05-16417. DoD Grant and Agreement Regulations

AGENCY:

Office of the Secretary, DoD.

ACTION:

Final rule.

SUMMARY:

The Department of Defense (DoD) is revising the DoD Grant and Agreement Regulations (DoDGARs) to implement four Office of Management and Budget (OMB) policy directives, to conform the DoDGARs with several statutory and regulatory revisions, and to make other administrative changes. The four OMB directives that are being implemented: require Federal agencies to use a new standard format for announcements of funding opportunities; require Federal agencies to electronically post synopses of those announcements at a Governmentwide Internet site; require Governmentwide use of the Data Universal Numbering System (DUNS) number as the universal identifier for recipient organizations; and amend OMB Circular A-B3 to raise the threshold of Federal funding at which recipients must obtain single audits. The statutory and regulatory changes with which the DoDGARs are being conformed concern matters such as nonprocurement debarment and suspension, drug-free workplace requirements for grants, and campus access for military recruiters and Reserve Officer Training Corps.

DATES:

These final rules are effective on September 22, 2005.

FOR FURTHER INFORMATION CONTACT:

Mark Herbst, [phone].

SUPPLEMENTARY INFORMATION:

A. Background

On July 28, 2004 (69 FR 44990), DoD proposed to update the DoDGARs, the regulations that provide uniform policies and procedures for DoD Components' award and administration of grants and agreements. The proposed updates involved amendments to seven DoDGARs parts—32 CFR parts 21, 22, 25, 32, 33, 34 and 37—that are needed to conform those parts with Governmentwide and DoD policy changes and with DoD organizational and administrative changes.

DoD received one substantive and one editorial comment on the proposed updates, both from DoD Components. The final rule largely is the same as proposed, with a few changes to: respond to the two comments; correct typographical errors and one omission in the July 28, 2004, Federal Register document; and conform the characterization of the statutory requirement concerning military recruiters with a recent amendment to that statute. The changes are described at the end of this Supplementary Information section.

B. Summary of the Regulatory Updates

The following paragraphs describe the changes to the DoDGARs and the reasons for them.

Governmentwide standard format for program announcements. OMB issued a policy directive. “Format for Financial Assistant Program Announcements” [68 FR 37370, June 23, 2003], that requires Federal agencies to use a standard format for announcements of funding opportunities under which discretionary awards of grants or cooperative agreements may be made. The policy directive further requires that those announcements, with a few exceptions, be posted on the Internet. The DoD is revising paragraphs (a), (a)(1) and (2) of 32 CFR 22.315 to implement this OMB policy directive (see amendment number 7 following this preamble).

Electronic posting of synopses of program announcements. A second OMB policy directive “Requirement to Post Funding Opportunity Announcement Synopses at Grants.gov and Related Data Elements/Format” [68 FR 58146, October 8, 2003], requires Federal agencies to post on the Internet a summary of each announcement. The DoD is revising paragraph (a)(3) of 32 CFR 22.315 to implement this policy directive (see amendment number 7 following this preamble).

Use of Data Universal Numbering System (DUNS) numbers. A third OMB policy directive “Requirement for a DUNS number in Applications for Federal Grants and Cooperative Agreements” [68 FR 38402, June 27, 2003], established the DUNS number as the universal identifier for Federal grant and cooperative agreement applicants and recipients. It states that applications must include the DUNS number and that Federal agency electronic systems that handle data on grants and cooperative agreements must be able to accept the DUNS number. The DoD is adding a new section 32 CFR 21.565 to implement the requirement for agency electronic systems and a revised paragraph (a)(4) in 32 CFR 22.315 to address the requirement for including DUNS numbers in applications (see amendment numbers 2 and 7 following this preamble).

Dollar threshold for single audit requirements. The OMB also revised OMB Circular A-33, “Audits of States, Local Governments, and Non-Profit Organizations,” to increase the threshold at which recipients are required to have single audits. The revision to the circular [68 FR 38401, June 27, 2003] increased the threshold from $300,000 per year to $500,000 per year in expenditures of Federal funds. The revision also increased the threshold (from $25 million per year $50 million per year in expenditures of Federal funds) at which a recipient would be assigned a cognizant Federal agency for audits and made related technical changes. The DoD is revising two sections of the DoDGARs—32 CFR 33.26 for awards to State, local, and other governmental organizations and 34.16 for awards to for-profit organizations—to replace the $300,000 threshold amount with the updated $500,000 threshold (see amendment numbers 25 and 28 following this preamble).

Nonprocurement debarment and suspension and drug-free workplace requirements. The DoD joined thirty-two other Federal agencies to publish [68 FR 66534, November 26, 2003] updated Governmentwide common rules on nonprocurement debarment and suspension and on drug-free workplace requirements for grants and agreements. The updated common rule on nonprocurement debarment and suspension is part 25 of the DoDGARs (32 CFR part 25) and the common rule on drug-free workplace requirements is part 26 (32 CFR part 26). The DoD is making conforming amendments to DoDGARs parts 21, 22, 32, 33, 34 and 37, to incorporate changes in policies and procedures due to the revisions of parts 25 and 26 and to correct references to sections of those two revised parts (see amendment numbers 3, 5, 8, 9.a, 11.a, 15, 17, 18, 22, 23, 26, 29, 31, 32, and 33 following this preamble).

Campus access for military recruiters and Reserve Officer Training Corps (ROTC). Section 549 of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. 106-65) recodified and consolidated—in 10 U.S.C. 983—two separate statutes applicable to institutions of higher education that receive DoD grants. The first of the two statutes prohibits DoD from providing funds by grant to institutions that deny military recruiters access to campuses, students, or student information for recruiting purposes. Before Public Law 106-65 recodified that requirement in 10 U.S.C. 983, it was in section 558 of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337). The DoD implemented that section 558 requirement, as it applied to grants, in the DoDGARs at 32 CFR 22.520.

The second of the two statutes prohibits DoD from providing funds by grant to an institution that prevents the establishment and operation of a Senior ROTC unit on campus or student enrollment in a unit at an alternate institution. That statute was originally codified in 10 U.S.C. 983 by the National Defense Authorization Act for Fiscal Year 1996 (Public Law 104-106).

With the recodification and consolidation of both requirements in 10 U.S.C. 983, the DoD is revising section 32 CFR 22.520 of the DoDGARs and making conforming changes in sections 32 CFR 22.420 and 32 CFR 25.425. The revision of 32 CFR 22.520 addresses the requirements concerning ROTC, as well as the restrictions concerning military recruiters' access that already were addressed in 32 CFR 22.520. Among the changes in 32 CFR 22.520 are: the inclusion of the requirement concerning ROTC in the award term in paragraph 22.520(f); a clarification in a new paragraph 22.520(e)(2) that the prohibition on providing funds by grant extends, by law, to obligations of additional funds for pre-existing awards (e.g., incremental funding actions); and a revision to paragraph 22.520(d)(1) to apply the prohibition on use of DoD funds to an institution of higher education as a whole, as 10 U.S.C. 983 requires, when any subordinate element of the institution has a policy or practice that denies access for ROTC or military recruiters (see amendment number 12 following this preamble for the changes to section 32 CFR 22.520 and amendment numbers 9.a and 20 for the conforming changes to section 32 CFR 22.420 and 32 CFR 25.425).

Other Revisions. In addition to the revisions described above, the DoD is making other needed updates to the DoDGARs. Those updates are: (1) A revision of paragraphs (a)(3) and (4) of section 32 CFR 22.715, to conform that section with revised procedures for oversight of single audits; (2) changes in Appendices A and B to 32 CFR part 22, to reflect revisions in regulations implementing national policy requirements; and (3) updates to office names, footnote references to sources of OMB and DoD documents, and cross references to sections within the DoDGARs (see amendment numbers 6, 9.b, 11.b, 13, 14, 15, 16, and 18 following this preamble).

C. Changes From the Proposed Rulemaking Notice

These final amendments include one change made in response to a comment from a DoD Component. The commenter pointed out the need for 32 CFR 22.715, which lists functions of grants administration offices, to identify each office's responsibilities to: (1) Take appropriate action when a governmental, university, or nonprofit recipient has not complied with requirements to have a single audit and submit its audit report; and (2) issue timely management decisions on single audit findings that the Office of the Inspector General, DoD, refers to the office. Accordingly, we are adding a new paragraph 32 CFR 22.715(a)(3)(iii) and revising paragraph 32 CFR 22.715(a)(4), rather than deleting it as proposed in July 2004 (see amendment number 15 following this preamble).

Another change in the final rule responds to an amendment to 10 U.S.C. 983 that was made by Section 552 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Public Law 108-375), after the rule was proposed for public comment. The amendment specifies that military recruiters' access to campuses and students must be at least equal in quality and scope to the access provided to any other employer. The final rule includes language to conform with that statutory change in two places: paragraph 22.520(c)(3), which describes the requirements of 10 U.S.C. 983, and the corresponding paragraph (C) of the award term under 22.520(e)(3) (see amendment number 12 following this preamble).

We corrected in these final amendments two typographical errors that appeared in the proposed rulemaking notice. First, a reference in 32 CFR 22.520(f)(1)(ii) to “paragraphs (e)(5)(i) and (e)(5)(i)(iii) of this section” is corrected to read “paragraphs (e)(5)(i) and (e)(5)(iii) of this section”. Second, a reference in Appendix B to Part 22 to “40 CFR 32.110”, a section in the Environmental Protection Agency's implementation of the Clean Air Act and Clean Water Act, is corrected to read “40 CFR 32.1110” (see amendment numbers 12 and 18 following this preamble).

These final amendments also include one amendment that was erroneously omitted in the proposed rulemaking notice. The additional amendment updates a reference in 32 CFR 22.605 to what is now Subpart E of 32 CFR part 21 (see amendment number 13.a following this preamble).

Executive Order 12866

OMB has determined this rule to be significant and it has been reviewed and approved for publication

Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))

This regulatory action will not have a significant adverse impact on a substantial number of small entities.

Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)

This regulatory action does not contain a Federal mandate that will result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector of $100 million or more in any one year.

Paperwork Reduction Act of 1995 (44 U.S.C., Chapter 35)

This regulatory action will not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act.

Federalism (Executive Order 13132)

This regulatory action does not have Federalism implications, as set forth in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

List of Subjects

32 CFR Part 21

• Grant programs
• Reporting and recordkeeping requirements

32 CFR Part 22

• Accounting
• Grant programs
• Grant programs—education
• Reporting and recordkeeping requirements

32 CFR Part 25

• Administrative practice and procedure; Grant programs; Loan programs; Reporting and recordkeeping requirements

32 CFR Part 32

• Accounting
• Colleges and universities
• Grant programs
• Hospitals
• Nonprofit organizations
• Reporting and recordkeeping requirements

32 CFR Part 33

• Grant programs
• Indians
• Intergovernmental relations
• Reporting and recordkeeping requirements

32 CFR Part 34

• Accounting
• Government property
• Grant programs
• Nonprofit

32 CFR Part 37

• Accounting, administrative practice and procedure
• Grant programs
• Grants administration
• Reporting and recordkeeping requirements

Accordingly, Title 32 of the Code of Federal Regulations, Chapter I, Subchapter B is amended as follows:

PART 21—[AMENDED]

1. The authority citation for part 21 continues to read as follows:

Authority: 5 U.S.C. 301 and 10 U.S.C. 113.

Subpart E—[Amended]

2. Subpart E is amended by adding a new section § 21.565 to read as set forth below.

§ 21.565

Must DoD Components' electronic systems accept Data Universal Numbering System (DUNS) numbers?

The DoD Components must comply with paragraph 5.e of the Office of Management and Budget (OMB) policy directive entitled, “Requirement for a DUNS number in the Applications for Federal Grants and Cooperative Agreements ⁶.” Paragraph 5.e requires electronic systems that handle information about grants and cooperative agreements (which, for the DoD, include Technology Investment Agreements) to accept DUNS numbers. Each DoD Component that awards for administers grants or cooperative agreements must ensure that DUNS numbers are accepted by each such system for which the DoD Component controls the system specifications. If the specifications of such a system are subject to another organization's control and the system can not accept DUNS numbers, the DoD Component must alert that organization to the OMB policy directive's requirement for use of DUNS numbers with a copy to: Director for Basic Sciences, ODDR&E, 3040 Defense Pentagon, Washington, DC 20301-3040.

⁶ This OMB policy directive is available at the Internet site http://www.whitehouse.gov/​omb/​grants/​grants.docs.html.

3. Appendix A to part 21 is revised to read as follows:

Appendix A to Part 21—Instruments to Which DoDGARs Portions Apply

PART 22—[AMENDED]

4. The authority citation for part 22 continues to read as follows:

Authority: 5 U.S.C. 301 and 10 U.S.C. 113.

5. Section 22.100 is amended as follows:

A. In paragraph (b)(1) by revising the phrase “Governmentwide rules on debarment, suspension and drug-free workplace requirements” to read “The Governmentwide rule on nonprocurement debarment and suspension”;

B. Redesignate paragraphs (b) (2) and (3) as paragraphs (b)(3) and (4) respectively; and

C. Add a new paragraph (b)(2) to read as follows:

§ 22.100

Purpose, relation to other parts, and organization.

* * * * *

(b) * * *

(2) The Governmentwide rule on drug-free workplace requirements, in 32 CFR part 26.

* * * * *

§ 22.220

[Amended]

6. In § 22.220, amend paragraph (a)(1) by revising “Director of Defense Procurement (DDP)” to read “Director of Defense Procurement and Acquisition Policy (DDP&AP)”, and amend paragraph (a)(2) by revising “DDP” to read “DDP&AP”.

7. Section 22.315 is amended by revising paragraph (a) to read as set forth below:

§ 22.315

Merit-based, competitive procedures.

* * * * *

(a) Notice to prospective proposers. The notice may be a notice of funding availability or Broad Agency Announcement that is publicly disseminated, with unlimited distribution, or a specific notice that is distributed to eligible proposers (a specific notice must be distributed to at least two eligible proposers to be considered as part of a competitive procedure). Requirements for notices are as follows:

(1) The format and content of each notice must conform with the Governmentwide format for announcements of funding opportunities established by the Office of Management and Budget (OMB) in a policy directive entitled, “Format for Financial Assistance Program Announcements.” ²

(2) In accordance with that OMB policy directive, DoD Components also must post on the Internet any notice under which domestic entitles may submit proposals, if the distribution of the notice is unlimited. DoD Components are encouraged to simultaneously publish the notice in other media (e.g., the Federal Register), if doing so would increase the likelihood of its being seen by potential proposers. If a DoD Component issues a specific notice with limited distribution (e.g. for national security considerations), the notice need not be posted on the Internet.

(3) To comply with an OMB policy directive entitled, “Requirement to Post Funding Opportunity Announcement Synopses at Grants.gov and Related Data Elements/Format,” ³ DoD Components must post on the Internet a synopsis for each notice that, in accordance with paragraph (a)(2) of this section, is posted on the Internet. The synopsis must be posted at the Governmentwide site designated by the OMB (currently http://www.FedGrants.gov). The synopsis for each notice must provide complete instructions on where to obtain the notice and should have an electronic link to the Internet location at which the notice is posted.

³ This OMB policy directive is available at the Internet site http://www.whitehouse.gov/​omb/​grants/​grants.docs.html.

(4) In accordance with an OMB policy directive entitled, “Requirement for a DUNS Number in Applications for Federal Grants and Cooperative Agreements,” ⁴ each notice must include a requirement for proposers to include Data Universal Numbering System (DUNS) numbers in their proposals. If a notice provides for submission of application forms, the forms must incorporate the DUNS number. To the extent that unincorporated consortia of separate organizations may submit proposals, the notice should explain that an unincorporated consortium would use the DUNS number of the entity proposed to receive DoD payments under the award (usually, a lead organization that consortium members identify for administrative matters).

* * * * *

² This OMB policy directive is available at the Internet site http://www.whitehouse.gov/​omb/​grants/​grants.docs.html.

³ This OMB policy directive is available at the Internet site http://www.whitehouse.gov/​omb/​grants/​grants.docs.html.

⁴ This OMB policy directive is available at the Internet site http://www.whitehouse.gov/​omb/​grants/​grants.docs.html.

§ 22.405

[Amended]

8. Section 22.405, paragraph (a) is amended by revising “ 32 CFR 22.115(a)” to read “32 CFR 25.110(a)”.

9. Section 22.420 is amended as follows:

a. Revision paragraph (c)(1) to read as set forth below; and

b. Redesignating the current footnote 2 in paragraph (b)(1) as footnote 5 and revising it to read as set forth below:

§ 22.420

Pre-award procedures.

* * * * *

(c) * * *

(1) Is not identified in the Governmentwide Excluded Parties List System (EPLS) as being debarred, suspended, or otherwise ineligible to receive the award. (In addition to being a requirement for every new award, note that checking the EPLS also is a requirement for subsequent obligations of additional funds, such as incremental funding actions, for pre-existing awards to institutions of higher education, as described at 32 CFR 22.520(e)(2).) The grants officer's responsibilities include (see 32 CFR 25.425 and 25.430) checking the EPLS for:

(i) Potential recipients of prime awards; and

(ii) A recipient's principals (as defined at 32 CFR 25.995), potential recipients of subawards, and principals of those potential subaward recipients, if DoD Component approval of those principals of lower-tier recipients is required under the terms of the award (e.g., if a subsequent change in a recipient's principal investigator or other key person would be subject to the DoD Component's prior approval under 32 CFR 32.25(c)(2), 33.30(d)(3), or 34.15(c)(i)).

* * * * *

⁵ Electronic copies may be obtained at Internet site http://www.whitehouse.gov/​OMB. For paper copies, contact the Office of Management and Budget, EOP Publications, 725 17th St. NW., New Executive Office Building, Washington, DC 20503.

10. Section 22.505 is amended by redesignating the existing footnotes 3 and 4 in paragraph (a) of section 22.505 as footnotes 6 and 7, respectively, and by revising them to read as follows:

§ 22.505

Purpose.

* * * * *

⁶ See footnote 5 to § 22.420(b)(1).

⁷ See footnote 5 to § 22.420(b)(1).

11. Section 22.510 is amended by:

a. Revising paragraphs (a)(2)(ii)(A), (a)(2)(ii)(B), and (a)(2)(ii)(C) to read as set forth below; and

b. Redesignating the current footnote 5 in paragraph (b) as footnote 8 and revising it to read as set forth below:

§ 22.510

Certifications, representations, and assurances.

* * * * *

(a) * * *

(2) * * *

(ii) * * *

(A) If a grants officer elects to have proposers incorporate certifications by reference into their proposals, he or she must do so in one of the two following ways. When required by statute or codified regulation, the solicitation must include the full text of the certifications that proposers are to provide by reference. In other cases, the grants officer may include language in the solicitation that informs the proposers where the full text may be found (e.g., in documents or computer network sites that are readily available to the public) and offers to provide it to proposers upon request.

(B) Appendix A to this part provides language that may be used for incorporating by reference the certification on lobbying, which currently is the only certification requirement that commonly applies to DoD grants and agreements. Because that certification is required by law to be submitted at the time of proposal, rather than at the time of award, Appendix A includes language to incorporate the certification by reference into a proposal.

(C) Grants officers may incorporate certifications by reference in award documents when doing so is consistent with statute and codified regulation (that is not the case for the lobbying certification addressed in paragraph (a)(2)(ii)(B) of this section). The provision that a grants officer would use to incorporate certifications in award documents, when consistent with statute and codified regulation, would be similar to the provision in Appendix A to this part, except that it would be modified to state that the recipient is providing the required certifications by signing the award document or by accepting funds under the award.

* * * * *

⁸ For copies of Standard Forms listed in this part, contact regional grants administration offices of the Office of Naval Research. Addresses for the offices are listed in the “Federal Directory of Contract Administration Services (CAS) Components,” which may be accessed through the Defense Contract Management Agency homepage at: http://www.dcma.mil.

12. Section 22.520 is revised to read as follows:

§ 22.520

Campus access for military recruiting and Reserve Officer Training Corps (ROTC).

(a) Purpose. (1) The purpose of this section is to implement 10 U.S.C. 983 as it applies to grants. Under that statute, DoD Components are prohibited from providing funds to institutions of higher education that have policies or practices, as described in paragraph (c) of this section, restricting campus access of military recruiters or the Reserve Officer Training Corps (ROTC).

(2) By addressing the effect of 10 U.S.C. 983 on grants and cooperative agreements, this section supplements the DoD's primary implementation of that statute in 32 CFR part 216, “Military Recruiting and Reserve Officer Training Corps Program Access to Institutions of Higher Education.” Part 216 establishes procedures by which the Department of Defense identifies institutions of higher education that have a policy or practice described in paragraph (c) of this section.

(b) Definition specific to this section. “Institution of higher education” in this section has the meaning given at 32 CFR 216.3, which is different than the meaning given at § 22.105 for other sections of this part.

(c) Statutory requirement of 10 U.S.C. 983. No funds made available to the Department of Defense may be provided by grant to an institution of higher education (including any subelement of such institution) if the Secretary of Defense determines that the institution (or any subelement of that institution) has a policy or practice that either prohibits, or in effect prevents:

(1) The Secretary of a Military Department from maintaining, establishing, or operating a unit of the Senior ROTC (in accordance with 10 U.S.C. 654 and other applicable Federal laws) at that institution (or any subelement of that institution);

(2) A student at that institution (or any subelement of that institution) from enrolling in a unit of the Senior ROTC at another institution of higher education;

(3) The Secretary of a Military Department of Secretary of Homeland Security from gaining access to campuses, or access to student (who are 17 years of age or older) or campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope of the access to campuses and to students that is provided to any other employer; or

(4) Access by military recruiters for purposes of military recruiting to the following information pertaining to students (who are 17 years of age or older) enrolled at that institution (or any subelement of that institution);

(i) Name, address, and telephone listings.

(ii) Date and place of birth, levels of education, academic majors, degrees received, and the most recent education institution enrolled in by the student.

(d) Policy. (1) Applicability to cooperative agreements. As a matter of DoD policy, the restriction of 10 U.S.C. 983, as implemented by 32 CFR part 216, apply to cooperative agreements, as well as grants.

(2) Deviations. Grants officers may not deviate from any provision of this section without obtaining the prior approval of the Director of Defense Research and Engineering. Requests for deviations shall be submitted, through appropriate channels, to: Director for Basic Sciences, ODUSD(LABS), 3040 Defense Pentagon, Washington, D.C. 20301-3040.

(e) Grants officers' responsibility. (1) A grants officers shall not award any grant or cooperative agreements to an institution of higher education that has been identified pursuant to the procedures of 32 CFR part 216. Such institutions are identified as being ineligible on the Governmentwide Excluded Parts List System (EPLS). The cause and treatment code on the EPLS indicates the reason for an institution's ineligibility, as well as the effect of the exclusion. Note that 32 CFR 25.425 and 25.430 require a grants officers to check the EPLS prior to determining that a recipient is qualified to receive an award.

(2) A grants officer shall not consent to a subaward of DoD funds to such an institution, under a grant or cooperative agreement to any recipient, if the subaward requires the grants officer's consent.

(3) A grants officers shall include the following award term in each grant or cooperative agreements with an institution of higher education (note that this requirement does not flow down and that recipients are not required to include the award term in subawards):

“As a condition for receipt of funds available to the Department of Defense (DoD) under this award, the recipient agrees that it is not an institution of higher education (as defined in 32 CFR part 216) that has a policy or practice that either prohibits, or in effect prevents:

(A) The Secretary of a Military Department for maintaining, establishing, or operating a unit of the senior Reserve Officers Training Corps (in accordance with 10 U.S.C. 654 and other applicable Federal laws) at that institution (or any subelement of that institution);

(B) Any student at that institution (or any subelement of that institution) from enrolling in a unit of the Senior ROTC at another institution of higher education;

(C) The Secretary of a Military Department of Secretary of Homeland Security from gaining access to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provide to any other employer; or

(D) Access by military recruiters for purposes of military recruiter to the name of students (who are 17 years of age or older and enrolled at that institution or any subelement of that institution); their address, telephone listing, date and places of birth, levels of education, academic majors, and degrees received; and the most recent education institutions in which they were enrolled.

If the recipient is determined, using the procedures in 32 CFR part 216, to be such an institution of higher education during the period of performance of this agreement, the Government will cease all payments of DoD funds under this agreements and all other DoD grants and cooperative agreements to the recipient, and it may suspend or terminate such grants and agreements unilaterally for material failure to comply with the terms and conditions of awards.”

(4) If an institution of higher education refuses to accept the award of term in paragraph (e)(3) of this section, the grants officer shall:

(i) Determine that the institution is not qualified with respect to the award. This grants officer may award to an alternative recipient.

(ii) Transmit the name of the institution, through appropriate channels, to the Director of Access Policy, Office of the Deputy Under Secretary of defense of Military Personnel Policy (ODUSD(MPP)), 4000 Defense Pentagon, Washington, DC 20301-4000. This will allow ODUSD(MPP) to decide whether to initiate an evaluation of the instition under 32 CER part 216, to determine whether it is an institution that has a policy or practice described in paragraph (c) of this section.

(5) With respect to any pre-existing award to an institution of higher education that currently is listed on the EPLS pursuant to a determination under 32 CFR part 216, a grants officer.

(i) Shall not obligate additional funds available to the DoD for the award. A grants officer therefore must check the EPLS before approving an incremental funding action or other additional funding for any pre-existing award to an institution of higher education. The grants officer may not obligate the additoinal funds if the cause and treatment code indicates that the reason for an institution's EPLS listing is a determination under 32 CFR part 216 that institutional policies or practices restrict campus access of military recruiters or ROTC.

(ii) Shall not approve any request for payment submitted by such an institution (including payments of costs already incurred).

(iii) Shall:

(A) Terminate the award unless he or she has a reason to believe, after consulting with the ODUSD(MPP), 4000 Defense Pentagon, Washington, DC 20301-4000), that the institution may be removed from the EPLS in the near term and have its eligibility restored; and

(B) Suspend any award that is not immediately terminated, as well as all payments under it.

(f) Post-award administration responsibilities of the Office of Naval Research (ONR). As the DoD office assigned responsibility for performing field administration services for grants and cooperative agreements with institutions of higher education, the ONR shall disseminate the list it receives from the ODUSD(MPP) of institutions of higher education identified pursuant to the procedures of 32 CFR part 216 to:

(1) ONR field administration offices, with instructions to:

(i) Disapprove any payment requests under awards to such institutions for which post-award payment administration was delegated to the ONR; and

(ii) Alert the DoD offices that made the awards to their responsibilities under paragraphs (e)(5)(i) and (e)(5)(iii) of this section.

(2) Awarding offices in DoD Components that may be identified from data in the Defense Assistance Awards Data System (see 32 CFR 21.520 through 21.555) as having awards with such institution s for which post-award payment administration was not delegated to ONR. The ONR is to alert those offices to their responsibilities under paragraph (c)(5) of this section.

13. Section 22.605 is amended by:

a. Revising “(see 32 CFR part 21, subpart C)” to read “(see 32 CFR part 21, subpart E)” in paragraph (b); and

b. Redesignating the current footnote 6 in paragraph (c)(2) as footnote 9 and revising it to read as follows:

§ 22.605

Grants officers' responsibilities.

* * * * *

⁹ See footnote 8 to § 22.510(b).

14. Section 22.710 is amended as follows:

a. Revising the introductory text to read as set forth below; and

b. Redesignating the current footnotes 7 through 9 in the introductory text and in paragraphs (a)(1) and (2) respectively as footnotes 10 through 12 and revising them to read as set forth below:

§ 22.710

Assignment of grants administration offices.

In accordance with the policy stated in § 22.705(b), the DoD offices (referred to in this part as “grants administration offices”) that are assigned responsibility for performing field administration services for grants and cooperative agreements are (see the “Federal Directory of Contact Administration Services (CAS) Components” ¹⁰ for specific addresses of administration offices):

* * * * *

¹⁰ The “Federal Directory of Contract Administration Services (CAS) Components” may be accessed through the Defense Contract Management Agency homepage at http://www.dcma.mil.

¹¹ See footnote 5 to § 22.420(b)(1).

¹² See footnote 5 to § 22.420(b)(1).

15. Section 22.715 is amended by revising paragraphs (a)(3) and (4) to read as set forth below:

§ 22.715

Grants administration office functions.

* * * * *

(a) * * *

(3) Reviewing recipients' systems and compliance with Federal requirements, in coordination with any reviews and compliance audits performed by independent auditors under OMB Circular A-133, or in accordance with the terms and conditions of the award. This includes:

(i) Reviewing recipients' financial management, property management, and purchasing systems, to determine the adequacy of such systems.

(ii) Determining that recipients have drug-free workplace programs, as required under 32 CFR part 26.

(iii) Determining that governmental, university and nonprofit recipients have complied with requirements in OMB Circular A-133, as implemented at 32 CFR 32.26 and 33.26, to have single audits and submit audit reports to the Federal Audit Clearinghouse. If a recipient has not had a required audit, appropriate action must be taken (e.g., contacting the recipient and coordinating with the Office of the Assistant Inspector General for Audit Policy and Oversight (OAIG(P&O)), Office of the Deputy Inspector General for Inspections and Policy, Office of the Inspector General of the Department of Defense (OIG, DoD), 400 Army-Navy Drive, Arlington, VA 22202).

(4) Issuing timely management decisions, in accordance with DoD Directive 7640.2, “Policy for Follow-up on Contract Audit Reports,” ¹³ on single audit findings referred by the OIG, DoD, Directive 7600.10, “Audits of States, Local Governments, and Non-Profit Organizations”.¹⁴

¹³ Electronic copies may be obtained at the Washington Headquarters Services Internet site http://www.dtic.mil/​whs/​directives. Paper copies may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.

¹⁴ See footnote 13 to § 22.715(a)(4).

16. Section 22.810 is amended by redesignating footnote 10 to paragraph (c)(3)(i) as footnote 15 and revising it to read as follows:

§ 22.810

Payments.

* * * * *

¹⁵ See footnote 13 to § 22.715(a)(4).

17. Appendix A to Part 22 is revised to read as follows:

Appendix A to Part 22—Proposal Provision for Required Certification

18. Appendix B to Part 22 is revised to read as follows:

Appendix B to Part 22—Suggested Award Provisions for National Policy Requirements That Often Apply

PART 25—[AMENDED]

19. The authority citation for part 25 continues to read as follows:

Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); E.O. 12549 [3 CFR, 1986 Comp., p. 189]; E.O. 12689 [3 CFR, 1989 Comp., p. 235].

20. Section 25.425 is amended by revising paragraphs (c) and (d) and adding a paragraph (e) to read as follows:

§ 25.425

When do I check to see if a person is excluded or disqualified?

* * * * *

(c) Approve a lower tier participant if agency approval of the lower tier participant is required;

(d) Approve a principal in connection with a lower tier transaction if agency approval of the principal is required; or

(e) Obligate additional funding (e.g., through an incremental funding action) for a pre-existing covered transaction with an institution of higher education, as provided in 32 CFR 22.520(e)(2).

PART 32—[AMENDED]

21. The authority citation for part 32 continues to read as follows:

Authority: 5 U.S.C. 301 and 10 U.S.C. 113.

§ 32.2

[Amended]

22. Section 32.2 introductory text is amended by revising “ 32 CFR 25.105” to read “32 CFR 25.1015”.

23. Paragraph 8 of Appendix A to part 32 is revised to read as follows:

Appendix A to Part 32—Contract Provisions

* * * * *

8. Debarment and Suspension (E.O.s 12549 and 12689)—A contract award with an amount expected to equal or exceed $25,000 and certain other contract awards (see 32 CFR 25.220) shall not be made to parties listed on the Governmentwide Excluded Parties List System, in accordance with the DoD adoption at 32 CFR part 25 of the Governmentwide rule implementing E.O.s 12549 (3 CFR, 1986 Comp., p. 189) and 12689 (3 CFR, 1989 Comp., p. 235), “Debarment and Suspension.” The Excluded Parties List System contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than E.O. 12549.

PART 33—[AMENDED]

24. The authority citation for part 33 continues to read as follows:

Authority: 5 U.S.C. 301 and 10 U.S.C. 113

§ 33.26

[Amended]

25. Section 33.26, paragraph (b) is amended by revising “$300,000” to read “$500,000”.

§ 33.35

[Amended]

26. Section 33.35 is amended by revising “not make any award or permit any award (subgrant or contract) at any tier to” to read “comply with the requirements of Subpart C, 32 CFR part 25, including the restrictions on entering into a covered transaction with”.

PART 34—[AMENDED]

27. The authority citation for part 34 continues to read as follows:

Authority: 5 U.S.C. 301 and 10 U.S.C. 113.

§ 34.16

[Amended]

28. Section 34.16, paragraph (a) is amended by revising “$300,000” to read “$500,000”.

29. Paragraph 7 of Appendix A to part 34 is revised to read as follows:

Appendix A to Part 34—Contract Provisions

* * * * *

7. Debarment and Suspension (E.O.s 12549 and 12689)—A contract award with an amount expected to equal or exceed $25,000 and certain other contract awards (see 32 CFR 25.220) shall not be made to parties listed on the Governmentwide Excluded Parties List System, in accordance with the DoD adoption at 32 CFR part 25 of the Governmentwide rule implementing E.O.s 12549 (3 CFR, 1986 Comp., p. 189) and 12689 (3 CFR, 1989 Comp., p. 235), “Debarment and Suspension.” The Excluded Parties List System contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than E.O. 12549.

PART 37—[AMENDED]

30. The authority citation for part 37 continues to read as follows:

Authority: 5 U.S.C. 301 and 10 U.S.C. 113.

31. Section 37.130 is amended by:

a. Revising paragraph (b)(1); and

b. Redesignating paragraph (b)(2) as (b)(3), and adding a new (b)(2) to read as follows:

§ 37.130

Which other parts of the DoD Grant and Agreement Regulations apply to TIAs?

* * * * *

(b) * * *

(1) Part 25 (32 CFR part 25) on nonprocurement debarment and suspension, which applies because it covers nonprocurement instruments in general;

(2) Part 26 (32 CFR part 26), on drug-free workplace requirements, which applies because it covers financial assistance in general; and

* * * * *

32. Appendix D to part 37 is revised to read as follows:

Appendix D to Part 37—What Common National Policy Requirement May Apply and Need To Be Included in TIAs?

What your TIA is a cooperative agreement or another type of assistance transaction, as discussed in Appendix B to this part, the terms and conditions of the agreement must provide for recipients' compliance with applicable Federal statues and regulations. This appendix lists some of the more common requirements to aid you in identifying one that apply to your TIA. The list is not intended to be all-inclusive, however, and you may need to consult legal counsel to verify whether there are other that apply in your situation (e.g., due to a provision in the appropriations act for the specific funds that you are using or due to a statute or rule that applies to a particular program or type of activity).

A. Certifications

One requirement that applies to all TIA's currently requires you to obtain a certification at the time of proposal. That requirement is in a Governmentwide common rule about lobbying prohibitions, which is implemented by the DoD at 32 CFR part 28. The prohibitions apply to all financial assistance. Appendix A to 32 CFR part 22 includes a sample provision that you may use, to have proposers incorporate the certification by reference into their proposals.

B. Assurance That Apply to All TIAs

DoD policy is to use certification, as described in the preceding paragraph, only for national policy requirement that specifically require them. The usual approach to a communicating other national policy requirements to recipients is to incorporate them as award terms of conditions, or assurances. Appendix B to 32 CFR part 22 lists national policy requirements that commonly apply to grants and cooperative agreements. It also has suggested language for assurances to incorporate the requirements in award documents. Of those requirements, the following six apply to all TIAs:

1. Requirements concerning debarment and suspension in the Governmentwide common rule that the DoD has codified in 32 CFR part 25. The requirements apply to all nonprocurement transactions.

2. Requirements concerning drug-free workplace in the Governmentwide common rule that the DoD has codified at 32 CFR part 26. The requirements apply to all financial assistance.

3. Prohibitions on discrimination the basis of race, color, or national origin in Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d, et seq. These apply to all financial assistance. They require recipients to flow down the prohibitions to any subrecipients performing a part of the substantive research program (as opposed to supplies from whom recipients purchase goods or services). For further information, see item 1. under the heading “Nondiscrimination” in Appendix B to 32 CFR part 22.

4. Prohibitions on discrimination on the basis of age, in the Age Discrimination Act of 1975 (42 U.S.C. 6101, et seq.). They apply to all financial assistance and require flow down to subrecipients. For further information, see item d. under the heading “Nondiscrimination” in Appendix B to 32 CFR part 22.

5. Prohibition on discrimination on the basis of handicap, in section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). They apply to all financial assistance and require flow down to subrecipients. For further information, see item e.1. under the heading “Nondiscrimination” in Appendix B to 32 CFR part 22.

6. Preferences for use of U.S.-flag air carriers in the International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 40118), which apply to uses of U.S. Government funds.

C. Other Assurances

Additional requirements listed in Appendix B to 32 CFR part 22 may apply in certain circumstances, as follows:

1. If construction work is to be done under a TIA or its subawards, it is subject to the prohibitions in Executive Order 11246 on discrimination on the basis of race, color, religion, sex, or national origin. For further information, see item b. under the heading “Nondiscrimination” in Appendix B to 32 CFR part 22.

2. If the research involves human subjects or animals, it is subject to the requirements in item a. or b., respectively, under the heading “Live organisms” in Appendix B to 32 CFR part 22.

3. If the research involves actions that may affect the environment, it is subject to the National Environmental Policy Act, which is item b.1. under the heading “Environmental Standards” in Appendix B to 32 CFR part 22. It also may be subject to one or more of the other requirements in items b.2. through b.6. under that heading, which concern flood-prone areas, coastal zones, coastal barriers, wild and scenic rivers, and underground sources of drinking water.

4. If the project may impact a historic property, it is subject to the National Historic Preservation Act of 1966 (16 U.S.C. 470, et seq.), as described under the heading “National Historic Preservation” in Appendix B to 32 CFR part 22.

33. Appendix E to part 37 is revised to read as follows:

Appendix E to Part 37—What Provisions May a Participant Need To Include When Purchasing Goods or Services Under a TIA?

A. As discussed in § 37.705, you must inform recipients of any national policy requirements that flow down to their purchases of goods or services (e.g., supplies or equipment) under their TIAs. Note that purchases of goods or services differ from subawards, which are for substantive research program performance.

B. Appendix A to 32 CFR part 34 lists seven national policy requirements that commonly apply to firms' purchases under grants or cooperative agreements. Of those seven, two that apply to all recipients' purchases under TIAs are:

1. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). A contractor submitting a bid to the recipient for a contract award of $100,000 or more must file a certification with the recipient that it has not and will not use Federal appropriations for certain lobbying purposes. The contractor also must disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. For further details, see 32 CFR part 28, the DoD's codification of the Governmentwide common rule implementing this amendment.

2. Debarment and suspension. A contract award with an amount expected to equal or exceed $25,000 and certain other contract awards (see 32 CFR 25.220) shall not be made to parties listed on the Governmentwide Excluded Parties List System, in accordance with the DoD adoption at 32 CFR part 25 of the Governmentwide rule implementing E.O.s 12549 (3 CFR, 1986 Comp., p. 189) and 12689 (3 CFR, 1989 Comp., p. 235), “Debarment and Suspension.” The Excluded Parties List System contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than E.O. 12549.

C. One other requirement applies only in cases where construction work is to be performed under the TIA with Federal funds or recipient funds counted toward required cost sharing:

1. Equal Employment Opportunity. Although construction work should happen rarely under a TIA, the agreements officer in that case should inform the recipient that Department of Labor regulations at 41 CFR 60-1.4(b) prescribe a clause that must be incorporated into construction awards and subawards. Further details are provided in Appendix B to Part 22 of the DoDGARs (32 CFR part 22), in section b. under the heading “Nondiscrimination.”

Dated: August 15, 2005.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, Department of Defense.