination on the basis of sex under Federally assisted education programs or activities;
3. The Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.) prohibiting
discrimination on the basis of disability under programs, activities, and services provided or
made available by State and local governments or instrumentalities or agencies thereto, as
well as public or private entities that provide public transportation;
4. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), and DOC
implementing regulations published at 15 C.F.R. Part 8b prohibiting discrimination on the
25 112 November 2020
basis of handicap under any program or activity receiving or benefiting from Federal
assistance.
For purposes of complying with the accessibility standards set forth in 15 C.F.R. §
8b.I8(c), non-federal entities must adhere to the regulations, published by the U.S.
Department of Justice, implementing Title Il of the Americans with Disabilities Act
(ADA) (28 C.F.R. part 35; 75 FR 56164, as amended by 76 FR 13285) and Title III of the
ADA (28 C.F.R. part 36; 75 FR 56164, as amended by 76 FR 13286). The revised
regulations adopted new enforceable accessibility standards called the "2010 ADA
Standards for Accessible Design" (2010 Standards), which replace and supersede the
former Uniform Federal Accessibility Standards for new construction and alteration
projects;
5. The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.), and DOC
implementing regulations published at 15 C.F.R. Part 20 prohibiting discrimination on the
basis of age in programs or activities receiving Federal financial assistance; and
6. Any other applicable non-discrimination law(s).
hn Other Provisions
1. Parts lI and III of E.O. 11246 (Equal Employment Opportunity, 30 FR 12319),3 which
requires Federally assisted construction contracts to include the nondiscrimination provisions
of §§ 202 and 203 of E.O. 11246 and Department of Labor regulations implementing E.O.
11246 (41 C.F.R. § 60-1.4(b)).
2. E.O. 13166 (65 FR 50121, Improving Access to Services for Persons with Limited
English Proficiency), requiring Federal agencies to examine the services provided, identify
any need for services to those with limited English proficiency (LEP), and develop and
implement a system to provide those services so LEP persons can have meaningful access to
them. The DOC issued policy guidance on March 24, 2003 (68 FR 14180) to articulate the
Title VI prohibition against national origin discrimination affecting LEP persons and to help
ensure that non -Federal entities provide meaningful access to their LEP applicants and
beneficiaries.
3. In accordance with E.0 13798 and Office of Management and Budget, M-20-09 —
Guidance Regarding Federal Grants, states or other public grantees may not condition sub -
awards of Federal grant money in a manner that would disadvantage grant applicants based
on their religious character.
3 As amended by E.O. 11375(32 FR 14303), E.O. 11478 (34 FR 12985), E.O. 12086 (43 FR 46501), E.O. 12107 (44
FR 1055), E.O. 13279 (F67 FR 77141), E.O. 13665 (79 FR 20749), and E.O. 13672 (79 FR 42971).
26 112 November 2020
i.. '1'itit,,vil rxeiraptiola foi- Religions Orgauiz.itions
Generally, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., provides
that it is an unlawful employment practice for an employer to discharge any individual or
otherwise to discriminate against an individual with respect to compensation, terms,
conditions, or privileges of employment because of such individual's race, color, religion,
sex, or national origin. However, Title VII, 42 U.S.C. § 2000e-1(a), expressly exempts from
the prohibition against discrimination based on religion, "a religious corporation, association,
educational institution, or society with respect to the employment of individuals of a
particular religion to perform work connected with the carrying on by such corporation,
association, educational institution, or society of its activities."
.03 LOBBYING RLsTracriONS
a. Statutory Provisions
Non -Federal entities must comply with 2 C.F.R. § 200.450 (Lobbying), which
incorporates the provisions of 31 U.S.C. § 1352; and OMB guidance and notices on lobbying
restrictions. In addition, non -Federal entities must comply with the DOC regulations
published at 15 C.F.R. Part 28, which implement the New Restrictions on Lobbying. These
provisions prohibit the use of Federal funds for lobbying the executive or legislative branches
of the Federal Government in connection with the award and require the disclosure of the use
of non -Federal funds for lobbying. Lobbying includes attempting to improperly influence,
meaning any influence that induces or tends to induce a Federal employee or officer to give
consideration or to act regarding a Federal award or regulatory matter on any basis other than
the merits of the matter, either directly or indirectly. Costs incurred to improperly influence
are unallowable. See 2 C.F.R. § 200.450(b) and (c).
hti I)iScIOSI11"e of l.olil?yioig A(livities
Any recipient that receives more than $100,000 in Federal funding and conducts lobbying
with non-federal fiords relating to a covered Federal action must submit a completed Form
SF-LLL (Disclosure of Lobbying Activities). The Form SF-LLL must be submitted within
30 calendar days following the end of the calendar quarter in which there occurs any event
that requires disclosure or that materially affects the accuracy of the information contained in
any disclosure form previously filed. The recipient must submit any required SF-LLL forms,
including those received from subrecipients, contractors, and subcontractors, to the Grants
Officer.
.04 Environmental Recluh-einents
Environmental impacts must be considered by Federal decision makers in their decisions
whether or not to approve: (1) a proposal for Federal assistance; (2) the proposal with mitigation;
or (3) a different proposal having less adverse environmental impacts. Federal environmental
laws require that the funding agency initiate an early planning process that considers potential
impacts that projects funded with Federal assistance may have on the environment. Each non -
Federal entity must comply with all environmental standards, to include those prescribed under
27 112 November 2020
the following statutes and E.O.s and must identify to the awarding agency any impact the award
may have on the environment. In some cases, award funds can be withheld by the Grants Officer
under a specific award condition requiring the non -Federal entity to submit additional
environmental compliance information sufficient to enable the DOC to make an assessment on
any impacts that a project may have on the environment.
r. "I he National I3ovironmental Policy Act (42 U.S.C. §§ ,1321 et sell.)
The National Environmental Policy Act (NEPA) and the Council on Environmental
Quality (CEQ) implementing regulations (40 C.F.R. Parts 1500 through 1508) require that an
environmental analysis be completed for all major Federal actions to determine whether they
have significant impacts on the environment. NEPA applies to the actions of Federal
agencies and may include a Federal agency's decision to fund non -Federal projects under
grants and cooperative agreements when the award activities remain subject to Federal
authority and control. Non -Federal entities are required to identify to the awarding agency
any direct, indirect or cumulative impact an award will have on the quality of the human
environment and assist the agency in complying with NEPA. Non -Federal entities may also
be requested to assist DOC in drafting an environmental assessment or environmental impact
statement if DOC determines such documentation is required, but DOC remains responsible
for the sufficiency and approval of the final documentation. Until the appropriate NEPA
documentation is complete and in the event that any additional information is required during
the period of performance to assess project environmental impacts, funds can be withheld by
the Grants Officer under a specific award condition requiring the non -Federal entity to
submit the appropriate environmental information and NEPA documentation sufficient to
enable DOC to make an assessment on any impacts that a project may have on the
environment.
h. The hlatiorral Ilisl:oi,ic Pr,eservatiorr Acl (16 U.S.C. §§ 470 et seq.)
Section 106 of the National Historic Preservation Act (NHPA) (16 U.S.C. § 470f) and the
Advisory Council on Historic Preservation (ACHP) implementing regulations (36 C.F.R.
Part 800) require that Federal agencies take into account the effects of their undertakings on
historic properties and, when appropriate, provide the ACHP with a reasonable opportunity
to comment. Historic properties include but are not necessarily limited to districts, buildings,
structures, sites and objects. In this connection, archeological resources and sites that may be
of traditional religious and cultural importance to Federally -recognized Indian Tribes,
Alaskan Native Villages and Native Hawaiian Organizations may be considered historic
properties. Non -Federal entities are required to identify to the awarding agency any effects
the award may have on properties included on or eligible for inclusion on the National
Register of Historic Places. Non -Federal entities may also be requested to assist DOC in
consulting with State or Tribal Historic Preservation Officers, ACHPs or other applicable
interested parties necessary to identify, assess, and resolve adverse effects to historic
properties. Until such time as the appropriate NHPA consultations and documentation are
complete and in the event that any additional information is required during the period of
performance in order to assess project impacts on historic properties, funds can be withheld
by the Grants Officer under a specific award condition requiring the non -Federal entity to
28 112 November 2020
submit any information sufficient to enable DOC to make the requisite assessment Linder the
NHPA.
Additionally, non -Federal entities are required to assist the DOC in assuring compliance
with the Archeological and Historic Preservation Act of 1974 (54 U.S.C. § 312502 et seq.,
formerly 16 U.S.C. § 469a-1 et seq.); Executive Order 11593 (Protection and Enhancement
of the Cultural Environment, May 13, 1971); Executive Order 13006 (Locating Federal
Facilities on Historic Properties in Our Nation's Central Cities, May 21, 1996); and
Executive Order 13007 (Indian Sacred Sites, May 24, 1996).
c. Executive Order 11988 (Floodplain Management) and Executive Order 11990
(Prolectiou of Wetlands)
Non -Federal entities must identify proposed actions in Federally defined floodplains and
wetlands to enable DOC to decide whether there is an alternative to minimize any potential
harm.
al. Clean Air Act (4.2 U.S.C. §§ 7401 et seq.), Federal Walter Pollution Control Act
(11:3 U.S.C. §§ 1251 et seq.) (Clean Water Act), and Exectalive Order 11738 ("Providing
for administraetion of the Clean Air Act and the Federal Water Pollution Control Act
with respect to Federal contracts, grants or loans")
Non -Federal entities must comply with the provisions of the Clean Air Act (42 U.S.C. §§
7401 et seq.), Clean Water Act (33 U.S.C. §§ 1251 et seq.), and E.O. 11738 (38 FR 25161),
and must not use a facility on the Excluded Parties List (EPL) (located on the System for
Award Management (SAM) website, SAM.gov) in performing any award that is nonexempt
under 2 C.P.R. § 1532, and must notify the Program Officer in writing if it intends to use a
facility that is on the EPL or knows that the facility has been recommended to be placed on
the EPL.
e. The blood DisasterProtection Act (42 U.S.C. §§ 1002 etseq.)
Flood insurance, when available, is required for Federally assisted construction or
acquisition in flood -prone areas. Per 2 C.F.R. § 200.447(a), the cost of required flood
insurance is an allowable expense, if it is reflected in the approved project budget.
l'. 'Fire rridangered Species Act (16 U.S.C. §§ IS31 et seq.)
Non -Federal entities must identify any impact or activities that may involve a threatened
or endangered species. Federal agencies have the responsibility to ensure that no adverse
effects to a protected species or habitat occur from actions under Federal assistance awards
and conduct the reviews required under the Endangered Species Act, as applicable.
g. The Coastal Zone Management Act (1€5 U.S.C. 9 1451 et seq.)
Funded projects must be consistent with a coastal State's approved management program
for the coastal zone.
29 1 12 November 2020
lr. The Coastal Barriers Resources Act (16 U.S.C. §§ 3501 et seq.)
Only in certain circumstances can Federal funding be provided for actions within a
Coastal Barrier System.
i. The Wild and Scenic Rivers Act (16 U.S.(— §§ 1271 et serf.)
This Act applies to awards that may affect existing or proposed components of the
National Wild and Scenic Rivers system.
j. The Sale Drinking Water Act of 1974, as amended, (42 U.S.C. §§ 300t el seq.)
This Act precludes Federal assistance for any project that the EPA determines may
contaminate a sole source aquifer which threatens public health.
1t. The Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 el seq.)
This Act regulates the generation, transportation, treatment, and disposal of hazardous
wastes, and provides that non -Federal entities give preference in their procurement programs
to the purchase of recycled products pursuant to EPA guidelines.
I. The Coinprelrensive Environuental Response, Compensation, and Liability Act
(CERCLA, coirrnronly lrraowra as Sul)erf ind) (42 U.S.C. §§ 9601 etseq.) and tine
Com mttnity Environmental Response Facilitation Act (42 U.S.C. § 9601. note et seq.)
These requirements address responsibilities related to hazardous substance releases,
threatened releases and environmental cleanup. There are also reporting and community
involvement requirements designed to ensure disclosure of the release or disposal of
regulated substances and cleanup of hazards to state and local emergency responders.
rn. Executive Order 12090 („Federal Actions to Address Environmental Justice in
Minority Populations and Low Income Popedations")
Federal agencies are required to identify and address the disproportionately high and
adverse human health or environmental effects of Federal programs, policies, and activities
on low income and minority populations.
n. The Magnuson -Stevens Fishery Conservation and Management Act (16 U.S.C. §
1-1301 et seed.)
Non -Federal entities must identify to DOC any effects the award may have on essential
fish habitat (EFH). Federal agencies which fund, permit, or carry out activities that may
adversely impact EFH are required to consult with the National Marine Fisheries Service
(NMFS) regarding the potential effects of their actions and respond in writing to NMFS
recommendations. These recommendations may include measures to avoid, minimize,
mitigate, or otherwise offset adverse effects on EFH. In addition, NMFS is required to
comment on any state agency activities that would impact EFH. Provided the specifications
outlined in the regulations are met, EFH consultations will be incorporated into interagency
30 1 12 November 2020
procedures previously established under NEPA, the ESA, Clean Water Act, Fish and
Wildlife Coordination Act, or other applicable statutes.
o. Clearer Water Act (CWA) Section 404 (33 U.S.C. § 1344)
CWA Section 404 regulates the discharge of dredged or fill material into waters of the
United States, including wetlands. Activities in waters of the United States regulated under
this program include fill for development, water resource projects (such as levees and some
coastal restoration activities), and infrastructure development (such as highways and
airports). CWA Section 404 requires a permit from the U.S. Army Corps of Engineers
before dredged or fill material may be discharged into waters of the United States, unless the
activity is exempt from Section 404 regulation (e.g., certain farming and forestry activities).
p. Rivers and Harbors Act (33 U.S.C. § 407)
A permit may be required from the U.S. Army Corps of Engineers if the proposed
activity involves any work in, over or under navigable waters of the United States.
Recipients must identify any work (including structures) that will occur in, over or under
navigable waters of the United States and obtain the appropriate permit, if applicable.
c1. The Migratory Bird'17realy Act (16 U.S.C. §§ 703-712), Bald and Golden Eagle
Protection Act (16 U.S.C. § 668 el seq.), and Executive Order 131_86 (Responsibilities
of Fedei al Agencies to Protect Migratory Birds, January 10, 2001)
Many prohibitions and limitations apply to projects that adversely impact migratory birds
and bald and golden eagles. Executive Order 13186 directs Federal agencies to enter a
Memorandum of Understanding with the U.S. Fish and Wildlife Service to promote
conservation of migratory bird populations when a Federal action will have a measurable
negative impact on migratory birds.
r. Executive Order 13112 (Invasive Species, February 3, 1999)
Federal agencies must identify actions that may affect the status of invasive species and
use relevant programs and authorities to: (i) prevent the introduction of invasive species; (ii)
detect and respond rapidly to and control populations of such species in a cost-effective and
environmentally sound manner; (iii) monitor invasive species populations accurately and
reliably; (iv) provide for restoration of native species and habitat conditions in ecosystems
that have been invaded; (v) conduct research on invasive species and develop technologies to
prevent introduction and provide for environmentally sound control of invasive species; and
(vi) promote public education on invasive species and the means to address them. In
addition, an agency may not authorize, fund, or carry out actions that it believes are likely to
cause or promote the introduction or spread of invasive species in the United States or
elsewhere.
w. Fish and Wildlife Coordination Act (16 U.S.C.. § 661 et seq.)
During the planning of water resource development projects, agencies are required to
give fish and wildlife resources equal consideration with other values. Additionally, the U.S.
311 12 November 2020
Fish and Wildlife Service and fish and wildlife agencies of states must be consulted
whenever waters of any stream or other body of water are "proposed or authorized, permitted
or licensed to be impounded, diverted... or otherwise controlled or modified" by any agency
under a Federal permit or license.
.ITr3 OTHER NATIONAL POLICY REOUllffiMLINITS
:a. Buy -American Preferences
Strengthening Buy -American Preferences for Infrastructure Projects. Recipients of
covered programs (as defined in Executive Order 13858, 31 January 2019, and 2 C.F.R.
§200.322 (Domestic preferences for procurements)) are hereby notified that they are
encouraged to use, to the greatest extent practicable, iron and aluminum as well as steel,
cement, and other manufactured products produced in the United States in every contract,
subcontract, purchase order, or subaward that is chargeable under this Award.
h. Criminal and Prohibited Activities
1. The Program Fraud Civil Remedies Act (31 U.S.C. § 3801 et seq,), provides for the
imposition of civil penalties against persons who make false, fictitious, or fraudulent claims
to the Federal Government for money (including money representing grants, loans, or other
benefits).
2. The False Claims Amendments Act of 1986 and the False Statements Accountability Act
of 1996 (18 U.S.C. §§ 287 and 1001, respectively), provide that whoever makes or presents
any false, fictitious, or fraudulent statement, representation, or claim against the United
States must be subject to imprisonment of not more than five years and must be subject to a
fine in the amount provided by 18 U.S.C. § 287.
3. The Civil False Claims Act (31 U.S.C. §§ 3729 - 3733), provides that suits can be
brought by the government, or a person on behalf of the government, for false claims made
under Federal assistance programs.
4. The Copeland Anti -Kickback Act (18 U.S.C. § 874), prohibits a person or organization
engaged in a Federally supported project from enticing an employee working on the project
from giving up a part of his compensation under an employment contract. The Copeland
Anti -Kickback Act also applies to contractors and subcontractors pursuant to 40 U.S.C. §
3145.
5. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970
(42 U.S.C. § 4601 et seq.) and implementing regulations issued at 15 C.F.R. Part 11, which
provides for fair and equitable treatment of displaced persons or persons whose property is
acquired as a result of Federal or Federally -assisted programs. These requirements apply to
all interests in real property acquired for project purposes regardless of Federal participation
in purchases.
32 112 November 2020
6. The Hatch Act (5 U.S.C. §§ 1501-1508 and 7321-7326), which limits the political
activities of employees or officers of state or local governments whose principal employment
activities are funded in whole or in part with Federal funds.
7. To ensure compliance with Federal law pertaining to financial assistance awards, an
authorized representative of a non -Federal entity may be required to periodically provide
certain certifications to the DOC regarding Federal felony and Federal criminal tax
convictions, unpaid federal tax assessments, delinquent Federal tax returns and such other
certifications that may be required by Federal law.
c. Drug -Free Workplace
The non -Federal entity must comply with the provisions of the Drug -Free Workplace Act
of 1988 (41 U.S.C. § 8102) and DOC implementing regulations published at 2 C.F.R. Part
1329 (Requirements for Drug -Free Workplace (Financial Assistance)), which require that the
non -Federal entity take certain actions to provide a drug -free workplace.
d. Foreign Travel
1. Each non -Federal entity must comply with the provisions of the Fly America Act (49
U.S.C. § 40118). The implementing regulations of the Fly America Act are found at 41
C.F.R. §§ 301-10.131 through 301-10.143.
2. The Fly America Act requires that Federal travelers and others performing U.S.
Government -financed air travel must use U.S. flag air carriers, to the extent that service by
such carriers is available. Foreign air carriers may be used only in specific instances, such as
when a U.S. flag air carrier is unavailable or use of U.S, flag air carrier service will not
accomplish the agency's mission.
3. One exception to the requirement to fly U.S. flag carriers is transportation provided under
a bilateral or multilateral air transport agreement, to which the United States Government and
the government of a foreign country are parties, and which the Department of Transportation
has determined meets the requirements of the Fly America Act pursuant to 49 U.S.C. §
40118(b). The United States Government has entered into bilateral/multilateral "Open Skies
Agreements" (U.S. Government Procured Transportation) that allow federal funded
transportation services for travel and cargo movements to use foreign air carriers under
certain circumstances. There are multiple "Open Skies Agreements" currently in effect. For
more information about the current bilateral and multilateral agreements, visit the GSA
website. Information on the Open Skies agreements (U.S. Government Procured
Transportation) and other specific country agreements may be accessed via the Department
of State's website.
4. If a foreign air carrier is anticipated to be used for any portion of travel under a DOC
financial assistance award, the non -Federal entity must receive prior approval from the
Grants Officer. When requesting such approval, the non -Federal entity must provide a
justification in accordance with guidance provided by 41 C.F.R. § 301-10.142, which
requires the non -Federal entity to provide the Grants Officer with the following: name; dates
33 112 November 2020
of travel; origin and destination of travel; detailed itinerary of travel; name of the air carrier
and flight number for each leg of the trip; and a statement explaining why the non -Federal
entity meets one of the exceptions to the regulations, if the use of a foreign air carrier is
pursuant to a bilateral agreement, the non -Federal entity must provide the Grants Officer with
a copy of the agreement or a citation to the official agreement available on the GSA website.
The Grants Officer must make the final determination and notify the non -Federal entity in
writing (which may be done through the recipient in the case of subrecipient travel). Failure
to adhere to the provisions of the Fly America Act will result in the non -Federal entity not
being reimbursed for any transportation costs for which any non -Federal entity improperly
used a foreign air carrier.
Note: When using code -sharing flights (two or more airlines having flight numbers
assigned to the same flight) involving U.S. flag carriers and non-U.S. flag carriers, the airline
symbol and flight number of the U.S. flag carrier must be used on the ticket to qualify as a
U.S. flag carrier (e.g. "Delta Airlines Flight-YA'AT, operated by KLM"). Conversely, if the
ticket shows "[Foreign Air C'arrier],M,, operated by Delta," that travel is using a foreign
air carrier and is subject to the Fly America Act and must receive prior approval from the
Grants Officer as outlined in paragraph 6.05.d.4.
e. Increasing Seat Belt Use in the United States
Pursuant to E.O. 13043 (62 FR 19217), non -Federal entities should encourage employees
and contractors to enforce on-the-job seat belt policies and programs when operating
company -owned, rented, or personally owned vehicles.
t'. federal Employee Expenses and Subawurds or Contracts Issued to Federal
Employees or Agencies
1. Use of award funds (Federal or non -Federal) or the non -Federal entity's provision of in -
kind goods or services for the purposes of transportation, travel, or any other expenses for
any Federal employee may raise appropriation augmentation issues. In addition, DOC policy
may prohibit the acceptance of gifts, including travel payments for federal employees, from
non -Federal entities regardless of the source. Therefore, before award funds may be used by
Federal employees, non -Federal entities must submit requests for approval of such action to
the Federal Program Officer who must review and male a recommendation to the Grants
Officer. The Grants Officer will notify the non -Federal entity in writing (generally through
the recipient) of the final determination.
2. A non -Federal entity or its contractor may not issue a subaward, contract or subcontract
of any part of a DOC award to any agency or employee of DOC or to other Federal
employee, department, agency, or instrumentality, without the advance prior written approval
of the DOC Grants Officer.
g;. Minority Sei°wig lrastitrrtions iarititrtive
Pursuant to E.O.s 13555 (White House Initiative on Educational Excellence for
Hispanics) (75 FR 65417), 13592 (Improving American Indian and Alaska Native
34 112 November 2020
Educational Opportunities and Strengthening Tribal Colleges and Universities) (76 FR
76603), and 13779 (White House Initiative to Promote Excellence and Innovation at
Historically Black Colleges and Universities) (82 FR 12499), DOC is strongly committed to
broadening the participation of minority serving institutions (MSIs) in its financial assistance
programs. DOC's goals include achieving full participation of MSIs to advance the
development of human potential, strengthen the Nation's capacity to provide high -quality
education, and increase opportunities for MSIs to participate in and benefit from Federal
financial assistance programs. DOC encourages all applicants and non -Federal entities to
include meaningful participation of MSIs. Institutions eligible to be considered MSIs are
listed on the Department of Education website.
I®. Research Misconduct
The DOC adopts, and applies to financial assistance awards for research, the Federal
Policy on Research Misconduct (Federal Policy) issued by the Executive Office of the
President's Office of Science and Technology Policy on December 6, 2000 (65 FR 76260).
As provided for in the Federal Policy, research misconduct refers to the fabrication,
falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting
research results. Research misconduct does not include honest errors or differences of
opinion. Non -Federal entities that conduct extramural research funded by DOC must foster
an atmosphere conducive to the responsible conduct of sponsored research by safeguarding
against and resolving allegations of research misconduct. Non -Federal entities also have the
primary responsibility to prevent, detect, and investigate allegations of research misconduct
and, for this purpose, may rely on their internal policies and procedures, as appropriate, to do
so. Non -Federal entities must notify the Grants Officer of any allegation that meets the
definition of research misconduct and detail the entity's inquiry to determine whether there is
sufficient evidence to proceed with an investigation, as well as the results of any
investigation. The DOC may take appropriate administrative or enforcement action at any
time under the award, up to and including award termination and possible suspension or
debarment, and referral to the Commerce OIG, the U.S. Department of Justice, or other
appropriate investigative body.
i. Research Involving; Human Subjects
1. All proposed research involving human subjects must be conducted in accordance with
15 CY R. Part 27 (Protection of Human Subjects). No research involving human subjects is
permitted under this award unless expressly authorized by specific award condition, or
otherwise in writing by the Grants Officer.
2. Federal policy defines a human subject as a living individual about whom an investigator
(whether professional or student) conducting research (1) Obtains information or
biospecimens through intervention or interaction with the individual, and uses, studies, or
analyzes the information or biospecimens; or (2) Obtains, uses, studies, analyzes, or
generates identifiable private information or identifiable biospecimens. Research means a
systematic investigation, including research development, testing and evaluation, designed to
develop or contribute to generalizable knowledge.
351 12 November 2020
3. DOC regulations at 15 C.F.R. Part 27 require that non -Federal entities maintain
appropriate policies and procedures for the protection of human subjects. In the event it
becomes evident that human subjects may be involved in this project, the non -Federal entity
(generally through the recipient) must submit appropriate documentation to the Federal
Program Officer for approval by the appropriate DOC officials. As applicable, this
documentation must include:
i. Documentation establishing approval of an activity in the project by an Institutional
Review Board (IRB) under a Federal wide Assurance issued by Department of Health
and Human Services or other Federal agency guidelines (see also 15 C.F.R. § 27.103);
ii. Documentation to support an exemption for an activity in the project under 15 C.F.R.
§ 27.104(d);
iii. Documentation of IRB approval of any modification to a prior approved protocol or
to an informed consent form;
iv. Documentation of an IRB approval of continuing review approved prior to the
expiration date of the previous IRB determination; and
v. Documentation of any reportable events, such as serious adverse events,
unanticipated problems resulting in risk to subjects or others, and instances of
noncompliance.
4. No work involving human subjects maybe undertaken, conducted, or costs incurred
and/or charged for human subjects research, until the appropriate documentation is approved
in writing by the Grants Officer. In accordance with 15 C.F.R. § 27.118, if research
involving human subjects is proposed after an award is made, the non -Federal entity must
contact the Federal Program Officer and provide required documentation. Notwithstanding
this prohibition, work may be initiated or costs incurred and/or charged to the project for
protocol or instrument development related to human subjects research.
j, f aot,e and Use of Live Ve tebr°ate Ani pals
Non -Federal entities must comply with the Laboratory Animal Welfare Act of 1966, as
amended, (Pub. L. No. 89-544, 7 U.S.C. §§ 2131 et seq.) (animal acquisition, transport, care,
handling, and use in projects), and implementing regulations (9 C.F.R. Parts 1, 2, and 3); the
Endangered Species Act (16 U.S.C. §§ 1531 et seq.); Marine Mammal Protection Act (16
U.S.C. §§ 1361 el seq.) (taking possession, transport, purchase, sale, export or import of
wildlife and plants); the Nonindigenous Aquatic Nuisance Prevention and Control Act (16
U.S.C. §§ 4701 et seq.) (ensure preventive measures are taken or that probable harm of using
species is minimal if there is an escape or release); and all other applicable statutes pertaining
to the care, handling, and treatment of warm-blooded animals held for research, teaching, or
other activities supported by Federal financial assistance. No research involving vertebrate
animals is permitted under any DOC financial assistance award unless authorized by the
Grants Officer.
36 112 November 2020
It. Mntaageknc kit anrtl Access tar D tla anti Ptklrlications
1. In General. The recipient acknowledges and understands that information and data
contained in applications for financial assistance, as well as information and data contained
in financial, performance and other reports submitted by recipients, may be used by the DOC
in conducting reviews and evaluations of its financial assistance programs. For this purpose,
recipient information and data may be accessed, reviewed and evaluated by DOC employees,
other Federal employees, Federal agents and contractors, and/or by non -Federal personnel,
all of who enter into appropriate or are otherwise subject to confidentiality and nondisclosure
agreements covering the use of such information. Recipients are expected to support
program reviews and evaluations by submitting required financial and performance
information and data in an accurate and timely manner, and by cooperating with DOC and
external program evaluators. In accordance with 2 C.F.R. § 200.303(e), recipients are
reminded that they must take reasonable measures to safeguard protected personally
identifiable information and other confidential or sensitive personal or business information
created or obtained relating to a DOC financial assistance award.
2. Scientific Data. Non -Federal entities must comply with the data management and access
to data requirements established by the DOC funding agency as set forth in the applicable
Notice of Funding Opportunity and/or in Specific Award Conditions.
3. Publications, Videos, and Acknowledgment of Sponsorship
i. Publication of results or findings inappropriate professional journals and production
of video or other media is encouraged as an important method of recording, reporting and
otherwise disseminating information and expanding public access to federally -funded
projects (e.g., scientific research). Non -Federal entities must comply with the data
management and access to data requirements established by the DOC funding agency as
set forth in the applicable Notice of Funding Opportunity and/or in Specific Award
Conditions.
ii. Non -Federal entities may be required to submit a copy of any publication materials,
including but not limited to print, recorded, or Internet materials, to the funding agency.
iii. When releasing information related to a funded project, non -Federal entities must
include a statement that the project or effort undertaken was or is sponsored by DOC and
must also include the applicable financial assistance award number.
iv. Non -Federal entities are responsible for assuring that every publication of material
based on, developed under, or otherwise produced pursuant to a DOC financial assistance
award contains the following disclaimer or other disclaimer approved by the Grants
Officer:
This [reportivideoletc.] was prepared by [recipient nane] using Federal funds under
award [number] from [name o] operating unit], U.S. Department of Conunerce. The
statements, findings, conclusions, and recommendations are those oj'the author(s) and do
37 1 12 November 2020
not necessarily reflect the views of the [name of operating unit] or the U.S. Department
of'Commerce.
1. floutel�iti(f Secui,ity Pi•"i(leittial Directive
If the performance of this DOC financial assistance award requires non -Federal entity
personnel to have routine access to Federally -controlled facilities andlor Federally -controlled
information systems (for purpose of this term "routine access" is defined as more than 180
calendar days), such personnel must undergo the personal identity verification credential
process. In the case of foreign nationals, the DOC will conduct a check with U.S.
Citizenship and Immigration Services' (USCIS) Verification Division, a component of the
Department of Homeland Security (DHS), to ensure the individual is in a lawful immigration
status and that he or she is eligible for employment within the United States. Any items or
services delivered under a financial assistance award must comply with DOC personal
identity verification procedures that implement Homeland Security Presidential Directive 12
(Policy for a Common Identification Standard for Federal Employees and Contractors),
Federal Information Processing Standard (TIPS) PUB 201, and OMB Memorandum M-05-
24. The recipient must ensure that its subrecipients and contractors (at all tiers) performing
work under this award comply with the requirements contained in this term. The Grants
Officer may delay final payment under an award if the subrecipient or contractor fails to
comply with the requirements listed in the term below. The recipient must insert the
following term in all subawards and contracts when the subaward recipient or contractor is
required to have routine physical access to a Federally -controlled facility or routine access to
a Federally -controlled information system:
The subrecipient or contractor natst comply with DOC personal identitt, verification
Procedures identified in the subaward or contract that implement Homeland Security
Presidential Directive 12 (HSPD-12), Office of'Managernent and Budget (OMB)
Guidance dI 05-24, as amended, and Federal Information Processing Standards
Publication (FIPS PUB) Number 201, cis amended, for all employees under this
subaward or contract who require routine physical access to a Federally -controlled
facility or routine access to a Federally -controlled information system.
The subrecipient or contractor must account for all forms of Government provided
identification issued to the subrecipient or contractor employees in connection with
performance under this subaward or contract. The subrecipient or contractor must
return such identt,'fication to the issuing agencv at the earliest of any of the following.
unless otherwise determined by DOC. (1) When no longer needed,for seubaivard or
contract performance; (2) Upon completion of the subrecipient or contractor emplovee
employment; (3) Upon subaward or contract completion or termination.
ill. Compliance with Departurent of connnerce t3ureali of Industry and Security
Export Adirrinistration Regulations
1. This clause applies to the extent that this financial assistance award encompasses
activities that involve export -controlled items.
38 1 12 November 2020
2. In performing this financial assistance award, a non -Federal entity may participate in
activities involving items subject to export control (export -controlled items) under the
Export Administration Regulations (EAR). The non -Federal entity is responsible for
compliance with all applicable laws and regulations regarding export -controlled items,
including the EAR's deemed exports and re-exports provisions. The non -Federal entity
must establish and maintain effective export compliance procedures at DOC and non-DOC
facilities, including facilities located abroad, throughout performance of the financial
assistance award. At a minimum, these export compliance procedures must include
adequate restrictions on export -controlled items, to guard against any unauthorized exports,
including in the form of releases or transfers to foreign nationals. Such releases or transfers
may occur through visual inspection, including technology transmitted electronically, and
oral or written communications.
3. Definitions
Export -controlled items. Items (commodities, software, or technology), that are
subject to the EAR (15 C.F.R. §§ 730-774), implemented by the DOC's Bureau of
Industry and Security. These are generally known as "dual -use" items, items with
a military and commercial application. The export (shipment, transmission, or
release/transfer) of export -controlled items may require a license from DOC.
Deemed Export/Re-export. The EAR defines a deemed export as a release or transfer
of export -controlled items (specifically, technology or source code) to a foreign person
(foreign national) in the U.S. Such release is "deemed" to be an export to the foreign
person's most recent country of citizenship or permanent residency (see 15 C.F.R. §
734.13(a)(2) & (b)). A release may take the form of visual inspection or oral or
written exchange of information. See 15 C.F.R. § 734.15(a). If such a release or
transfer is made abroad to a foreign person of a county other than the country where
the release occurs, it is considered a deemed re-export to the foreign person's most
recent country of citizenship or permanent residency. See 15 C.F.R. § 734.14(a)(2).
Licenses from DOC may be required for deemed exports or re-exports. An act
causing the release of export -controlled items to a foreign person (e.g., providing or
using an access key or code) may require authorization from DOC to the same extent
that an export or re-export of such items to the foreign person would. See 15 C.F.R.
734.15(b).
4. The non -Federal entity must secure all export -controlled items that it possesses or that
comes into its possession in performance of this financial assistance award, to ensure that
the export of such items, including in the form of release or transfer to foreign persons, is
prevented, or licensed, as required by applicable Federal laws, E.O.s, and/or regulations,
including the EAR.
As applicable, non -Federal entity personnel and associates at DOC sites will be informed of
any procedures to identify and protect export -controlled items from unauthorized export.
39 112 November 2020
6. To the extent the non -Federal entity wishes to release or transfer export -controlled items to
foreign persons, the non -Federal entity will be responsible for obtaining any necessary
licenses, including licenses required under the EAR for deemed exports or deemed re-
exports. Failure to obtain any export licenses required under the EAR may subject the non -
Federal entity to administrative or criminal enforcement. See 15 C.F.R. part 764.
7. Nothing in the terns of this financial assistance award is intended to change, supersede, or
waive the requirements of applicable Federal laws, E.O.s or regulations.
9. Compliance with this term will not satisfy any legal obligations the non -Federal entity may
have regarding items that may be subject to export controls administered by other agencies
such as the Department of State, which has jurisdiction over exports and re-exports of
defense articles and services subject to the International Traffic in Arms Regulations
(ITAR) (22 C.F.R. § § 120-130), including the release of defense articles to foreign persons
in the United States and abroad.
9. The non -Federal entity must include the provisions contained in this term in all lower tier
transactions (subawards, contracts, and subcontracts) under this financial assistance award
that may involve research or other activities that implicate export -controlled items.
oa. The Trafficking Victims Protection Act of 2000 (22 U&C. § 7104(g)), as
aauetatted, and the impleaawo ing regolrations at 2 C;.FAI. Part'175
The Trafficking Victims Protection Act of 2000 authorizes termination of financial assistance
provided to a private entity, without penalty to the Federal Government, if any non -Federal entity
engages in certain activities related to trafficking in persons. The DOC hereby incorporates the
following award term required by 2 C.F.R. § 175.15(b):
Trafficking in persons.
a. Provisions applicable to a recipient that is a private entity.
1. You as the recipient, your employees, subrecipients under this award, and subrecipients'
employees may not—
i. Engage in severe forms of trafficking in persons daring the period of time that the
award is in effect;
it. procure a connnercial sex act during the period of (line that the award is in effect; or
iii. Use forced labor in the performance of'the award or subawards under the award.
401 12 November 2020
2. We as the Federal awarding agency mail unilaterally terminate this award, without
penalty, tfYou or a subrecipient that is a private entity
i. Is determined to have violated a prohibition in paragraph a.1 of this award term; or
it. Has an emplovee who is determined by the agency official authorized to terminate the
award to have violated a prohibition in paragraph a.l of this award term through conduct
that is either— (A) Associated with performance under this award; or (B) Imputed to you
or the subrecipient using the standards and due process for imputing the conduct of'an
individual to an organization that are provided in 2 C.F.R. Part 180 (OMB Guidelines to
Agencies on Governmentwide Debarment and Suspension—Nooproca•enneni), as
implemented by DOC at 2 C.F.R. Part 1326 (Nonpr•ocurement Debarment and
Suspension).
b. Provision applicable to a recipient other than a private entity. We as the Federal
awarding agency may unilaterally ter•rrninate this award, without penalty, if a subrecipient thin is
a private enIh,v
1. Is determined to have violated urn applicable prohibition in paragraph a.1 of this award
terns; or
2. Has an employee who is determined by the agency official authorized to terminate the
award to have violated can applicable prohibition in paragraph a.1 of this award term
through conduct that is either
i. Associated with performance under this award: or
ii. Imputed to the subrecipient using the standards and titre process for imputing the
conduct of an individual to an organization that are provided in 2 C.F.R. Part 180 (OMB
Guidelines to Agencies on Governmentivide Debarment and Suspension —
Nonprocuacmem), as implemented by DOC at 2 C.F.R. Part 1326, (Nooproc•urennent
Debarment and Suspension).
c. Provisions applicable to any recipient.
1. ) ou must inform its immediately of any information you receive from any source
alleging a violation of a prohibition in paragraph a.l of this award term.
2. Our right to terminate unilaterally that is described in paragraph a.2 or b of this
section:
i. Implements section 106(g) of the Trafficking Victims Protection Act of'2000 (TVPA),
as amended (22 U.S.C. 7104(g)), and
ii. Is in addition to all other remedies•for noncompliance that are available to its under
this award.
411 12 November 2020
3. You must include the requirements of paragraph a.] of this award term in tiny subawa^d
you make to a private entity.
d. Definitions. For purposes of this award term:
1. "Employee" means either:
i. An individual employed F v you or a subrecipient who is engaged in the performance of
the project or program under this award; or
ii. Another person engaged in the performance of the project or program under this
award and not compensated by you including, but not limited to, a volunteer or individual
whose services are contributed by a third party as an in -kind contribution toward cost
sharing or snatching requirements.
2. "Forced labor" means labor obtained by any of the following methods: the recruitment,
harboring, transpoJTation, pt^oyision, or obtaining of a person for^ labor or services, through
the use of force, fi^aud, or coercion for the purpose of subjection to invobmta v servitude,
peonage, debt bondage, or slaverv.
3. `Private entity":
i. Means anv entity other than « State, local government, Indian tribe, or foreign public
entity, as those terms are defined in 2 C.F.R. § 175,25;
ii. Incl:uies: (A) A nonprofit organization, including any nonprofit institutiota of higher
education, hospital, or tribal organization other than one included in the definition of
Indian tribe at 2 CER. § 175.25(b); and (B) A fin^ profit organization.
4. "Severe forms of trafficking in persons, " "commercial sex act, " and "coercion" have the
meanings given at section 103 of the TVPA, as amended (22 U.S.C. § 7102).
u. The Federal Funding Accountability aud'frmir;p:arency Act (F ATA) (3 9_ tLS.C.
§ €,t 01- note)
1. R(mortine Subawards and Executive Compensation. Under FFATA, recipients of
financial assistance awards of $30,000 or more are required to report periodically on executive
compensation and subawards, as described in the following term from 2 C.F.R. Part 170,
Appendix A, which is incorporated into this award:
Reporting Subawards and Executive Compensation
a. Reporting of first -tier subawards.
1. Applicability. Unless you are exempt cis provided in paragraph d. of this award term,
you must report each action that equals at- exceeds $30, 000 in Federal,fimds for^ a subaward
42 112 November 2020
to a non -Federal entity oi• Federal agenev (see def`nitions in paragraph e, of this award
term).
2. Where and when to report.
i. You must report each obligating action described in paragraph a.1, of this award term
to htln:i,5rtrw.firs.eov.
it. For subaward information, report no later than the end of the month following the
month its which the obligation was made. (For example, if the obligation was made on
November 7, 2010, the obligation must be reported by no later than December 31, 2010.)
3. What io report. You must report the information about each obligating action that the
submission instructions posted ct h(tn: Uirsrtii . fsrs.t ov sped .
b. Reporting Total Compensation of Recipient Executives for non -Federal entities.
1. Applicability and ivhal to report. You must report total compensation for each of your
five most highly compensated executives for the preceding completed fiscal year, if
i. the total Federal funding authorized to dale under this Federal award equals or
exceeds $30,000 as defined in 2 CYR § 170.320;
ii. in the p•ecedingfiscal year, you reeeived—
(A) 80 percent or• more of'yoni• animal gross reventies,frona Federal procurenrerrt
contracts (and subcontracts) and Federal financial assistance subject to the
Transparency Act, as defined at 2 C.F.R. § 170.320 (and subtm,ards), and
A $25, 000, 000 m• more in annual gross revenues from Federal procurement contracts
(and subcontracts) and Federal financial assistance subject to the Transparencv
Act, as defined at 2 C.F.R. § 170.320 (and submi,ards); and,
iii. The public does not have access to information about the compensation of the
executives thorough periodic reports filed muter section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (15 U.S.C. § 78m(a), 78o(d)) or section 6104 of the Inlernal Revenue
Code of 1986. (To determine if the public has access to the compensation information, see
the U.S. Security and Exchange Commission total compensation filings al
hat,:%ha�ww.sec.t?ov!answers/erecuni>>Jihn )
2. Where and when to report. You must report executive total compensation described in
paragraph b.1. of this award term:
i. As par( of your registration profile found at the Svsteni for Award Management (SAM)
website located at httn,s://�i,ii,tr.sam.c>or.
43 112 November 2020
ii. By the end of'the month following the month in which this award is made, and
annually' thereafter.
c. Reporting gf'Total Compensation of Subrecipient Executives.
1. Applicability and what to report. Unless yott ar•e exempt cis pl•ovided in paragraph d. of
this award term, for each first -tier non -Federal entity Subrecipient under this award you
shall report the names and total compensation of each of the subrecipient's, five most highly
compensated executives for the subrecipieni's preceding completed fiscal Year, if
i. in the subreeipient's precedingfiscal year, the subrecipient received —
(A) 80 percent or more gJ'its annual gross revenues front Federal procurernew
contracts (and subc•ont•acts) and Federal financial assistance subject to the
Transparency Act, as defined at 2 C.F.R. § 170.320 (and sabawards) and,
(B) $25, 000, 000 or more in annual gloss revenues from Federal procurement contracts
(and subcontracts), and Federal financial assistance subject to the Transporency
Act (and subawards): cad
fi. The public does not have access to information about the compensation of the
executives through periodic reports filed under section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue
Code of'1986. (To determine if the public has access to the compensation information, rmation, see
the U.S. Security and Exchange Commission total compensation filings at
IIltn: hl'71'll'.s'ec.. Yol'lansll'ct•.Ylexec•olill).
See also 2 C.F.R. S 200.300(h),
2. Where and when to report. )Tou must report subrecipient executive total compensation
described in paragraph c.1, of this cmard terns:
i. To the recipient.
it. By the end of'the monih,following the month during which you make the subaward.
For example, if a subaward is obligated on any date during the month of October of a
given year (i.e., between October 1 and 31), van must report any required compensation
in formation of the subrecipient by November 30 of that year.
d. Exemptions. If, in the previous tax yea•, you had gross income, from all sources', under
$300, 000, t ota are exempt fr^olrt tl7e requirements to report: i. Subawards, and ii. The total
compensation of the five most highly compensated executives of any, subrecipient.
44 112 November 2020
e. Definitions. For purposes of'lhis award term:
1. Federal Agency means a Federal agency as defined at 5 U.S.C. 551(1) and,fia•ther
clarified by 5 U.S. 552(f).
2. Non -Federal entity means all of the following, as defined in 2 CF.R. Part 25:
i. A Governmental organization, which is a State, local government, or Indian tribe;
ii. A, foreign public• entity;
ill. A domestic or foreign nonprofit organization: and,
iv. A domestic or jbreign for prgfil organization.
3. Executive rraeans officers, managing partners, or anv other emplovees in management
positions.
4. Subaward:
i. This term means a legal instrument to provide supportfor the performance of'anv
portion of tlae substantive projector program fbr which you received this award and than
you cis the recipient award to an eligible subrecipient.
ii. The term does not include your procurement of property and services needed to carry
out the project or program (fbr further explanation, see 2 CFR C 200.331).
iii. A subaward rna'v be provided through anv legal agreement, including an agreement
that you or a subrecipient considers a contract.
5. Sarbrecipierrt means « non -Federal entity or Federal agency that:
i. Receives a subaward from you (the recipient) under this award; and
ii. Is accountable to you,for the use of the Federal,frrndsprovided by the subaward.
6. Total compensation means the cash and noncash dollar value earned by the executive
during the recipient's or subrecipienl's prec•edingfiscal year and includes the following (for
wore into see 17 C.F.R. § 229.402(c)(2)):
i. Salcay and bonus.
ii. Awards of stock, stock options, and stock appreciation rights. Use the dollcir amount
recognized,for financial statement reporting purposes with respect to the fiscal near' in
accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2004)
(FAS 123R), Shared Based Payments.
45 112 November 2020
iii. Earnings for services under non -equity incentive plans. This does not include groap
life, health, hospitalization or medical reimbursement plans that do not discriminate in
favor of executives, and are available generally to all salaried emplZvees.
iv. Change in pension value. This is the change in present value of 'defimed benefit and
actuarial pension plans.
v. Above -market earnings on deferred compensation which is not tax -qualified.
vi. Other compensation, if the aggregate value of all such other compensation (e.g.
severance, termination payments, value of life insurance paid on behalf of the employee,
perquisites or property) for the executive exceeds $10, 000.
2. Svstem for Award Management (SAMi and Universal Identifier Requirements --as
described in 2 C.F.R. Part 25, Appendix A, which is incorporated into this award:
System for Award Management (SAM) and Universal Identifier Requirements
a. Requirement for System for Award Management. Unless volt a?�e exertiptecl f-aan tliis
requirement under 2 C.F.R. § 25.110, you as the recipient must maintain current information in
the SAM. 77as includes information on your immediate and highest level owner and
subsidiaries, as well as on all of your predecessors that have been awarded a Federal contract
or Federal financial assistance within the last three vears, if applicable, until you submit the
final financial report required under this Federal award or receive the final payment, whichever
islater. This requires that you review and update the information at least annually after the
initial registration, and more frequently if required by changes in your information or another
Federal award term.
b. Requirement for Unique Entity Identifier. If you are authorized to make subarvards
under this Federal award, you.
1. Must notify potential subrecipients that no entity (see definition in paragraph c of this
award tern?) may receive a subaward f rom you until the entity has provided its Unique Entity
Identifier to you.
2. Mav not make a subaward to an entity unless the entity has provided its Unique Entity
Identifier to you. Subrecipients are not required to obtain all active SAMregistration, bat
must obtain a Unique Entity Identifier.
c. Definitions for purposes of this term:
1. SAM mea??s tl?e Federal repository into which a recipient must provide information
required for the conduct of business as a recipient. Additional i? formation ahout
registration procedures may be found at the SAMinternet site (currently at
htros:1 Arww.Srlall.eov).
46 112 November 2020
2. Unique Entity Identifier means the identifier assigned by SAMto uniquely idenl
business entities.
3. Entity includes non -Federal entities as defined at.' C.F.R. § 200.1 and also includes all
of the fbiiowing,, for proposes of this part:
i. A foreign organization;
ii. A foreign public entity;
iii. A domestic for I)rofit organization; and
iv. A Federal agencv.
d. Subaward has the meaning given in 2 C.FR § 200.1.
5. Subrecipient has the meaning given in 2 C.F.R § 200.1.
See also 2 C.F.R. § 200.300(b).
1). Recipient Integrity and Performance Matters (Ap1)etidix itiIto 2 C.F.R. fart:
2(m)
Reporting of Matters Related to Recipient Integrity and Performance
1. General Reporting Requirement. If the total value of your currently active grants,
cooperative agreements, and procurement contracts from all Federal awarding agencies
exceeds $10,000,000 for any period of time during the period of performance of this Federal
award, then you as the recipient during that period of time must maintain the currency of
information reported to the System for Award Management (SAM) that is made available in
the designated integrity and performance system (currently the Federal Awardee
Performance and Integrity Information System (FAPITS)) about civil, criminal, or
administrative proceedings described in paragraph 2 of this award term and condition. This
is a statutory requirement under section 872 of Public Law 110-417, as amended (41 U.S.C.
2313). As required by section 3010 of Public Law 111-212, all information posted in the
designated integrity and performance system on or after April 15, 2011, except past
performance reviews required for Federal procurement contracts, will be publicly available.
2. Proceedings About Which You Must Report. Submit the information required about
each proceeding that:
i. Is relating to the award or performance of a grant, cooperative agreement, or
procurement contract from the Federal Government;
ii. Reached its final disposition during the most recent five-year period; and
47 1 l2 November 2020
iii. Is one of the following:
(A) A criminal proceeding that resulted in a conviction, as defined in paragraph 5 of this
award term and condition;
(B) A civil proceeding that resulted in a finding of fault and liability and payment of a
monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more;
(C) An administrative proceeding, as defined in paragraph 5 of this award term and
condition, that resulted in a finding of fault and liability and your payment of either
a monetary fine or penalty of $5,000 or more or reimbursement, restitution, or
damages in excess of $100,000; or
(D)Airy other criminal, civil, or administrative proceeding if:
I. It could have led to an outcome described in paragraph 2.e,(1), (2), or (3) of this
award term and condition;
11. It had a different disposition arrived at by consent or compromise with an
acknowledgment of fault on your part; and
Ill. The requirement in this award term and condition to disclose information about
the proceeding does not conflict with applicable laws and regulations.
3. Reporting Procedures. Enter in the SAM Entity Management area the information that
SAM requires about each proceeding described in paragraph 2 of this award term and
condition. You do not need to submit the information a second time under assistance awards
that you received if you already provided the information through SAM because you were
required to do so under Federal procurement contracts that you were awarded.
4. Reporting Frequency. During any period when you are subject to the requirement in
paragraph 1 of this award term and condition, you must report proceedings information
through SAM for the most recent five-year period, either to report new information about any
proceeding(s) that you have not reported previously or affirm that there is no new
information to report. Recipients that have Federal contract, grant, and cooperative
agreement awards with a cumulative total value greater than $10,000,000 must disclose
semiannually any information about the criminal, civil, and administrative proceedings.
5. Definitions. For purposes of this award term and condition:
i. Administrative proceeding means a non -judicial process that is adjudicatory in nature
to make a determination of fault or liability (e.g., Securities and Exchange Commission
Administrative proceedings, Civilian Board of Contract Appeals proceedings, and Armed
Services Board of Contract Appeals proceedings). This includes proceedings at the Federal
and State level but only in connection with performance of a Federal contract or grant. It
does not include audits, site visits, corrective plans, or inspection of deliverables.
48 112 November 2020
ii. Conviction, for purposes of this award term and condition, means a judgment or
conviction of a criminal offense by any court of competent jurisdiction, whether entered
upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere.
iii. Total value of currently active grants, cooperative agreements, and procurement
contracts includes:
(A) Only the Federal share of the funding under any Federal award with a recipient cost
share or match; and
(B) The value of all expected funding increments under a Federal award and options,
even if not yet exercised.
at. Never Contract with the Enemy (2 C ,",R Part 183; 2 C.F.R. § 200.215)
Under 2 C.F.R. § 200.215 (Never contract with the enemy) Federal awarding agencies and
recipients are subject to the regulations implementing Never Contract with the Enemy in 2
C.F.R. Part 183. These regulations affect covered contracts, grants and cooperative agreements
that are expected to exceed $50,000 within the period of performance, are performed outside the
United States and its territories, and are in support of a contingency operation in which members
of the Armed Forces are actively engaged in hostilities.
1. Annlicability. This term applies only to recipients of covered grants or cooperative
agreements, as defined in 2 C.F.R. § 183.35 Definitions.
2. Requirements. As applicable, recipients must fulfill the requirements as described in the
following terms from 2 C.F.R. Part 183, Appendix A, which is incorporated into this award:
a. Term 1. Prohibition on Providing Funds to the Enemy.
1. The recipient natst—
Exercise due diligence to ensure that none of the fhmds, including sapplies and services,
received under this grant or cooperative agreement are provided directly or indirectly
(including through submrards or contracts) to a person or entity who is actively
opposing the United States or coalition forces involved in a contingencv operation in
which members of the Artned Forces are actively engaged in hostilities. which must be
completed through 2 CFR Part 180.300 prior to issuing a subaward or contract and;
ii. Terminate or void in whole or In part any subaward or contract with a person or entity
listed in SAMas a prohibited or restricted source pursuant to subtitle E of Title VIII of
the NDAA for F1' 201 S, unless the Federal awarding agency provides written approval to
continue the subaward or contract.
49 112 November 2020
2. The recipient may include the substance of this clause, including this paragraph (1), in
subawards under this grant or cooperative agreement that have an estimated value over
$50,000 and ivill be perfrmed outside the United States, including its outlying areas.
3. The Federal awarding agency has the authority to terminate or void this grant or
cooperative agreement, in whole or in part, if the Federal awarding agency becomes aware
that the recipient failed to exercise due diligence as required by paragraph (1) of this clause
or if the Federal awarding agencv becomes aware that any finds received under this grant
or cooperative agreement have been provided directly or indirectly to a person or entity who
is actively opposing coalition forces involved in a contingency operation in which members
of the Armed Forces are actively engaged in hostilities
b. Ternt 2. Additional Access to Recipient Records.
1. In addition to airy other existing exanaiiiatiora-of-records authority, the Federal
Government is authorized to examine any records of the recipient and its subawards or
contracts to the extent necessary to ensure that funds, including supplies and services,
available under this grant or cooperative agreement are not provided, directly or indirectly,
to o person or entity that is actively opposing United States or coalition forces involved in a
contingency operation in which members of the Artned Forces are actively engaged in
hostilities, except, for awards awarded by the Department of Def nse on or before Dec 19,
2017 that will be performed in the United States Central Command (USCENTCOM) theater
of operations
2. The substance of this clause, including this paragraph (2), is required to be included in
subawards or contracts under this grant or cooperative agreement that have an estimated
value over $50, 000 and will be perJoruned outside the United States, including its outlying
areas.
r. P)'oilil)itioYi oit cel'tain telecoY)1lliiiiiicatiolls aRid video stlrveillaiice sei"Vices o9,
equipinew (Public Law 115-232, section: 889, 2 C.T.R. tt 200.216)
(a) Recipients and subrecipients are prohibited from obligating or expending loan or grant
funds to:
(1) Procure or obtain,
(2) Extend or renew a contract to procure or obtain, or
(3) Enter into a contract (or extend or renew a contract) to procure or obtain equipment,
services or systems that uses covered telecommunications equipment or services as a
substantial or essential component of any system, or as critical technology as part of any
system.
50 112 November 2020
As described in Public Law 115-232, section 889, covered telecommunications
equipment is telecommunications equipment produced by Huawei Technologies
Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
(i). For the purpose of public safety, security of government facilities, physical
security surveillance of critical infrastructure, and other national security
purposes, video surveillance and telecommunications equipment produced by
Hytera Communications Corporation, Hangzhou Hilcvision Digital Technology
Company, or Dahua Technology Company (or any subsidiary or affiliate of such
entities).
(ii). Telecommunications or video surveillance services provided by such entities or
using such equipment.
(iii). Telecommunications or video surveillance equipment or services produced or
provided by an entity that the Secretary of Defense, in consultation with the
Director of the National Intelligence or the Director of the Federal Bureau of
Investigation, reasonably believes to be an entity owned or controlled by, or
otherwise connected to, the government of a covered foreign country.
(b) In implementing the prohibition under Public Law 115-232, section 889, subsection (f),
paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs shall
prioritize available funding and technical support to assist affected businesses, institutions and
organizations as is reasonably necessary for those affected entities to transition from covered
communications equipment and services, to procure replacement equipment and services, and to
ensure that communications service to users and customers is sustained.
(c) See Public Law 115-232, section 889 for additional information.
(d) See also §200.471.
s. Federal Fiarrancial l4ssistnaace Ptamrirtg I)trrirrg a Farridiiig i-liattas ter• Gover'irrrretit
Shutdown
This term sets forth initial guidance that will be implemented for Federal assistance awards in
the event of a lapse in appropriations, or a government shutdown. The Grants Officer may issue
further guidance prior to an anticipated shutdown.
1. Unless there is an actual rescission of funds for specific grant or cooperative agreement
obligations, non -Federal entities under Federal financial assistance awards for which funds
have been obligated generally will be able to continue to perform and incur allowable
expenses under the award during a funding hiatus. Non -Federal entities are advised that
ongoing activities by Federal employees involved in grant or cooperative agreement
administration (including payment processing) or similar operational and administrative
work cannot continue when there is a funding lapse. Therefore, there may be delays,
including payment processing delays, in the event of a shutdown.
51 1 12 November 2020
2. All award actions will be delayed during a government shutdown; if it appears that a non -
Federal entity's performance under a grant or cooperative agreement will require agency
involvement, direction, or clearance during the period of a possible government shutdown,
the Program Officer or Grants Officer, as appropriate, may attempt to provide such
involvement, direction, or clearance prior to the shutdown or advise non -Federal entities that
such involvement, direction, or clearance will not be forthcoming during the shutdown.
Accordingly, non -Federal entities whose ability to withdraw funds is subject to prior agency
approval, which in general are non -Federal entities that have been designated high risk, non -
Federal entities under construction awards, or are otherwise limited to reimbursements or
subject to agency review, will be able to draw funds down from the relevant Automatic
Standard Application for Payment (ASAP) account only if agency approval is given and
coded into ASAP prior to any government shutdown or closure. This limitation may not be
lifted during a government shutdown. Non -Federal entities should plan to work with the
Grants Officer to request prior approvals in advance of a shutdown wherever possible. Non -
Federal entities whose authority to draw down award funds is restricted may decide to
suspend work until the government reopens.
3. The ASAP system should remain operational during a government shutdown. Non -
Federal entities that do not require any Grants Officer or agency approval to draw down
advance funds from their ASAP accounts should be able to do so during a shutdown. The
30-day limitation on the drawdown of advance funds will still apply notwithstanding a
government shutdown (see section B.02.b.1 of these terms).
52 112 November 2020
Resolution #21196
May 26, 2021
Moved by Moss seconded by Luebs the resolutions on the amended Consent Agenda be adopted (with
accompanying reports being accepted).
AYES: Charles, Gershenson, Hoffman, Jackson, Joliet, Kochenderfer, Kowall, Kuhn, Long, Luebs,
Markham, McGillivray, Miller, Moss, Nelson, Powell, Spisz, Weipert, Woodward, Cavell. (20)
NAYS: None. (0)
A sufficient majority having voted in favor, the resolutions on the amended Consent Agenda were adopted
(with accompanying reports being accepted).
", a L
I HEREBY APPROVE THIS RESOLUTION
CHIEF DEPUTY COUNTY EXECUTIVE
ACTING PURSUANT TO MCL 45.559A (7)
STATE OF MICHIGAN)
COUNTY OF OAKLAND)
I, Lisa Brown, Clerk of the County of Oakland, do hereby certify that the foregoing resolution is a true and
accurate copy of a resolution adopted by the Oakland County Board of Commissioners on May 26, 2021,
with the original record thereof now remaining in my office.
In Testimony Whereof, I have hereunto set my hand and affixed the seal of the Circuit Court at Pontiac,
Michigan this 261h day of May, 2021.
Lisa Brown, Oakland County