[Federal Register Volume 60, Number 199 (Monday, October 16, 1995)]
[Rules and Regulations]
[Pages 53513-53528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25548]
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[[Page 53514]]
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Part 1210
RIN 3095-AA43
Uniform Administrative Requirements for Grants and Agreements
With Institutions of Higher Education, Hospitals and Other Non-Profit
Organizations
AGENCY: National Archives and Records Administration.
ACTION: Interim final rule with request for comments.
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SUMMARY: In response to the requirement of the Office of Management and
Budget (OMB) for agencies to publish regulations incorporating the
revised OMB Circular A-110, ``Uniform Administrative Requirements for
Grants and Agreements With Institutions of Higher Education, Hospitals
and Other Non-Profit Organizations,'' the National Archives and Records
Administration (NARA) is herewith adopting that circular, with certain
modifications, in regulations which apply to grants administered by the
National Historical Publications and Records Commission (NHPRC). The
regulation will provide standards for obtaining consistency and
uniformity in the administration of grants and agreements with
institutions of higher education, hospitals, and other non-profit
organizations. This regulation will not address requirements related to
construction programs since the NHPRC does not make construction
grants.
DATES: This interim rule is effective November 15, 1995.
Comments must be received by December 15, 1995.
ADDRESSES: Comments should be sent to Director, Policy and Planning
Division, National Archives and Records Administration (PIRM-POL), 8601
Adelphi Road, College Park, MD 20740-6001. Comments may be faxed to
(301) 713-7270.
FOR FURTHER INFORMATION CONTACT: Mary Ann Hadyka or Nancy Allard at
(301) 713-6730.
SUPPLEMENTARY INFORMATION:
Background
This interim final rule incorporates and reflects the provisions of
the Office of Management and Budget (OMB) issuance of revised OMB
Circular A-110 at 58 FR 62992 in a new 36 CFR part 1210. OMB Circular
A-110 was originally issued by OMB in 1976 with minor revisions made in
1987. OMB published a notice in the Federal Register (57 FR 39018) on
August 27, 1992, requesting comments on proposed revisions to OMB
Circular A-110. Interested parties were invited to submit comments. OMB
received over 200 comments from Federal agencies, non-profit
organizations, professional organizations and others. All comments were
considered in a final revision of Circular A-110 which was issued for
governmentwide use in the Federal Register on November 29, 1993.
Consequently, this rule is published as an interim final rule because
of the previous request for comment process used in the development of
the Circular, the large number of comments already received and
considered by OMB and the Federal agencies, and the limited flexibility
to revise this rule provided by OMB.
National Historical Publications and Records Commission Grant
Program
The purpose of the National Historical Publications and Records
Commission (NHPRC) is to promote the preservation and use of
historically significant documents. The Archivist of the United States
awards grants recommended by the NHPRC. Grants are made for the
preparation (compiling, editing and publishing) of printed, microforms,
and electronic publications; to nonprofit presses to help defray
publication costs of Commission-supported editions; and for activities
relating to the preservation, arrangement and description of historical
records. Educational programs sponsored by the NHPRC include an
institute to provide training in documentary editing and fellowships in
the fields of documentary editing and archival administration. Since
NHPRC grants can be awarded to institutions of higher education,
hospitals, and other non-profit organizations to which the revised OMB
Circular A-110 applies, NARA is including provisions of the circular,
with some modifications, as a part in their regulations. The Catalog of
Federal Domestic Assistance (CFDA) number for this program is 89.003.
Modifications to ``Common Rule'' Provisions of OMB Circular A-110
In certain sections of the Circular, alternative requirements are
offered, depending on the Federal awarding agency's requirements. Where
appropriate, NARA has specified the alternative to be followed. In
Sec. 1210.25(a), for example, the regulation specifies that the budget
plan shall include both the Federal and non-Federal share, an NHPRC
requirement; the Circular provided that the budget plan may include
either the Federal and non-Federal share, or only the Federal share,
depending on the agency's requirements. In Sec. 1210.51(b), NARA has
specified the reporting frequency that is already required in 36 CFR
1206.78 instead of listing all of the common rule allowed reporting
frequencies. In Sec. 1210.52(a)(1)(ii), we have specified that the
report shall be on a cash basis instead of the alternative accrual
basis.
Because the NHPRC does not make construction grants, NARA has not
included in this part Circular A-110 requirements related to
construction programs. Although we recognize that a ``common rule'' or
uniform regulation issued by all grant-making agencies facilitates
compliance, we believe that this benefit is offset by the potential for
confusion over regulatory provisions that are not applicable to the
grant program. We specifically invite comments on this point.
Other
This rule is being issued as an interim final rule under the
Administrative Procedures Act which permits an agency to issue a final
rule without a prior notice of proposed rulemaking (NPRM) if the agency
finds that issuing an NPRM would be impractical, unnecessary, and
contrary to the public interest. As stated in the background paragraphs
of the supplementary information section of the preamble, this rule is
based on the revised OMB Circular A-110, that was developed by an
interagency task force and received extensive public comment. The
revised Circular specifies that Federal agencies responsible for
awarding and administering grants and other agreements to recipients
described therein shall adopt the language in the Circular unless other
provisions are required by Federal statute or exceptions or deviations
are approved by OMB. This publication of an interim final rule solicits
comments on these specific grounds, that is whether there are any
reasons to deviate from the language of the OMB Circular that are
required by Federal statute or of sufficient import to warrant
soliciting OMB's approval for a change. It should be noted that because
the interim final rule is required to adopt the provisions of the
Circular to the maximum extent possible, even word-for-word if possible
as is done here, a Notice of Proposed Rulemaking would be inappropriate
and would not allow the public to make comments that could have a
significant impact on the rule. This would make such an effort
impractical, unnecessary, and contrary to public interest.
This rule is a significant regulatory action for purposes of
Executive Order
[[Page 53515]]
12866 of September 30, 1993, and has been reviewed by the Office of
Management and Budget. As required by the Regulatory Flexibility Act,
it is hereby certified that this rule will not have a significant
impact on small entities.
List of Subjects in 36 CFR Part 1210
Accounting, Administrative practice and procedure, Grant programs,
Grants administration, Insurance, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, NARA is adding Part 1210
to Subchapter A of Title 36 of the Code of Federal Regulations to read
as follows:
PART 1210--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND
AGREEMENTS WITH INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, AND
OTHER NON-PROFIT ORGANIZATIONS
Subpart A--General
Sec.
1210.1 Purpose.
1210.2 Definitions.
1210.3 Effect on other issuances.
1210.4 Deviations.
1210.5 Subawards.
Subpart B--Pre-Award Requirements
1210.10 Purpose.
1210.11 Pre-award policies.
1210.12 Forms for applying for Federal assistance.
1210.13 Debarment and suspension.
1210.14 Special award conditions.
1210.15 Metric system of measurement.
1210.16 Resource Conservation and Recovery Act.
1210.17 Certifications and representations.
Subpart C--Post-Award Requirements
Financial and Program Management
1210.20 Purpose of financial and program management.
1210.21 Standards for financial management systems.
1210.22 Payment.
1210.23 Cost sharing or matching.
1210.24 Program income.
1210.25 Revision of budget and program plans.
1210.26 Non-Federal audits.
1210.27 Allowable costs.
1210.28 Period of availability of funds.
Property Standards
1210.30 Purpose of property standards.
1210.31 Insurance coverage.
1210.32 Real property.
1210.33 Federally-owned and exempt property.
1210.34 Equipment.
1210.35 Supplies and other expendable property.
1210.36 Intangible property.
1210.37 Property trust relationship.
Procurement Standards
1210.40 Purpose of procurement standards.
1210.41 Recipient responsibilities.
1210.42 Codes of conduct.
1210.43 Competition.
1210.44 Procurement procedures.
1210.45 Cost and price analysis.
1210.46 Procurement records.
1210.47 Contract administration.
1210.48 Contract provisions.
Reports and Records
1210.50 Purpose of reports and records.
1210.51 Monitoring and reporting program performance.
1210.52 Financial reporting.
1210.53 Retention and access requirements for records.
Termination and Enforcement
1210.60 Purpose of termination and enforcement.
1210.61 Termination.
1210.62 Enforcement.
Subpart D--After-the-Award Requirements
1210.70 Purpose.
1210.71 Closeout procedures.
1210.72 Subsequent adjustments and continuing responsibilities.
1210.73 Collection of amounts due.
Appendix A--Contract Provisions
Authority: 44 U.S.C. 2104(a); 44 U.S.C. 2501-2506.
Subpart A--General
Sec. 1210.1 Purpose.
This part establishes uniform administrative requirements for NHPRC
grants and agreements awarded to institutions of higher education,
hospitals, and other non-profit organizations. Non-profit organizations
that implement NHPRC programs for the States are also subject to State
requirements.
Sec. 1210.2 Definitions.
(a) Accrued expenditures means the charges incurred by the
recipient during a given period requiring the provision of funds for:
(1) Goods and other tangible property received;
(2) Services performed by employees, contractors, subrecipients,
and other payees; and,
(3) Other amounts becoming owed under programs for which no current
services or performance is required.
(b) Accrued income means the sum of:
(1) Earnings during a given period from
(i) Services performed by the recipient, and
(ii) Goods and other tangible property delivered to purchasers, and
(2) Amounts becoming owed to the recipient for which no current
services or performance is required by the recipient.
(c) Acquisition cost of equipment means the net invoice price of
the equipment, including the cost of modifications, attachments,
accessories, or auxiliary apparatus necessary to make the property
usable for the purpose for which it was acquired. Other charges, such
as the cost of installation, transportation, taxes, duty or protective
in-transit insurance, shall be included or excluded from the unit
acquisition cost in accordance with the recipient's regular accounting
practices.
(d) Advance means a payment made by Treasury check or other
appropriate payment mechanism to a recipient upon its request either
before outlays are made by the recipient or through the use of
predetermined payment schedules.
(e) Award means financial assistance that provides support or
stimulation to accomplish a public purpose. Awards include grants and
other agreements in the form of money or property in lieu of money, by
the NHPRC to an eligible recipient. The term does not include:
technical assistance, which provides services instead of money; other
assistance in the form of loans, loan guarantees, interest subsidies,
or insurance; direct payments of any kind to individuals; and,
contracts which are required to be entered into and administered under
procurement laws and regulations.
(f) Cash contributions means the recipient's cash outlay, including
the outlay of money contributed to the recipient by third parties.
(g) Closeout means the process by which the NHPRC determines that
all applicable administrative actions and all required work of the
award have been completed by the recipient and the NHPRC.
(h) Contract means a procurement contract under an award or
subaward, and a procurement subcontract under a recipient's or
subrecipient's contract.
(i) Cost sharing or matching means that portion of project or
program costs not borne by the NHPRC.
(j) Date of completion means the date on which all work under an
award is completed or the date on the award document, or any supplement
or amendment thereto, on which NHPRC sponsorship ends.
(k) Disallowed costs means those charges to an award that the NHPRC
determines to be unallowable, in accordance with the applicable Federal
cost principles or other terms and conditions contained in the award.
(l) Equipment means tangible nonexpendable personal property
including exempt property charged directly to the award having a useful
life of more than one year and an acquisition cost of $5,000 or more
per
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unit. However, consistent with recipient policy, lower limits may be
established.
(m) Excess property means property under the control of the NHPRC
that, as determined by the head thereof, is no longer required for its
needs or the discharge of its responsibilities.
(n) Exempt property means tangible personal property acquired in
whole or in part with NHPRC funds, where the NHPRC has statutory
authority to vest title in the recipient without further obligation to
the Federal Government. An example of exempt property authority is
contained in the Federal Grant and Cooperative Agreement Act (31 U.S.C.
6306), for property acquired under an award to conduct basic or applied
research by a non-profit institution of higher education or non-profit
organization whose principal purpose is conducting scientific research.
(o) Federal awarding agency means the Federal agency that provides
an award to the recipient.
(p) Federal funds authorized means the total amount of NHPRC funds
obligated by the Federal Government for use by the recipient. This
amount may include any authorized carryover of unobligated funds from
prior funding periods when permitted by NHPRC regulations or NHPRC
implementing instructions.
(q) Federal share of real property, equipment, or supplies means
that percentage of the property's acquisition costs and any improvement
expenditures paid with NHPRC funds.
(r) Funding period means the period of time when NHPRC funding is
available for obligation by the recipient.
(s) Intangible property and debt instruments means, but is not
limited to, trademarks, copyrights, patents and patent applications and
such property as loans, notes and other debt instruments, lease
agreements, stock and other instruments of property ownership, whether
considered tangible or intangible.
(t) NARA means the National Archives and Records Administration.
(u) NHPRC means the National Historical Publications and Records
Commission.
(v) Obligations means the amounts of orders placed, contracts and
grants awarded, services received and similar transactions during a
given period that require payment by the recipient during the same or a
future period.
(w) Outlays or expenditures means charges made to the project or
program. They may be reported on a cash or accrual basis. For reports
prepared on a cash basis, outlays are the sum of cash disbursements for
direct charges for goods and services, the amount of indirect expense
charged, the value of third party in-kind contributions applied and the
amount of cash advances and payments made to subrecipients. For reports
prepared on an accrual basis, outlays are the sum of cash disbursements
for direct charges for goods and services, the amount of indirect
expense incurred, the value of in-kind contributions applied, and the
net increase (or decrease) in the amounts owed by the recipient for
goods and other property received, for services performed by employees,
contractors, subrecipients and other payees and other amounts becoming
owed under programs for which no current services or performance are
required.
(x) Personal property means property of any kind except real
property. It may be tangible, having physical existence, or intangible,
having no physical existence, such as copyrights, patents, or
securities.
(y) Prior approval means written approval by an authorized official
evidencing prior consent.
(z) Program income means gross income earned by the recipient that
is directly generated by a supported activity or earned as a result of
the award (see exclusions in Sec. 1210.24 (e) and (h)). Program income
includes, but is not limited to, income from fees for services
performed, the use or rental of real or personal property acquired
under federally-funded projects, the sale of commodities or items
fabricated under an award, license fees and royalties on patents and
copyrights, and interest on loans made with award funds. Interest
earned on advances of Federal funds is not program income. Except as
otherwise provided in NHPRC regulations or the terms and conditions of
the award, program income does not include the receipt of principal on
loans, rebates, credits, discounts, etc., or interest earned on any of
them.
(aa) Project costs means all allowable costs, as set forth in the
applicable Federal cost principles, incurred by a recipient and the
value of the contributions made by third parties in accomplishing the
objectives of the award during the project period.
(bb) Project period means the period established in the award
document during which NHPRC sponsorship begins and ends.
(cc) Property means, unless otherwise stated, real property,
equipment, intangible property and debt instruments.
(dd) Real property means land, including land improvements,
structures and appurtenances thereto, but excludes movable machinery
and equipment.
(ee) Recipient means an organization receiving financial assistance
directly from the NHPRC to carry out a project or program. The term
includes public and private institutions of higher education, public
and private hospitals, and other quasi-public and private non-profit
organizations such as, but not limited to, community action agencies,
research institutes, educational associations, and health centers. The
term may include commercial organizations, foreign or international
organizations (such as agencies of the United Nations) which are
recipients, subrecipients, or contractors or subcontractors of
recipients or subrecipients at the discretion of the NHPRC. The term
does not include government-owned contractor-operated facilities or
research centers providing continued support for mission-oriented,
large-scale programs that are government-owned or controlled, or are
designated as federally-funded research and development centers.
(ff) Research and development means all research activities, both
basic and applied, and all development activities that are supported at
universities, colleges, and other non-profit institutions. ``Research''
is defined as a systematic study directed toward fuller scientific
knowledge or understanding of the subject studied. ``Development'' is
the systematic use of knowledge and understanding gained from research
directed toward the production of useful materials, devices, systems,
or methods, including design and development of prototypes and
processes. The term research also includes activities involving the
training of individuals in research techniques where such activities
utilize the same facilities as other research and development
activities and where such activities are not included in the
instruction function.
(gg) Small awards means a grant or cooperative agreement not
exceeding the small purchase threshold fixed at 41 U.S.C. 403(11)
(currently $25,000).
(hh) Subaward means an award of financial assistance in the form of
money, or property in lieu of money, made under an award by a recipient
to an eligible subrecipient or by a subrecipient to a lower tier
subrecipient. The term includes financial assistance when provided by
any legal agreement, even if the agreement is called a contract, but
does not include procurement of goods and services nor does it include
any form of assistance which is excluded from the definition of
``award'' in paragraph (e) of this section.
[[Page 53517]]
(ii) Subrecipient means the legal entity to which a subaward is
made and which is accountable to the recipient for the use of the funds
provided. The term may include foreign or international organizations
(such as agencies of the United Nations) at the discretion of the
NHPRC.
(jj) Supplies means all personal property excluding equipment,
intangible property, and debt instruments as defined in this section,
and inventions of a contractor conceived or first actually reduced to
practice in the performance of work under a funding agreement
(``subject inventions''), as defined in 37 CFR Part 401, ``Rights to
Inventions Made by Nonprofit Organizations and Small Business Firms
Under Government Grants, Contracts, and Cooperative Agreements.''
(kk) Suspension means an action by the NHPRC that temporarily
withdraws Federal sponsorship under an award, pending corrective action
by the recipient or pending a decision to terminate the award by the
NHPRC. Suspension of an award is a separate action from suspension
under NARA regulations implementing E.O. 12549 and E.O. 12689,
``Debarment and Suspension'' (36 CFR Part 1209).
(ll) Termination means the cancellation of NHPRC sponsorship, in
whole or in part, under an agreement at any time prior to the date of
completion.
(mm) Third party in-kind contributions means the value of non-cash
contributions provided by non-Federal third parties. Third party in-
kind contributions may be in the form of real property, equipment,
supplies and other expendable property, and the value of goods and
services directly benefiting and specifically identifiable to the
project or program.
(nn) Unliquidated obligations, for financial reports prepared on a
cash basis, means the amount of obligations incurred by the recipient
that have not been paid. For reports prepared on an accrued expenditure
basis, they represent the amount of obligations incurred by the
recipient for which an outlay has not been recorded.
(oo) Unobligated balance means the portion of the funds authorized
by the NHPRC that has not been obligated by the recipient and is
determined by deducting the cumulative obligations from the cumulative
funds authorized.
(pp) Unrecovered indirect cost means the difference between the
amount awarded and the amount which could have been awarded under the
recipient's approved negotiated indirect cost rate.
(qq) Working capital advance means a procedure whereby funds are
advanced to the recipient to cover its estimated disbursement needs for
a given initial period.
Sec. 1210.3 Effect on other issuances.
For awards subject to this part, all administrative requirements of
codified program regulations, program manuals, handbooks and other
nonregulatory materials which are inconsistent with the requirements of
this part shall be superseded, except to the extent they are required
by statute, or authorized in accordance with the deviations provision
in Sec. 1210.4.
Sec. 1210.4 Deviations.
The Office of Management and Budget (OMB) may grant exceptions for
classes of grants or recipients subject to the requirements of this
part when exceptions are not prohibited by statute. However, in the
interest of maximum uniformity, exceptions from the requirements of
this part shall be permitted only in unusual circumstances. The NHPRC
may apply more restrictive requirements to a class of recipients when
approved by OMB. The NHPRC may apply less restrictive requirements when
awarding small awards, except for those requirements which are
statutory. Exceptions on a case-by-case basis may also be made by the
NHPRC.
Sec. 1210.5 Subawards.
Unless sections of this part specifically exclude subrecipients
from coverage, the provisions of this part shall be applied to
subrecipients performing work under awards if such subrecipients are
institutions of higher education, hospitals or other non-profit
organizations. State and local government subrecipients are subject to
the provisions of regulations implementing the grants management common
rule, ``Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments,'' published at 36 CFR part
1207.
Subpart B--Pre-Award Requirements
Sec. 1210.10 Purpose.
Sections 1210.11 through 1210.17 prescribes forms and instructions
and other pre-award matters to be used in applying for NHPRC awards.
Sec. 1210.11 Pre-award policies.
(a) Use of grants and cooperative agreements, and contracts. In
each instance, the NHPRC shall decide on the appropriate award
instrument (i.e., grant, cooperative agreement, or contract). The
Federal Grant and Cooperative Agreement Act (31 U.S.C. 6301-08) governs
the use of grants, cooperative agreements and contracts. A grant or
cooperative agreement shall be used only when the principal purpose of
a transaction is to accomplish a public purpose of support or
stimulation authorized by Federal statute. The statutory criterion for
choosing between grants and cooperative agreements is that for the
latter, ``substantial involvement is expected between the executive
agency and the State, local government, or other recipient when
carrying out the activity contemplated in the agreement.'' Contracts
shall be used when the principal purpose is acquisition of property or
services for the direct benefit or use of the Federal Government.
(b) Public notice and priority setting. The NHPRC shall notify the
public of its intended funding priorities for discretionary grant
programs.
Sec. 1210.12 Forms for applying for Federal assistance.
(a) The NHPRC shall comply with the applicable report clearance
requirements of 5 CFR Part 1320, ``Controlling Paperwork Burdens on the
Public,'' with regard to all forms used by the NHPRC in place of or as
a supplement to the Standard Form 424 (SF-424) series.
(b) Applicants shall use the SF-424 (Application for Federal
Assistance) and NA Form 17001 (Budget Form) forms and instructions
prescribed by the NHPRC Program Guidelines. OMB Control Number 3095-
0004 has been assigned to the Budget Form. OMB Control Number 3095-0013
has been assigned to the NHPRC Program Guidelines.
(c) Applicants shall complete the appropriate sections of the SF-
424 (Application for Federal Assistance) indicating whether the
application was subject to review by the State Single Point of Contact
(SPOC) under E.O. 12372, ``Intergovernmental Review of Federal
Programs.'' The name and address of the SPOC for a particular State can
be obtained from the NHPRC or the Catalog of Federal Domestic
Assistance. The SPOC shall advise the applicant whether the program for
which application is made has been selected by that State for review.
Sec. 1210.13 Debarment and suspension.
The NHPRC and recipients shall comply with the nonprocurement
debarment and suspension common rule implementing E.O.s 12549 and
12689, ``Debarment and Suspension'' (36 CFR Part 1209). This common
rule restricts subawards and contracts with
[[Page 53518]]
certain parties that are debarred, suspended or otherwise excluded from
or ineligible for participation in Federal assistance programs or
activities.
Sec. 1210.14 Special award conditions.
If an applicant or recipient has a history of poor performance, is
not financially stable, has a management system that does not meet the
standards prescribed in this part, has not conformed to the terms and
conditions of a previous award, or is not otherwise responsible, the
NHPRC may impose additional requirements as needed, provided that such
applicant or recipient is notified in writing as to: the nature of the
additional requirements, the reason why the additional requirements are
being imposed, the nature of the corrective action needed, the time
allowed for completing the corrective actions, and the method for
requesting reconsideration of the additional requirements imposed. Any
special conditions shall be promptly removed once the conditions that
prompted them have been corrected.
Sec. 1210.15 Metric system of measurement.
The Metric Conversion Act, as amended by the Omnibus Trade and
Competitiveness Act (15 U.S.C. 205) declares that the metric system is
the preferred measurement system for U.S. trade and commerce. The Act
requires NARA to establish a date or dates in consultation with the
Secretary of Commerce, when the metric system of measurement will be
used in NARA's procurements, grants, and other business-related
activities. Metric implementation may take longer where the use of the
system is initially impractical or likely to cause significant
inefficiencies in the accomplishment of federally-funded activities.
NARA shall follow the provisions of E.O. 12770, ``Metric Usage in
Federal Government Programs.''
Sec. 1210.16 Resource Conservation and Recovery Act.
Under the Resource Conservation and Recovery Act ((RCRA) (Pub. L.
94-580 codified at 42 U.S.C. 6962), any State agency or agency of a
political subdivision of a State which is using appropriated Federal
funds must comply with section 6002. Section 6002 requires that
preference be given in procurement programs to the purchase of specific
products containing recycled materials identified in guidelines
developed by the Environmental Protection Agency (EPA) (40 CFR Parts
247 through 254). Accordingly, State and local institutions of higher
education, hospitals, and non-profit organizations that receive direct
Federal awards or other Federal funds shall give preference in their
procurement programs funded with Federal funds to the purchase of
recycled products pursuant to the EPA guidelines.
Sec. 1210.17 Certifications and representations.
Unless prohibited by statute or codified regulation, the NHPRC is
authorized to allow recipients to submit certifications and
representations required by statute, executive order, or regulation on
an annual basis, if they have an ongoing and continuing relationship
with the NHPRC. Annual certifications and representations shall be
signed by responsible officials with the authority to ensure
recipients' compliance with the pertinent requirements.
Subpart C--Post-Award Requirements
Financial and Program Management
Sec. 1210.20 Purpose of financial and program management.
Sections 1210.21 through 1210.28 prescribe standards for financial
management systems, methods for making payments and rules for:
satisfying cost sharing and matching requirements, accounting for
program income, budget revision approvals, making audits, determining
allowability of cost, and establishing fund availability.
Sec. 1210.21 Standards for financial management systems.
(a) The NHPRC shall require recipients to relate financial data to
performance data and develop unit cost information whenever practical.
(b) Recipients' financial management systems shall provide for the
following.
(1) Accurate, current and complete disclosure of the financial
results of each NHPRC-sponsored project or program in accordance with
the reporting requirements set forth in Sec. 1210.52.
(2) Records that identify adequately the source and application of
funds for NHPRC-sponsored activities. These records shall contain
information pertaining to NHPRC awards, authorizations, obligations,
unobligated balances, assets, outlays, income and interest.
(3) Effective control over and accountability for all funds,
property and other assets. Recipients shall adequately safeguard all
such assets and assure they are used solely for authorized purposes.
(4) Comparison of outlays with budget amounts for each award.
Whenever appropriate, financial information should be related to
performance and unit cost data.
(5) Written procedures to minimize the time elapsing between the
transfer of funds to the recipient from the U.S. Treasury and the
issuance or redemption of checks, warrants or payments by other means
for program purposes by the recipient. To the extent that the
provisions of the Cash Management Improvement Act (CMIA) (Pub. L. 101-
453) govern, payment methods of State agencies, instrumentalities, and
fiscal agents shall be consistent with CMIA Treasury-State Agreements
or the CMIA default procedures codified at 31 CFR Part 205,
``Withdrawal of Cash from the Treasury for Advances under Federal Grant
and Other Programs.''
(6) Written procedures for determining the reasonableness,
allocability and allowability of costs in accordance with the
provisions of the applicable Federal cost principles and the terms and
conditions of the award.
(7) Accounting records including cost accounting records that are
supported by source documentation.
(c) Where the Federal Government guarantees or insures the
repayment of money borrowed by the recipient, the NHPRC, at its
discretion, may require adequate bonding and insurance if the bonding
and insurance requirements of the recipient are not deemed adequate to
protect the interest of the Federal Government.
(d) The NHPRC may require adequate fidelity bond coverage where the
recipient lacks sufficient coverage to protect the Federal Government's
interest.
(e) Where bonds are required in the situations described in this
section, the bonds shall be obtained from companies holding
certificates of authority as acceptable sureties, as prescribed in 31
CFR Part 223, ``Surety Companies Doing Business with the United
States.''
Sec. 1210.22 Payment.
(a) Payment methods shall minimize the time elapsing between the
transfer of funds from the United States Treasury and the issuance or
redemption of checks, warrants, or payment by other means by the
recipients. Payment methods of State agencies or instrumentalities
shall be consistent with Treasury-State CMIA agreements or default
procedures codified at 31 CFR Part 205.
(b) Recipients will be paid in advance, provided they maintain or
demonstrate the willingness to maintain written procedures that
minimize the time elapsing between the transfer of funds
[[Page 53519]]
and disbursement by the recipient, and financial management systems
that meet the standards for fund control and accountability as
established in Sec. 1210.21. Cash advances to a recipient organization
shall be limited to the minimum amounts needed and be timed to be in
accordance with the actual, immediate cash requirements of the
recipient organization in carrying out the purpose of the approved
program or project. The timing and amount of cash advances shall be as
close as is administratively feasible to the actual disbursements by
the recipient organization for direct program or project costs and the
proportionate share of any allowable indirect costs.
(c) Whenever possible, advances shall be consolidated to cover
anticipated cash needs for all awards made by the NHPRC to the
recipient.
(1) Advance payment mechanisms include, but are not limited to,
Treasury check and electronic funds transfer.
(2) Advance payment mechanisms are subject to 31 CFR Part 205.
(3) Recipients can submit requests for advances and reimbursements
at least monthly when a predetermined schedule of electronic funds
transfer is not used.
(d) Requests for Treasury check advance payment shall be submitted
on SF-270, ``Request for Advance or Reimbursement,'' or other forms as
may be authorized by OMB. This form is not to be used when Treasury
check advance payments are made to the recipient automatically through
the use of a predetermined payment schedule or if precluded by special
NHPRC instructions for electronic funds transfer.
(e) Reimbursement is the preferred method when the requirements in
paragraph (b) of this section cannot be met.
(1) When the reimbursement method is used, the NHPRC shall make
payment within 30 days after receipt of the billing, unless the billing
is improper.
(2) Recipients can submit a request for reimbursement at least
monthly when a predetermined schedule of electronic funds transfer is
not used.
(f) If a recipient cannot meet the criteria for advance payments
and the NHPRC has determined that reimbursement is not feasible because
the recipient lacks sufficient working capital, the NHPRC may provide
cash on a working capital advance basis. Under this procedure, the
NHPRC shall advance cash to the recipient to cover its estimated
disbursement needs for an initial period generally geared to the
awardee's disbursing cycle. Thereafter, the NHPRC shall reimburse the
recipient for its actual cash disbursements. The working capital
advance method of payment shall not be used for recipients unwilling or
unable to provide timely advances to their subrecipient to meet the
subrecipient's actual cash disbursements.
(g) To the extent available, recipients shall disburse funds
available from repayments to and interest earned on a revolving fund,
program income, rebates, refunds, contract settlements, audit
recoveries and interest earned on such funds before requesting
additional cash payments.
(h) Unless otherwise required by statute, the NHPRC shall not
withhold payments for proper charges made by recipients at any time
during the project period unless paragraph (h)(1) or (2) of this
section apply.
(1) A recipient has failed to comply with the project objectives,
the terms and conditions of the award, or NHPRC reporting requirements.
(2) The recipient or subrecipient is delinquent in a debt to the
United States as defined in OMB Circular A-129, ``Managing Federal
Credit Programs.'' Under such conditions, the NHPRC may, upon
reasonable notice, inform the recipient that payments shall not be made
for obligations incurred after a specified date until the conditions
are corrected or the indebtedness to the Federal Government is
liquidated.
(i) Standards governing the use of banks and other institutions as
depositories of funds advanced under awards are as follows.
(1) Except for situations described in paragraph (i)(2) of this
section, the NHPRC shall not require separate depository accounts for
funds provided to a recipient or establish any eligibility requirements
for depositories for funds provided to a recipient. However, recipients
must be able to account for the receipt, obligation and expenditure of
funds.
(2) Advances of NHPRC funds shall be deposited and maintained in
insured accounts whenever possible.
(j) Consistent with the national goal of expanding the
opportunities for women-owned and minority-owned business enterprises,
recipients shall be encouraged to use women-owned and minority-owned
banks (a bank which is owned at least 50 percent by women or minority
group members).
(k) Recipients shall maintain advances of NHPRC funds in interest
bearing accounts, unless paragraphs (k)(1), (2) or (3) of this section
apply.
(1) The recipient receives less than $120,000 in Federal awards per
year.
(2) The best reasonably available interest bearing account would
not be expected to earn interest in excess of $250 per year on Federal
cash balances.
(3) The depository would require an average or minimum balance so
high that it would not be feasible within the expected Federal and non-
Federal cash resources.
(l) In keeping with Electronic Funds Transfer rules (31 CFR Part
206), interest earned should be remitted annually to the Department of
Health and Human Services (HHS) Payment Management System through an
electronic medium such as the FEDWIRE Deposit system. Recipients which
do not have this capability should use a check and mail it to the
Payment Management System, P.O. Box 6021, Rockville, MD 20852. Interest
amounts up to $250 per year may be retained by the recipient for
administrative expense. State universities and hospitals shall comply
with CMIA, as it pertains to interest. If an entity subject to CMIA
uses its own funds to pay pre-award costs for discretionary awards
without prior written approval from the NHPRC, it waives its right to
recover the interest under CMIA.
(m) Except as noted elsewhere in this part, only the SF-270,
Request for Advance or Reimbursement, shall be authorized for the
recipients in requesting advances and reimbursements. The NHPRC
requires an original and two copies of this form.
Sec. 1210.23 Cost sharing or matching.
(a) All contributions, including cash and third party in-kind,
shall be accepted as part of the recipient's cost sharing or matching
when such contributions meet all of the following criteria.
(1) Are verifiable from the recipient's records.
(2) Are not included as contributions for any other federally-
assisted project or program.
(3) Are necessary and reasonable for proper and efficient
accomplishment of project or program objectives.
(4) Are allowable under the applicable cost principles.
(5) Are not paid by the Federal Government under another award,
except where authorized by Federal statute to be used for cost sharing
or matching.
(6) Are provided for in the approved budget when required by the
NHPRC.
(7) Conform to other provisions of this part, as applicable.
(b) Unrecovered indirect costs may be included as part of cost
sharing or matching only with the prior approval of the NHPRC.
(c) Values for recipient contributions of services and property
shall be
[[Page 53520]]
established in accordance with the applicable cost principles. If the
NHPRC authorizes recipients to donate buildings or land for
construction/facilities acquisition projects or long-term use, the
value of the donated property for cost sharing or matching shall be the
lesser of paragraph (c)(1) or (2) of this section.
(1) The certified value of the remaining life of the property
recorded in the recipient's accounting records at the time of donation.
(2) The current fair market value. However, when there is
sufficient justification, the NHPRC may approve the use of the current
fair market value of the donated property, even if it exceeds the
certified value at the time of donation to the project.
(d) Volunteer services furnished by professional and technical
personnel, consultants, and other skilled and unskilled labor may be
counted as cost sharing or matching if the service is an integral and
necessary part of an approved project or program. Rates for volunteer
services shall be consistent with those paid for similar work in the
recipient's organization. In those instances in which the required
skills are not found in the recipient organization, rates shall be
consistent with those paid for similar work in the labor market in
which the recipient competes for the kind of services involved. In
either case, paid fringe benefits that are reasonable, allowable, and
allocable may be included in the valuation.
(e) When an employer other than the recipient furnishes the
services of an employee, these services shall be valued at the
employee's regular rate of pay (plus an amount of fringe benefits that
are reasonable, allowable, and allocable, but exclusive of overhead
costs), provided these services are in the same skill for which the
employee is normally paid.
(f) Donated supplies may include such items as expendable
equipment, office supplies, laboratory supplies or workshop and
classroom supplies. Value assessed to donated supplies included in the
cost sharing or matching share shall be reasonable and shall not exceed
the fair market value of the property at the time of the donation.
(g) The method used for determining cost sharing or matching for
donated equipment, buildings and land for which title passes to the
recipient may differ according to the purpose of the award, if
paragraph (g)(1) or (2) of this section apply.
(1) If the purpose of the award is to assist the recipient in the
acquisition of equipment, buildings or land, the total value of the
donated property may be claimed as cost sharing or matching.
(2) If the purpose of the award is to support activities that
require the use of equipment, buildings or land, normally only
depreciation or use charges for equipment and buildings may be made.
However, the full value of equipment or other capital assets and fair
rental charges for land may be allowed, provided that the NHPRC has
approved the charges.
(h) The value of donated property shall be determined in accordance
with the usual accounting policies of the recipient, with the following
qualifications.
(1) The value of donated land and buildings shall not exceed its
fair market value at the time of donation to the recipient as
established by an independent appraiser (e.g., certified real property
appraiser or General Services Administration representative) and
certified by a responsible official of the recipient.
(2) The value of donated equipment shall not exceed the fair market
value of equipment of the same age and condition at the time of
donation.
(3) The value of donated space shall not exceed the fair rental
value of comparable space as established by an independent appraisal of
comparable space and facilities in a privately-owned building in the
same locality.
(4) The value of loaned equipment shall not exceed its fair rental
value.
(5) The following requirements pertain to the recipient's
supporting records for in-kind contributions from third parties.
(i) Volunteer services shall be documented and, to the extent
feasible, supported by the same methods used by the recipient for its
own employees.
(ii) The basis for determining the valuation for personal service,
material, equipment, buildings and land shall be documented.
Sec. 1210.24 Program income.
(a) The NHPRC applies the standards set forth in this section in
requiring recipient organizations to account for program income related
to projects financed in whole or in part with Federal funds.
(b) Except as provided in paragraph (h) of this section, program
income earned during the project period shall be retained by the
recipient and, in accordance with these regulations or the terms and
conditions of the award, shall be used in one or more of the ways
listed in the following.
(1) Added to funds committed to the project by the NHPRC and
recipient and used to further eligible project or program objectives.
(2) Used to finance the non-Federal share of the project or
program.
(3) Deducted from the total project or program allowable cost in
determining the net allowable costs on which the Federal share of costs
is based.
(c) When the NHPRC authorizes the disposition of program income as
described in paragraphs (b)(1) or (b)(2) of this section, program
income in excess of any limits stipulated shall be used in accordance
with paragraph (b)(3) of this section.
(d) In the event that the NHPRC does not specify in its regulations
or the terms and conditions of the award how program income is to be
used, paragraph (b)(3) of this section shall apply automatically to all
projects or programs except research. For awards that support research,
paragraph (b)(1) of this section shall apply automatically unless the
NHPRC indicates in the terms and conditions another alternative on the
award or the recipient is subject to special award conditions, as
indicated in Sec. 1210.14.
(e) Unless NHPRC regulations or the terms and conditions of the
award provide otherwise, recipients shall have no obligation to the
Federal Government regarding program income earned after the end of the
project period.
(f) If authorized by NHPRC regulations or the terms and conditions
of the award, costs incident to the generation of program income may be
deducted from gross income to determine program income, provided these
costs have not been charged to the award.
(g) Proceeds from the sale of property shall be handled in
accordance with the requirements of the Property Standards (See
Secs. 1210.30 through 1210.37).
(h) Unless NHPRC regulations or the terms and condition of the
award provide otherwise, recipients shall have no obligation to the
Federal Government with respect to program income earned from license
fees and royalties for copyrighted material, patents, patent
applications, trademarks, and inventions produced under an award.
However, Patent and Trademark Amendments (35 U.S.C. 18) apply to
inventions made under an experimental, developmental, or research
award.
Sec. 1210.25 Revision of budget and program plans.
(a) The budget plan is the financial expression of the project or
program as approved during the award process. It may include either the
Federal and non-Federal share, or only the Federal share, depending
upon NHPRC requirements.
[[Page 53521]]
It shall be related to performance for program evaluation purposes
whenever appropriate.
(b) Recipients are required to report deviations from budget and
program plans, and request prior approvals for budget and program plan
revisions, in accordance with this section.
(c) Recipients shall request prior approvals from the NHPRC for one
or more of the following program or budget related reasons.
(1) Change in the scope or the objective of the project or program
(even if there is no associated budget revision requiring prior written
approval).
(2) Change in a key person specified in the application or award
document.
(3) The absence for more than three months, or a 25 percent
reduction in time devoted to the project, by the approved project
director or principal investigator.
(4) The need for additional NHPRC funding.
(5) The transfer of amounts budgeted for indirect costs to absorb
increases in direct costs, or vice versa, if approval is required by
the NHPRC.
(6) The inclusion, unless waived by the NHPRC, of costs that
require prior approval in accordance with OMB Circular A-21, ``Cost
Principles for Institutions of Higher Education,'' OMB Circular A-122,
``Cost Principles for Non-Profit Organizations,'' or 45 CFR Part 74
Appendix E, ``Principles for Determining Costs Applicable to Research
and Development under Grants and Contracts with Hospitals,'' or 48 CFR
Part 31, ``Contract Cost Principles and Procedures,'' as applicable.
(7) The transfer of funds allotted for training allowances (direct
payment to trainees) to other categories of expense.
(8) Unless described in the application and funded in the approved
awards, the subaward, transfer or contracting out of any work under an
award. This provision does not apply to the purchase of supplies,
material, equipment or general support services.
(d) No other prior approval requirements for specific items will be
imposed unless a deviation has been approved by OMB.
(e) Except for requirements listed in paragraphs (c)(1) and (c)(4)
of this section, the NHPRC is authorized, at their option, to waive
cost-related and administrative prior written approvals required by
this Circular and OMB Circulars A-21 and A-122. Such waivers may
include authorizing recipients to do any one or more of the following.
(1) Incur pre-award costs 90 calendar days prior to award or more
than 90 calendar days with the prior approval of the NHPRC. All pre-
award costs are incurred at the recipient's risk (i.e., the NHPRC is
under no obligation to reimburse such costs if for any reason the
recipient does not receive an award or if the award is less than
anticipated and inadequate to cover such costs).
(2) Initiate a one-time extension of the expiration date of the
award of up to 12 months unless one or more of the following conditions
apply. For one-time extensions, the recipient must notify the NHPRC in
writing with the supporting reasons and revised expiration date at
least 10 days before the expiration date specified in the award. This
one-time extension may not be exercised merely for the purpose of using
unobligated balances.
(i) The terms and conditions of award prohibit the extension.
(ii) The extension requires additional NHPRC funds.
(iii) The extension involves any change in the approved objectives
or scope of the project.
(3) Carry forward unobligated balances to subsequent funding
periods.
(4) For awards that support research, unless the NHPRC provides
otherwise in the award or in NHPRC's regulations, the prior approval
requirements described in paragraph (e) of this section are
automatically waived (i.e., recipients need not obtain such prior
approvals) unless one of the conditions included in paragraph (e)(2) of
this section applies.
(f) The NHPRC may, at its option, restrict the transfer of funds
among direct cost categories or programs, functions and activities for
awards in which the Federal share of the project exceeds $100,000 and
the cumulative amount of such transfers exceeds or is expected to
exceed 10 percent of the total budget as last approved by the NHPRC.
The NHPRC shall not permit a transfer that would cause any Federal
appropriation or part thereof to be used for purposes other than those
consistent with the original intent of the appropriation.
(g) All other changes to nonconstruction budgets, except for the
changes described in paragraph (j), do not require prior approval.
(h) [Reserved]
(i) No other prior approval requirements for specific items will be
imposed unless a deviation has been approved by OMB.
(j) The NHPRC shall require recipients to notify the NHPRC in
writing promptly whenever the amount of Federal authorized funds is
expected to exceed the needs of the recipient for the project period by
more than $5,000 or five percent of the NHPRC award, whichever is
greater. This notification shall not be required if an application for
additional funding is submitted for a continuation award.
(k) When requesting approval for budget revisions, recipients shall
use the budget forms that were used in the application unless the NHPRC
indicates a letter of request suffices.
(l) Within 30 calendar days from the date of receipt of the request
for budget revisions, the NHPRC shall review the request and notify the
recipient whether the budget revisions have been approved. If the
revision is still under consideration at the end of 30 calendar days,
the NHPRC shall inform the recipient in writing of the date when the
recipient may expect the decision.
Sec. 1210.26 Non-Federal audits.
(a) Recipients and subrecipients that are institutions of higher
education or other non-profit organizations shall be subject to the
audit requirements contained in OMB Circular A-133, ``Audits of
Institutions of Higher Education and Other Non-Profit Institutions.''
(b) State and local governments shall be subject to the audit
requirements contained in the Single Audit Act (31 U.S.C. 7501-7) and
the cognizant Federal agency regulations implementing OMB Circular A-
128, ``Audits of State and Local Governments.''
(c) Hospitals not covered by the audit provisions of OMB Circular
A-133 shall be subject to the audit requirements of the cognizant
Federal agency.
Sec. 1210.27 Allowable costs.
For each kind of recipient, there is a set of Federal principles
for determining allowable costs. Allowability of costs shall be
determined in accordance with the cost principles applicable to the
entity incurring the costs. Thus, allowability of costs incurred by
State, local or federally-recognized Indian tribal governments is
determined in accordance with the provisions of OMB Circular A-87,
``Cost Principles for State and Local Governments.'' The allowability
of costs incurred by non-profit organizations is determined in
accordance with the provisions of OMB Circular A-122, ``Cost Principles
for Non-Profit Organizations.'' The allowability of costs incurred by
institutions of higher education is determined in accordance with the
provisions of OMB Circular A-21, ``Cost Principles for Educational
Institutions.'' The allowability of costs incurred by hospitals is
determined in accordance with the provisions of Appendix E of 45
[[Page 53522]]
CFR Part 74, ``Principles for Determining Costs Applicable to Research
and Development Under Grants and Contracts with Hospitals.'' The
allowability of costs incurred those non-profit organizations listed in
Attachment C to Circular A-122 is determined in accordance with the
provisions of the Federal Acquisition Regulation (FAR) at 48 CFR Part
31.
Sec. 1210.28 Period of availability of funds.
Where a funding period is specified, a recipient may charge to the
grant only allowable costs resulting from obligations incurred during
the funding period and any pre-award costs authorized by the NHPRC.
Property Standards
Sec. 1210.30 Purpose of property standards.
Sections 1210.31 through 1210.37 set forth uniform standards
governing management and disposition of property furnished by the
Federal Government whose cost was charged to a project supported by an
NHPRC award. The NHPRC requires recipients to observe these standards
under awards and shall not impose additional requirements, unless
specifically required by Federal statute. The recipient may use its own
property management standards and procedures provided it observes the
provisions of Secs. 1210.31 through 1210.37.
Sec. 1210.31 Insurance coverage.
Recipients shall, at a minimum, provide the equivalent insurance
coverage for real property and equipment acquired with NHPRC funds as
provided to property owned by the recipient. Federally-owned property
need not be insured unless required by the terms and conditions of the
award.
Sec. 1210.32 Real property.
The NHPRC shall prescribe requirements for recipients concerning
the use and disposition of real property acquired in whole or in part
under awards. Unless otherwise provided by statute, such requirements,
at a minimum, shall contain the following.
(a) Title to real property shall vest in the recipient subject to
the condition that the recipient shall use the real property for the
authorized purpose of the project as long as it is needed and shall not
encumber the property without approval of the NHPRC.
(b) The recipient shall obtain written approval by the NHPRC for
the use of real property in other federally-sponsored projects when the
recipient determines that the property is no longer needed for the
purpose of the original project. Use in other projects shall be limited
to those under federally-sponsored projects (i.e., awards) or programs
that have purposes consistent with those authorized for support by the
NHPRC.
(c) When the real property is no longer needed as provided in
paragraphs (a) and (b) of this section, the recipient shall request
disposition instructions from the NHPRC or its successor Federal
awarding agency. The NHPRC shall observe one or more of the following
disposition instructions.
(1) The recipient may be permitted to retain title without further
obligation to the Federal Government after it compensates the Federal
Government for that percentage of the current fair market value of the
property attributable to the Federal participation in the project.
(2) The recipient may be directed to sell the property under
guidelines provided by the NHPRC and pay the Federal Government for
that percentage of the current fair market value of the property
attributable to the Federal participation in the project (after
deducting actual and reasonable selling and fix-up expenses, if any,
from the sales proceeds). When the recipient is authorized or required
to sell the property, proper sales procedures shall be established that
provide for competition to the extent practicable and result in the
highest possible return.
(3) The recipient may be directed to transfer title to the property
to the Federal Government or to an eligible third party provided that,
in such cases, the recipient shall be entitled to compensation for its
attributable percentage of the current fair market value of the
property.
Sec. 1210.33 Federally-owned and exempt property.
(a) Federally-owned property.
(1) Title to federally-owned property remains vested in the Federal
Government. Recipients shall submit annually an inventory listing of
federally-owned property in their custody to the NHPRC. Upon completion
of the award or when the property is no longer needed, the recipient
shall report the property to the NHPRC for further Federal agency
utilization.
(2) If the NHPRC has no further need for the property, it shall be
declared excess and reported to the General Services Administration.
Appropriate instructions shall be issued to the recipient by the NHPRC.
(b) Exempt property. When statutory authority exists, the NHPRC has
the option to vest title to property acquired with Federal funds in the
recipient without further obligation to the Federal Government and
under conditions the NHPRC considers appropriate. Such property is
``exempt property.'' Should the NHPRC not establish conditions, title
to exempt property upon acquisition shall vest in the recipient without
further obligation to the Federal Government.
Sec. 1210.34 Equipment.
(a) Title to equipment acquired by a recipient with NHPRC funds
shall vest in the recipient, subject to conditions of this section.
(b) The recipient shall not use equipment acquired with NHPRC funds
to provide services to non-Federal outside organizations for a fee that
is less than private companies charge for equivalent services, unless
specifically authorized by Federal statute, for as long as the Federal
Government retains an interest in the equipment.
(c) The recipient shall use the equipment in the project or program
for which it was acquired as long as needed, whether or not the project
or program continues to be supported by Federal funds and shall not
encumber the property without approval of the NHPRC. When no longer
needed for the original project or program, the recipient shall use the
equipment in connection with its other federally-sponsored activities,
in the following order of priority:
(1) Activities sponsored by the NHPRC which funded the original
project, then
(2) Activities sponsored by other Federal awarding agencies.
(d) During the time that equipment is used on the project or
program for which it was acquired, the recipient shall make it
available for use on other projects or programs if such other use will
not interfere with the work on the project or program for which the
equipment was originally acquired. First preference for such other use
shall be given to other projects or programs sponsored by the NHPRC
that financed the equipment; second preference shall be given to
projects or programs sponsored by other Federal awarding agencies. If
the equipment is owned by the Federal Government, use on other
activities not sponsored by the Federal Government shall be permissible
if authorized by the NHPRC. User charges shall be treated as program
income.
(e) When acquiring replacement equipment, the recipient may use the
equipment to be replaced as trade-in or sell the equipment and use the
proceeds to offset the costs of the replacement equipment subject to
the approval of the NHPRC.
[[Page 53523]]
(f) The recipient's property management standards for equipment
acquired with Federal funds and federally-owned equipment shall include
all of the following.
(1) Equipment records shall be maintained accurately and shall
include the following information.
(i) A description of the equipment.
(ii) Manufacturer's serial number, model number, Federal stock
number, national stock number, or other identification number.
(iii) Source of the equipment, including the award number.
(iv) Whether title vests in the recipient or the Federal
Government.
(v) Acquisition date (or date received, if the equipment was
furnished by the Federal Government) and cost.
(vi) Information from which one can calculate the percentage of
Federal participation in the cost of the equipment (not applicable to
equipment furnished by the Federal Government).
(vii) Location and condition of the equipment and the date the
information was reported.
(viii) Unit acquisition cost.
(ix) Ultimate disposition data, including date of disposal and
sales price or the method used to determine current fair market value
where a recipient compensates the NHPRC for its share.
(2) Equipment owned by the Federal Government shall be identified
to indicate Federal ownership.
(3) A physical inventory of equipment shall be taken and the
results reconciled with the equipment records at least once every two
years. Any differences between quantities determined by the physical
inspection and those shown in the accounting records shall be
investigated to determine the causes of the difference. The recipient
shall, in connection with the inventory, verify the existence, current
utilization, and continued need for the equipment.
(4) A control system shall be in effect to insure adequate
safeguards to prevent loss, damage, or theft of the equipment. Any
loss, damage, or theft of equipment shall be investigated and fully
documented; if the equipment was owned by the Federal Government, the
recipient shall promptly notify the NHPRC.
(5) Adequate maintenance procedures shall be implemented to keep
the equipment in good condition.
(6) Where the recipient is authorized or required to sell the
equipment, proper sales procedures shall be established which provide
for competition to the extent practicable and result in the highest
possible return.
(g) When the recipient no longer needs the equipment, the equipment
may be used for other activities in accordance with the following
standards. For equipment with a current per unit fair market value of
$5,000 or more, the recipient may retain the equipment for other uses
provided that compensation is made to the NHPRC or its successor. The
amount of compensation shall be computed by applying the percentage of
Federal participation in the cost of the original project or program to
the current fair market value of the equipment. If the recipient has no
need for the equipment, the recipient shall request disposition
instructions from the NHPRC. The NHPRC shall determine whether the
equipment can be used to meet the NHPRC's requirements. If no
requirement exists within the NHPRC, the availability of the equipment
shall be reported to the General Services Administration by the NHPRC
to determine whether a requirement for the equipment exists in other
Federal agencies. The NHPRC shall issue instructions to the recipient
no later than 120 calendar days after the recipient's request and the
following procedures shall govern.
(1) If so instructed or if disposition instructions are not issued
within 120 calendar days after the recipient's request, the recipient
shall sell the equipment and reimburse the NHPRC an amount computed by
applying to the sales proceeds the percentage of Federal participation
in the cost of the original project or program. However, the recipient
shall be permitted to deduct and retain from the Federal share $500 or
ten percent of the proceeds, whichever is less, for the recipient's
selling and handling expenses.
(2) If the recipient is instructed to ship the equipment elsewhere,
the recipient shall be reimbursed by the Federal Government by an
amount which is computed by applying the percentage of the recipient's
participation in the cost of the original project or program to the
current fair market value of the equipment, plus any reasonable
shipping or interim storage costs incurred.
(3) If the recipient is instructed to otherwise dispose of the
equipment, the recipient shall be reimbursed by the NHPRC for such
costs incurred in its disposition.
(4) The NHPRC reserves the right to transfer the title to the
Federal Government or to a third party named by the Federal Government
when such third party is otherwise eligible under existing statutes.
Such transfer shall be subject to the following standards.
(i) The equipment shall be appropriately identified in the award or
otherwise made known to the recipient in writing.
(ii) The NHPRC shall issue disposition instructions within 120
calendar days after receipt of a final inventory. The final inventory
shall list all equipment acquired with grant funds and federally-owned
equipment. If the NHPRC fails to issue disposition instructions within
the 120 calendar day period, the recipient shall apply the standards of
this section, as appropriate.
(iii) When the NHPRC exercises its right to take title, the
equipment shall be subject to the provisions for federally-owned
equipment.
Sec. 1210.35 Supplies and other expendable property.
(a) Title to supplies and other expendable property shall vest in
the recipient upon acquisition. If there is a residual inventory of
unused supplies exceeding $5,000 in total aggregate value upon
termination or completion of the project or program and the supplies
are not needed for any other federally-sponsored project or program,
the recipient shall retain the supplies for use on non-Federal
sponsored activities or sell them, but shall, in either case,
compensate the NHPRC for its share. The amount of compensation shall be
computed in the same manner as for equipment.
(b) The recipient shall not use supplies acquired with NHPRC funds
to provide services to non-Federal outside organizations for a fee that
is less than private companies charge for equivalent services, unless
specifically authorized by Federal statute as long as the Federal
Government retains an interest in the supplies.
Sec. 1210.36 Intangible property.
(a) The recipient may copyright any work that is subject to
copyright and was developed, or for which ownership was purchased,
under an award. The NHPRC reserves a royalty-free, nonexclusive and
irrevocable right to reproduce, publish, or otherwise use the work for
Federal purposes, and to authorize others to do so.
(b) Recipients are subject to applicable regulations governing
patents and inventions, including government-wide regulations issued by
the Department of Commerce at 37 CFR Part 401, ``Rights to Inventions
Made by Nonprofit Organizations and Small Business Firms Under
Government Grants, Contracts and Cooperative Agreements.''
(c) Unless waived by the NHPRC, the Federal Government has the
right to:
[[Page 53524]]
(1) Obtain, reproduce, publish or otherwise use the data first
produced under an award; and
(2) Authorize others to receive, reproduce, publish, or otherwise
use such data for Federal purposes.
(d) Title to intangible property and debt instruments acquired
under an award or subaward vests upon acquisition in the recipient. The
recipient shall use that property for the originally-authorized
purpose, and the recipient shall not encumber the property without
approval of the NHPRC. When no longer needed for the originally
authorized purpose, disposition of the intangible property shall occur
in accordance with the provisions of Sec. 1210.34(g).
Sec. 1210.37 Property trust relationship.
Real property, equipment, intangible property and debt instruments
that are acquired or improved with NHPRC funds shall be held in trust
by the recipient as trustee for the beneficiaries of the project or
program under which the property was acquired or improved. The NHPRC
may require recipients to record liens or other appropriate notices of
record to indicate that personal or real property has been acquired or
improved with Federal funds and that use and disposition conditions
apply to the property.
Procurement Standards
Sec. 1210.40 Purpose of procurement standards.
Sections 1210.41 through 1210.48 set forth standards for use by
recipients in establishing procedures for the procurement of supplies
and other expendable property, equipment, real property and other
services with NHPRC funds. These standards are furnished to ensure that
such materials and services are obtained in an effective manner and in
compliance with the provisions of applicable Federal statutes and
executive orders. No additional procurement standards or requirements
shall be imposed by the NHPRC upon recipients, unless specifically
required by Federal statute or executive order or approved by OMB.
Sec. 1210.41 Recipient responsibilities.
The standards contained in this section do not relieve the
recipient of the contractual responsibilities arising under its
contract(s). The recipient is the responsible authority, without
recourse to the NHPRC, regarding the settlement and satisfaction of all
contractual and administrative issues arising out of procurements
entered into in support of an award or other agreement. This includes
disputes, claims, protests of award, source evaluation or other matters
of a contractual nature. Matters concerning violation of statute are to
be referred to such Federal, State or local authority as may have
proper jurisdiction.
Sec. 1210.42 Codes of conduct.
The recipient shall maintain written standards of conduct governing
the performance of its employees engaged in the award and
administration of contracts. No employee, officer, or agent shall
participate in the selection, award, or administration of a contract
supported by Federal funds 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 which employs or is about to employ any
of the parties indicated herein, has a financial or other interest in
the firm selected for an award. The officers, employees, and agents of
the recipient shall neither solicit nor accept gratuities, favors, or
anything of monetary value from contractors, or parties to
subagreements. However, recipients 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 the recipient.
Sec. 1210.43 Competition.
All procurement transactions shall be conducted in a manner to
provide, to the maximum extent practical, open and free competition.
The recipient shall be alert to organizational conflicts of interest as
well as noncompetitive practices among contractors that may restrict or
eliminate competition or otherwise restrain trade. In order to ensure
objective contractor performance and eliminate unfair competitive
advantage, contractors that develop or draft specifications,
requirements, statements of work, invitations for bids and/or requests
for proposals shall be excluded from competing for such procurements.
Awards shall be made to the bidder or offeror whose bid or offer is
responsive to the solicitation and is most advantageous to the
recipient, price, quality and other factors considered. Solicitations
shall clearly set forth all requirements that the bidder or offeror
shall fulfill in order for the bid or offer to be evaluated by the
recipient. Any and all bids or offers may be rejected when it is in the
recipient's interest to do so.
Sec. 1210.44 Procurement procedures.
(a) All recipients shall establish written procurement procedures.
These procedures shall provide for, at a minimum, that paragraphs (a)
(1), (2) and (3) of this section apply.
(1) Recipients avoid purchasing unnecessary items.
(2) Where appropriate, an analysis is made of lease and purchase
alternatives to determine which would be the most economical and
practical procurement for the Federal Government.
(3) Solicitations for goods and services provide for all of the
following.
(i) A clear and accurate description of the technical requirements
for the material, product or service to be procured. In competitive
procurements, such a description shall not contain features which
unduly restrict competition.
(ii) Requirements which the bidder/offeror must fulfill and all
other factors to be used in evaluating bids or proposals.
(iii) A description, whenever practicable, of technical
requirements in terms of functions to be performed or performance
required, including the range of acceptable characteristics or minimum
acceptable standards.
(iv) The specific features of ``brand name or equal'' descriptions
that bidders are required to meet when such items are included in the
solicitation.
(v) The acceptance, to the extent practicable and economically
feasible, of products and services dimensioned in the metric system of
measurement.
(vi) Preference, to the extent practicable and economically
feasible, for products and services that conserve natural resources and
protect the environment and are energy efficient.
(b) Positive efforts shall be made by recipients to utilize small
businesses, minority-owned firms, and women's business enterprises,
whenever possible. Recipients of Federal awards shall take all of the
following steps to further this goal.
(1) Ensure that small businesses, minority-owned firms, and women's
business enterprises are used to the fullest extent practicable.
(2) Make information on forthcoming opportunities available and
arrange time frames for purchases and contracts to encourage and
facilitate participation by small businesses, minority-owned firms, and
women's business enterprises.
(3) Consider in the contract process whether firms competing for
larger contracts intend to subcontract with small businesses, minority-
owned firms, and women's business enterprises.
(4) Encourage contracting with consortiums of small businesses,
[[Page 53525]]
minority-owned firms and women's business enterprises when a contract
is too large for one of these firms to handle individually.
(5) Use the services and assistance, as appropriate, of such
organizations as the Small Business Administration and the Department
of Commerce's Minority Business Development Agency in the solicitation
and utilization of small businesses, minority-owned firms and women's
business enterprises.
(c) The type of procuring instruments used (e.g., fixed price
contracts, cost reimbursable contracts, purchase orders, and incentive
contracts) shall be determined by the recipient but shall be
appropriate for the particular procurement and for promoting the best
interest of the program or project involved. The ``cost-plus-a-
percentage-of-cost'' or ``percentage of construction cost'' methods of
contracting shall not be used.
(d) Contracts shall be made only with responsible contractors who
possess the potential ability to perform successfully under the terms
and conditions of the proposed procurement. Consideration shall be
given to such matters as contractor integrity, record of past
performance, financial and technical resources or accessibility to
other necessary resources. In certain circumstances, contracts with
certain parties are restricted by NARA implementation of E.O.s 12549
and 12689, ``Debarment and Suspension'' (36 CFR Part 1209).
(e) Recipients shall, on request, make available for the NHPRC,
pre-award review and procurement documents, such as request for
proposals or invitations for bids, independent cost estimates, etc.,
when any of the following conditions apply.
(1) A recipient's procurement procedures or operation fails to
comply with the procurement standards in the NHPRC's implementation of
this part.
(2) The procurement is expected to exceed the small purchase
threshold fixed at 41 U.S.C. 403 (11) (currently $25,000) and is to be
awarded without competition or only one bid or offer is received in
response to a solicitation.
(3) The procurement, which is expected to exceed the small purchase
threshold, specifies a ``brand name'' product.
(4) The proposed award over the small purchase threshold is to be
awarded to other than the apparent low bidder under a sealed bid
procurement.
(5) A proposed contract modification changes the scope of a
contract or increases the contract amount by more than the amount of
the small purchase threshold.
Sec. 1210.45 Cost and price analysis.
Some form of cost or price analysis shall be made and documented in
the procurement files in connection with every procurement action.
Price analysis may be accomplished in various ways, including the
comparison of price quotations submitted, market prices and similar
indicia, together with discounts. Cost analysis is the review and
evaluation of each element of cost to determine reasonableness,
allocability and allowability.
Sec. 1210.46 Procurement records.
Procurement records and files for purchases in excess of the small
purchase threshold shall include the following at a minimum:
(a) Basis for contractor selection,
(b) Justification for lack of competition when competitive bids or
offers are not obtained, and
(c) Basis for award cost or price.
Sec. 1210.47 Contract administration.
A system for contract administration shall be maintained to ensure
contractor conformance with the terms, conditions and specifications of
the contract and to ensure adequate and timely follow up of all
purchases. Recipients shall evaluate contractor performance and
document, as appropriate, whether contractors have met the terms,
conditions and specifications of the contract.
Sec. 1210.48 Contract provisions.
The recipient shall include, in addition to provisions to define a
sound and complete agreement, the following provisions in all
contracts. The following provisions shall also be applied to
subcontracts.
(a) Contracts in excess of the small purchase threshold shall
contain contractual provisions or conditions that allow for
administrative, contractual, or legal remedies in instances in which a
contractor violates or breaches the contract terms, and provide for
such remedial actions as may be appropriate.
(b) All contracts in excess of the small purchase threshold shall
contain suitable provisions for termination by the recipient, including
the manner by which termination shall be effected and the basis for
settlement. In addition, such contracts shall describe conditions under
which the contract may be terminated for default as well as conditions
where the contract may be terminated because of circumstances beyond
the control of the contractor.
(c) All negotiated contracts (except those for less than the small
purchase threshold) awarded by recipients shall include a provision to
the effect that the recipient, the NHPRC, the Comptroller General of
the United States, or any of their duly authorized representatives,
shall have access to any books, documents, papers and records of the
contractor which are directly pertinent to a specific program for the
purpose of making audits, examinations, excerpts and transcriptions.
(d) All contracts, including small purchases, awarded by recipients
and their contractors shall contain the procurement provisions of
Appendix A to this Part, as applicable.
Reports and Records
Sec. 1210.50 Purpose of reports and records.
Sections 1210.51 through 1210.53 set forth the procedures for
monitoring and reporting on the recipient's financial and program
performance and the necessary standard reporting forms. They also set
forth record retention requirements.
Sec. 1210.51 Monitoring and reporting program performance.
(a) Recipients are responsible for managing and monitoring each
project, program, subaward, function or activity supported by the
award. Recipients shall monitor subawards to ensure subrecipients have
met the audit requirements as delineated in Sec. 1210.26.
(b) Except as provided in paragraph (f) of this section, interim
performance reports shall be submitted every six months and shall be
due 30 days after the reporting period; final reports shall be due 90
calendar days after the end of the grant period.
(c) If inappropriate, a final performance report shall not be
required after completion of the project.
(d) When required, performance reports shall generally contain, for
each award, brief information on each of the following.
(1) A comparison of actual accomplishments with the goals and
objectives established for the period, the findings of the
investigator, or both. Whenever appropriate and the output of programs
or projects can be readily quantified, such quantitative data should be
related to cost data for computation of unit costs.
(2) Reasons why established goals were not met, if appropriate.
(3) Other pertinent information including, when appropriate,
analysis and explanation of cost overruns or high unit costs.
(e) Recipients shall not be required to submit more than the
original and two copies of performance reports.
(f) Recipients shall immediately notify the NHPRC of developments
that have a significant impact on the award-
[[Page 53526]]
supported activities. Also, notification shall be given in the case of
problems, delays, or adverse conditions which materially impair the
ability to meet the objectives of the award. This notification shall
include a statement of the action taken or contemplated, and any
assistance needed to resolve the situation.
(g) The NHPRC may make site visits, as needed.
(h) The NHPRC shall comply with clearance requirements of 5 CFR
Part 1320 when requesting performance data from recipients.
Sec. 1210.52 Financial reporting.
(a) The following forms or such other forms as may be approved by
OMB are authorized for obtaining financial information from recipients.
(1) SF-269 or SF-269A, Financial Status Report.
(i) The NHPRC requires recipients to use the SF-269 or SF-269A to
report the status of funds for all nonconstruction projects or
programs. The NHPRC may, however, have the option of not requiring the
SF-269 or SF-269A when the SF-270, Request for Advance or
Reimbursement, or SF-272, Report of Federal Cash Transactions, is
determined to provide adequate information to meet its needs, except
that a final SF-269 or SF-269A shall be required at the completion of
the project when the SF-270 is used only for advances.
(ii) The report may be on a cash or accrual basis.
(iii) The NHPRC shall determine the frequency of the Financial
Status Report for each project or program, considering the size and
complexity of the particular project or program. However, the report
shall not be required more frequently than quarterly or less frequently
than annually. A final report shall be required at the completion of
the agreement.
(iv) The NHPRC shall require recipients to submit the SF-269 or SF-
269A (an original and no more than two copies) no later than 30 days
after the end of each specified reporting period for quarterly and
semi-annual reports, and 90 calendar days for annual and final reports.
Extensions of reporting due dates may be approved by NHPRC upon request
of the recipient.
(2) SF-272, Report of Federal Cash Transactions.
(i) When funds are advanced to recipients the NHPRC shall require
each recipient to submit the SF-272 and, when necessary, its
continuation sheet, SF-272a. The NHPRC shall use this report to monitor
cash advanced to recipients and to obtain disbursement information for
each agreement with the recipients.
(ii) The NHPRC may require forecasts of Federal cash requirements
in the ``Remarks'' section of the report.
(iii) When practical and deemed necessary, the NHPRC may require
recipients to report in the ``Remarks'' section the amount of cash
advances received in excess of three days. Recipients shall provide
short narrative explanations of actions taken to reduce the excess
balances.
(iv) Recipients shall be required to submit not more than the
original and two copies of the SF-272 15 calendar days following the
end of each quarter. The NHPRC may require a monthly report from those
recipients receiving advances totaling $1 million or more per year.
(v) The NHPRC may waive the requirement for submission of the SF-
272 for any one of the following reasons:
(A) When monthly advances do not exceed $25,000 per recipient,
provided that such advances are monitored through other forms contained
in this section;
(B) If, in the NHPRC's opinion, the recipient's accounting controls
are adequate to minimize excessive Federal advances; or,
(C) When the electronic payment mechanisms provide adequate data.
(b) When the NHPRC needs additional information or more frequent
reports, the following shall be observed.
(1) When additional information is needed to comply with
legislative requirements, the NHPRC shall issue instructions to require
recipients to submit such information under the ``Remarks'' section of
the reports.
(2) When the NHPRC determines that a recipient's accounting system
does not meet the standards in Sec. 1210.21, additional pertinent
information to further monitor awards may be obtained upon written
notice to the recipient until such time as the system is brought up to
standard. The NHPRC, in obtaining this information, shall comply with
report clearance requirements of 5 CFR Part 1320.
(3) The NHPRC is encouraged to shade out any line item on any
report if not necessary.
(4) The NHPRC may accept the identical information from the
recipients in machine readable format or computer printouts or
electronic outputs in lieu of prescribed formats.
(5) The NHPRC may provide computer or electronic outputs to
recipients when such expedites or contributes to the accuracy of
reporting.
Sec. 1210.53 Retention and access requirements for records.
(a) This section sets forth requirements for record retention and
access to records for awards to recipients. The NHPRC will not impose
any other record retention or access requirements upon recipients.
(b) Financial records, supporting documents, statistical records,
and all other records pertinent to an award shall be retained for a
period of three years from the date of submission of the final
expenditure report or, for awards that are renewed quarterly or
annually, from the date of the submission of the quarterly or annual
financial report, as authorized by the NHPRC. The only exceptions are
the following.
(1) If any litigation, claim, or audit is started before the
expiration of the 3-year period, the records shall be retained until
all litigation, claims or audit findings involving the records have
been resolved and final action taken.
(2) Records for real property and equipment acquired with NHPRC
funds shall be retained for 3 years after final disposition.
(3) When records are transferred to or maintained by the NHPRC, the
3-year retention requirement is not applicable to the recipient.
(4) Indirect cost rate proposals, cost allocations plans, etc. as
specified in paragraph (g) of this section.
(c) Copies of original records may be substituted for the original
records if authorized by the NHPRC.
(d) The NHPRC shall request transfer of certain records to its
custody from recipients when it determines that the records possess
long term retention value. However, in order to avoid duplicate
recordkeeping, the NHPRC may make arrangements for recipients to retain
any records that are continuously needed for joint use.
(e) The NHPRC, the Inspector General, Comptroller General of the
United States, or any of their duly authorized representatives, have
the right of timely and unrestricted access to any books, documents,
papers, or other records of recipients that are pertinent to the
awards, in order to make audits, examinations, excerpts, transcripts
and copies of such documents. This right also includes timely and
reasonable access to a recipient's personnel for the purpose of
interview and discussion related to such documents. The rights of
access in this paragraph are not limited to the required retention
period, but shall last as long as records are retained.
(f) Unless required by statute, the NHPRC will place no
restrictions on recipients that limit public access to the
[[Page 53527]]
records of recipients that are pertinent to an award, except when the
NHPRC can demonstrate that such records shall be kept confidential and
would have been exempted from disclosure pursuant to the Freedom of
Information Act (5 U.S.C. 552) if the records had belonged to the
NHPRC.
(g) Indirect cost rate proposals, cost allocations plans, etc.
Paragraphs (g)(1) and (g)(2) of this section apply 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).
(1) If submitted for negotiation. If the recipient submits to the
cognizant Federal agency or the subrecipient submits to the recipient
the proposal, plan, or other computation to form the basis for
negotiation of the rate, then the 3-year retention period for its
supporting records starts on the date of such submission.
(2) If not submitted for negotiation. If the recipient is not
required to submit to the NHPRC or the subrecipient is not required to
submit to the recipient the proposal, plan, or other computation for
negotiation purposes, then the 3-year retention period for the
proposal, plan, or other computation and its supporting records starts
at the end of the fiscal year (or other accounting period) covered by
the proposal, plan, or other computation.
Termination and Enforcement
Sec. 1210.60 Purpose of termination and enforcement.
Sections 1210.61 and 1210.62 set forth uniform suspension,
termination and enforcement procedures.
Sec. 1210.61 Termination.
(a) Awards may be terminated in whole or in part only if paragraphs
(1), (2) or (3) of this section apply.
(1) By the NHPRC, if a recipient materially fails to comply with
the terms and conditions of an award.
(2) By the NHPRC with the consent of the recipient, in which case
the two parties shall agree upon the termination conditions, including
the effective date and, in the case of partial termination, the portion
to be terminated.
(3) By the recipient upon sending to the NHPRC 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 the NHPRC determines in the case of partial termination
that the reduced or modified portion of the grant will not accomplish
the purposes for which the grant was made, it may terminate the grant
in its entirety under either paragraphs (a)(1) or (2) of this section.
(b) If costs are allowed under an award, the responsibilities of
the recipient referred to in Sec. 1210.71(a), including those for
property management as applicable, shall be considered in the
termination of the award, and provision shall be made for continuing
responsibilities of the recipient after termination, as appropriate.
Sec. 1210.62 Enforcement.
(a) Remedies for noncompliance. If a recipient materially fails to
comply with the terms and conditions of an award, whether stated in a
Federal statute, regulation, assurance, application, or notice of
award, the NHPRC may, in addition to imposing any of the special
conditions outlined in Sec. 1210.14, take one or more of the following
actions, as appropriate in the circumstances.
(1) Temporarily withhold cash payments pending correction of the
deficiency by the recipient or more severe enforcement action by the
NHPRC.
(2) Disallow (that is, deny both use of funds and any applicable
matching credit for) all or part of the cost of the activity or action
not in compliance.
(3) Wholly or partly suspend or terminate the current award.
(4) Withhold further awards for the project or program.
(5) Take other remedies that may be legally available.
(b) Hearings and appeals. In taking an enforcement action, the
NHPRC shall provide the recipient an opportunity for hearing, appeal,
or other administrative proceeding to which the recipient is entitled
under any statute or regulation applicable to the action involved.
(c) Effects of suspension and termination. Costs of a recipient
resulting from obligations incurred by the recipient during a
suspension or after termination of an award are not allowable unless
the NHPRC expressly authorizes them in the notice of suspension or
termination or subsequently. Other recipient costs during suspension or
after termination which are necessary and not reasonably avoidable are
allowable if paragraphs (c)(1) and (2) of this section apply.
(1) The costs result from obligations which were properly incurred
by the recipient before the effective date of suspension or
termination, are not in anticipation of it, and in the case of a
termination, are noncancellable.
(2) The costs would be allowable if the award were not suspended or
expired normally at the end of the funding period in which the
termination takes effect.
(d) Relationship to debarment and suspension. The enforcement
remedies identified in this section, including suspension and
termination, do not preclude a recipient from being subject to
debarment and suspension under E.O.s 12549 and 12689 and NARA
implementing regulations (see Sec. 1210.13).
Subpart D--After-the-Award Requirements
Sec. 1210.70 Purpose.
Sections 1210.71 through 1210.73 contain closeout procedures and
other procedures for subsequent disallowances and adjustments.
Sec. 1210.71 Closeout procedures.
(a) Recipients shall submit, within 90 calendar days after the date
of completion of the award, all financial, performance, and other
reports as required by the terms and conditions of the award. The NHPRC
may approve extensions when requested by the recipient.
(b) Unless the NHPRC authorizes an extension, a recipient shall
liquidate all obligations incurred under the award not later than 90
calendar days after the funding period or the date of completion as
specified in the terms and conditions of the award or in agency
implementing instructions.
(c) The NHPRC shall make prompt payments to a recipient for
allowable reimbursable costs under the award being closed out.
(d) The recipient shall promptly refund any balances of unobligated
cash that the NHPRC has advanced or paid and that is not authorized to
be retained by the recipient for use in other projects. OMB Circular A-
129 governs unreturned amounts that become delinquent debts.
(e) When authorized by the terms and conditions of the award, the
NHPRC shall make a settlement for any upward or downward adjustments to
the Federal share of costs after closeout reports are received.
(f) The recipient shall account for any real and personal property
acquired with Federal funds or received from the Federal Government in
accordance with Secs. 1210.31 through 1210.37.
(g) In the event a final audit has not been performed prior to the
closeout of an award, the NHPRC shall retain the right to recover an
appropriate amount after fully considering the
[[Page 53528]]
recommendations on disallowed costs resulting from the final audit.
Sec. 1210.72 Subsequent adjustments and continuing responsibilities.
(a) The closeout of an award does not affect any of the following.
(1) The right of the NHPRC to disallow costs and recover funds on
the basis of a later audit or other review.
(2) The obligation of the recipient to return any funds due as a
result of later refunds, corrections, or other transactions.
(3) Audit requirements in Sec. 1210.26.
(4) Property management requirements in Secs. 1210.31 through
1210.37.
(5) Records retention as required in Sec. 1210.53.
(b) After closeout of an award, a relationship created under an
award may be modified or ended in whole or in part with the consent of
the NHPRC and the recipient, provided the responsibilities of the
recipient referred to in Sec. 1210.73(a), including those for property
management as applicable, are considered and provisions made for
continuing responsibilities of the recipient, as appropriate.
Sec. 1210.73 Collection of amounts due.
(a) Any funds paid to a recipient in excess of the amount to which
the recipient is finally determined to be entitled under the terms and
conditions of the award constitute a debt to the Federal Government. If
not paid within a reasonable period after the demand for payment, the
NHPRC may reduce the debt by:
(1) Making an administrative offset against other requests for
reimbursements;
(2) Withholding advance payments otherwise due to the recipient; or
(3) Taking other action permitted by statute.
(b) Except as otherwise provided by law, the NHPRC shall charge
interest on an overdue debt in accordance with 4 CFR Chapter II,
``Federal Claims Collection Standards.''
Appendix A to Part 1210--Contract Provisions
All contracts, awarded by a recipient including small purchases,
shall contain the following provisions as applicable:
1. Equal Employment Opportunity--All contracts shall contain a
provision requiring compliance with E.O. 11246, ``Equal Employment
Opportunity,'' as amended by E.O. 11375, ``Amending Executive Order
11246 Relating to Equal Employment Opportunity,'' and as
supplemented by regulations at 41 CFR part 60, ``Office of Federal
Contract Compliance Programs, Equal Employment Opportunity,
Department of Labor.''
2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C.
276c)--All contracts and subgrants in excess of $2,000 for
construction or repair awarded by recipients and subrecipients shall
include a provision for compliance with the Copeland ``Anti-
Kickback'' Act (18 U.S.C. 874), as supplemented by Department of
Labor regulations (29 CFR part 3, ``Contractors and Subcontractors
on Public Building or Public Work Financed in Whole or in Part by
Loans or Grants from the United States''). The Act provides that
each contractor or subrecipient shall be prohibited from inducing,
by any means, any person employed in the construction, completion,
or repair of public work, to give up any part of the compensation to
which he is otherwise entitled. The recipient shall report all
suspected or reported violations to the Federal awarding agency.
3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)--When
required by Federal program legislation, all construction contracts
awarded by the recipients and subrecipients of more than $2,000
shall include a provision for compliance with the Davis-Bacon Act
(40 U.S.C. 276a to a-7) and as supplemented by Department of Labor
regulations (29 CFR part 5, ``Labor Standards Provisions Applicable
to Contracts Governing Federally Financed and Assisted
Construction''). Under this Act, contractors shall be required to
pay wages to laborers and mechanics at a rate not less than the
minimum wages specified in a wage determination made by the
Secretary of Labor. In addition, contractors shall be required to
pay wages not less than once a week. The recipient shall place a
copy of the current prevailing wage determination issued by the
Department of Labor in each solicitation and the award of a contract
shall be conditioned upon the acceptance of the wage determination.
The recipient shall report all suspected or reported violations to
the Federal awarding agency.
4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
333)--Where applicable, all contracts awarded by recipients in
excess of $2,000 for construction contracts and in excess of $2,500
for other contracts that involve the employment of mechanics or
laborers shall include a provision for compliance with Sections 102
and 107 of the Contract Work Hours and Safety Standards Act (40
U.S.C. 327-333), as supplemented by Department of Labor regulations
(29 CFR part 5). Under Section 102 of the Act, each contractor shall
be required to compute the wages of every mechanic and laborer on
the basis of a standard work week of 40 hours. Work in excess of the
standard work week is permissible provided that the worker is
compensated at a rate of not less than 1\1/2\ times the basic rate
of pay for all hours worked in excess of 40 hours in the work week.
Section 107 of the Act is applicable to construction work and
provides that no laborer or mechanic shall be required to work in
surroundings or under working conditions which are unsanitary,
hazardous or dangerous. These requirements do not apply to the
purchases of supplies or materials or articles ordinarily available
on the open market, or contracts for transportation or transmission
of intelligence.
5. Rights to Inventions Made Under a Contract or Agreement--
Contracts or agreements for the performance of experimental,
developmental, or research work shall provide for the rights of the
Federal Government and the recipient in any resulting invention in
accordance with 37 CFR part 401, ``Rights to Inventions Made by
Nonprofit Organizations and Small Business Firms Under Government
Grants, Contracts and Cooperative Agreements,'' and any implementing
regulations issued by the awarding agency.
6. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--
Contracts and subgrants of amounts in excess of $100,000 shall
contain a provision that requires the recipient to agree to comply
with all applicable standards, orders or regulations issued pursuant
to the Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water
Pollution Control Act as amended (33 U.S.C. 1251 et seq.).
Violations shall be reported to the Federal awarding agency and the
Regional Office of the Environmental Protection Agency (EPA).
7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)--Contractors
who apply or bid for an award of $100,000 or more shall file the
required certification. Each tier certifies to the tier above that
it will not and has not used Federal appropriated funds to pay any
person or organization for influencing or attempting to influence an
officer or employee of any agency, a member of Congress, officer or
employee of Congress, or an employee of a member of Congress in
connection with obtaining any Federal contract, grant or any other
award covered by 31 U.S.C. 1352. Each tier shall also disclose any
lobbying with non-Federal funds that takes place in connection with
obtaining any Federal award. Such disclosures are forwarded from
tier to tier up to the recipient.
8. Debarment and Suspension (E.O. 12549 and E.O. 12689)--No
contract shall be made to parties listed on the General Services
Administration's List of Parties Excluded from Federal Procurement
or Nonprocurement Programs in accordance with E.O. 12549 and E.O.
12689, ``Debarment and Suspension.'' This list contains the names of
parties debarred, suspended, or otherwise excluded by agencies, and
contractors declared ineligible under statutory or regulatory
authority other than E.O. 12549. Contractors with awards that exceed
the small purchase threshold shall provide the required
certification regarding its exclusion status and that of its
principal employees.
Dated: August 31, 1995.
John W. Carlin,
Archivist of the United States.
[FR Doc. 95-25548 Filed 10-13-95; 8:45 am]
BILLING CODE 7515-01-P
