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ORD 34009 - Agmt with Creighton Saint Joseph Regional Health Care Systems for employee assistance program • t (.. l ,e ),/y 6 6 i OF otAAHA,Art RECEIVE)� '1' l ,. U, `���,s� Law Department �.1 ' 96 S E P 1 09 Omaha/Douglas Civic Center 1 '+R«, , 8: 1819 Farnam Street,Suite 804 , f n,� c Omaha,Nebraska 68183-0804 ° p- 4` � '\� (402)444-5115 A° yry CITY CLERK Telefax(402)444-5125 ��TFU FEW'. OMAHa, NEBRASK,A' City of Omaha Herbert M.Fide City Attorney Hal Daub,Mayor Honorable President and Members of the City Council, The purpose of the attached Ordinance,prepared at the request of Councilmember Brenda Council, is to approve a Grant Agreement between the City of Omaha and Creighton Saint Joseph Regional Health Care Systems, L.L.C. for the Operation Bridge Employee Assistance Program. The Agreement in the amount of$280,000 covers a time period of 36 months from the time of favorable consideration by the City Council and execution by the Mayor. Funding for the project is provided by the Enterprise Community Social Services Block Grant. Sincerely, Jo A avel Assistant City Attorney P:\LAW\4899.SKZ i ORDINANCE NO. .•34/0,°IJ 9' rr r AN ORDINANCE approving an Agreement with Creighton Saint Joseph Regional Health Care Systems and providing an effective date. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OMAHA: Section 1. This Agreement with Creighton Saint Joseph Regional Health Care Systems is necessary to allocate funds for a 36 month period to Creighton Saint Joseph Regional Health Care Systems for operation of the Operation Bridge Employee Assistance Program. On December 12, 1995 by Resolution No. 3394,the City Council approved the Enterprise Community Memorandum of Agreement and Stakeholders'Tool Kit with Benchmarks and Timelines,which budgeted$280,250 to Operation Bridge, an affiliate of Creighton Saint Joseph Regional Health Care Systems, for the purpose of operating the Employee Assistance Program. Since the final Social Service Block Grant amount of $2,947,368 differs slightly from the anticipated $2,950,000 entitlement amount, the Operation Bridge, an affiliate of Creighton Saint Joseph Regional Health Care Systems Grant has been reduced by $250 to $280,000. Section 2. The Mayor is hereby authorized to execute and the City Clerk attest the Agreement attached hereto between the City of Omaha and Creighton Saint Joseph Regional Health Care Systems. Section 3. This Ordinance,not being of legislative character, shall be in full force and take effect immediately upon passage under and by virtue of the authority granted by Section 2.12 of the Home Rule Charter of the City of Omaha, 1956, as amended. INTRODUCED BY COUNCILMEMBER r `d•-a04-7, APPROVED BY: ING /4/,he AYOR OF THE Y OF OMAfIX PASSED OCT 1 1996 -/ ATTEST: APPROVED AS TO FORM: 01 OF THE OMAHA AlSr TANT C TY ATTORNEY P:\PLN1\370 S • ( .0 AGREEMENT THIS AGREEMENT is entered into by and between the City of Omaha, a Municipal Corporation in Douglas County, Nebraska (sometimes hereinafter referred to as "City") and Creighton Saint Joseph Regional HealthCare System,L.L.C.,a Delaware limited liability company, doing business as Saint Joseph Center for Mental Health, doing business as Operation Bridge, (sometimes hereinafter referred to as "Contractor") on the terms, conditions and provisions as set forth below: RECITALS: WHEREAS, the City of Omaha is a municipal corporation located in Douglas County, Nebraska, and is organized and existing under the laws of the State of Nebraska, and is authorized and empowered to exercise all powers conferred by the State constitution, laws,Home Rule Charter of the City of Omaha, 1956, as amended, and local ordinances, including but not limited to, the power to contract; and, WHEREAS, on June 20, 1994, based upon its application, the City of Omaha received Enterprise Zone designation from the State of Nebraska; and, WHEREAS,on December 20, 1994,based upon its application,the City of Omaha received enterprise community designation from the United States Department of Housing and Urban Development; and WHEREAS, on February 1, 1994, the City of Omaha pursuant to Section 13-2109 R.S. Supp., 1994, appointed an Enterprise Zone Association Board; and, WHEREAS,pursuant to such applications and statute it is the duty of such Board to promote the Enterprise Zone to outside groups and individuals,establish a formal line of communication with el residents and businesses in the Enterprise Zone, act as a liaison between residents, businesses, and the City for development activity that may effect the Enterprise Zone or Zone residents, compile periodic Enterprise Zone and Enterprise Community status reports for the City, plan, recommend and encourage the coordination of development activities and make recommendations; and, WHEREAS,on December 12, 1995,by Resolution No. 3394,the City Council approved the Enterprise Community Memorandum of Agreement and Stakeholders'Toolkit with Benchmarks and Timelines which allocated$280,250 to Operation Bridge, an affiliate of the Creighton Saint Joseph Regional HealthCare System,L.L.C., in Omaha,Nebraska,for the purpose of offering an Employee Assistance Program to businesses in the Enterprise Community; and, WHEREAS, since the final Enterprise Community Social Service Block Grant amount of $2,947,368 differs slightly from the anticipated $2,950,000 grant amount, minor reductions have been made to each sub-recipient's grant amount; and, WHEREAS, on April 1, 1996, the Enterprise Zone Association Board recommended approval of funding in the amount of$280,000 to Operation Bridge, an affiliate of the Creighton St. Joseph Regional Health Care System, L.L.C. for the purpose of offering an Employee Assistance Program to businesses in the Enterprise Community. WHEREAS, it is in the best interests of the City of Omaha and the residents thereof that the City enter into an Agreement with the Creighton Saint Joseph Regional HealthCare System,L.L.C., doing business as Saint Joseph Center for Mental Health, doing business as Operation Bridge, to provide funding in the amount of$280,000 for the provisions of the Operation Bridge Interactive Leadership Employee Assistance Program for the Enterprise Community. NOW, THEREFORE, in consideration of these mutual covenants, Operation Bridge and the City of Omaha do hereby agree as follows: - 2 - 0 • SECTION 1. DEFINITIONS -ABBREVIATIONS 1.1 "City" shall mean-the City of Omaha, a Nebraska Municipal Corporation. 1.2 "Contractor" shall mean - Creighton Saint Joseph Regional HealthCare Systems, L.L.C., doing business as Saint Joseph Center for Mental Health, doing business as Operation Bridge, 32 Loockerman Square, Suite L-100, Dover, County of Kent, Delaware, 19901, a limited liability company. (See Exhibit "A") 1.3 "Director" shall mean-the Planning Department Director of the City of Omaha. 1.4 "Enterprise Community" shall mean-the area of Omaha designated by the U.S. Department of H.U.D. as an enterprise community, shown on the map in Exhibit "B". 1.5 "Recipient" shall mean-the City of Omaha. 1.6 "Subrecipient" shall mean- a public or private nonprofit agency, authority or organization receiving SSBG funds to undertake eligible activities. In this Agreement,the Subrecipient is the Operation Bridge. 1.7 "Social Service Block Grants (SSBG)" - shall mean the program administered by the City of Omaha and funded under the Empowerment Zones/Enterprise Communities program of the Omnibus Budget Reconciliation Act of 1993. The program purpose is to empower American communities to create jobs and opportunity,take effective action to solve difficult and pressing economic,human,physical and community development challenges of today, and to build for tomorrow as part of a Federal-State-Local and private sector partnership in accordance with Federal Regulations in 45 CFR Part 96 Subpart C (Exhibit C) and the program objectives,priorities, and strategies as stated in the Omaha Enterprise Community Application. 1.9 "SSBG Funds" shall mean-the portion of the Social Service Block Grant program awarded to the City as may be available during Program year 1996, 1997 and 1998 for the use specified herein, in an amount not to exceed $280,000 subject to the terms, conditions, and requirements of said Grant. 1.10 "Grant" shall mean-non-repayable SSBG funds made subject to the terms, conditions and provisions of the grant agreement under which said grant is made. 1.11 "Facility" shall mean - the Operation Bridge, 1941 South 42nd Street, Suite 122, Omaha, Nebraska 68105-2942. 1.12 "Operation Bridge" shall mean-the agency located at 1941 South 42nd Street, Suite 122, Omaha, NE 68105-2942, affiliated with Creighton Saint Joseph Regional HealthCare System, L.L.C. providing mental health care services in Omaha,Nebraska. - 3 - - a • 1.13 "Program Income" shall mean - gross income received by the Recipient or Subrecipient directly generated from the use of SSBG funds. When such income is generated by an activity that is only partially assisted with SSBG funds, the income shall be prorated to reflect the percentage of SSBG funds used. (See Exhibit "D".) 1.14 "Enterprise Zone Association Board" shall mean-the board appointed by the City of Omaha pursuant to Section 13-2109 R.S. Supp., 1994 and as specified in the application for enterprise zone designation submitted to the State of Nebraska and in the application for enterprise community designation submitted to the United States Department of Housing and Urban Development. SECTION 2. DUTIES AND CONDITIONS OF CITY FINANCING 2.1 Subject to and conditioned upon actual receipt of same,the City agrees to make available to the Contractor $280,250 in SSBG funds, Fund No. 188, in the form of a grant for the purposes set forth in this Agreement, and as detailed in Exhibit "E" incorporated herein by this reference. 2.1.1 City funding pursuant to this Section shall be contingent upon receipt of and subject to the availability of SSBG funds in amounts adequate to meet any contractual obligations in force upon the date of execution of this Agreement, as well as, this proposed obligation. Should adequate funding not be available,the City shall notify the Contractor as soon as reasonably possible. At such time, the responsibilities of the Contractor under Section 3 of this Agreement shall be released,the provisions of Section 5, Paragraph 5.10 will be exercised and the Agreement will be terminated. 2.1.2 Reimbursement shall be on a monthly basis for the budget items. Payments shall be made on the basis of monthly requests for payment and shall be reimbursements for actual expenditures. The budget is identified as Exhibit "F". 2.1.3 Monthly billing will be submitted to the Director by Operation Bridge. The monthly billing is due no later than fifteen(15)days following each monthly reporting period. 2.3 The City shall review(1) and monitor the required quarterly progress reports that identify the progress/ accomplishments of Operation Bridge on the activities included in this Agreement and on contractors entered into with third parties pursuant thereto and (2) the recommendations of the Enterprise Zone Association Board concerning such quarterly progress reports. Quarterly progress reports are due no later than fifteen(15)days following each quarterly reporting period. 2.4 The City shall prepare monthly payment vouchers for Operation Bridge, based upon the Contractor's quarterly progress report and monthly request for payment. - 4 - • SECTION 3. DUTIES AND RESPONSIBILITIES OF THE CONTRACTOR 3.1 The Contractor does hereby certify, contract and agree that any and all funding obtained or made available hereunder shall be used solely and exclusively for the express purposes set forth in this Agreement, and as detailed in Exhibit "E", Scope of Work. 3.2 The Contractor shall provide services for clients as required in the scope of work as attached hereto. (See Exhibit "E".) Clients shall be in accordance with the Scope of Work. (See Exhibit "B".) 3.3 The Contractor shall submit quarterly progress reports to the Director and the Enterprise Zone Association Board delineating the Operation Bridge accomplishments for the previous 90 day period on specific activities approved by the City Planning Department. (See Exhibit "E".) This quarterly progress report shall be due no later than fifteen (15) days following each quarterly reporting period. 3.4 The Contractor shall submit monthly financial reports (income statements)to the Director delineating the revenue and line item expenditures for Operation Bridge. In addition, a monthly check register is to be submitted listing each expenditure by check number, payee, date, and amount for all expenditures for which reimbursement is requested. These reports shall include all program income. 3.5 The Contractor shall have an annual audit completed in compliance with OMB Circular A- 133. A copy of the audit shall be provided to the Director. OMB Circular A-133 is attached as Exhibit "G". 3.7 The Contractor specifically hereby states, agrees and certifies that it is familiar with the limited purpose set forth in the Federal Laws, Rules and Regulations, and in the laws of the State of Nebraska, for which personal information requested may be used and that the information received will be used solely for those limited purposes and not to harass,degrade or humiliate any person. The information released shall be used for the limited purpose stated, and the Contractor further agrees to indemnify and hold harmless the City of Omaha for any liability arising out of the improper use by the Contractor of information provided. 3.8 The Contractor and any Subcontractors shall maintain such records and accounts, including property, personnel and financial records, as are deemed necessary by the City to assure a proper accounting for all expenses. The Comptroller General of the United States, or any of their duly authorized representatives, or any duly authorized representatives of the City of Omaha,as approved by the Planning Director, shall have access to any books,documents, papers,records and accounts of the Contractor or Subcontractors which are directly pertinent to this project for the purpose of making audit, examination, excerpts and transcriptions. Such records and accounts shall be retained for five years from the contract period completion. Any contract entered into by the Contractor with any Subcontractors shall include this Section to ensure said access. - 5 - O • 3.9 Any program income received will be applied to the support of this Interactive Leadership Employee Assistance Program. 3.10 The Contractor shall comply with all requirements and acknowledges, by execution of this Agreement,receipt of Department of Health and Human Services Regulations 45 CFR Part 96 Subpart C. 3.11 The Contractor shall acquire bonding for the amount of$50,000 for the Board of Directors, officers and employees entrusted with the handling of funds pursuant to this Agreement. SECTION 4. TERM OF THE AGREEMENT This Agreement shall be in full force and effect and will continue for a period of 36 months from the time of favorable consideration by the City Council of the City of Omaha and execution by the Mayor. Annual reports identifying the progress/accomplishments of Operation Bridge shall be submitted to the City of Omaha and the Enterprise Zone Association Board throughout the terms of the City's Enterprise Zone (State of Nebraska) and Enterprise Community (U.S. Department of Housing and Urban Development) designations. SECTION 5. PROVISIONS OF THE AGREEMENT 5.1 Equal Employment Opportunity Section 3 Clause. Attached hereto as Exhibits "H" and "I", and made a part hereof by this reference, are the equal employment provisions of this Agreement. 5.2 Non-Discrimination. The Contractor shall not, in the performance of this Agreement, discriminate or permit discrimination in violation of federal or state laws or local ordinances because of race, color, handicap, familial status, sex, age, political or religious opinions, affiliations or national origin. 5.3 Captions. Captions used in this Agreement are for convenience and are not used in the construction of this Agreement. 5.4 Applicable Law. Parties to this Agreement shall conform with all existing and applicable City ordinances, resolutions, state laws, federal laws, and all existing and applicable rules and regulations. Nebraska law will govern the terms and the performance under this Agreement. 5.5 Interest of the City. Pursuant to Section 8.05 of the Home Rule Charter, no elected official or any officer or employee of the City shall have a financial interest, direct or indirect,in any City agreement. Any violation of this section with the knowledge of the person or corporation contracting with the City shall render the Agreement voidable by the Mayor or Council. 5.6 Merger. This Agreement shall not be merged into any other oral or written agreement, lease or deed of any type. - 6 - 5.7 Modification. This Agreement contains the entire agreement of the parties. No representations were made or relied upon by either party other than those that are expressly set forth herein. No agent, employee or other representative of either party is empowered to alter any of the terms herein unless done in writing and signed by an authorized officer of the respective parties, pursuant to Section 10-1423 of the Omaha Municipal Code. 5.8 Assignment. The Contractor may not assign its rights or obligations under this Agreement without the express prior written consent of the City. 5.9 Strict Compliance. All provisions of this Agreement and each and every document that shall be attached shall be strictly complied with as written, and no substitution or change shall be made except upon written direction from authorized representatives of the parties. 5.10 Termination. This Agreement may be terminated by either party upon thirty (30) days written notice to the other party. Said notice shall be given when received by certified mail at the other parry's usual place of business. This Agreement may be suspended or terminated in accordance with 24 CFR 85.43, Enforcement or 24 CFR 85.44, Termination for Convenience(Exhibit"J"). Upon termination of this Agreement all funds and interest in any account hereunder shall become the property of the City and shall be returned to the City. 5.11 Indemnification. The Contractor shall indemnify and hold the City harmless from and against: (1)any and all claims arising from contracts between the Contractor and third parties made to effectuate the purposes of this Agreement; and(2) any and all claims, liabilities or damages arising from the preparation or presentation of any of the work covered by this Agreement. 5.12 Default. If, through any cause, the Contractor shall fail to fulfill in a timely and proper manner any obligations under this Agreement, or violate any of the covenants, representations or agreements hereof, the City may upon written notice terminate this Agreement or such parts thereof as to this Agreement,and may hold the Contractor liable for any damages caused to the City by reasons of such default and termination. 5.13 Nebraska Law. This Agreement shall be a contract made under and governed by the laws of the State of Nebraska. 5.14 Unenforceable Provisions. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,be ineffective to the extent of such prohibition of enforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. 5.15 Disclosure of Lobbying. The Contractor shall certify and disclose, to the best of its knowledge and belief,that: (a) No Federal appropriated funds have been paid or will be paid,by or on behalf of the Contractor, to any person for influencing or attempting to influence an officer or employee of Congress, or an employee of a Member of Congress in connection with - 7 - • the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any Federal contract, grant, loan, or cooperative agreement. (b) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the Contractor shall complete and submit Standard Form- LLL, "Disclosure Form to Report Lobbying", in accordance with its instructions. (c) The language of this certification be included in the award documents for all subawards at all tiers (including subcontractors, subgrants, and contracts under grants,loans,and cooperative agreements)and that all subrecipients shall certify and disclose accordingly. 5.16 Subrecipients. The Contractor shall comply with the requirements and the standards of OMB Circular No. A-122, "Cost Principles for the Nonprofit Organizations" (Exhibit "K"), and with the requirements of Attachments A, B, C, F, H, N and 0 to OMB Circular A-110 (Exhibit "L") 5.17 Other Program Requirements. The Contractor shall be required to carry out each activity of this Agreement in compliance with all Federal laws and regulations described in 45 CFR Part 96 Subpart C (Exhibit C), and in Subpart K of the CDBG Program Entitlement Grant Regulations Handbook 6500 (Exhibit "M"). 5.18 Termination of Assistance. If an individual or family who receives assistance from a recipient or subrecipient violates program requirements, the recipient or subrecipient may terminate assistance in accordance with a formal process established by the recipient or subrecipient that recognizes the rights of individuals affected,which may include a hearing. SECTION 7. AUTHORIZED REPRESENTATIVES In further consideration of the mutual covenants herein contained, the parties hereto expressly agree that for purposes of notice, including legal service of process, during the term of this Agreement, and for the period of any applicable statute or limitations thereafter, the following named individuals shall be authorized representatives of the parties: (1) City of Omaha Director- Planning Department Omaha/Douglas Civic Center 1819 Farnam Street Omaha,NE 68183 - 8 - (2) Operation Bridge Toby Taubenheim Executive Director 122 Applewood Mall Omaha,NE 68105 IN WITNESS WHEREOF,the parties have executed this Agreement as of the date indicated below. ATTEST: CITY OF ,a Municipal Corporation C CLERK O E CITY OF OMAHA YOR OF TH Y OF OMA l . Date WITNESS: CREIGHTON SAINT JOSEPH REGIONAL HEALTHCARE SYSTEM kt.oVC MATT KURS, CEO l - -7 -- j Q 4, Saint Joseph Center for Mental Health Date and Saint Joseph Hospital APPROVED AS TO FORM: a ASSISTA CITY ATTORNEY P:\LAW\2815.MAF - 9 - t 1 SCHEDULE OF EXHIBITS Exhibit Location Description A 1.2 Articles of Incorporation, Corporate Resolution B 1.4 & 3.2 Enterprise Community Map C 1.7, 3.10, 5.17 45 CFR Part 96 Subpart C D 1.12 Definition- Program Income E 2.1, 3.1, 3.2, 3.3 Scope of Work and Reporting Requirements F 2.1.2 Budget G 3.5 OMB Circular No. A-133 H 5.1 Equal Employment Opportunity Clause I 5.1 Affirmative Action Plan J 5.10 Termination - CFR 85.43 and CFR 85.44 K 5.16 OMB Circular No. A-122 L 5.16 OMB Circular No.A-110,Attachments A,B,C,F,H, N, O M 3.10, 5.17 Subpart K of the CDBG Program Entitlement Grant Regulations Handbook 6500 P:\PLN 1\1737.PJM r;.� 1k i'' LP) 'ey.,. 1„1 l'ffil.ili ►I'A1 5-.L1I1JL'_. J u I- 12-05-4.a9a 08:02 P.06 E 4 rr A J.s ACTION nv WRITTEN CONSbNT OF C'' ICHTON SAINT JOSEPH RECIONAI,R'F:ALTRrARJ AVOTEM®,Li-C. I do hereby certify that I am a duly.elected officer of-Creighton Saint Joseph Ft „ of al Healthcare Syste s, L.L.e., a Delaware limited liability company, (the"Company")authorized to do bwineze in the-State of Nobrraka, and that tL•e-failu iag is a copy otthe-Rcsolution adopted by written cons t of sai organization, effective November 9, 1995: 1' WHEREAS, Co any and,its affiLates are committed to providing an array of'Lumen and social servile for the Omaha Community; I �f • , AREAS, Com desires to offer its Employee Assistance Program to businesses in the Entc.ptise Community; ,:,, WHEREAS, Company and Enterptise Community Association desire to enter into an agreomc::for Company's Employee Assistance Program; r AREAS, Company's services gill be available to employees of participating businesses to addrece-eubatanoc abuse,problem ga ibling,-uotio e -menlaldfsorders, sociological and medical traumas,as well as multi-cultural diversity problems that impaot the work fors.: and social living; and W IEREAS, Company will participate in the Enterprise Community Job Pool/Employer Pool by establishing service agreements with individ s from the Enterprise Community area. Theso sc•v�ce agreements will provide employees of a participating businesses with access to v,"c.c the ser of the Interactive Leadership Employee ssistance Program. NOW, THEREFORE BE IT RESOLVED, that the Company does hereby agree to enter into an Agreement with the City of Omaha to provide services to Enterprise Community Social Sevices. BL'IT FURTHER RESOLVED,that the Board President and all Officers of the Company rc hereby authorized to take all such actions, including the execution of an AL-moment and any s,::arity documents in favor of the City of Omaha and Enterprise Community Social Services, a.z shall be necessary or appropriate to carry out the plupose and intent of this Resolutic ,. 1 (.1 hereby further certify that since the adoption of said Resolution, it has neitho been revoked r;,;.y.-amended; and J 1 I L ) 1 I do hereby further certify that the following individuals have been duly elected or appointed as the executive committee members of the L.L.C. and currently hold such positions as of the date signed. Father Michael Morrison David W. Layne Thomas Mackey Neil Sorrentino Signed this day of_Zo`re^h e , 1995. _. David W.Layne Secretary Father Michael Morrison Th mull Mackey Neil Sorrentino w 2 • 2'd 03X3 dnoNo 'dSOW 3WN WdTE:ZO S6d 'CZ 03C I e.' 12—g5399E�0✓3 01__ _• .... P.04 ,. . J a E O S �= NEBRAS A 4*g ,Ita%1:.:lam, . - . 7.7 1 _ r 0 t !, .401.. thir United States of.erica, a,�, _ _. , ,"' . .F 'i Departanent of State �, R ,, ,�,�, is Llncol11, Nebraska State of Nebraska. � �� • I, Ott Moore, Secretary of State of the State of Nebraska do hereby ceQ'w y', the attached Is a true and correct copy of the Certificate of Authority in tktx;State of Nebraska for CRs 1GHTON SAINT JOSEPH REGIONAL HEALTHCARE SY ''rEM, L.L.C. a Dziaware limited liability company, as filed and recorded in t11 offi ce on February 28, 1905. : fi;I:iyi'aer certify that said limited liabilitycompany is hereby out ort to Monad'busfucesin th4 S oi-Ncbraakaa. .,` In Testimony Whereof, I have hereunto set my hand end Oxed the Great Seal of the State f Nebraaaka on February 28 in the year of our Lord, one thoussi J /• nine hundred and ninety-five. _ i.4., :, ,,. •• (• ,..'•�::••..,,, ,1 1 . .,i ,.ma�yy �- r ! 'e' • e.,' . IP. : .. '! •� 1 r !' A5'r r sty. r; ,.', Gi ,:) ..- „. _ " o r rr. ,'"}'4 ' :{ '' u-.1/;IV 1? r r<4r„ leC118TA1tY OP 5i�lTB .,.,,r� ., ,tirti'd :', 4, y. • • t,. .'4'.yt� mow.. 1't i' .�,' ` .1'04 RR'T"'• }.il Pt :Lam,-�1' .P.J�,�'• _ C._..--�, , t. tG i.r. .��,r)•'9?�,[ : ? +'�irr.1'r ��lc 47.:�.iF.. • .11,• A • I AO O. CRETIFICATZ 91?202141ATION =ISIGHTON SAINT JOSEPH I= AL IJEALTSCARE SYSTEM, L.L.12. 'Lzia untidiest@ of Ponnadon or - "'I" Seint-lueoph Regional llegthCiay. -484.11B1, L.L.C. (the "ILO% dated Pebruary 1, 1995 ia bang duly executed and filed by ParIck J. . Straka,51 an authorized person,to form a •• • company under the Delaware Limited LiabW Company Act(6 neLc. 1 18-101, -} MST. The name of the limited liab ,s company formed hereby is Creightoa Saint Joseph Regional EleakhC.sre System, L.L.C. SECOND. Tee address of the .: office of the LLC in the SUN of Delaware is 32 Lc WCIS" MU%Squam, Suite 1,1001 Dover, • '''N of Kot, Delaware 19901. ' flUBD. The name and address of dte • - • agent for service of process on the LLC in the State of Delaware ii do The — • - aU Co/potation System. Inc., 32 Levckstman Squinti, Butte 1.400, Dover. County of Warn. Delaware 19901. POUR121. The affairs of the LLC be goyesrucd by Delaware kw and by ae terms of the ()legating agreement entered into by t recwbea of the LLC. nst virrNEss WHEREOF, the n rIgoM has'executed this Certificate ofFormation as of tio,3 date !tit above written. Names Patrick J. Straka \Col' ,12-05-1,995 08:02 --- P:,05 Creighton Saint Joseph Regional IiealthCare Syatzrz, L.L.0 Executive Committee Thomas B. Mackey Chairman Neil M. Sorrentino • David W. Layne Sccretury Father Michael J. Morrison • Q► are ration kige IIP MAIN OFFICE 1941 Sou-rH 42ND STREET,SurmE 122 OMAHA.NEBRASKA 68105-2942 PH 402-346-7100 Fax 402-346-7908 WESTN R OMAHA January 4, 1996 14748 WEST CENTER ROAD OMAHA,NEBRASKA 68144 Enterprise CommunityZone BELLEVE 1309 HARLAN DRIVE Ms. Marion Todd BELLEVUE,NEBRASKA 68005 Dear Ms. Todd, This letter is clarify for you that an agreement between the Enterprise Community Zone and Operation Bridge will be signed and authorized by Matt Kurs, CEO, Saint Joseph Center for Mental Health and Saint Joseph Hospital. Sincerely, e (c)... Ictilitsclszv.:,,....) Toby Taubenheim Executive Director w v, IN AFFILIATION WITH SAINT JOSEPH MENTAL HEALTH SERVICE SYSTEM • *f. . - ! • . . EXHIBIT B ' / i ' .11/4, ,p_ µ� . 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I+•-:aA m o m ok. 4 a 0 gpd"�W c > g dr. m 4 mmV a) m .d a o,, .. mao u 42 tol ?.O ...6D ° 41.4E...�c/ 0p��4^ 0 .oU2UuCmr � 3y�ad> oOu.CyV +), rra70CCr��m�7 Oyc. O► Of "O .C.. O a°d y". 0 d 7 A 0 O 4 0 q Q g O A 0"' C'C cad" C 0 g u0. c0.. d C 0 0 a0.' 0 > •ami'.^ ° 0 cd E a0i a0) .m 400000Cdt0.0. 1m0E... 000u.`� E/ O..uu0.0. ". 4Hmo4cd0..A.`.1Oa7Umo0.0 /. E..C-. 0'9E >, :;; EXHIBYT' D Community Development Block Grant Program Handbook 6500 Entitlement Grant Regulations September 1988 "Program income" means gross income received by the Recipient or a Subrecipient directly generated from the use of CDBG funds. When such income is generated by an activity that is only partially assisted with CDBG funds, the income shall be prorated to reflect the percentage of CDBG funds used. (1) Program income includes, but is not limited to the following: (i) Proceeds from the disposition by sale or long term lease of real property purchased or improved with CDBG. funds; (ii) Proceeds from the disposition of equipment purchased with CDBG funds; (iii) Cross income from the use or rental of real or personal property acquired by the Recipient or. a Subrecipient with CDBG funds, less the costs incidental to the generation of such income; (iv) Gross income from the use or rental of real property owned by the Recipient or a Subrecipient that was constructed or improved with CDBG funds, less the costs incidental to the generation of such income; (v) Payments of principal and interest on loans made using CDBG funds; (vi) Proceeds from the sale of loans made with CDBG funds; (vii) Proceeds from the sale of obligations secured by loans made with • CDBG funds; (viii) Interest earned on funds held in a revolving fund account; (ix) Interest earned on program income pending disposition of such income; and, (x) Funds collected through special assessments made against properties owned and occupied by households not of low and moderate income, where such assessments are used to recover all orpart of the CDBGportion of a public improvement. (2) Program income does not include interest earned ' (except for interest described in § 570.513) on cash advances from the U.S. Treasury. Such interest shall be remitted to HUD for transmittal to the U.S. Treasury and will not be reallocated under section 106(c) or (d) of the Act. Examples of other receipts that are not considered program income are proceeds from fundraising activities carried out by Subrecipients • receiving CDBG assistance; funds collected through special assessments used to recover the non-CDBG portion of a public improvement; and proceeds from the disposition of real property acquired or improved with CDBG funds when such disposition occurs after the applicable time period specified in § 570.503(b)(8) for Subrecipient-controlled property or § 570.505 for Recipient-controlled property. APR nR '96 OS:56,I1 OMAHA CITY PLANNING • P.3i=i • EXHIBIT E OPERATION BRIDGE, INC. • INTERACTIVE LEADERSHIP EMPLOYEE ASSISTANCE PROGRAM Enterprise Community Social Service Block Grant Contact: Betty Nelum (346-7100) Grant Amount: $2$0,000 Budgeted Term: 3 Years Sco_pe of Work Operation Bridge, Inc. shall offer its Employee Assistance Program to businesses in the Enterprise Community or businesses where at least 50% of their employees reside in the Enterprise Community with the goal of servicing 18 companies per year with an average of 40 employees each. Operation Bridge, Inc. plans a five percent increase in jobs created each year as a direct result of their efforts. The annual projection for the number of jobs created is 36 per year resulting in 108 new positions during the three-year budget term or 360 new positions during the entire ten- year program. Services will be available to employees of participating businesses to address substance abuse, problem gambling, emotional and mental disorders, sociological and medical traumas, as well as multi-cultural diversity problems that impact the work force and social living. The EAP goal is to increase job retention and productivity levels, reduce absenteeism and "sick" time resulting in lower medical costs, improved business profitability and overall quality, thereby positioning the businesses for expansion and job creation. • The program will help employees develop leadership as well as survival skills and plan career advancement opportunities in addition to raising the employer's awareness and sensitivity to multi- cultural diversity problems. A comparable Student Assistance Program shall be available for schools located in the Enterprise Community. Operation Bridge, Inc. will accomplish the objectives of this program by: • distributing informational materials to at least 75 EC businesses each year. • making presentations to at least 50 businesses and/or business associations each year. • developing and providing informational brochures and posters for businesses to share with employees featuring the Employee Assistance Program and listing the additional Services available to people in the Enterprise Community. • adding 1.5 additional staff positions for the Enterprise Community Employee Assistance Program. • providing initial client interviews at no charge to employers. • providing client services with flexible sliding scale fees based on financial need. • "n L • providing services to approximately 1,500 clients annually. • providing training and consulting services including multi-cultural diversity training for supervisory personnel. • documenting activities and maintaining appropriate records including efforts to purchase supplies and services from businesses located within the Enterprise Community. • building the overall program to be perpetually self-sustaining from client fees and other sources after the SSBG three-year funding period. Operation Bridge, Inc. shall expand their services by initiating and/or collaborating and/or participating in programs relating to job preparedness,job training,job creation and job linking for Enterprise Community residents and employers. Operation Bridge. Inc. shall submit quarterly reports to the Enterprise Zone Coordinator for the entire term of the Enterprise Community federal designation not later than 15 days following the end of each quarter. ° The quarterly reports shall include: • the number and type of presentations. • the number of individuals at each presentation • the number and type of informational pieces distributed and method of distribution along with a general description of the recipients. • the number and content of service agreements established includingnames of businesses and the number of employees. • • the number and types of services provided at each business, planned results and implementation timetable. • the specific description of newly created employers names andpayranges. P P jobsincluding P .. • The. preceding Scope of Work is a true and accurate description of the goals and objectives of the _. • Interactive Leadershi Employee to yee Assistance Program to be included as Exhibit "E" in the p P l c forthcoming agreement. • Vic . Q U ir}l it g / y •'ame,'�V Title Date/ Name Title Date ' .1. EXHIBIT F Operation Bridge Budget Source of Funds Months 1-12 Months 13-24 Months 25-36 Total. EZ SSBG 93,700 93,798 92,502 280,000 Client Fees 1,500 10,000 18,000 29,500 Total Income 95,200 103,798 110,502 309,500 Use of Funds Months 1-12 Months 13-24 Months 25-36 Total 1 FTE Counselor 29,120 29,993 30,893 90,006 Benefits 4,863 5,008 5,159 15,030 .66 FTE Sup/Counselor 27,500 27,910 28,330 83,740 Benefits 3,473 3,525 3,578 10,576 Telephone 1,500 1,500 1,500 4,500 Office Supply 1,400 1,400 1,000 3,800 Evaluation/Testing 5,800 5,800 5,800 17,400 Pre Employ Testing 7,500 7,118 4,698 19,316 Travel 800 800 800 2,400 Rent 6,300 6,300 6,300 18,900 Print/Mat/Training 2,000 1,000 1,000 4,000 Clerical/Admin 2,250 2,250 2,250 6,750 Postage/Fax 1,200 1,200 1,200 3,600 Reserve for Program Continuation 1,494 9,994 17,994 29,482 Total Expenses 95,200 103,798 110,502 309,500 ( S 1 14, I •E.XECLITTVE OFFICE.'OF ThE PRESIDENT EXHIBIT' OFF,CE c MANAGEMENT'AND BUDGET WAS}NGTON.D.C.2 .0.3 March 8 , 1990 • OMB Circular No.• A-133 TO THE HEADS OF EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS SUBJECT: Audits of Institutions of Higher Education and Other Nonprofit Institutions 1. guroase. Circular A-133 establishes audit requirements and . defines Federal responsibilities for implementing and monitoring • such requirements for institutions of higher education and other nonprofit institutions, receiving Federal awards. 2. . Authority. Circular A-133 is issued under the authority of . the Budget and Accounting Act of 1921, as amended; the Budget and Accounting Procedures Act of 1950, as amended; Reorganization Plan No. 2 of '1970; and Executive Order No. 11541. 4 3. §upersession. Circular A-133 supersedes Attachment F, subparagraph 2h, of Circular A-110, "Uniform Administrative Requirements for Grants and other Agreements with Institutions of Higher Education, Hospitals, and other Nonprofit Organizations. " 4. Applicability. The provisions of Circular A-133 apply to: a. Federal departments and agencies responsible for administering programs that involve grants, cost-type contracts and other agreements with institutions of higher education and other nonprofit recipients. b. Nonprofit institutions, whether they are recipients, receiving awards directly from Federal agencies, or are sub- recipients, receiving awards indirectly through other recipients. These principles, to the extent permitted by law, constitute • guidance to be applied by agencies- consistent with and within the discretion, conferred by the statutes governing agency action. 5. gequirements and Responsibilities. • The specific requirements and responsibilities of Federal departments and agencies and institutions of higher education and other nonprofit institutions are sat forth in the attachment. • 6. Effective Date. The provisions of Circular A-133 are effective upon publication and shall apply to audits of nonprofit institutions for fiscal years that begin on or after January 1, ) 1990. Earlier implementation is encouraged. However, until this Circular.-is implemented, the audit provisions of Attachment F to Circular A-110 shall continue to be observed. 7. policy Review (sunset] Date. Circular A-133 will have a policy review three years from the date of issuance. 8. • Zpcniries. Further information concerning Circular A-133 may be obtained by contacting the Financial Management Division, Office .of Management and Budget, Washington, D.C. 20503, telephone (202) 395-39.93. • 10�� � Richard G. Darman Director • • • • • • • • • • • C2d CIRCULAR A-133 AZDITS OF INS lIVTLONS OF EICHER EDUCATION 1 _ AHD OTT R NONPROFIT INSTITuT10NS 1. Definitions. Fcr the purposes of this Circular, the following definitions apply: a. "Award" means financial assistance, and Federal cost-type contracts used to buy services or goods for the use of the Federal Government. It includes awards received directly from the Federal agencies or indirectly through recipients. It does not include procurement contracts to vendors under grants or contracts, used to buy goods or services. Audits of such vendors shall be covered by the terms and conditions of the contract. b. "Cognizant agency" means the Federal agency assigned by andout the Budgetto the Office o_ Management carry responsibilities described in paragraph 3 of this Attachment. c. "Coordinated audit approach" means an audit wherein the independent auditor, and other Federal and non-federal auditors consider each other's work, in deter ining the nature, timing, and extent of his or her own auditing procedures. A coordinated audit must be conducted in accordance with Government Auditing • tandards and meet the objectives and reporting requirements set forth in paragraph 12 (b) and 15, respectively, of this Attachment. The objective of the coordinated audit approach is to minimize duplication of audit effort, but not to limit the scope of the audit work so as to preclude the independent auditor frog meeting the objectives set forth in paragraph 12 (b) or issuing the reports required in paragraph 15 in a timely manner. d. "Federal agency" has the same meaning as the ter 'agency' in Section 551 (1) of Title 5, United States Code. e. "Federal Financial Assistance." (1) "Federal financial assistance" means assistance provided by a Federal agency to a recipient or sub-recipient to carry out a program. Such assistance may be in the form of: -- grants; -- contracts; -- cooperative agreements; -- loans; -- loan guarantees; • . -- property; -- interest subsidies; -- insurance; • -- direct appropriations; -- other non-cash assistance. l l •l l l l l • % l (2) Such assistance does not include direct Federal cash assistance to individuals. (3) Such assistance includes awards received directly from Federal agencies, or indirectly when subirecipiente receive funds identified as Federal funds by recipients. (4) The granting agency is responsible for identifying the source of funds awarded to recipients; the recipient is responsible for identifying the source of funds awarded to sub- recipients. f. "Generally accepted accounting principles" has the meaning specified in the Government Auditinc Sandards. g. "Independent auditor" means: (1) A Federal, State, or local government auditor who meets the standards specified in the rtmlimantAusliting Standards; or (2) A public accountant who meets such standards. h. 'internal control structure" means the policies and . • procedures established to provide reasonable assurance that: (1) Resource. use is consistent with laws, regulations, and award terms; (2) Resources are safeguarded against waste, loss, and misuse; and (3) Reliable data are obtained, maintained, and fairly disclosed in reports. i. "Major program" means an individual award or a number of awards in a category of Federal assistance or support for which total expenditures are the larger. of .three percent of total Federal funds expended or $100,000, on which the auditor will be required to express an opinion .as to whether the major program is being arly1ristered in compliance with laws and regulations. Each of the following categories of Federal awards shall constitute a major program where total expenditures are the larger of three percent of total Federal funds expended or $100, 000: Research and Development. - Student Financial Aid. . 2 • _ I Individual awards not in the student aid Cr research and development category. j . "Management decision" means the evaluation by the management of an establishment of the findings and recommendations included in an audit report and the issuance of a final decision by management concerning its response to such findings and recommendations, including actions concluded to be necessary. k. "Nonprofit institution" means any corporation, trust, association, cooperative or other organization which 1) is operated primarily for scientific, educational, service, charitable, or similar purposes in the public interest; 2) is not organized primarily for profit; and 3) uses its net proceeds to • maintain, improve, and/or expand its operations. The term ' "nonprofit institutions" includes institutions of higher education, except those institutions that are audited as part of single audits in accordance with Circular A-128 "Audits of State and Local Governments. " The term does not include hospitals which are not affiliated with an institution of higher education, or State and local governments and Indian tribes covered by Circular A-128 +"Audits of State and Local Governments." 1. "Oversight" agency means the Federal agency that provides the predominant amount of direct funding to a recipient not assigned a cognizant agency, unless no direct funding is received. Where there is no direct funding, the Federal agency with the predominant indirect funding will assume the general oversight responsibilities. The duties of the oversight agency are described in paragraph 4 of this Attachment. m. "Recipient" means an organization receiving financial assistance to carry out a program directly from Federal agencies. n. -"Research and development" includes all research activities, both basic and applied, and all development activities that are supported at universities, colleges, and other nonprofit 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. o. "Student Financial Aid" includes those programs of general student assistance in which institutions participate, such as those authorized by Title IV of the Higher Education Act of 1965 which is administered by the U.S. Department of Education • and similar programs provided by other Federal agencies. It does not include programs which provide fellowships or similar awards 3 • to students on a competitive basis, er for specified studies or research. p. "Sib-recipient" means any person or government department, agency, establishment, or nonprofit organization that receives financial assistance to carry out a program through a primary recipient or other sub-recipient, but does not include an individual that is a beneficiary of such a program. A sub- recipient may also be a direct recipient of Federal awards under other agreements. q. "Vendor" means an organization providing a recipient or sub-recipient with generally required goods or services that are. related to the administrative support of the Federal assistance program. 2 . Audit of Ncnorof it Institutions. ' a. gecuirements wed- on Awards Received. (1) Nonprofit institutions that receive $100,000 or more a year in Federal awards shall have an audit made in accordance with the provisions of this Circular. Boveve_r, nonprofit institutions receiving $100, 000 or more but receiving awards under only one program have the option of having an audit of their institution prepared in accordance with the provisions. of the Circular or having an audit made of the one program. For prior or subsequent years, when an institution has only loan guarantees or outstanding loans that were made previously, the institution may be required to conduct audits for those programs, in accordance with regulations of the Federal 'agencies providing those guarantees or loans. (2) Nonprofit institutions that receive at least $25, 000 but less than $100,000 a year in Federal awards shall have an audit made in accordance with this Circular or have an audit made of each Federal award, in accordance with Federal laws and regulations governing the programs in which they participate. (3) Nonprofit institutions receiving less than $25,000 a year in Federal awards are exempt from Federal audit requirements, but records must be available for review by appropriate officials of the Federal grantor agency or subgranting entity. b. Oversight by Federal Agencies. (1) To each of the larger nonprofit institutions the Office of Management and Budget (OMB) will assign a Federal - agency as the cognizant agency for monitoring audits and ensuring } .. the resolution of audit findings that affect the programs of more than one agency. 4 • - (2) Smaller institutions not assigned a cognizant agency will be under the general oversight of the Federal agency that provides them with the most funds. (3) Assignments to Federal cognizant agencies for carrying out responsibilities in this section are set forth in a separate supplement to this Circular. (4) Federal Government-owned, contractor-operated facilities at institutions or laboratories operated primarily for the Government are not included in the cognizance assignments. These will remain the responsibility of the contracting agencies. The listed assignments cover all of the functions in this Circular unless otherwise indicated. The Office of Management and Budget will coordinate changes in agency assignments. 3 . Cacnizrnt Aaencv Res onsibil ities. A cognizant agency shall: a. Ensure that audits are made and reports are received in a timely manner and in accordance with the requirements of this Circular. 4 b. Provide technical advice and liaison to institutions and independent auditors. • c. Obtain or make quality control reviews of selected- audits made by non-Federal audit organizations, and provide the results, when appropriate, to other interested organizations. d. Promptly inform other affected Federal agencies and appropriate Federal law enforcement officials of any reported illegal acts or irregularities. A cognizant agency should also inform State or local law enforcement and prosecuting authorities, if not advised by the recipient, of any violation of law within their jurisdiction. e. Advise the recipient of audits that have been found not to have met the requirements set forth in this Circular. In such instances, the recipient will work with the auditor to take corrective action. If corrective action is not taken, the cognizant agency shall notify the recipient and Federal awarding agencies of the facts and make recommendations for follow-up ' action. Major inadequacies or repetitive substandard performance of independent auditors shall be referred to appropriate professional bodies for disciplinary action. f. Coordinate, to the extent practicable, audits or reviews made for Federal agencies that are in addition to the audits made pursuant to this Circular, so that the additional 5 • audits or reviews build upon audits performed in accordance with the Circular. g. Ensure the resolution of audit findings, that affect the programs of more than one agency. h. Seek the views of other interested agencies before completing a coordinated program. i. Help coordinate the audit work and reporting responsibilities among independent public accountants, State auditors, and.both resident and non-resident Federal auditors to achieve the most cost-effective audit. 4 . Cversicht Acencv Responsibilities. An oversight agency shall provide technical advice and counsel to institutions and independent auditors when requested by the recipient. The oversight .agency may assIIMe all or soma of the responsibilities normally performed by a cognizant agency. 5. pecioient Responsibilities. A recipient that receives a Federal award and provides $25,000 or more of it during its fiscal year to a sub-recipient shall: } a. Ensure that the nonprofit institution sub-recipients that receive $25,000 or more have met the audit requirements- of this Circular, and that sub-recipients subject to OMB Circular A-128 have met the audit requirements of that Circular; b. Ensure that appropriate corrective action is taken within six months after receipt of the sub-recipient audit report in instances of noncompliance with Federal laws and regulations; c. Consider whether sub-recipient audits necessitate adjustment of the recipient's own records; and d. Require each sub-recipient to permit independent • auditors to have access to the records and financial statements as necessary for the recipient to comply with this Circular. • 6. pelatJ,cn to Queer Ai 4it Requirement. • a. An audit made in accordance with this Circular shall be in lieu of any financial audit required under individual Federal awards. To the extent that an audit made in accordance with this Circular provides Federal agencies with the information and assurances they need to carry out their overall responsibilities, they shall rely upon and use such information. However, a Federal agency shall make any additional audits or reviews necessary to carry out responsibilities under Federal law and regulation. Any additional Federal audits or reviews shall be 6 planned and carried out in such a way as to build upon work performed by the independent auditor. b. Audit planning by Federal audit agencies should consider the extant to which reliance can be placed upon work performed by other auditors. Such auditors include State, local, Federal, and other independent auditors, and a recipient's internal auditors. Reliance placed upon the work of other auditors should be documented and. in accordance with.Government Auditing .Standards. c. The provisions of this Circular do not limit the authority of Federal agencies to rake or contract for audits and evaluations of Federal awards, nor do they limit the authority of ' any Federal agency Inspector General or other Federal official. d. The provisions of this Circular do not authorize any institution or sub-recipient thereof to constrain Federal agencies, in any manner, from carrying out additional audits, evaluation or reviews. e. A Federal agency. that makes or contracts for audits, in addition to the audits made by recipients pursuant to this Circular, shall, consistent with other applicable laws and regulations, arrange for funding the cost of such additional audits. Such additional audits or reviews include financial, performance audits and program evaluations. 7. preauencv of Audi. Audits shall usually be performed annually but not less frequently than every two years. 8 . ganctions. No audit costs may be charged to Federal awards when audits required by this Circular have not been made or have been made but not in accordance with this Circular. In cases of continued inability or unwillingness to have a proper audit in accordance with the Circular, Federal agencies must consider appropriate sanctions including: -- withholding a percentage of awards until the audit is • completed satisfactorily; -- withholding or disallowing overhead costs; or _- suspending Federal awards until the audit is made. 9 . Audit Costs. The cost of audits made in accordance with the provisions of this Circular are allowable charges to Federal • awards. The charges may be considered a direct cost or an allocated indirect cost, determined in accordance with the provisions of Circular A-21, "Cost Principles for Universities" or Circular A-122, "Cost Principles for Nonprofit Organizations, 7 r . 1 , • FAR subpart 31, or other applicable cost principles or regulations. 10. Auditor Selection. In arranging for audit services institutions shall follow the procurement standards prescribed by . Circular A-llo, "Uniform Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals and other Nonprofit Organizations. " 11. Small and Minority Audit Firms. a. Small audit firms and audit firms owned and controlled by socially and economically disadvantaged individuals shall have the maximum practicable opportunity to participate in contracts awarded to fulfill the requirements of this Circular. b. Recipients of Federal awards shall take the following - steps to further this goal: • (1) Ensure that small audit firms and audit firms owned and controlled by socially and economically disadvantaged individuals are used to the fullest extant practicable; (2) Make information on forthcoming opportunities available and arrange timefraaes for the audit to encourage and facilitate participation by small audit firms and audit firms • owned and controlled by socially and economically disadvantaged individuals; (3) Consider in the contract process whether firms competing for larger audits intend to subconttact with small audit firms and audit firms owned and controlled by socially and economically disadvantaged individuals; (4) Encourage contracting with small audit firms or audit firms owned and controlled by socially and economically disadvantaged individuals which have traditionally audited government programs and in cases where this is not possible, assure that these firms are given consideration for audit • subcontracting opportunities; .. (5) Encourage contracting with consortiums of small audit firms as described in section (1) , above, when a contract is too large for an individual small audit firm or audit firm owned and controlled by socially and economically disadvantaged individuals; and (6) ' Use the services and assistance, as appropriate, of such organizations as the Small Business Administration in the solicitation and utilization of small audit firms or audit firms 1 owned and controlled by socially and economically disadvantaged individuals. 8 12. ,4co3 4 Qf Audit and Audit 4b1 ect iveg. a. The audit shall be made by an independent auditor in accordance with Goverment Auditing Standards developed -by the Comptroller General of the United States covering financial audits. An audit under this Circular should be an organization-wide audit of the institution. However, there may be instances where Federal. auditors are performing audits or are planning to perform audits at nonprofit institutions. In these cases, to minimize duplication of audit work, a coordinated audit approach may be agreed upon between the independent auditor, .the recipient and the cognizant agency or the oversight agency. Those auditors who assume responsibility for any or all of the • reports called for by paragraph 15 should follow guidance set forth in Gcverament Auditincdar-.s in using work performed by i O hers. b. The auditor shall determine whether: (1) . The financial statements of the institution present fairly its financial position and the results cf its operations in Accordance with generally accepted accounting principles; (2) The institution has an internal control structure . to provide reasonable assurance that the institution is managing Federal awards in compliance with applicable laws and regulations, and controls that ensure compliance with the laws and regulations that could have a material impact on the financial statements; and (3) The institution has complied with laws and regulations that may have a direct and material effect on its financial statement amounts and on each major Federal program. 13 . Internal Controls Over Federal Awards; Compliance Reviews. a. yam. The independent auditor shall determine and report on whether the recipient has an internal control structure ' to provide reasonable assurance that it is managing Federal awards in compliance with applicable laws, regulations, and contract terms, and that it safeguards Federal funds. In performing these reviews, independent auditors should rely upon work performed by a recipient's internal auditors to the maximum extent possible. The extent of such reliance should be based upon the Government Auditing Standards. b. internal Control. Review. (1) In order to provide this assurance on internal controls, the auditor must obtain an understanding of the 9 • internal -control structure and assess levels of internal control risk. Attar obtaining an understanding of the controls, the assessment must be made whether or not the auditor intends to place reliance on the internal control structure. • (2) As part of this review, the auditor shall: (a) Perform tests of controls to evaluate the effectiveness of the design and operation of the policies and procedures in preventing or detecting material noncompliance. Tests of controls will not be required for those areas where the internal control structure policies and procedures are likely to be ineffective in preventing or detecting noncompliance, in which case a reportable condition or a material weakness should be reported in accordance with paragraph 15 c(2) of this Circular. (b) Review the recipient's system for monitoring sub-recipients and obtaining and acting cn sub-recipient Audit reports. • (c) Determine whether controls are in effect to ensure direct. and indirect costs were computed. and billed in accordance with the guidance provided in the general requirements section of the compliance supplement to this Circular. c. Compliance Review. 11) The auditor shall determine whether the recipient has complied with laws and regulations that may have a direct and material effect an any of its major Federal programs. In addition, transactions selected for non-major programs shall be tested for compliance with Federal laws and regulations that apply to such transactions. (2) in order to determine- which major programs are to be tested for compliance, recipients shall identify, in their accounts, all Federal funds received and expended and the programs under which they ware received, This :01,01 include funds received directly from Federal agencies, through other State and local governments or other recipients. To assist recipients in identifying Federal awards, Federal agencies and primary recipients shall provide the Catalog of Fede;al Domestic • A_ssist3*:cc (CFDA) numbers to the recipients when making the awards. (3) The review must include the selection of an adequate number of transactions fro= each major Federal financial assistance program so that the auditor obtains sufficient evidence to support the opinion on compliance required by paragraph 15c(3) of this Attachment. The selection and testing 1 of transactions shall be based on the auditors' professional judgment considering such factors as the amount of expenditures 10 1. for the program; the newness of 'the program or changes in its conditions; prior experience with the program particularly as revealed-in audits and other evaluations (e. .,, inspections, program reviews, or system reviews required by Federal Acquisitiots.Regulations) ; the extant to which the program is- carried cut through sub-recipients; the extant to which the program contracts for goods or services; the level to which the program is already subject to program reviews or other forms of independent oversight the -adequacy of -the controls for ensuring compliance; the expectation of adherence or lack of adherence to the applicable laws and regulations; and the potential impact of adverse findings. (4) In making the test of transactions, the auditor . shall determine whether: • • -- the amounts reported as expenditures were for allowable services, and • -- the records show that those who received services or benefite were eligible to receive thee. (5) 'In addition to transaction tasting, the auditor- shall determine whether: matching requirements, levels of effort and earmarking limitations were met, Federal financial reports and claims for advances and reimbursement contain information that is supported by books and records from which the basic financial statements have been prepared, and • -- amounts claimed or used for matching were determined in accordance with 1) OMB Circular. A-21, "Cost Principles -for Educational Institutions"; 2) matching or cost sharing requirements in Circular A-110, *Uniform • Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals and Other Nonprofit organizations"; 3) Circular A-122, "Cost. Principles for Nonprofit organizations"; 4) FAR subpart 31 cost principles ; and ,5) other applicable cost principles or regulations. (6) The principal compliance requirements of the largest Federal programs may be ascertained by referring to the "Compliance Suoolement for Simla Audits. of Educational N Institutions and Other Nonprofit oraanizationa," and the 11 • "��liance Su lement for Sina�e Audit4 of state and Local Governments," issued by OMB and available from the Government Printing Office. For those programs not covered in the Compliance Supplements, the auditor should ascertain compliance requirements by reviewing the statutes, regulations, and agreements governing individual programa. (7) Transactions related to other awards that are selected in connection with examinations of financial statements and evaluations of internal controls shall be tested for compliance with Federal laws and regulations that apply to such transactions. 14 . I/legal Acts. If, during or in connection with the audit of a nonprofit institution, the auditor becomes aware of illegal acts, such acts shall be reported in accordance with the provisions of the Goverment Auditing Standards. 15. Audit gemorts. a. Audit reports must be prepared at the completion of the audit. b. The audit report shall state that the audit was made in accordance with the provisions of this Circular. c. The report shall be made up of at least the following three parts: (1) The financial statements and a schedule of Federal awards and the auditor's report on the statements and the schedule. The schedule of Federal awards should identify major programs and show the total expenditures for each program. Individual major programs other than Research and Developm nt and Student Aid should be listed by catalog number- as identified in the Catalog of Federal b stic i rent . Expenditures for Federal programs other than major programs shall be shown under the caption "other Federal assistance." Also, the value of non-cash assistance such as loan guarantees, food commodities or • donated surplus properties or the outstanding balance of loans should be disclosed in the schedule. . '(2) A written report of the independent auditor's understanding of the internal control structure and the assessment of control risk. The auditor's report should include as a mini: 1) the scope of the work in obtaining understanding of the internal control structure and in assessing the control risk, 2) the nonprofit institution's significant internal controls or control structure including the controls established to ensure compliance with laws and regulations that have a material impact on the financial statements and those that provide reasonable assurance that Federal awards are being 12 •.:`Y�,...,`fir r • < ' managed in compliance with applEdablr,t laws and regulations, and ' 3) the reportable conditions, including the identification of material weaknesses, identified as a result of the auditor's work in understanding and assessing the control risk. If the auditor limits his/her consideration of the internal control structure for any reason, the circumstances should be disclosed in the report. (3) The auditor's report on compliance containing: -- An opinion as to whether each major Federal program was being administered in compliance with laws and regulations applicable to the matters described in paragraph 13 (c) (3) of this Attachment, including compliance with laws and • regulations .pertaining to financial reports and claims for advances and reimbursements; -- A statement of positive assurance on those items that were tested for compliance and negative assurance on those items not tested; -- Material findings of noncompliance presented in their proper perspective: 4 • o The size of the universe in. number of items and dollars, . o The number and dollar amount of transactions • tested by the auditors, o The number -and corresponding dollar amount of instances of noncompliance; • -- Where findings are specific' to a particular Federal award, an identification of total amounts • questioned, if any, for each Federal award, as a result of noncompliance and the auditor's recommendations for necessary corrective action. d. The three parts of the audit report may be bound into a single document, or presented at the same time as separate documents.- .,,. e. Nonmaterial findings need not be disclosed with the compliance: report but should be reported in writing to the recipient in a separate communication. The recipient, in turn, should forward the findings to the Federal grantor agencies or subgrantor sources. f. All fraud or illegal acts or- indications of such acts, including all questioned costs found as the result of these acts 13 that auditors become aware of, may be covered in a separate written report submitted in accordance with the Goya ent Auc,yting Standards. g. The auditor's report should disclose the status of known but uncorrected significant material findings and recommendations from prior audits that affect the current audit objective as specified in the Government Auditing Standards: h. In addition to the audit report, the recipient shall provide a report of its comments on the findings and recommendations in the report, including a plan for corrective action taken or planned and comments on the status of corrective action taken on prior findings. If corrective action is not necessary, a statement describing the reason it is not should • accompany the audit report. i. Copies of the audit report shall be submitted in accordance with the reporting standards for financial audits contained in the Gcvernment Auditing Standards. Sub-recipient • auditors shall submit copies to recipients that provided Federal awards. The report shall be due within 30 days after the completion of the audit, but the audit should be completed and the report submitted not later than 13 months after the end of the recipient 's fiscal year unless a longer period is agreed to with the cognizant or oversight agency. j . Recipients of more than $100,000 in Federal awards shall submit one copy of the audit report within 30 days after issuance to a central clearinghouse to be designated by the • Office of Management and Budget. The clearinghouse will keep completed audit reports on file. k. Recipients shall keep audit reports, including sub- recipient reports, on file for three years from their issuance. 16. Audit Resolution. a. As provided in paragraph 3 , the cognizant agency shall be responsible for ensuring the resolution of audit findings that affect the programs of more than one Federal agency. Resolution of findings that relate to the programs of a single Federal agency will be the responsibility of the recipient and the agency. Alternate arrangements may be made on case-by-case basis by agreement among the agencies concerned. b. A management decision shall be made within six inonths after receipt of the report by the Federal agencies responsible for audit resolution. Corrective action should proceed as rapidly as possible. } 14 17.- audit Wort nersf` nd'�Rhoorts. Workpapers and report shall be retained for a minimum of three years from the data of the audit report, unless the auditor is notified in writing by the • cognizant-agency to extend the retention period. Audit . vorkpapers shall be made available upon request to the cognizant agency or its designee or the General Accounting Office, at the completion of the audit. • • • • • • • • • • • • 15 • . ' EQUAL EMPLOYMENT OPPORTUNITY CLAUSE EXHIBIT H During the performance of this contract, the contractor agrees as follows: ( 1 ) The contractor shall not discriminate against any employee applicant for employment because of race, religion, color, sex or national origin. The contractor shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, religion, color, sex or national origin. As used herein, the word "treated" shall mean and include, without limitation, the following: Recruited, whether advertising or by other means; compensated; selected for training; including apprenticeship; promoted; upgraded; demoted; downgraded; transferred; laid off; and terminated. The contractor agrees to and shall post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officers for employment, notices to be provided by the contracting officers setting forth the provisions of this nondiscrimination clause. ( 2 ) The contractor shall, in all solicitations of advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, religions, color, sex or national origin. ( 3 ) The contractor shall send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding a notice advising the labor union or worker's representative of the contractor's commitments under the equal employment opportunity clause of the city and shall post copies of the notice in conspicuous places available to employees and applicants for employment. ( 4 ) The contractor shall furnish to the contract compliance officer all federal forms containing the information and reports required by the federal government for federal contracts under federal rules and regulations, and including the information required by Section 10-192 to 10-194, inclusive, and shall permit reasonable access to his records. Records accessible to the contract compliance officer shall be those which are related to Paragraphs (1) through (7) of this subsection and only after reasonable notice is given the contractor. The purpose of this provision is to provide for investigation to ascertain compliance with the program provided for herein. ( 5 ) The contractor shall take such actions with respect to any subcontractor as the city may direct as a means of enforcing the provisions of Paragraphs (1) through (7) herein, including penalties and sanctions for noncompliance; however, in the event the contractor becomes involved in or is threatened with litigation as the result of such directions by the city, the city will enter into such litigation as necessary to protect the interests of the city and to effectuate the provisions of this division; and in the case of contracts receiving federal assistance, the contractor or the city may request the United States to enter into such litigation to protect the interests of the United Sates. ( 6 ) The contractor shall file and shall cause his subcontractors, if any, to file compliance reports with the contractor in the same form and to the same extent as required by the federal government for federal contracts under federal rules and regulations. Such compliance reports shall be filed with the contract compliance officer. Compliance reports filed at such times as directed shall contain information as to the employment practices, policies, programs and statistics of the contractor and his subcontractors. (7 ) The contractor shall include the provisions of Paragraphs (1) through (7) of this Section. 'Equal Employment Opportunity Clause', and Section 10-193 in every .NS. subcontract or purchase order so that such provisions will be binding upon ,each subcontractor or vendor. EXHIBIT I • SECTION 3 CLAUSE All Section 3 covered contracts shall include the following clause (referred to as the Section 3 clause): • A. The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (Section 3). ` The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by Section 3 shall, to the greatest extent feasible, be directed to low-and very low-income persons, particularly persons who are recipients of HUD assistance for housing. B. The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. C. The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference,shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. D. The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. E. The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR part 135. F. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD- assisted contracts. Effective August 1, 1994 EJ) • • G. With respect to work performed in connection with Section 3 covered Indian housing assistance, Section 7(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises. Parties to this contract that are subject to the provisions of Section 3 and Section 7(b) agree to comply with Section 3 to the maximum extent feasible, but not in derogation of compliance with Section 7(b). Providing Other Economic Opportunities. (a) General. In accordance with the findings of the Congress, as stated in Section 3, that other economic opportunities offer an effective means of empowering low-income persons, a recipient is encouraged to undertake efforts to provide to low-income persons economic opportunities other than training, employment, and contract awards, in connection with Section 3 covered assistance. (b) Other training and employment-related opportunities. Other economic opportunities to train and employ Section 3 residents include, but need not be limited to, use of "upward mobility", "bridge" and trainee positions to fill vacancies; hiring Section 3 residents in management and maintenance positions within other housing developments; and hiring Section 3 residents in part-time positions. (c) Other business-related economic opportunities. (1) A recipient or contractor may provide economic opportunities to establish, stabilize or expand Section 3- business concerns, including micro-enterprises. Such opportunities include„ but are not limited to the formation of Section 3 joint ventures, financial support for affiliating with franchise development, use of labor only contracts for building trades, purchase of supplies and materials from housing authority resident-owned businesses, purchase of materials and supplies from PHA resident- owned businesses and use of procedures under 24 CFR part 963 regarding HA contracts to HA resident-owned businesses. A recipient or contractor may employ these methods directly or may provide incentives to non-Section 3 businesses to utilize such methods to provide other economic opportunities to low-income persons. (2) A Section 3 joint venture means an association of business concerns, one of which qualifies as a Section 3 business concern, formed by written joint venture agreement to engage in and carry out a specific business venture for which purpose the business concerns combine their efforts, resources, and skills for joint profit, but not necessarily on a continuing or permanent basis for conducting business generally,and for which the Section 3 business concern: (i) Is responsible for a clearly defined portion of the work to be performed and holds management responsibilities in the joint venture;and • (ii) Performs at least 25 percent of the work and is contractually entitled to compensation proportionate to its work. Effective August 1, 1994 EXHIB TT f • 24 CFR 85.43 ENFORCEMENT (a) Remedies for noncompliance. If a grantee or subgrantee materially fails to comply with any term of an award, whether stated in a Federal statute or regulation, an assurance, in a State plan or application, a notice of award, or elsewhere, the awarding agency may 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 grantee or subgrantee or more severe enforcement action by the awarding agency, (2) Disallow (that is, deny both use of funds and 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 for the grantee's or subgrantee's program, (4) Withhold further awards for the program, or (5) Take other remedies that may be legally available. (b) Hearings, appeals. In taking an enforcement action, the awarding agency , will provide the grantee or subgrantee an opportunity for such hearing, appeal, or other administrative proceeding to which the grantee or subgrantee is entitled under any statute or regulation applicable to the action involved. (c) Effects of suspension and termination. Costs of grantee or subgrantee resulting from obligations incurred by the grantee or subgrantee during a suspension or after termination of an award are not allowable unless the awarding agency expressly authorizes them in the notice of suspension 'or termination or subsequently. Other grantee or subgrantee costs during suspension or after termination which are necessary and not reasonably avoidable are allowable if: (1) The costs result from obligations which were properly incurred by the grantee or subgrantee before the effective date of suspension or termination, are not in anticipation of it, and, in the case of a termination, are noncancellable, and, (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 grantee or subgrantee from being subject to "Debarment and Suspension" under E.O. 12549 (see § 85.35). 24 CFR 85.44 TERMINATION FOR CONVENIENCE Except as provided in § 85.43 awards may be terminated in whole or in part only as follows: (a) By the awarding agency with the consent of the grantee or subgrantee 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 , or (b) By the grantee or subgrantee upon written notification to the awarding agency, setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. However, if, in the case of a partial termination, the awarding agency determines that the remaining portion ,of the award will not accomplish the purposes for which the award was made, the awarding agency may terminate the award in its entirety under either § 85.43 or paragraph (a) of this section. 9124u .' 4 .r . . , J-:4 s Thursday ._ November 3, 1983 e — 4=1 sa . tee® r ss immk �`L' Part lit --- Office of . -a---= Management and Budget -a Department of Defense _ General Services Administration -- Circular A-122: Cost Principles for Nonprofit Organizations; Lobbying and . f Related Activities . . • 50860 Fed ett!k Rbgistjer / Vol.48; No. 214 / Thursday, November 3, 1983 / Notices OFFICE OF MANAGEMENT AND. •to use a more limited definition of compliance with a myriad of statutory BUDGET unallowable costs;and •to clarify and limit reporting and funprovisions mandating that no federal Circular A-122•Cost Principlea•for recordkeeping requirements in the spirit and tocomply,s be used in balanor ced fashion.with Nonprofit Organizations;Lobbying and of the Paperwork Reduction Act. ,Related Activities • fundamental First Amendment iIl.Background of Circular A-122 imperatives. AGENCY:Office of:Management and For contractors or grantees to use AGEN GEN t. Circular A-122,"Cost Principles for federal monies to engage in lobbying is scrum:Notice. Nonprofit Organizations,"establishes uniform rules for determining the costs an inappropriate use of federal funds for • I.Summary of grants,contracts,and other a purpose that was not intended.Such agreements.Like other OMB cost misuse resourcesf funds diverts true mission issions This notice offers interested parties an principle circulars for state and local orcontract.from Moreover,oe g n of the opportunity to comment on the Office of governments and for educational grant or government Management and Budget's(OM9}•, institutions,A-122 is a management subsidy of the lobbying efforts of its proposed revision to Circular A-112, directive addressed to the Heads of contractors and grantees distorts the "Cost Principles for Nonprofit Federal departments and Agencies and political process.It favors the political Organizations."The proposed revision is the legal basis for defining allowable expression of some—o.t ri�a!ions with makes unallowable the costs associated costs and setting forth procedures for contracts or grants—attcarry the het suss of with lobbying and related activities. recovering them. others,who must carry on their political Parallel revisions are being proposed for Circular A-122 was first issued in expression at their own expense. defense and civilian contractors by the June.1980.It was developed by an Despite the frequently worthwhile b Department of Defense(DOD or interagency team made up of the major content of the lobbying runs conducted by Defense), the General Services grant-making agencies and led by OMB, such organizations,it runs against the Administration(GSA),and NASA. Before issuance, public comments were grain of First Amendment government These proposed revisions follow the A- sought and received and consultations neutrality in political debate for federal 122 revision text, were held with the General Accounting funds to be used in this manner. The comments printed in the text of Office.The cost principles built upon t+Government neutrality in the democratic the proposed revision are for • accounting rules previously in use by Process is especially endangered by the ! explanatory purposes.They will not be federal agencies in their dealings with practice of using grant or co^trace funds printed in the Circular after the nonprofit crganizetiors.The Circular for lobbying and related activity revisions are final. - • standardized and simplified those rules. because,as a general rule,only one side II.Supplementary Information Generally,the circular provides that,to in the debate is funded.Those favoring be recovered from the federal grant programs and contracting activity OMB published a proposal on January government,coats must be necessary, have the grants and contracts: those 24.1983, to revise Circular A-122's reasonable,and related to the federally- opposed do not.Not to control this treatment of the costs of lobbying and sponsored activity.In addition,costs practice,then,is not only to subsidize related activities.Following publication, must be legal,proper,and consistent national debate over the extent and OMB received approximately 48,300 with the policies that govern the desirability of government spending. comments from the general public, domestic and military,but to subsidize private and public organizations,and orgenization's other expenditures. federalprivate agencies.dpublThe disallowance of lobbying and systematically but one side of those Approximately 18,500 related costs in the proposed revision is debates. comments opposed the proposed comparable to the disallowance by Moreover,use of federal funds for revisions,and approximately 31,800 Circular A-122 of other costs which are private lobbying and related political supported them.Many of the opposing disallowed on grounds of public policy: activity can give the appearance of comments expressed support for the for example,advertising,fundraising federal support of one political position general principle that federal tax dollars costs,and entertainment.In each of over another.It can create should not be used for lobbying and these examples,a determination has misunderstanding and interfere with the related purposes,but objected that the been made that it would not bean neutral,non-ideological administration means proposed in the January 24 notice appropriate or cost-efficient practice to of federally-funded programs.All would disrupt the legitimate activities of permit federal tax dollars to be used for citizens have the right to receive the • federal nonprofit grantees and these purposes.In this notice,costs of benefits of federally-funded programs contractors.On the other hand,many of lobbying and related activities are without being made the captive the supporting comments have implied or stated a need for regulations proposed to be similarly disallowed, audience for a grass roots lobbying significantly more restrictive than those iV.Purpose of the Revisions campaign,and without fear that de all y proposed in January.In order to'accord The purpose of these revisions is to of services is accompanied by federally • - the issues raised by these comments establish a comprehensive government- policy partisanship in political or public further study,and to permit a new round wide set of cost principles to ensure that. Polihi controversies. proposal is d of public comments on a revisedThis is designed to balance proposal,OMB withdrew the.January 24 used by federally-appropriated or grantees d fors are t the First Amendment rightsswith of theheeral proposal at the end of a 45-day public lobbying or related activities.The intent grantees and First Amendment comment period.The current proposal is is not to discouragecorrespondingga First significantly changed from the January or in any way obligation and legitimate governmental 2.1 proposal. th1e most important changes efforts�condu conducted with heirns for oownfu • Interest subsidize d the political the government have been: but to ensure that the federal' does not • to adopt an allocation method government does not subsidize such advocacy activities of private groups or ucs:ounting for the costs of lobbying and activities.In•addition,as later noted,the institutions.Noe person toro group has a related activities: revision is for the purpose of assuringFirst Amendmentringtorpolii receive governmental funding for political f • ', Federal Register / Vol. 48, No. 214 / Thursday, November 3. 1983 / Notices 50861 expression;requiring grantees and fostered,or"prescribe(dj (as) orthodox" • 'publicity'and'propaganda.'Thus,there contractors to bear the costs of their a particular view on such issues. West appears to be no firm distinction between the own lobbying efforts does not infringe Virginia State Board of Education v. conduct which is premissible and that which upon their constitutional rights.Free Barnette.319 U.S.624.645(1943). is prohibited. speech does not mean subsidized OMB has received thousands of Moreover.in the absence of clear and speech.The Supreme Count emphasized letters from members of the public who fair guidelines enforceable across the this point in a recent unanimous opinion are understandably concerned when board.agency officials have been when it stated that the federal they see their tax money involved in reluctant to make politically-sensitive • government"is not required by the First projects that involve political organizing determinations in particular cases.This Amendment to subsidize lobbying,. . . for causes they may not support. problem is especially serious where We again reject the notion that First Furthermore,numerous cases have been there is a natural conjunction of interest Amendment rights are somehow not cited and documented—by federal between agency officials and their fully realized unless they are subsidized agencies,the Comptroller General, contractors and grantees. as where by the State."Regan v. Taxation with Congress.and the general public—of grantees or contractors lobby for Representation of Washington. 103 S. federal grant and contract funds that additional appropriations to the agency Ct.1997. 2001 (1983). were used for lobbying or related it.volved.The thousands of grantees and On the other hand, there are serious aeti•.ities.Nevertheless, due to prior contractors who receive federal money constitutional problems with a system insufficient regulatory restrictions and are a strong lobbying force in that permits tax money to be used for limited enforcement efforts. the true Washington.and can use grant and the political expression of private magnitude of these abuses has never contract funds to help perpetuate their individuals or groups.Americans have been quantified.Many organizations programs,irrespective of the programs' the First Amendment right both to receiving federal grants engage in g merit or effectiveness. engage freely in speech and political extensive lobbying and related political The improper use of federal funds for expression,and to refrain from activity,but in many instances the lobbying and related activities has been speaking, without interference or control financial and performance reports filed perceived as a problem for many years onon part the government or its by the organizations are insufficiently In 1919,Congress passed legislation the. Wooley oft v.Maynard. 430 U.S. detailed to permit the federal agency to making certain uses of federal funds for 7u5, 714(1977).The proposed revision is determine whether federal funds have lobbying purposes a criminal offense for intended to ensure that the use of been used for those purposes and, federal employees: as early as 1948,the Federal grants,contracts nd'other therefore,misused.The problem has General Accounting Office began to agreements by private organizations been exacerbated by the lack of any unearth instances of federal grantees engagingin lobbying does not erode or clear definitions of lobbying, and,in ying using federal funds for lobbying infringe these constitutional rights,or particular.of exactly what activities are purposes.Over the past ten years. unallowable. distort the political process by . Congress has attached over fifty riders Both criminal statutes-18 U.S.C. encouraging or discouraging certain to appropriations bills addressing parts Section 1913—and appropriations forms of political activity. of the problem.In the past few years, The activities of government in a restrictions—including Section 607(a)of pressure has increased for further steps. the Treasury,Postal Service, and democracy necessarily involve a degree General Government Appropriations As a result: of political advocacy,since government Act -currently:prohibit the use of • On December 18,1981, the officials are expected to communicate federal funds for certain types of Department of Defense issued revisions with the people,explain their programs, lobbying•but there is no clear, uniform to its Defense Acquisition Regulations and provide leadership and direction to definition of prohibited activities to (DAR).addressing for the first time the the nation.Thus,Members of Congress which grantees,contractors, auditors, issue of lobbying costs,and making such and their staffs,the President and his costs unallowable under DOD contracts. political appointees.necessarily agency officials,or the public can refer. • On April 27,1982 and October 22, participate in forms of political The clear signal from Congress through the appropriations laws and other 1982.DOD further toughened its rules advocacy. However,it is a distortion of actions has not been translated into. disallowing lobbying costs.eliminating the marketplace of ideas for the certain exceptions from coverage. effective management controls. government to use its financial power to 1'he vagueness of existing anti- • On May 28,1982,NASA issued a "tip the electoral process,"Efrod V. new cost principle in the NASA lobbying restrictions has hampered the S;:rn;. 427 U S.353.356(1976).by Procurement Regulations (NASAPR) ability of contractors and grantees to suhsiiiizing the political advocacy making lobbying costs unallowable for activities of private organizations and comply voluntarily with the restrictions,and has made the job of auditors NASA contractors.This was revised corporations.This proposal will ensure, difficult, if not impossible. For example, August 16.1982. to the extent consistent with the • On November 2,1982. the General communications function of the in recent General Accounting Office Services Administration issued a new . (GAO) investigations of improper government.that taxpayers are not lobbying expenditures. the contractors cost principle in the Federal required. directly or indirectly."to and grantees were able to urge that Procurement Regulations (FPR)making contribute to the support of an current rules did not ban the lobbying costs unallowable for civilian ideological cause(they)may oppose." expenditures.As the Investigations contracts with commercial .4hood v. Detroit Bocrd of Education. - Subcommittee of the House Armed organizations. 451 U.S.209,235-238(1977).The Services Committee recently concluded: 'These developments,however,affect . proposal also seeks to avoid the only defense and civilian contracts with (l'lhere is a deficiency in the appearance that,by awarding Federal commercial organizations.No generally- appropriations acts'prohibition of lobbying grants.contracts.or other agreements to with appropriated funds.A review of the applicable cost principle has been organizations engaged in political legislative history of the publicity- issued to control the federal funding of advocacy on particular sides of public propaganda appropriations acts restrictions lobbying under contracts and grants to issues. the government has endorsed. proxidtes no definition of the critical terms nonprofit organizations. • 50862 Federal Register / Vol. 48, No. 214 / Thursday, November 3, 1983 / Notices m This proposal thus addresses the final preamble,the proposals are in fact nonetheless be required to maintain major area in which federal cost identical save for the inclusion in the fully documented time records in order principles have nut yet adopted DAR proposal of more restrictive to rebut auditor assertions of disbelief of •restrictions on the use of federal funds definitions of lobbying and related their claims.The A-122 proposal for lobbying and related activities by activities than are proposed for all other includes specific previsions to safeguard private organizations.It has been covered prepared in nizati consultation with the parties. ) against this potential problem and 2.Existing rules have failed to stop or exempts indirect cost employees from General Accounting Office,which identify abuses:Cases have been cited documentation requirements. including supports this initiative.The proposal is and documented of federal grant and the creation of time logs.calendars,or similar in critical respects to the current contract funds that were used for similar records,if they self-certify that Defense.NASA.and GSA procurement lobbying and related activities. they spent less than 25%of their time on regulations. Parallel tevisions now being Moreover, insufficient regulatory lobbying or related activities.The proposed by GSA and NASA will guidance under the current A-122 has proposed revision also mandates that eliminate all differences:revisions now limited enforcement efforts so that the agency documentation guidance be being proposed by Defense will true magnitude of actual abuses has not restricted further by review pursuant to eliminate these differences save for been quantified.Such audits as now the Paperwork Reduction Act, to ensure certain provisions later described in this take place regarding the use of federal it is the least burdensome necessary to notice which retain more restrictive funds for lobbying definitions otce of lobbying restrict in the Y g purposes can easily satisfy the documentation requirement present DAR. bog down into disputes between objectives.The self-certification rights attorneys and accountants regarding and protections of the proposal are only V.Necessity for the A-122 Revision definitions,rules and standards.Thus, possible because of the clear definitions regarding many agencies choose not to commit of lobbying and related activities that There is little disagreement the inappropriateness of using federal limited auditing resources to an effort are elsewhere set forth.It is impossible. which,whatever its importance,can risky for grantees and ultimately grant and contract funds fur lobbying and related activities.Still,some have often be limited or even thwarted meaningless to self-certify to • argued that no regulations should be in because existing standards are vague compliance with a vague and ultimately effect for contractors;alternatively, and unclear. meaningless standard. 3. The vagueness of existing. 5. The A-122proposa/explicitly ethers have agreed that none should be in effect for nonprofit grantees.(Often, standards impose administrative end protects many activities presently interpretative problems on nonprofit subject to claims of una/lowability'A- :aaad without even appreciating the irony o their positiers, those arguing for self- grantees:The corollary to the above 122's comprehensive treatment of ';:'�:anption strenuously assert the need problem for auditing agencies is that lobbying makes many activities strung regulation to restrict the use many nonprofit grantees—often the allowable that auditors might currently of federal funds for lobbying purposes least financially endowed—are deem unallowable.Examples of the i.y eveayone other than themselves.)The particularly disadvantaged if and as above include: procurement agencies have properly actually audited.Many grantees may —Lobbying at the state level to enhance !ejected the notion of no regulation for lack the resources or access to outside the organization's ability or cost to civilian. sjace and defense contractors. professional assistance to effectively 'i his revision of the OMB Circular is in resist forced,questionable or subjective recognitformion the of principles orci les of fs also,in furtherance of the view that fair, construction by auditors of the presently tatesbr ntprinciples ouederalism. coax::is:: nt ai:gulatian makes sense for undefined"lobbying"..term.Moreover, state appropriate state may, through anti is iii ;he tali:-eat of the government the absence of clearly defined standards state processes,waive the • ie..,,:"li •;s a:onpr;fit grantees.The ensures that all grantees are now disallowance provision for state t•c%lt• av:.:,t points help explain that necessarily uncertain of the allowability lobbying by state subglantees. j '" ' ' of many intended expenditures— —All federal Executive Branch contacts t `i '' ,n,1: li:• as,LJe to cover whatever their good faith desire not to • except attempts to influence the c m,trur!ors u:?Jer tough g:r%delines spend grant funds for lobbying si Win or veto of le tslation. while ry'''Fcti;••;ly evenrp.,,.b,nonprofit The A-122 proposal clearly definess —Employee gp Yee activity related to service gr•an/0,::from any 1-v1,111ot:'on:During the types of lobbying and related activities • as an elected or appointed official,or pas: t•.;::yedr3,lohl;yin;provisions far are unallowable and,further and member of a governmental advisory more nest:ictave than the proposed A- critically,provides cor binding advance panel. 122 revi,icm h:c.e been added to the cost guidance from agencies in situations —Providing technical advice to principles,;nv.:rning all defense and where grantees are in doubt as to the legislative bodies in response to r:ivali•u..:':nh a :tu s. (These provisions meaning of the Circular. are Li::•f;'!•:•r♦ a.i:e.vhcre in the specific written requests. • 4. The A-122 proposal also safeguards 6. The Internal Revenue Code and pre:rn:1'1,• 1 use or federal funds fur against paperwork requirements ta other restrictions on lobbin have no lob!,ci,ig arid rele'ed purposes is no less which grantees are presently subject: bearing on preventing the use of grantee an abut when ergaged in by grantees Aside from the current absence of than by contractors,and OMB knows of definitions of lobbying and related that&d lobbying purposes:The tax • no basis for differential.much lessau that Code lobbying provisions for tax highly differential treatment of the two. effectively subject granteeso he requirment further, otherwise exemt �make unnecessary the Since parallel revisions are being issued that they document certain allowable promulgation of cost standards in this for A-122, the FPR,and the NASAPR expenses charged to the government. area is belied by the fact that those sets of cost principles. the present This requirement is particularly onerous provisions are for the purpose of initiative guarantees uniformity of with indirect cost("overhead") lobbying cost rules for both nonprofit employees who frequently spend limited such organizations.Under the Code,as and profit-making recipients of federal amounts of time engaged in lobbying or long as an organization's lobbying funds. (As is elsewhere described in the related activities—but who may expenditures do not exceed a certain 1\ Federal Re gister / Vol. 48. No. 214 rj 'Thursday, November 3. 1983 [Notice's 50863 portion of its revenues.it is eligible for 7. The Comptroller Ceneml supports • Efforts to employ state or local tax exempt status.The Code lobbying the need for A-122 revision:As officials to lobby Congress or state provisions are only determinative. indicated elsewhere in the preamble, the legislatures; however, of wherther an organization is A-122 proposal was prepared in active • Legislative liaison activities,but • sufficiently devoted to a public purpose consultation with the General only to the extent that they are directly to justify preferential tax treatment.The Accounting Office,which supports the related to unallowable lobbying • provisions do not address the issue of initiative and believes that the proposal activities as otherwise defined by the whether federal grant monies should be satisfies the concerns which it had ' Circular.(All legislative liaison used to subsidize lobbying—the sole expressed earlier. activities are covered by DAR.) j purpose of cost standards.Indeed,the And, as noted elsewhere,after a GAO The proposal will make unallowable fact that the code lobbying provisions investigation of lobbying activities by only the portion of costs attributable to do not address the use of grant monies grantees under Title X of the Public lobbying and related activities—not.as for lobbying has been implicitly Health Services Act, the Comptroller in the January 24 proposal,entire cost recognized by Congress on numerous General stated in September 1982: items used in part for political advocacy. occasions through appropriation bill prohibiting such Clear federal guidance is needed both to Further,and critically, the proposal riders e.g.. Pub.L 97-377,section expenditures.Pub. ensure that Title X program funds are not Will provide relief from paperwork and used for lobbying and to preclude audit problems such as those L.96-74. section 607. unnecessary controversy over whether experienced under the current DAR. It is clear that because expenditures grantees are violating federal restrictions. - FPR.and NASAPR: for the purposes of by nonprofits des o are mean mthat ible fedeer ral grant e The move pri to nciples nd make more l1 specificc complying with this revision,employees the cost pp f accounted for on an indirect basis will monies should be spent for those grantees is the appropriate mechanism to not he required to maintain time logs or purposes.For example, the Code does achieve these ends.[Emphasis added.( 4 g notprohibit tax exempt organizations similar records if they lobby less than P g VI.Summary Description of Proposal 23%of the time.The federal government from spending their revenues on will relyu advertising or entertainment.Circular upon their lobbying time below their good faith This proposal uses the term"lobbying A-122, however,allows only certain and related activities" to describe • certification ofen unallowable activities instead of the found for organizations that have been advertising costs.and disallows all f found to have materiall misstated entertainment costs.Another example is expansive term"political advocacy' Y section 503 of the Code, which denies used in the January 24 proposal.This theall precedingc or unallowablef -year costs within tax exempt status in certain instances to reflects a significant tightening of the the five-year period.Under definition of unallowable activity the the proposal,the absence of time logs or organizations using their revenues for in the private gain of controlling new proposal.Unlike the January 24 similar records not kept creti pursuant to • individuals.The regulatory scheme proposal, this proposal will not cover grantee or contractor discretion will no longembodied in section 503 does not imply. • • Lobbying at the local level(covered disallowing llor serve claimsas a b for nfor act cost or however, that the federal government under the current DAR and FPR); employees. indirect cost employees. should not have more stringent • Appearances before Congress or In order to provide even-handed. restrictions on the use of federal grant state legislatures at their written request government-wide rules for paperwork monies for private gain.This point is (covered under the current DAR); and audits.Defense, GSA, and NASA best understood by the fact that nothing • Contracts with Executive Branch are proposing parallel revisions in their in the Code would prevent many officials, other than in connection with procurement regulations. grantees from spending all of their grant the veto or signing of enrolled bills,or funds for lobbying purposes. attempts to use state or local officials as VII.Variances With the Lobbying Correlatively,the fact that the Code conduits for unallowable lobbying Provision of Defense Acquisition • and other provisions of law regulate the (covered under the January 24 proposal); Regulations(DAR) business community in its lobbying • Litigation on behalf of others not A standardized lobbying provision activities. e.g..Section 162(e),!RC; directly authorized by grant or contract that will govern grantees and Federal•Elcction Campaign Act,2 U.S.C. (covered under the January 24 proposal): contractors alike resulted from Sections 431-456.does not mean that • Lobbying at the state level that extensive negotiations among the four there should be no provisions in the would affect the organization's ability or agencies which are responsible for the DAR. FPR or NASAPR regarding such cost of performing a grant or contract • major sets of cost principles affecting activities.Some in the business (covered under the current DAR.FPR. grants and contracts: the Federal. community have suggested that current and NASAPR); Procurement Regulations (FPR), which Provisions regarding the unallcwability • The entire cost of membership dues covers civilian contractors and which is of lobbying expenditures should be to trade associations or other administered by GSA; the NASA superseded by definitions of lobbying organizations which have lobbying as a Procurement Regulations R);the • set forth in the Federal Regulation of 'substantial organizational purpose" DAR,which covers defensee come contractors Lobbying Act. 2 U.S.C.sections 261-270. (covered under tite January 24 proposal) and is administered by the Department That p.•sition has been properly ,Unsllo Unallowable activities will consist of: of Defense;end Circular A-122,which rejected,and no Congressional intent or covers nonprofit organizations and is operative theory can seriously support • Federal,stale or local electioneering implemented under the guidance of the n:iron that the Code,lobbyists and support of campaign organizations. OMB. re•istr�:Lion laws or anyother-like PACS, and the like; 3Although exact conformity was st,,tutes permit the government to avoid • Direct lobbying of Congress and,to reached between the lobbying its responsibility to assure that federal the degree noted above,state provisions in the FPR, NASAPR,and the grant end contract funds are spent for legislatures; • A-122 proposal,four exempted activities authorized purposes and intended and • Crass roots lobbying concerning under these regulations are restricted best uses. state or federal legislation: under the DAR proposal.The activl+ties 5086..... 4 Federal Register / Vol. 48, No. 214 / Thursday, November 3, 1983 / Notices allowable under the proposed A-122, Institutions of Higher Education. spent in lobbying by such employees,or FPR, and NASAPR.but unallowable Hospitals.and Other Nonprofit upon other evidence not precluded under the proposed DAR are as follows: Organizations: Uniform Administrative above.As earlier noted,the absence of (a)Local lobbying activities to Requirements." (See.e.g.Circular A-110. time logs or comparable records for influence officials on local concerns. Attachments C and F.)The Circular, indirect cost employees not kept (b)Providing technical advice or inter a/io.generally requires grantees to pursuant to the discretion of the grantee a.sistance to Congress or state keep for a period of three years. or contractor will not serve as a basis legislatures,or members or committees "[f)inancial records,supporting for contesting or disallowing claims. thereof,in response to a specific written documents,statistical records.and all Only if a material misstatement is found request;and other records pertinent to[grants)."and • (c)Lobbying and related activities at to access for audit purposes "pertinent on the basis requireof the keeping evidence can an the stale level:(1) for the purpose of hooks,documents,papers and records agency e the of time logs influencing legislation directly affecting of• • • recipient organizations:' fur necessity employees.This who engageng the the ability of the orgar.ization or cost to As later described in the preamble. incidental� t} oof bbying havings t the organization of performing the grant the proposal also modifies, in certain ll of lobbying federalto account or contract; or(2) in the case of states' situations, the ability of auditors to for all of their time to agencies. subgrantees. if the restrictions are require the creation of certain Subparagraph a(5)requires agencies waived by the state(the subgrantor) documents and records.See paragraph resolutionto ish procedures forissuesa advance through appropriate state processes. 1.a.(4)of the proposal. rofe definitional arising (d) Legislative liaison activities that As with the DAR. FPR,and NASAPR. under this revision.This will alleviate are unrelated to unallowable lobbying and as is already the case under A-122's the inevitable problems of interpretation activities, as otherwise defined in the general rules for unallowable costs. the at the margin and will avoid creatinga proposal. costs identified as unallowable by these disincentive for organizations to enage Vi11.Analysis revisions include not only costs of the in borderline activity merely because of The proposeddirect activity but also the costs of other the uncertainty of applicability of the revision comprises activities directly supporting such direct provisions. three paragraphs.The first creates a activity.Under the proposal,for Subparagraph b defines five new paragraph in Attachment B to example,if a lobbyist spends four hours categories of lobbying and related Circular A-122. to be called "B21 lobbying the Congress and an additional activities that are unallowable.It should Lobbying and Related Activities." eight hours in study,consultation, and. be read in conjunction with Paragraph 821 consists of three preparation for the lobbying,the full subparagraph c,which establishes subparagraphs. twelve hours are disallowed,along with exceptions to these prohibitions. Subparagraph a establishes an ic1:,uh2aragra hra swork for the overall the cost of any support services and any Subparagraph b(1)makes unallowable revision.Subparagraph a(1)represents other costs attributable to the lobbying certain electioneering activities at the re from the current principles activity, federal, state,or local levels.It applies noof costdeparture f allocation familiar hecet principles As emphasized in the comment to referenda as well as to elections of and While the to grantees ant detail published along with the proposal's text candidates to office.The restrictions reporting contractors.While wille preciseeci dell only the portion of cost items allocable should be familiar to nonprofit ofhe set according proceduresto nl c agencya y to the lobbying activity is unallowable. This departs from the approach taken in by 2nU.S.C.S Section onthey are prohibited p:+ractice, this paragraph establishes a the January 24,1983,proposal which by 28 U.S.C.Section 501(c)(3). general format similar to,and no more Subparagraph b(2)makes unallowable onerous than. that now to made the entire cost of any cost item comparable unallowable applicable activities.See, used for lobbying activities unallowable. • the financial or administrative support • for the HHS"Guide for Subparagraph a(2)makes clear that of political entities—including political Nonprofit example the (May 1983),at the certification required as a part of the Parties.compaigns,political action Organizations"Indirect Cost 108l financial status report required under committees, or other organizations— p.73(Sample Direct v Method). Attachment G of Circular A-110 is with the purpose of influencing Indirect costFormat—Direct rateAllocation Meth are deemed a certification of compliance elections.Thus,it bars indirect support conducted between an organization and with this revision(paragraph B21, of electioneering activities through a single cognizant agency on an "Lobbying and Related Activities").It is intermediaries. organization-by-organization ozantancyon anther than important that a responsible official of • Subparagraph b(3)makes unallowable on a basis.This approachthe contractor or grantee investigate and the costs of attempts to influence state will save grantby-gn a recipient ensure compliance with these or federal legislation.Unlike the January will orgsave :;ns c agencies ands time and provisions: however,no new paperwork 24.1983,proposal,this proposal confines rt in id le time is required, the reach of unallowable lobbying to effort in casese he where the organizatione or Subparagraph a(3)restates the general Legislative,but not executive. receives Further, the subparagraph rule for cost documentation,but is decisiunmaking.This is the traditional modified by subparagraph a(4).IAhich understanding of lobbying and was' follows existing accounting practice and provides that for the purposes of emphasizes that lobbying and related complyingwith this revision. Many urged commentingby organizations izmmnnters. ' costs must be identified and dealt with organizations are not required to Many necessity andations apporpriately. in accordance with the prepare or maintain time logs, stressed the of and Circular's provisions. + appropriateness of contacts with No de's ilro provisions. record-keeping in cu.endars.or like records to document officials charged not with passing laws ndirect cost • requirements have been included in this etmployee lime s who ent by state in good faith that Executive Branch lobbying made but with executing them.Thus the only proposal,as such requirements are they spend less than 25%of their time on unallowable are attempts to influence a generally set forth for all nonprofit lobbying and related activities.This decision to si or veto enacd organizations in OMB Circular A-110: means that the agency and auditor must legislation. and attempts to use state "Grants and Agreements with rely on the good-faith estimates of time and local officials as conduits for • Federal Register'/ Vol. 48, No.-214 / Thursday; November 3. 1983 / Notices 50865 • grantee and contractor lobbying of unallowable.Under the DAR.all lobbying exempted from unalluwability Congress or state legislatures. legislative liaison activities are deemed under this section must be "directly The coverage of subparagraph b(3) unallowable. related"to lower costs or better has been limited to state and federal Subparagraph c:sets forth five performance of grants or contracts. legislation in these proposals. unlike the exceptions to subparagraph b.The costs Lobbying in the case of secondary. prohibitions in the Internal Revenue of activities described in subparagraph c tangential or speculative links between Code. the DAR,the FPR,and the . are not unallowable under this proposal. proposed state laws and grant or NASAPR. because it is difficult to Note that this does not necessarily make contract costs or performance will distinguish between legislative and such costs a/Iuwabh':allowability or remain unallowable. executive lobbying at the local level. unullowability of such costs will be • In recognition of the principles of . Many of the comments received from determined by the terms of the grant. federalism,states which are subgrantors • organizations critical of the January 24, contract, or other agreement involved. for federal grants may, through 1983, proposal gave examples of Circular A-122 does not authorize costs appropriate state processes, waive the contacts with local officials that are or expenditures;it exclusively limits the disallowance provision for state vital to carrying out grants or allowability of costs or expenditures. lobbying by state subgrantees. , contracts—for example. obtaining Subparagraph c(1)exempts the The final exception.in subparagraph zoning changes.police protection.or provision of technical advice or c(5). is for any activity specifically permits.At the local level. there is no assistance to a legislature upon a authorized by statute to be undertaken rigorous separation between legislative specific written request.This includes pursuant to the federal grant,contract. and Executive Branches.and it would not merely testimony,but also or other agreement.The provisions of be difficult to construct or enforce a rule conferenr.es with legislators and staff this Circular do not override statutory regarding legislative lobbying at the when requested.The exemption is law local level. meant to be permitted on a limited Paragraph 2 renumbers paragraphs As indicated,however, in keeping basis, to fulfill the specific informational D21 through B50 of Circular A-122's with the intent of the revision.b(3) needs of legislatures,and members and Attachment B.Since the cost items includes a phrase clarifying that efforts staffs thereof. covered under Attachment B are expended to influence state and local Subparagraph c(2),patterned after 26 numbered in alphabetical order. officials to accomplish the lobbying U.S.C.4911(d)(2)(E),makes clear that "Lobbying and Related Activities"is activities defined in b(3)are likewise communications with Executive Branch unallowable.Under the proposal,the officials are not unallowable,with two •appropriately designated as paragraph government would not reimburse the exceptions:(1) to influence a decision to 821. necessitating the renumbering of cost of meeting with mayors or city sign or veto legislation or(2) to influence paragraphs B21 through B50 as 822 council representatives if the purpose is state or local officials to serve as • through D51. to convince them to lobby the Congress conduits for unallowable lobbying Paragraph 3,like paragraph 2,is a for legislation that the grantee or activities.as defined by this revision. technical language change.It changes contractor favors. Subparagraph c(3)ensures that the the former term"lobbying" to the new Subparagraph b(4)deals with grass salary of an employee does not become term"lobbying and related activities," roots lobbying,and is applicable only to unallowable because of participation in as used in this revision. grass roots campaigns concerning civic affairs as an elected or appointed IX.Legal Authority legislation.This provision is not meant official or member of a governmental The responsibility for implementing to disallow associations from informing advisory panel. their membership about legislative Subparagraph c(4)exempts lobbying grant programs, including the power of developments or soliciting their or related activity at the state level administration,has been delegated by members' views as a basis for where it directly affects the ability of or Congress to the grant-and contract- developing the associations'own cost to the organization of performing making agencies.Those agencies have legislative positions. the grant or contract.Such lobbying can the direct legal authority to establish The proposal's definition of grass directly benefit the federal government. cost principles and,prior to the late roots lobbying is less inclusive than the The proposed exception does not permit 1970's.did so in a piecemeal fashion Internal Revenue Code definition.in that the use of federal funds to lobby state . without coordinated government-wide the IRC includes local lobbying:and legislatures to promote the ideological standards.OMB's legal authority in this restricts "any attempt to influence any objectives of the organization.merely process derives from the President's legislation through an attempt to affect because those objectives are consonant constitutional authority to"Take Care the npi,-:ions of the general public or any with the purposes of the grant or that the Laws be Faithfully Executed," segment thereof."This subparagraph contract.A recipient of a grant for U.S.Constitution,Article II.Section 3,as restricts only efforts to obtain specified services to the elderly cannot thereby well as from general supervisory lobbying actions on the part of the engage in lobbying on behalf of the responsibilities vested by Congress in public. (See 26 U.S.C.4911(d)(1)(A)). concerns of the eldery.Rather,the the President and in OMB. Subparagraph b(5)makes unallowable lobbying must relate to the Grants management responsibility the cost of legislative liaison activities organization's direct performance of the was placed in OMB by Executive Order when they relate to unallowable grant or contract.Fur example,a grantee No.11541 (July 1.1970).pursuant to lobbying and related activities as in a drug rehabilitation program might Reorganization Plan No.2 of 1970,5 defined in paragraph b.This distinction be able to lobby a state legislature for U.S.C.App.Subsequently,grants recognizes that while the primary laws permitting the prescription of management authority was transferred purpose of an organization's"legislative methadone to heroin addicts,or a to GSA by Executive Order No.11717 liaison" unit is ordinarily to direct and grantee distributing dairy products to (May 9.1973)and retransferred back to prepare for what has been defined in the needy might lobby against an OMB by Executive Order No.11893 this revision as unallowable lobbying, increased excise tax on milk that would (December 31,1975).Relevant statutory there are many other functions served increase its distribution costs.It should authorities include the Budget and that this revision does not make be understood,however. that state Accounting Act of 1921.ch.18,Section . ;- ). _I-• 50866 Federal Register / Vol. 48. No. 214 / Thursday, November 3. 1983 / Notices , 209.31 U.S.C.Section 18:the Budget and years.Although it has never enacted would be classified as unallowable Accounting Procedures Act of 1950,ch. comprehensive legislation to address the under these revisions.Subparagraph c(5) 946 Section 104. 31 U.S.C.Section 18a; use of federal funds for lobbying of the proposal makes any such Pub. L.No.97-258, Section 1,31 U.S.C. purposes on a government-wide basis, specifically authorized activity Section 3507; Pub. L. No.93-400,Section Congress has used the vehicle ofallowable;3.41 U.S.C. Section 402.Under these and appropriationsnflitw thus,thisenacted ion utesbut other general management authorities. acts to curb some of the conflict with any statutes but is OMB may develop plans for more flagrant abuses and to prod the consistent with the broad thrust of Executive Branch into action.Over the congressional policy in the area. implementing better management with past ten years.some 40 to 50 riders have As noted, this proposal has been "a view to efficient and economical been attached to appropriations bills to prepared in active consultation with the service"and may issue supplementary address some aspects of the problem. General Accounting Office,which interpretative guidelines"to promote These appropriations riders use many supports consistent and efficient use of different formulations,but have as a s posal this initiativeai sandeconcerns believes that procurement contracts,grant ccmnion element the prohibition of the which the GAO had expressed lier. agreements,and cooperative use of appropriated funds for publicity • agreements."In its capacity of or propaganda purposes designed to exercising the President's general X.Enforcement management functions over the support or defeat legislation.One such Circular A-122 is a management management m Branch. OMB has the power appropriations rider.Section 607(a)of directive to federal agencies toExecutive B and direct the managemento the Treasury. Postal Service,and establishing cost principles for use in superviseui of federalect the General Government Appropriations connection with grants and contracts Agencies, in turn, incorporate the Act, applies across the board to all with nonprofit organizations. It does not provisions and requirements of federal agencies: contain its own enforcement applicable OMB circulars into grant and No part of any appropriation contained in mechanism, though its terms are contract agreements through regulations, this or any other Act,or of the funds incorporated in grants and contracts tt contract terms,h oru meann, available for expenditure by corporation or through agency regulations or grant i this or contract the Circular other me provisions agency,shall be used for"publicity or bIncome legallyane binding r propaganda"purposes designed to support or instruments.The degree and nature of ed grantees.Moreover,uponit has contractorsa held daefeat legislationbefore Congress.(Emphasis enforcement willo thesepeanti-lobbying, r , that the provisions of OMB Circular A— provisions depend. therefore,on 102 are legally applicable to grants even The Department of Interior operational experience and competing when the grant-making agency has not Appropriations Acts use the following This demends on enforcement a analysis of enforcement resources. explicitly implemented the Circular. formulation,which is more restrictive descriptive rather than prescriptive;it is Qonnar Corporation v. he Circular, than the Treasury formulation: presented to provide a context for public .4tlanta Rapid Transit Authority,442 F. No part of any appropriation contained in understanding of the proposal. Supp.1168.1172(N.D.Ga.1977). this Act shall be available for any activity or 1. Voluntary Compliance.The the publication or distribution of literature bedrock for enforcing these provisions is Circular A-122 is on the same legal footing. that in any way tends to promote"public voluntary compliance by grantees and in summary, the legal authority for support or opposition"to any legislative contractors.In the past,restrictions on OMB cost principles derives from Proposal on which congressional action is not the use of federal funds for lobbying and comp lete,delegated authority from in accordance with 18 U.S.C.1913. reCongress and the President to manage The Labor,Health and Human inadeqateduately activities communicatedos ha been the Executive Branch with a view inadequately e and Services,Education,and Related defined.Neither agencies nor recipient toward economy and efficiency,as it Agencies Appropriations Act states: organizations devoted much attention to affects the agencies'exercise of their No part of any appropriation contained in them.This proposal is expected to •gra'' administration functions, this Act shall be used to pay the salary or improve compliance significantly by: rear proposed revision,like cost expenses of any grant or contract recipient or • Defining unallowable activities so r.anciples disallowing advertising costs, agency acting for such recipient to engage in that organizations can comply in good fundraising costs, and entertainment any activity designed to influence legislation faith,and costs, is directly related to the efficient or appropriations pending before the and economical administration of Congress. • Providing formats(indirect cost rate ons,grants. contracts, and other agreements. Other agencies and entities affected • st ttustreport)inrtwhichtesof ponsible1al By prohibiting the use of grant and by appropriations riders(in addition to officials of the grantee or contractor will contract monies for lobbying or related the generally applicable provision in the confront the issue of the organization's activities (unless specifically authorized Treasury appropriation)include to be conducted with grant or contract Defense,State.Justice,Commerce, Tcoo assistanse. .f Inds by statute), funds can be directed District of Columbia,Legal Servicesagencies organizationsshallbe prepared in oreres I toward their proper uses,therebyP yam• thieving greater publicu efit. s the Corporation, Services TrOation,and Community s onr involve l definitionalo lexpendituresiiu concerning Comptroller General has noted,"The Systems Agencies.Taken as a whole, potential shouded in the inevitablent this cost principles applicable to all federal these provisions indicate a far-ranging d procedure should reduce s athe grantees is the appropriate mechanism Congressional concern to control t se difficulty of interpretations at to achieve these ends (of ensuring that of federal funds for lobbying purposes. 2.Sanctions. Penalties for violations program funds are not used for Neither legislation nor legislative history of this revision are the same as for I'ilahying)."GAO/1-IRD-82_108 suggests any deliberate departure by the violations of existing A-122 provisions. (Si•ptemher 24. 1982), at 27. Congress from this principle. 'f'he legal basis for the proposed In serveral specific instances, The minor or unintentionaln sanction ini the event of revision is further supported by a series Congress has directly authorized the use these restct restrictions costs recovery,.e.. of congressional actions over the last 20 of appropriated funds for activities that the federal agency will obtain ., 1 Federal Register / Vol. 48. No. 214 / Thursday. November 3. 1983 / Notices 5467 ' reimbursement from the contractor or activities and 40%on federal grant On the other hand, considerable grantee of misspent funds.In more activities,40%of the salary may be • problems of definition and interpretation serious cases.contracts and grants can allocated to the grant.This approach is arise when terms such as "substantial" be suspended or terminated.or consistent with the DAR.FPR. and are used to define the point at which the contractors and grantees can be NASAPR lobbying cost treatment entire cost of a meeting or conference is debarred from further awards.The provisions.as well as the traditional to become wholly unallowable. availability of these sanctions for accounting method of prorating costs Given the inherent difficulties in using oniviolating te anti-lobbying lob rs restrictionsbeen between allowable and unallowable cost principles to attempt to deal with appropriationslegislationactivities. this problem,it appears that the better confirmed by the Office of Legal An Counsel of the Department of Justice. alternative method of allocating approach would be for agencies to adopt g p 3.Advance screening. One of the most costs of items used for both lobbying more stringent policies regarding the effective means of enforcing these actitvities and grant/contract purposes funding of meetings and conferences restrictions is to ensure that grants and that was considered and rejected was when they are likely to finance or contracts officers are aware of the past the concept that no federal money can otherwise support clear lobbying be used to pay for any portion of a cost activities.(See Office of Management performance of organizations seeking item that is used for lobbying activities and Budget Memorandum.M-82-4: new or continued funding. If an Y g g organization has not devoted past (i)in any way,or(2) over Sao of the "Improper Uses of Federal Funds." April time. 26.1982. appropriations to the grant or contract The OIviD ) purposes, and has materially divertedproposal published on 2.Definition of Lobbying Activities. them to lobbying(or other extraneous January 24.1983 followed this approach. One of the weaknesses of current activities).questions can legitimately be Commenters argued that it would restrictions on tax-funded lobbying is raised as to whether additional grants or increase the cost of performing federal the lack of a clear and detailed contracts would be appropriate.Once grants and contracts because it would definition of exactly what is and what is uniform and understood cost principles effectively require them to separate their not covered.In constructing the are:in place. it is expected that agencies lobbying activities from their grant or definition in this proposal. OMB has will take steps to ensure more thorough contracts activities.This could lead to drawn upon experience and language advance screening of grant and contract inefficient duplication of equipment and from Internal Revenue Code definitions. applications. facilities—with attendent increased statutory provisions.Defense, GSA,and • 4.Audits. Contractors and grantees costs to the taxpayer.They also argued NASA procurement regulations,and are currently subject to audit that it would burden the First similar sources.Care has been taken not requirements.and to the possibility of Amendment rights of contractors and to prohibit activities that are audit by agency Inspectors General or grantees because engaging in lobbying legitimately necessary to the fulfillment the Comptroller General;However,most activities could result in disallowance of . of the grant or contract. audits have not focused on compliance otherwise legitimate costs.The purpose The proposal addresses the various with anti-lobbying provisions.Audit of this proposal,however. is to enforce categories of lobbying (e.g..grass roots strategy and priority will continue to be governmental neutrality by preventing lobbying),and defines the unallowable established by the independent the use of federally appropriated funds activities.A separate section is devoted judgment of these enforcement bodies. for lobbying and related activities.To to activities which are exceptions to the: After uniform cost principles are the extent that an approach would general restrictions. promulgated.it will become possible for significantly increase costs or burden The following alternative definitions . more vigorous and effective audit First Amendment expression, it is of unallowable activities have been enforcement to take place.Stratified inappropriate. audits and other strategies can be used considered and rejected: d e an therntrat for greater • Some commenters have urged that a. The definitions used in Olb1B's nonprofit organizations be complianceliance among all grantees and shouldJQne,ory29, 1983,proposal could be ineligible to receive any federal funding used.This would result in disallowing, contractors. Alternatively.promulgation if they engage in any lobbying activities. following categories of a defined set of rules can and will Such an approach would be more amongothers,the cats ories serve as a protective barrier against restrictive then OMB's January 24,1983, of activity not covered in this proposed audit harassment,and will and should revision: make for fairer and simpler audits for proposal and would be strongly opposed • Lobbying on local concerns at the antees and contractors.This should be 1'yv many affected groups. Furthermore,a local level. Rr wholesale preclusion of participation in of particular benefit to smaller grantees grants and contracts as a result of even • Lobbying at the state level,even an.l contractors who lack the means an•dt a modest amount of lobbying would when the lobbying is directly related to support staff to contend with audits raise difficult questions of legality and the cost to or ability of the organization under the vague,ambiguous, and efficiency in a case where the applicant to perform the grant or contract. differential rules now in effect.With was otherwise the most qualified • Attempts to influence"licensing. expanded Inspector General and agency applicant. grants.ralemaking.formal or informal audit staffs now in place, the protections guidelines, and olio afforded by the proposal are manifest. One variation from the allocation adjudications, policy principle considered by OMB related to statements." XI.Alternative Approaches to Major the costs of conducting meetings and • Contacts with Executive Branch Issues in The Revision conferences that are held in"substantial officials concerning any governmental 1. General Cost Treatment.This part" to promote lobbying. decisions. proposal makes unallowable only the The practice of partisan meeting • Litigation on behalf of others not portion of a cost item that is actually sponsors scheduling large blocks of directly authorized by grant or contract. used in lobbying activities. as opposed "open time" to facilitate lobbying during • Encouragement of grass roots to the entire item.Thus,if an employee Washington meetings could make the lobbying to influence notice and spends GO%of his time on lobbying allocation approach impractical. comment rulemaking. Y , . ' e 50868 Federal Register / Vol. 48, No. 214 / Thursday, November 3, 1983 / Notices • • Membership dues or contributions included"making available the results activity—rather than to identify specific to organizations which have lobbying as of nonpartisan analysis, study, or activities that should not be subsidized a "substantial organizational purpose." research, the distribution of which is not by the federal government.The result of Many commenters on the January 24 primarily designed to influence the adopting any of those previously proposal felt that the scope of outcome of any federal,state,or local established definitions in whole would unallowable lobbying activities in that election,referendum,initiative, or be to disallow certain activities that are proposal was too broad and would similar procedure,or any governmental properly allowable,and to allow certain result in disallowing certain legitimate decision."The current proposal's activities that are not proper purposes activities appropriately funded under a revised lobbying definition and for the expenditure of federal funds. . grant Tr contract.For example,many accounting treatment do not make such Therefore, the approach of this contracts with Executive Branch activity unallowable in the first place,so proposal has been to use concepts and officials at the local.state,and federal the inclusion of such exception-is not definitions from the DAR.FPR. levels are considered necessary to only unnecessary but confusing. NASAPR.and Internal Revenue Code performance of the grant or contract. b.Lobbying could be defined as (IRC) where appropriate, and to deviate and,often: compliance with the law. broadly as possible, with a detailed list from them where appropriate.The Moreover. the concept of lobbying has of the unallowable activities:Some "Analysis" section of this preamble traditionally been understood to be an criticism was made of OMB's January 24 identifies the areas of deviation and the attempt to influence legislative rather proposal for rot being comprehensive rationale for them.Several areas of than executive actions.Departure from enough in its restrictions on lobbying particular interest,however.should be this understanding appears to create activities.Commenters felt that because noted. Unlike the DAR,FPR.NASAPR. uncertainty and uneasiness among of the ambiguous nature of lobbying and and IRC. this proposal does not include affected parties.Thus,OMB has rejected quasi-lobbying activities,it was more local lobbying,because of the difficulty as too broad a definition of lobbying efficient to restrict the broadest scope of in distinguishing legislative from that would deem Executive Branch these activities.As noted above, this executive lobbying at the local level and contacts (other than in connection with argument was rejected in rewriting the the necessity of frequent contact by the signing or veto of legislation)as proposal; in fact, the definitions have contractors and grantees with local unallowable. been made less expansive. officials or matters of administrative Unlike the January 24 proposal, the C. The lobbying restriction could concern to the contract and grant. current draft does not disallow the consist of a broad,but undefined.promotion of grass roots lobbying to i,• f On the issue of legislative liaison Y g prohibition on lobbying activities:This activity, this proposal basically adopts influence notice and comment is essentially the approach being used the F'PR and NASAPR position in rulemaking.The reason for the original currently in the grants area through making such activity unallowable only inclusion of this provision was that such assorted appropriation bill riders,and it when related to otherwise unallowable n'lemukings are quasi-legislative in has not been effective.Bynot specifying character and that it is inappropriate P Eying lobbying. When legislative liaison for which activities are restricted,agencies activity is performed in preparation for the government to be financing march are required to do much more captains,rally orgainizers and other interpretative and negotiation work to revb�on s intent l tod make suchcontradicttae ctivity such persons for the performance of implement the restriction.Grantees and completely allowable.On the other such activities in connection with grass contractors arc uncertain as to what is hand,legislative liaison can serve other • roots campaigns regarding such restricted,and whether the govenment is functions not made unallowable by this regulations. On the other hand,the serious in enforcing those restrictions.In revision. consultation process relative to the � consult „ton process s serious concerns addition,such an approach would 3.Documentation Requirements: about .he aft disci applicabilityseriou of any complicate audits conducted to When the method of cost treatment was provi:ion regarding regulations to joint fordetlobby ng permine urposes, and would ther funds had been esed items pa bfrall totalinvolved elin lobbying of cost or collaborative efforts by grantees oranua y 24allo satoh (the contractors to share information and particularly burdensome to smaller January 24 proposal)to the typical to h the made grantees and contractors. "proportional"cost treatment used for bythereby them ,�; federal improvetagencies.commentsis madeMB's d. The lobbying restriction could be cost items related to both unallowable. them , in light h s It that this made identical in coverage to that of and allowable activities, documentation matter should be studied duringovthe current Defense. GSA, or N.4SA of amounts of allowable and course of theu comingprocurement regulations,or to the unallowable costs became a necessity. whether f1 be known, tod if s determineo definition of"influencing legislation"in The principal alternative considered whatwhether •iextent.can b federal government the Internal Revenue Code:There would was to adopt the documentation now finances gras3 federal is tabu ❑ be substantial advantages to this philosophy of the GSA,Defense,and lobbying approach,since current DAR.FPR, ar.liviti��;of march captains, call NASA procurement regulations' Y NASAPR,and IRS restrictions are well- restrictions on lobbying,i.e., to place the organizers and the like in connection o gh ize s comment connection ectin , established and,in the case of the burden on the contractor or grantee to Agency ice andors and others will g Internal Revenue Code,reasonably well- prove in all instances the • examine this matter so as to determined NASAPR orovisionsharee unfamiliare DAR,FPR, to whether additional language is neededappropriateness of a cost.This the nonprofit community,while the IRS parinciples in general.would entail proach,while consistent with anost- in the Circular to deal with this matter. restrictions on lobbying by 501(c)(3) implied burden on indirect cost The exception in the January proposal organizations are unfamiliar to defense employees to maintain records (time for distribution of nonpartisan analysis and civilian contractors.Moreover, the logs,calendars,or the like) to establish for non-lobbying purposes is made IRS definition of"influencing of their time spent superfluous by changes in the current legislation"is intended to identify the lobbyi g oron t related activities.This on draft,and thus has been deleted.As character of the organization—whether would be particularly onerous for high previously stated, the exception it is en ed in "substantial"lobbying ' `, � g g level officials who,in the ordinary 1 Federal Register I Vol. 48, No. 214 / Thursday', November 3. 1983 / Notices ' S0889 course of business,frequently engage in the federal funds corporate giant funds are used for the purposes only a small amount of lobbying.OMB organizational documents; audit reports; that were intended,and not to facilitate • (along with Defense.GSA.and NASA) publications,newsletters, periodicals. lobbying campaigns.As noted above. therefore proposes to allow grantees etc.issued by the recipient organization: current financial control procedures do and contractors to certify in good faith and/or other information relating to a not permit an accurate estimate of the the amout of lobbying and related recipient organization's activities? amount of tax dollars now diverted to activities performed by indirect cost (3)Is the broad exclusion of local ' lobbying efforts by grantees and employees (i.e., those who do not level lobbying from coverage of these contractors:whether large or small. • already have to account for their time provisions necessary or desirable? correction of this problem will produce a spent directly on a grant or contract). (4)Are any additional exceptions net gain to the intended beneficiaries of Only if the employee is engaged necessary or desirable?Are any of the federal programs.The costs to be (according to the organization's own exceptions provided in this proposal considered are primarily accounting and estimate or outside evidence) in unnecessary or undesirable? recordkeeping costs for grantees and lobbying or related activities more than (5)Restrictions on the encouragement contractors,as well as federal agencies. 25%of his time could further of grass roots lobbying inherently These new costs,however,are minimal documentation be required. If a require an understanding of the in both absolute and relative amounts. contractor or grantee is determined to distinction between providing and in many instances the revisions ha,ve materially misstated allowable or information and encouraging lobbying. should reduce audit and compliance unallowable costs within the preceding The intent of the section on grass roots costs.Furthermore,much of the five-year period,more extensive lobbying(subparagraph b(4)) is that accounting work that the revision documentation could be required. internal communications between an requires is already mandated by other OMB also considered and rejected organization and its bona fide members sections of Circular A-122,or Circular more extensive"sunshine"provisions to provide legislative information is A-110.This proposal has nonetheless which would have called for full allowable,but the promotion of been prepared in accordance with the disclosure by recipient organizations of membership lobbying is not. In light of analytical requirements of Executive detailed information concerning their the above, is it desirable to add Order 12291. personnel, public policy positions. language to the Circular regarding such affiliations of officers and directors. internal communications; if so.what XiV.Paperwork Reduction Act publications,and other such form should this language take? Requirements information.OMB believes such (6) Is the allocation method the proper in accordance with the requirements • reporting requirements would exceed accounting method for disallowing costs of the Paperwork Reduction Act of 1980. those necessary to achieve the purpose related to sponsoring meetings and 44 U.S.C.3501 et seq., and 5 CFR Part of these proposals.i.e., to ensure that conferences when these are used to 1320. the collection of information federally appropriated funds are not promote lobbying?Would it be possible requirements contained in this proposed used for lobbying or related activities by to disallow the entire cost of a meeting revision have been submitted for review grantees and contractors.However, or conference if a"substantial parr is to OMB's Office of Information and •OMB has explicitly sought comments on devoted to promoting lobbying?If so. Regulatory Affairs. this issue.(See Issues for Comment. how should the term"substantial"be Comments about the appropriateness paragraph 2.) defined? Comments collection of information 4.Penalties:OMB considered and (7)Are there are any cases where the requirements in this proposal should be rejected as too stringent a penalty explanatory comments in the proposal nn addressed to Edward C.Springer,Office provision which would require the and the preamble are not sufficiently P g return to the federal government of all clear or detailed to enable of Information and Regulatory Affairs. grant or contract funds received by a understanding of the proposal's Office of Management and Budget. nonprofit organization found to be meaning? Washington,D.C.20503.(202)395-4814. engaged in lobbying or related activities. XIII.Designation as"Non-major"Rule XV.Comment Submittal and Further Instead.OMB has opted to follow theg I Information standard A-122 penalties of cost OMB has determined that the recovery and, in certain cases, proposed revision to A-122 does not Comments should be submitted in suspension. termination, and debarment. qualify as a "major rule"under the duplicate to the Financial Management X11.Issues for Comment criteria as listed in Executive Order Division.Office of Management and 12291: Budget,Washington,D.C.29593.All In addition to any other comments. (b) 'Major rule"means any regulation comments should be received within 45 the public is specifically invited to that is likely to result in: days of this notice. comment on the following issues: (t) An annual effect on the economy FOR FURTHER INFORMATION CONTACT: (1) Do the provisions of Subparagraph of 5100 million or more; John J.Lordan,Financial Management e(4) (concerning the maintenance of time (2)A major increase in costs or prices Branch,Office of Management and • logs and similar records)adequately for consumers,individual industries, Budget,.Washington.D.C.20503(202) protect against unreasonable federal, state.or local government 395-6823. recnrdkeepitkg burdens without agencies.or geographic regions;or Issued in Washington.D.C..November I. rendering these provisions (3)Significant adverse effects on 1983 unenforceable?What changes.if any. competition,employment,investment. Darrell Johnson. are recommended? productivity,innovation.or un the J , (2)Should broader disclosure ability of United States-based Budget and AfanagementOfficer. requi:ements for recipient organizations enterprises to compete with foreign- (Circular A-122) be included to facilitate the monitoring based enterprises in domestic or export Cost Principles for Nonprofit of their activities?For example.should markets. Organizations recipient organizations be required to The principal effect of the proposed provide the agency granting or awarding revisions will be to ensure that federal Circular A-122 is revised as follows: 50870 Federal Register / Vol. 48, No. 214 / Thursday, November 3, 1983 / Notices 1.insert a new paragraph in (5)Agencies shall establish or propaganda purposes designed to support Attachment B.as follows:"B21 procedures for resolving in advance,in or defeat legislation pending before Lobbying and Related Activities." consultation with OMB,any significant Congress."E.g.. Pub.L.96-74.Section soy.93 a.(1)Organizations shall include.as questions or disagreements concerning Stilt.575.The Internal Revenue Code defines part of their annual indirect cost the interpretation or application of "influencing legislation"as decal,stu"any proposal,a statement identifying by subparagraphs a or b.Any such advance attempt to influence any[federal,state,or category costs attributable in whole orany member othrough communicationle with resolution,if in writing,shill be binding arty member or employee of a legislative in part to activities made unallowable in any subsequent settlements. audits.or body,or with any government official or by subparagraph b,and stating how investigations with respect to that grant employee who may participate in the • they are accounted for. or contract for purposes of formulation of the legislation."20 U.S.C. Comment The fact that a cost included in interpretation of this Circular. Section 4911(d)(1)(B).This provision is the proposal discussed in subparagraph a(i) b.Notwithstanding other provisions of narrower than the Internal Revenue Code (such as an employee's salary,an item of this Circular. costs associated with the provisions because it does not apply to equipment,or the cost of a facility)may be following activities are unallowable: influencing legislation at the local level. used in part for lobbying or related activities, (1)Attempts to influence the outcomes Moreover.subparagraph c(5)excludes from as defined by subparagraph B21 b.does not of any Federal. State,or local election. the coverage of this provision any lobbying or make the.remainder unallowable. related activity at the state level directly (2) he certification required as a part referendum,initiative,or similar related to the ability of or cost to the procedure, through in kind or cash of the Financial Status Report required ccntributions,endorsements,publicity. contract tion of performing the grant or under Attachment G of Circular.A-110 or similar activity: shall be deemed to be a certfication that the requirements and standards of this Comment:The Internal Revenue Code (4) Preparation.distribution,or use of paragraph, and of other paragraphs of prohiltits tax-exempt charitable organizations publicity or propaganda designed to from interven[ingj in(including the influence legislation pending before Circular A-122 respecting"lobbying and publishing or distributing of statements),any C-rngrevs or a State legislature by urging related activities,"have been compiled p political campaign on behalf of any candidate members of the general public or any with. for public office."2e U.S.C.Section S01(c)(3). segment thereof to contribute to or (.1)Organizations shall maintain In addition,for purposes of defining participate in any mass demonstration, adequate records to demonstrate that "influencing legislation."the Internal the determination of costs as being Revenue Code defines"legislation"to include march,byirally,or ifgndor a to dwve, allowable or unallowable pursuant to "action with respect to Acts.bills. lobbying campaign,or letter-writing or subparagraph a(1)above complies with resolutions or similar items. . .by the public telephone campaign,for the purpose of the requirements of this circular. in a referendum:initiative,constitutional influencing such legislation;or Comment:As with other costs under this Section am 4911(e)(2).r similar procedure."zn U.S.C. Comment The Treasury,Postal Service, Circular,to the extent that such In one respect.this subparagraph is and General Government Appropriations Act documentation is not provided by the narrower than the Internal Revenue part traditionally contains a ridcontaineder providing:"No organization,the amount that cannot provisions,because it is confined to anynt other any Act ,..shall be used in this or reasonably be demonstrated to be allowable, "contributions,endorsements,publicity,or propaganda t...shall sused for publicity up to the entire cost in question,shall be similar activity."in contrast to the broader or purposes designedg a support disallowed. proscription of"participatlion)or or defeat legislation pending before (4)For the purposes of complying with interven(tion),directly or indirectly• • ••• Congress."E.g.,ter 96-74, ev Section e d 93 Stat.575.The Internal Revenue Code defines subparagraph a, there will be no (2)Establishing,administering. "influencing legislation"to include:"any requirement for time logs,calendars,or contributing to, or paying the expenses attempt to influence any[federal,state,or similar records documenting the of a political party,campaign,political local)legislation through an attempt to affect • activities of an employee whose salary action committee,or other organization the opinions of the general public or any is treated as art indirect cost,and the established for the purpose of segment thereof."28 U.S.C.Section 4911 absence of time logs or comparable influencing the outcomes of elections; (d)(1)(A).This subparagraph is more records for indirect cost employees not be it tailored than effortshese provisions.t oin kept pursuant to the discretion of the Comment:The Internal Revenue Service because is limited to to obtain grantee pu s ant contractor not serve has included within the list of disqualifying concerted actions on the part of the public as a activities under 26 U.S.C.Section 501(c)(3)the and does not,therefore,include mere basis for contesting or disallowing following:"participa(tion)or intervenj(ion), attempts"to affect the opinions of the general claims,unless: (a) the employee engages directly or indirectly.in any political public or any segment thereof,"if such in lobbying or related activities more campaign,on behalf of or in oopoaitio:, to any attempts do not lead to concerted action.This than 25%of the time or(b)the candidate for p_rblic office."26 CFR Section is consistent with the GAO'e interpretation of organisation has matarially misstated 1.501(c)(3)-(c)(3j(iii). the"publicity or propaganda"appropriations allowable or unallowable costs within (3)Attempts to influence legislation rider.See 13 202975(Nov.3,1981). the preceding five year period.Agency pending before Congress or a Stateeson - guidance regarding the extent and legislature by communicating with any including attendance at legislatactivitiive n-ture of documentation required member or employee of the Congress or sessions or committee hearings, . pursuant to subparagraph a(3)shall be legislature, (including efforts to at, erin ic'rie.ved under the criteria of the influence state or local officials to legislation. gathering informationdanalyzing zing the effect pendingf Paperwork P.eduction Act. to ensure that engage in similar lobbying activit le pending a legislation,e, and analyzinp the the requirements are the least burdenacme with any government official or y).or thatuch activities aytesdo not relate extent to 1 necessary to satisfy the objectives of employee in connection with a decision lobbying or related activities as defined tt;is subparagraph. to sign or veto enacted legislation: by paragraph l.b.hereof. C.'orin,ert:This provision is for the purpose Comment:The Treasury,Postal Service, Comment The coats of all legislative of assuring that agencies and auditors must and General Government Appropriations Act .liaison activities are made unallowable for rely on the good faith estimates of time spent traditionally contains a rider providing:"No contractors under the current Defense on lobbying by such employees.or upon part of any appropriation contained in this or Acquisition Regulations(DAR);Section 15— outai,le evidence. any other Act. . .shall be used for publicity 205.51.but are allowable for civilian a a• Federal Register / Vol. 48, No. 214 / Thursday, November 3. 1983 / Notices 50871 contractors under the current Federal enrolled bills,or attempts to use state and affects the ability of or cost to the grantee or Procurement Regulations(FPR).Section 1- local Offiicials as conduits for grantee and contractor of performing the grant or 15.205-52. contractor lobbying of Congress or stale contract:or(II)when states choose to adlupt • This subparagraph is narrower than the legislatures. rules waiving such restrictions for their DAR provisions.because it only makes legislative liaison costs unallowable if they (3)Any activity in connection with an federal grant subgrantees. relate to otherwise unallowable lobbying employee's service as an elected or (5)Any activity specifically activities, appointed official or member of a authorized by statute to be undertaken, C.Notwithstanding subparagraph b, governmental advisory panel: pursuant to the federal grant.contract. costs associated with the following (4)Any lobbying or related activity at or other agreement. activities are not unallowable under this the state level for the purpose of paragraph: influencing legislation directly affecting Comment:This circular does not,nor could the abilityof the organization or cost to it.limit the ability of Congress subject to (1)Providing technical advice or t8 constitutional constraints,to appropriate assistance to the Congress or a State the organization of performing:he grant, funds for the use by contractors or grantees legislature or to a member,committee, contract,or other agreement: however, fur lobbying or related activities. or other subdivision thereof,in response state governments acting as subgrantors • to a specific written request by such may, through appropriate state 2.Renumber subsequent paragraphs member.legislative body,or processes,waive the current practice of Attachment B. subdivision; under OMB Circular A-102 making 3.Insert language in subparagraph Comment This tracks the exception at 26 Circular A-122 applicable to nonprofit B.4.b of Attachment A.so that it reads U.S.C.Section 4911(d)(2)(B). subgrantees with regard to such as follows: 2)Any communication with an lobbying activities at the state level as b.Promotion,lobbying or related ( are deemed appropriate. activities(as defined by subparagraph executive branch official or employee. Comment:The(nterrnal Revenue Cade B21(b)-of Attachment B),and ublic other than a communication made provisions defining Influencing legislation" relations. p expressly unallowable by paragraph cover lobbying at the state and local level,us 1.h.(3) hereof. do the current Defense Acquistiun Comments This is a technical language Comment:This is identical in substance to Regulations(DAR),Section 15-205.51 and the change,which amends the former term the exception at 29 U.S.C.Section 4911 current Federal Procurement Regulations "lobbying"to"lobbying and relat0d (d)(2)(FI.Reud in conjunction with (FPR).Section 1-15.205-52.This activities."The added language is"or related subparagraph b(3).the effect is to make clear subparagraph is narrower than those activities(as defined by subparagraph B21th( that the only contacts with executive branch provisions because(1)lobbying at the local of Attachment B)." officials made unallowable are those in level is not covered,and(2)lobbying at the I1'a nv<a3-xrus Filed 21-2.83:10..225 ens' connection with the signing or veto"`r state level is not covered if it fa)directly 911.1.1146 coop 3110.0141 • �jc N.I,31 T L AEC Vri- EXECUTIVE OFFICE OF THE PRESIDENT l,, ' #~ , OFFICE OF MANAGEMENT AND BUDGET AP /j„� R 4 1944 ?} � WASHINGTON. D.C. 20503 November 19, 1993 %eft L D THE DIRECTOR "c514111 Oft CIRCULAR NO. A-110 • Revised TO THE HEADS OF EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS SUBJECT: Uniform Administrative Requirements for Grants and Agreements With Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations 1. purpose. This Circular sets forth standards for obtaining consistency and uniformity among Federal agencies in the administration of grants to and agreements with institutions of higher education, hospitals, and other non-profit organizations. 2 . p►uthority. Circular A-110 is issued under the authority of 31 U.S.C. 503 (the Chief Financial Officers Act) , 31 U. S. C. 1111, 41 U.S.C. 405 (the Office of Federal Procurement Policy Act) , Reorganization Plan No. 2 of 1970, and E.O. 11541 ("Prescribing the Duties of the Office of Management and Budget and the Domestic Policy Council in the Executive Office of the President") . 3 . Policy. Except as provided herein, the standards set forth in this Circular are applicable to all Federal agencies. If any statute specifically prescribes policies or specific requirements that differ from the standards provided herein, the provisions of the statute shall govern. The provisions of the sections of this Circular shall be applied by Federal agencies to recipients. Recipients shall apply the provisions of this Circular to subrecipients performing substantive work under grants and agreements that are passed through or awarded by the primary recipient, if such subrecipients are organizations described in paragraph 1. This Circular does not apply to grants, contracts, or other agreements between the Federal Government and units of State or local governments covered by OMB Circular A-102 , "Grants and Cooperative Agreements with State and Local Governments, " and the Federal agencies' grants management common rule which standardized and codified the administrative requirements Federal agencies impose on State and local grantees. In addition, subawards and contracts to State or local governments are not covered by this Circular. However, this Circular applies to subawards made by State and local governments to organizations covered by this r r r r l r r Circular. Federal agencies may apply the provisions of this Circular to commercial organizations, foreign governments, organizations under the jurisdiction of foreign governments, and international organizations. 4. Definitions. Definitions of key terms used in this Circular are contained in Section .2 in the Attachment. 5. Recuired Action. The specific requirements and responsibilities of Federal agencies and institutions of higher education, hospitals, and other non-profit organizations are set forth in this Circular. Federal agencies responsible for awarding and administering grants to and other agreements with organizations described in paragraph I shall adopt the language in the Circular unless different provisions are required by Federal statute or are approved by OMB. 6. OMB Responsibilities. OMB will review agency regulations and implementation of this Circular, and will provide interpretations of policy requirements and assistance to insure effective and efficient implementation. Any exceptions will be subject to approval by OMB, as indicated in Section .4 in the Attachment. Exceptions will only be made in parts ular cases where adequate justification is presented. 7. Information Contact. Further information concerning this Circular may be obtained by contacting the Office of Federal Financial Management, Office of Management and Budget, Washington, DC 20503, Telephone (202) 395-3993 . 8. Termination Review Date. This Circularywill have a policy review three years from date of issuance. 9. Effective Date. The standards set forth in this Circular which affect Federal agencies will be effective 30 days after publication of the final revision in the Federal Reaister. Those standards which Federal agencies impose on grantees will be adopted by agencies in codified regulations within six months after publication in the Federal Register. Earlier implementation is encoura• - -010111 4— 411-#4- . Panetta Director Attachment -2- Grants and Agreements ,with Institutions of Higher Education, Hospitals, and Other Non-Profit . Organizations SUBPART A - GENERAL • Sec . 1 Purpose. . 2 Definitions. . 3 Effect on other issuances. .4 Deviations. . 5 Subawards. SUBPART B - PRE-AWARD REQUIREMENTS 10 Purpose. . 11 Pre-award policies. . 12 Forms for applying for Federal assistance. . 13 Debarment and suspension. . 14 Special award conditions. . 15 Metric system of measurement. . 16 Resource Conservation and Recovery Act. • . 17 Certifications and representations. SUBPART C - POST-AWARD REQUIREMENTS Financial _and _Program Management . .20 Purpose of financial and program management. . 21 Standards for financial management systems. . 22 Payment. . 23 Cost sharing or matching. . 24 Program income. _- ' . 25 Revision of budget and program plans. . 26 Non-Federal audits. .27 Allowable costs. - . 28 Period of availability of funds. Property Standards -. 30 Purpose of property standards. . 31 Insurance coverage. . 32 Real property. .33 Federally-owned and exempt property. . 34 Equipment. .35 Supplies and other expendable property. - . 36 Intangible property. . 37 Property trust relationship. • 3 • • • Procurement Standards . 40 Purpose of procurement standards. . 41 Recipient responsibilities. .42 Codes of conduct. .43 Competition. .44 Procurement procedures. . 45 Cost and price analysis. . 46 Procurement records. . 47 Contract administration. . 48 Contract provisions. Reports and Records . 50 Purpose of reperts and records. . 51 Monitoring and reporting program performance. . 52 Financial reporting. . 53 Retention and access requirements for records. Termination and Enforcement . 60 Purpose of termination and enforcement. . 61 Termination. . 62 Enforcement. SUBPART D - AFTER-THE-AWARD REQUIREMENTS . 70 Purpose. . 71 Closeout procedures. . 72 Subsequent adjustments and continuing responsibilities. . 73 Collection of amounts due. r APPENDIX A —CONTRACT PROVISIONS SUBPART A - General . 1 Purpose. This Circular establishes uniform administrative requirements for Federal grants and agreements awarded to institutions of higher education, hospitals, and other non-profit organizations. Federal awarding agencies shall not impose additional or inconsistent requirements, except as provided in Sections .4 , and . 14 or unless specifically required by Federal statute or executive order. Non-profit organizations that implement Federal programs for the States are also subject to State requirements. . 2 Definitions. (a) Accrued expenditures means the charges incurred by the recipient during a given period requiring the provision of 4 • 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 eauipment 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 Federal Government 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 a Federal awarding agency determines that all applicable administrative actions and all required work of the award have been completed by the recipient and Federal awarding agency. • (h) Contract means a procurement contract under an award or subaward, and a procurement subcontract under a recipient's or subrecipient's contract. 5 • that (i) Cost sharing or matching meansFederalp portion Gof project or program costs not borne by the (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 Federal sponsorship ends. (k) Disallowed costs means those charges to an award that the Federal awarding agency determines to be unallowable, in accordance with the applicable Federal cost pribciples or other terms and conditions contained in the award. (1) 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 $5000 or more per unit. However, consistent with recipient policy, lower limits may be established. (m) Excess property means property under the control of any Federal awarding agency 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 Federal funds, where the Federal awarding agency 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 J 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 Federal 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 agency regulations or agency 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 Federal funds. (r) Funding period means the period of time when Federal funding is available for obligation by the recipient. 6 (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) 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. (u) 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 decrealse) 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. (v) 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. (w) prior approvalmeans written approval by an authorized official evidencing prior consent. (x) 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 paragraphs .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 Federal awarding agency 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. 7 • (y) 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. (z) Project period means the period established in the award document during which Federal sponsorship begins and ends. (aa) Property means, unless otherwise stated, real property, equipment, intangible property and debt instruments. (bb) Real property means land, -including land improvements, structures and appurtenances thereto, but excludes movable machinery and equipment. (cc) Recipient means an organization receiving financial assistance directly from Federal awarding agencies 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 Federal awarding agency. 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. (dd) 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. (ee) 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) . 8 • • (ff) 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) - (gg) 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 Federal awarding agency. (hh) 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. " (ii) Suspension means an action by a Federal awarding agency that temporarily withdraws Federal sponsorship under an award, pending corrective action by the recipient or pending a decision to terminate the award by the Federal awarding agency. Suspension of an award is a separate action from suspension under Federal agency regulations implementing E.O.s 12549 and 12689, "Debarment and Suspension. " (jj ) Termination means the cancellation of Federal sponsorship, in whole or in part, under an agreement at any time prior to the date of completion. (kk) 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. (11) Unliauidated 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. 9 . 4 (mm) Unobliaated balance means the portion of the funds authorized by the Federal awarding agency that has not been obligated by the recipient and is determined by deducting the cumulative obligations from the cumulative funds authorized. (nn) 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. (oo) Working capital advance means a procedure where by funds are advanced to the recipient to cover its estimated disbursement needs for a given initial period. . 3 Effect on other issuances. For awards subject to this C-ircular, all administrative requirements of codified program regulations, program manuals, handbooks and other nonregulatory materials which are inconsistent with the requirements of this Circular shall be superseded, except to the extent they are required by statute, or authorized in accordance with the deviations provision in Section . 4 . . 4 Deviations. The Office of Management and Budget (OMB) may grant exceptions for classes of grants or recipients subject to the requirements of this Circular when exceptions are not prohibited by statute. However, in the interest of maximum uniformity, exceptions from the requirements of this Circular shall be permitted only in unusual circumstances. Federal awarding agencies may apply more restrictive requirements to a class of recipients when approved by OMB. Federal awarding agencies may apply less restrictive requirements when awarding small awards, except for those requirements w*ich are statutory. Exceptions on a case-by-case basis may also be made by Federal awarding agencies. . 5 Subawards. Unless sections of this Circular specifically e-xclude subrecipients from coverage, the provisions of this Circular 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 53 FR 8034 (3/11/88) . SUBPART B - Pre-Award Requirements . 10 Purpose. Sections . 11 through .17 prescribes forms and instructions and other pre-award matters to be used in applying for Federal awards. 10 . -« . 11 Pre-award policies. (a) Use of Grants and Cooperative . Agreements, and Contracts. In each instance, the Federal awarding agency shall decide on the appropriate award instrument (i..e. , grant, cooperative Grant and Cooperative tract The Federal p agreement, or contract) . 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. Federal awarding agencies shall notify the public of its intended funding priorities for discretionary grant programs, unless funding priorities are established by Federal statute. . 12 Forms for applying for Federal assistance. (a) Federal awarding agencies 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 Federal awarding agency in place of or as a supplement to the Standard Form 424 (SF-424) series. (b) Applicants shall use the SF-424 series or those forms and instructions prescribed by. the Federal awarding agency. (c). For Federal programs covered by E.O. 12372 , "Intergovernmental Review of Federal Programs, " the applicant 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) . The name and address of the SPOC for a particular State can be obtained from the Federal awarding agency 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. (d) Federal awarding agencies that do not use the SF-424 form should indicate whether the application is subject to review by the State under E.O. 12372. • 11 ies . 13 Debarment and suspension. Federal awarding agencies and n rocurement debarment comply with the no p recipients shall p y suspension common rule implementing E.O.s 12549 and 12689 , "Debarment and Suspension. " This common rule restricts subawards are debarred, suspended with certain parties that , and contracts or otherwise excluded from or ineligible for participation in Federal assistance programs or activities. . 14 Special award conditions. If an applicant or recipient: (a) has a history of poor performance, (b) is not financially stable, (c) has a management system that does not meet the standards prescribed in this Circular, (d) has not conformed to the terms and conditions of a previous award, or (e) is not otherwise responsible, Federal awarding agencies 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. . 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 each Federal agency to establish a date or dates in consultation with the Secretary of Commerce, when the metric system of measurement will be used in the agency's procurements, grants, and other business-related activities. Metric implementation may take longer where the use of the system is iinitially impractical or likely to cause significant inefficiencies in the accomplishment of federally-funded activities. Federal awarding agencies shall follow the provisions of E.O. 12770, "Metric Usage in Federal Government Programs. " . 16 Resource Conservation and Recovery Act (RCRA) (Pub. L. 94-580 codified at 42 U.S.C. 6962) . Under the Act, 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 247-254) . 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. 12 • . 17 Certifications and representations. Unless prohibited by statute or codified regulation, each Federal awarding agency is authorized and encouraged to allow recipients to submit certifications and representations required by statute, executive order, or regulation on an annual basis, if the recipients have ongoing and continuing relationships with the agency. 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 • . 20 Purpose of financial and program management. Sections .21 through .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. . 21 Standards for financial management systems. 4 (a) Federal awarding agencies 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 federally-sponsored project or program in accordance with the reporting requirements set forth in Section .52. If a Federal awarding agency requires reporting on an accrual basis from a recipient that maintains its records on other than an accrual basis, the recipient shall not be required to establish an accrual accounting system. These recipients may develop such accrual data for its reports on the basis of an analysis of the documentation on hand. (2) Records that identify adequately the source and application of funds for federally-sponsored activities. These records shall contain information pertaining to Federal 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 13 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 Federal awarding agency, 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 Federal awarding agency 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 above, 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. " 14 .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 are to be paid in advance, provided they maintain or demonstrate the willingness to maintain: (1) written procedures that minimize the time elapsing between the transfer of funds and disbursement by the recipient, and (2) financial management systems that meet the standards for fund control and accountability as established in Section • .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 Federal awarding agency 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 shall be authorized to submit requests for advances and reimbursements at least monthly when electronic • fund transfers are 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 Federal awarding agency instructions for electronic funds transfer. (e) Reimbursement is the preferred method when the requirements in paragraph (b) cannot be' met. Federal awarding agencies may also use this method on any construction agreement, or 15 if the major portion of the construction project is accomplished through private market financing or Federal loans, and the Federal assistance constitutes a minor portion of the project, (1) When the reimbursement method is used, the Federal awarding agency shall make payment within 30 days after receipt of the billing, unless the billing is improper. (2) Recipients shall be authorized to submit request for reimbursement at least monthly when electronic- funds transfers are not used. (f) If a recipient cannot meet the criteria for advance payments and the Federal awarding agency has determined that reimbursement is not feasible because the recipient lacks sufficient working capital, the Federal awarding agency may provide cash on a working capital advance basis. Under this procedure, the Federal awarding agency 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 Federal awarding agency 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, Federal awarding agencies shall not withhold payments for proper charges made by recipients at any time during the project period unless (1) or (2) apply. (1) A recipient has failed to comply with the project objectives, the terms and conditions of the award, or Federal 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 Federal awarding agency 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. 16 • (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) , Federal awarding agencies 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 Federal funds shall be deposited and maintained in insured accounts whenever possible. (j) Consist ent 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. Federal funds in interest bearing accounts, unless (1) , (2) or (3) 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. (1) For those entities where CMIA and its implementing regulations do not apply, interest earned on Federal advances deposited in interest bearing accounts shall be • remitted annually to Department of Health and Human Services, Payment Management System, 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 Federal awarding agency, it waives its right to recover the interest under CMIA. (m) Except as noted elsewhere in this Circular, only the following forms shall be authorized for the recipients in requesting advances and reimbursements. Federal agencies 17 • shall not require more than an original and two copies of these forms. (1) SF-270, Request for Advance or Reimbursement. Each Federal awarding agency shall adopt the SF-270 as a standard form for all nonconstruction programs when electronic funds transfer or predetermined advance methods are not used. Federal awarding agencies, however, have the option of using this form for construction programs in lieu of the SF-271, "Outlay Report and Request for Reimbursement for Construction Programs. " (2) SF-271, Outlay Report and Request for Reimbursement for Construction Programs. Each Federal awarding agency shall adopt the SF-271 as the standard form to be used for requesting reimbursement for construction programs. . However, a Federal awarding agency may substitute the SF-270 when the Federal awarding agency determines that it provides adequate information to meet. Federal needs. . 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 Federal awarding agency. (7) Conform to other provisions of this Circular, as applicable. (b) Unrecovered indirect costs may be included as part of cost sharing or matching only with the prior approval of the Federal awarding agency. 18 • (c) Values for recipient contributions of services and property shall be established in accordance with the applicable cost principles. If a Federal awarding agency 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 (1) or (2) . (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 Federal awarding agency 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 consis4tent 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 (1) or (2) apply. 19 5 III • (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 Federal awarding agency 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. 20 .24 Program income. (a) Federal awarding agencies shall apply the standards set forth in this section in requiring recipient organization. to account for program income related to projects finance in whole or in part with Federal funds. (b) Except as provided in paragraph (h) below, program income earned during the project period shall be retained by the recipient and, in accordance with Federal awarding agency 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 Federal awarding agency 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. 4 (c) When an agency authorizes the disposition of program income as described in paragraphs (b) (1) or (b) (2) , program income - in excess of any limits stipulated shall be used in accordance with paragraph (b) (3) . (d) In the event that the Federal awarding agency does not • specify in its regulations or the terms and conditions of the award how program income is to be used, paragraph (b) (3) shall apply automatically to all projects or programs except research. For awards that support research, paragraph (b) (1) shall apply automatically unless the awarding agency indicates in the terms and conditions another alternative on the award or the recipient, is subject to special award conditions, as indicated in Section . 14 . (e) Unless Federal awarding agency 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 Federal awarding agency 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. 21 • (g) Proceeds from the sale of property shall be handled in accordance with the requirements of the Property Standards (See Sections . 30 through . 37) . (h) Unless Federal awarding agency 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. . 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 Federal awarding agency requirements. 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) For nonconstruction awards, recipients shall request prior approvals from Federal awarding agencies 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 Federal 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 Federal awarding agency. (6) The inclusion, unless waived by the Federal awarding agency, of costs that require prior approval in accordance with OMB Circular A-21, "Cost Principles for Institutions of Higher Education, " OMB Circular A-122 , 22 "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 may 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, Federal awarding agencies are 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 Federal awarding agency. All pre-award costs are incurred at the recipient's risk (i.e. , the Federal awarding agency 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 Federal awarding agency 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 Federal funds. 21 • • (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 Federal awarding agency provides otherwise in the award or in the agency's regulations, the prior approval requirements described in paragraph (e) are automatically waived (.i . e. , recipients need not obtain such prior approvals) unless one of the conditions included in paragraph (e) (2) applies. (f) The Federal awarding agency 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 Federal awarding agency. No Federal awarding agency shall 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) For construction awards, recipients shall request prior written approval promptly from Federal awarding agencies for budget revisions whenever (1) , (2) or (3) apply. t (1) The revision results from changes in the scope or the objective of the project or program. (2) The need arises for additional Federal funds to complete the project. (.3) A revision is desired which involves specific costs for which prior written approval requirements may be imposed consistent with applicable OMB cost principles listed in Section . 27 . (i) No other prior approval requirements for specific items may be imposed unless a deviation has been approved by OMB. (j) When a Federal awarding agency makes an award that provides support for both construction and nonconstruction work, the Federal awarding agency may require the recipient to request prior approval from the Federal awarding agency before 24 • making any fund or budget transfers between the two types of work supported. (k) For both construction and nonconstruction awards, Federal awarding agencies shall require recipients to notify the Federal awarding agency 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 $5000 or five percent of the Federal award, whichever is greater. This notification shall not be required if an application for additional funding is submitted for a continuation award. • (1) When requesting approval for budget revisions, recipients shall use the budget forms that were used in the application unless the Federal awarding agency indicates a letter of request suffices. (m) Within 30 calendar days from the date of receipt of the request for budget revisions, Federal awarding agencies 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 Fefieral awarding agency shall inform the recipient in writing of the date when the recipient may expect the decision. . 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 Federal awarding 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 Federal awarding agencies. (d) Commercial organizations shall be subject to the audit requirements of the Federal awarding agency or the prime recipient as incorporated into the award document. .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 25 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 CFR part 74 , "Principles for Determining Costs Applicable to Research and Development Under Grants and Contracts with Hospitals. " The allowability of costs incurred by commercial organizations and 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. .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 Federal awarding agency. Property Standards . 30 Purpose of property standards. Sections . 31 through . 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 a Federal award. Federal awarding agencies shall require 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 Sections .31 through .37 . . 31 Insurance coverage. Recipients shall, at a minimum, provide the equivalent insurance coverage for real property and equipment acquired with Federal 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. .32 Real property. Each Federal awarding agency 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. 26 (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 Federal awarding agency. (b) The recipient shall obtain written approval by the Federal awarding agency 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 Federal awarding agency. (c) When the real property is no longer needed as provided in paragraphs (a) and (b) , the recipient shall request disposition instructions from the Federal awarding agency or its successor Federal awarding agency. The Federal awarding agency 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 Federal awarding agency 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 compensation for its attributable tiled to com en shall be entitled P percentage of the current fair market value of the property. • 27 • • . 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 Federal awarding agency. Upon completion of the award or when the property is no longer needed, the recipient shall report_ the property to the Federal awarding agency for further Federal agency utilization. (2) If the Federal awarding agency has no further need for the property, it shall be declared excess and reported to the General Services Administration, unless the Federal awarding agency has statutory authority to dispose of the property by alternative methods (e.g. , the authority provided by the Federal Technology Transfer Act (15 U.S.C. 3710 (I) ) to donate research equipment to educational and non-profit organizations in accordance with E.O. 12821, "Improving Mathematics and Science Education in Support of the National Education Goals. ") Appropriate instructions shall be issued to the recipient by the Federal awarding agency. (b) Exempt property. When statutory authority exists, the Federal awarding agency 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 Federal awarding agency considers appropriate. Such property is "exempt property. " Should a Federal awarding agency not establish conditions, title to exempt property upon acquisition shall vest in the recipient without further obligation to the Federal Government. .34 Equipment. (a) Title to equipment acquired by a recipient with Federal funds shall vest in the recipient, subject to conditions of this section. (b) The recipient shall not use equipment acquired with Federal 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 28 a .•....ah^'-.. -era..'...t •4: ..t..,- < r 4 4 r Federal funds and shall not encumber the property without approval of the Federal awarding agency. 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: (i) Activities sponsored by the Federal awarding • agency which funded the original project, then (ii) 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 fcr such other use shall be given to other projects or programs sponsored by the Federal awarding agency 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 Federal awarding agency. 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 Federal awarding agency. (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. • 29 • (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 Federal awarding agency 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 Federal awarding agency. (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 $5000 or more, the recipient may retain the equipment for other uses provided that compensation is made to the original Federal awarding agency 30 • A • • l.. ' 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 Federal awarding agency. The Federal awarding agency shall determine whether the equipment can be used to meet the agency's requirements . If no requirement exists within that agency, the availability of the equipment shall be reported to the General Services Administration by the Federal awarding agency to determine whether a requirement for the equipment exists in other Federal agencies. The Federal awarding agency 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 Federal awarding agency 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 Federal awarding agency for such costs incurred in its disposition. • (4) The Federal awarding agency may reserve 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. 31 'f. 1 �. I1 ; • • awarding agency, 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. .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. .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. .44 Procurement procedures. (a) All recipients shall establish written procurement procedures. These procedures shall provide for, at a minimum, that (1) , (2) and (3) apply. 34 f fit: .:. •s (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 4 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. 35 • (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, 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 Rrogram 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 agencies' implementation of E.O. s 12549 and 12689 , "Debarment and Suspension. " (e) Recipients shall, on request, make available for the Federal awarding agency, 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. . 36 • • (1) A recipient's procurement procedures or operation fails to comply with the procurement standards in the Federal awarding agency's, implementation of this Circular. (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. • .45 Cost and price analysis. Some form of cost or price analysis s)pall 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. . 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. .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 ev aluate contractor performance and document, as appropriate, whether contractors have met the terms, conditions and specifications of the contract. .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 37 1 ! la ' • • 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) Except as otherwise required by statute, an award that requires the contracting (or subcontracting) for construction or facility improvements shall provide for the recipient to follow its own requirements relating to bid guarantees, performance bonds, and payment bonds unless the construction contract or subcontract exceeds $100, 000. For those contracts or subcontracts exceeding $100, 000, the Federal awarding agency may accept the bonding policy and requirements of the recipient, provided the Federal awarding agency has made a determination that the Federal Government's interest is adequately protected. If such a determination has not been made, the minimum requirements shall be as follows. (1) A bid guarantee from each bidder equivalent to five percent of the bid price. The "bid guarantee" shall consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder shall, upon acceptance of his bid, execute such contractual documents as may be required within the time specified. (2) A performance bond on the part of the contractor for 100 percent of the contract price. A "performance bond" is one executed in connection with a contract to secure fulfillment of all the contractor' s obligations under such contract. (3) A payment bond on the part of the contractor for 100 percent of the contract price. A "payment bond" is one executed in connection with a contract to assure payment as required by statute of all persons supplying labor and material in the execution of the work provided for in the contract. (4) Where bonds are required in the situations described herein, the bonds shall be obtained from companies holding certificates of authority as acceptable 38 sureties pursuant to. 31 CFR part 223 , "Surety Companies Doing Business with the United States. " (d) 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 Federal awarding agency, 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. (e) All contracts, including small purchases, awarded by recipients and their contractors shall contain the procurement provisions of Appendix A to this Circular, as applicable. Reports and Records . 50 Purpose of reports and records. Sections . 51 through .53 set forth the procedures for monitoring and reporting on the recipient's financial and program performance and the nec4ssary standard reporting forms. They also set forth record retention requirements. . 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 Section .26. (b) The Federal awarding agency shall prescribe the frequency with which the performance reports shall be submitted. Except as provided in paragraph . 51(f) , performance reports shall not be required more frequently than quarterly or, less frequently than annually. Annual reports shall be due 90 calendar days after the grant year; quarterly or semi-annual reports shall be due 30 days after the reporting period. The Federal awarding agency may require annual reports before the anniversary dates of multiple year awards in lieu of these requirements. The final performance reports are due 90 calendar days after the expiration or termination of the award. (c) If inappropriate, a final technical or 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. 39 (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 Federal awarding agency of developments that have a significant impact on the award-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) Federal awarding agencies may make site visits, as needed. (h) Federal awarding agencies shall comply with clearance requirements of 5 CFR part 1320 when requesting performance data from recipients. . 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) Each Federal awarding agency shall require recipients to use the SF-269 or SF-269A to report the status of funds for all nonconstruction projects or programs. A Federal awarding agency 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 40 1 • • be required at the completion of the project when the SF-270 is used only for advances. (ii) The Federal awarding agency shall prescribe whether the report shall be on a cash or accrual basis. If the Federal awarding agency requires accrual information and the recipient's accounting records are not normally kept on the accrual basis, the recipient shall not be required- to convert its accounting system, but shall develop such accrual information through best estimates based on an analysis of the documentation on hand. (iii) The Federal awarding agency 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 4 report shall be required at the completion of the agreement. (iv) The Federal awarding agency 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 the Federal awarding agency upon request of the recipient. (2) SF-272 , Report of Federal Cash Transactions. (i) When funds are advanced to recipients the Federal awarding agency shall require each recipient to submit the SF-272 and, when necessary, its continuation sheet, SF-272a. • The Federal awarding agency shall use this report to monitor cash advanced to recipients and to obtain disbursement information for • each agreement with the recipients. (ii) Federal awarding agencies may require forecasts of Federal cash requirements in the "Remarks" section of the report. 41 (iii) When practical and deemed necessary, Federal awarding agencies 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 Federal awarding agencies may require a monthly report from those recipients receiving advances totaling $1 million or more per year. (v) Federal awarding agencies may waive the requirement for submission of the SF-272 for any one of the following reasons: (1) When monthly advances do not exceed $25 , 000 per recipient, provided that such advances are monitored through ether forms contained in this section; (2) If , in the Federal awarding agency's opinion, the recipient' s accounting controls are adequate to minimize excessive Federal advances; or, (3) When the electronic payment mechanisms provide adequate data. (b) When the .Federal awarding agency needs additional information or more frequent reports, the following shall be observed. (1) When additional information is needed to comply with legislative requirements, Federal awarding agencies shall issue instructions to require recipients to submit such information under the "Remarks" section of the reports. (2) When a Federal awarding agency determines that a recipient's accounting system does not meet the standards in Section . 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 Federal awarding agency, in obtaining this information, shall • comply with report clearance requirements of 5 CFR part 1320. (3) Federal awarding agencies are encouraged to shade out any line item on any report if not necessary. 42 ti , (4) Federal awarding agencies may accept the identical information from the recipients in machine readable format or computer printouts or electronic outputs in lieu of prescribed formats. (5) Federal awarding agencies may provide computer ' or electronic outputs to recipients when such expedites or contributes to the accuracy of reporting. . 53 Retention and access requirements for records. (a) This section sets forth requirements for record retention and access to records for awards to recipients. Federal awarding agencies shall 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 Federal awarding agency. 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 Federal funds shall be retained for 3 years after final disposition. (3) When records are transferred to or maintained by the Federal awarding agency, the 3-year retention requirement is not applicable to the recipient. (4) Indirect cost rate proposals, cost allocations plans, etc. as specified in paragraph . 53 (g) . (c) Copies of original records may be substituted for the . original records if authorized by the Federal awarding agency. (d) The Federal awarding agency 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, • a Federal awarding agency may make arrangements for 43 y • • recipients to retain any records that are continuously needed for joint use. (e) The Federal awarding agency, 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, no Federal awarding agency shall place restrictions on recipients that limit public access to the records of recipients that are pertinent to an award, except when the Federal awarding agency 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 Federal awarding agency. (g) Indirect cost rate proposals, cost allocations plans, etc. Paragraphs (g) (1) and (g) (2) 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 Federal awarding 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 Federal awarding agency 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. 44 i. • Termination and Enforcement . 60 Purpose of termination and enforcement. Sections . 61 and . 62 set forth uniform suspension, termination and enforcement procedures. . 61 Termination. (a) Awards may be terminated in whole or in part only if (1) , (2) or (3) apply. (1) By the Federal awarding agency, if a recipient materially fails to comply with the terms and conditions of an award. (2) By the Federal awarding agency 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 Federal awarding agency 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 Federal awarding agency 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) . (b) If costs are allowed under an award, the responsibilities of the recipient referred to in paragraph .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. . 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 Federal awarding agency • may, in addition to imposing any of the special conditions outlined in Section .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 Federal awarding agency. 45 (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 awarding agency 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 awarding agency 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 (1) and (2) 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 th4 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 the Federal awarding agency implementing regulations (see Section . 13) . • SUBPART D - After-the-Award Requirements .70 Purpose. Sections .71 through .73 contain closeout procedures and other procedures for subsequent disallowances and adjustments. • • • 46 • • .71 Closeout procedures. • (a) Recipients shall submit, 1./ .thin 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 Federal awarding agency may approve extensions when requested by the recipient. (b) Unless the Federal awarding agency 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 Federal awarding agency 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 Federal awarding agency has advanced or paid and that is not authorized to be retained by thq 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 Federal awarding agency 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 Sections -. 31 through . 37 . (g) In the event a final audit has not been performed prior to the closeout of an award, the Federal awarding agency shall • retain the right to recover an appropriate amount after fully considering the recommendations on disallowed costs resulting from the final audit. . 72 Subsequent adjustments and continuing responsibilities. (a) The closeout of an award does not affect any of the following. • (1) The right of the Federal awarding agency to disallow costs and recover funds on the basis of a later audit or other review. 47 • • (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 Section . 26. (4) Property management requirements in Sections . 31 • through . 37 . (5) Records retention as required in Section . . 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 Federal awarding agency and the recipient, provided the responsibilities of the recipient referred to • in paragraph . 73 (a) , including those for property management as applicable, are considered and provisions made for continuing responsibilities of the recipient, as appropriate. • .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 Federal awarding agency may reduce the debt by (1) , (2) or (3) . (1) Making an administrative offset against other requests for reimbursements. (2) Withholding advance payments otherwise due to the recipient. (3) Taking other action permitted by statute. (b) Except as otherwise provided by law, the Federal awarding agency' shall charge interest on an overdue debt in accordance with 4 CFR Chapter II, "Federal Claims Collection Standards. " • 48 • • Appendix A Contract Provisions t All contracts, awarded by a recipient including small purchases, shall contain the following provisions as applicable: 1. Eaual. 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 $2000 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 . pavis-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 $2000 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 $2000 for construction contracts and in excess of $2500 49 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 seg. ) apd the Federal Water Pollution Control Act (33 U. S. C. 1251 et sea. ) . 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-Lobbvina Amendment 131 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. 50 • 8. pebarment and Suspension (E.-.O. s 12549 and 12689) - No Services er i contract shall be made to parties listed on the General S Administration's List of Parties Excluded from Federal Procurement or Nonprocurement Programs in accordance with E.O. s 12549 and 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. 4 • • • • • • 51 1 °, Manabook 6500 gav csi 0, � U.S.Department o4 Housing and Urban Development '44w.°ot's' Office of Community Planning and Development e Program Participants and Departmental Staff September 1988 Community Development Block Grant Program Entitle ment ment Grant Regulations CCBE: Distribution:W-1,W-3-1, R-1, R-6, Special (CPO Field Directors) • NA • • DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Office of the Assistant Secretary for Community Planning and Development 24 CFR Part 570 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM FINAL RULE as published in the FEDERAL REGISTER (53 FR 34437; September 6, 1988] MorE THE POL C :itt.1G : ( i) The subrecipient does not assume the recipient 's environmental responsibilities described at § 570.604; and (ii) The subrecipient . does not assume the recipient 's responsibility for initiating the review process under Executive Order 12372.. • 7. Subpart K of Part 570 is revised to read as follows : Subpart K -- Other Program Requirements. Sec. 570.600 General. 570.601 Public Law 88-352 and Public Law 90-284 ; affirmatively furthering fair housing ; and Executive Order 11063 . 570.602 Section 109 of the Act. 570. 603 Labor standards. 570.604 Environmental standards. 570.605 National Flood Insurance Program. 570.606 Relocation, displacement and acquisition. 570.607 Employment and contracting opportunities. 570. 608 Lead-based paint. 570.609 Use of debarred, suspended , or ineligible contractors or subrecipients. 570.610 Uniform administrative requirements and cost principles. 570.611 Conflict of interest. 570.612 Executive Order 12372. Subpart N Other Program Requirements. S 570.600 General. (a) Section 104 (b) of the Act provides that any grant under section 106 of the Act shall be made only if the grantee certifies to the satisfaction of the Secretary, among other things, that the grant "will be conducted and administered in conformity with Public Law 88-352 and Public Law theother 90- 84," a , further, that the grantee "will comply with provisions of this title and with other applicable laws. " Section 104 (e) (1) of the Act requires that the Secretary determine with respect to grants made pursuant to section 106 (b) (Entitlement Grants) and 106 (d) (2) (8) (HUD-administered Small Cities Grants) , at least on an annual basis, among other things, "whether the grantee has carried out (its) certifications in compliance with the requirements and the primary objectives of this title and with other applicable laws. . . . " Certain other statutes are expressly made applicable to activities assisted under the Act by the Act itself, while other laws not referred to in the Act may be applicable to such activities by their own terms. Certain statutes or Executive Orders which may be applicable to activities assisted under the Act by their own terms are administered or enforced by governmental departments . or agencies other than the Secretary or the Department. This Subpart K enumerates laws which the Secretary will treat as applicable to grants made under section 106 of the Act, other than grants to States made pursuant to section 106 (d) of the K-I 9/88 , 1 • • • Act, for purposes of the determinations described above to be made by the Secretary under section 104 (e) (1) of the Act, 1) including statutes expressly made applicable by the Act and certain other statutes and Executive Orders for which the Secretary has enforcement responsibility. The absence of mention herein of any other statute for which the Secretary does not have direct enforcement responsibility is not intended to be taken as an indication that, in the Secretary's opinion, such statute or Executive Order is not applicable to activities assisted under the Act. For laws which the Secretary will treat as applicable to grants made to States under section 106 (d) of the Act for purposes of the determination required to be made by the Secretary pursuant to section 104 (e) (2) of the Act, see § 570.496. (b) This subpart also sets forth certain additional program requirements which the Secretary has determined to be applicable to grants provided under the Act as a matter of administrative discretion. (c) In addition to grants made pursuant to section 106 (b) and 106 (d) (2) (8) of the Act (Subparts D and F, respectively) , the requirements of this Subpart K are applicable to grants made pursuant to sections 107 and 119 of the Act (Subparts E and G, respectively) , and to loans guaranteed pursuant to Subpart M. S 570.601 Public Law 88-352 and Public Law 90-284; affirmatively furthering fair housing; Executive Order 11063. Section 104 (b) of the Act provides that any grant under section 106 of the Act shall be made only if the grantee certifies to the satisfaction of the Secretary that the grant "will be conducted and administered in conformity with Public Law 88-352 and Public Law 90-284 and the grantee will affirmatively further fair housing . " Similarly, section 107 provides that no grant may be made under that section (Secretary's Discretionary Fund) or section 119 (UDAG) without -satisfactory assurances that the grantee 's program will be conducted and administered in conformity with Public Law 88-352 and Public Law 90-284. (a) "Public Law 88-352" refers to title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et s_g.) , which provides that no person in the United States shall on the ground of race, color , or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Section 602 of the Civil Rights Act of 1964 directs each Federal department and agency empowered to extend Federal financial assistance to any program or activity by way of grant to effectuate the foregoing prohibition by issuing rules, regulations, or orders of general applicability which . f K-2 .9/88 ti • t . shall he consistent with achievement of the statute authorizing the financial assistance. HUD regulations implementing the requirements of Title VI with respect to HUD programs are contained in 24 CFR Part 1. (b) "Public Law 90-284" refers to title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 et .se . ) , popularly known as the Fair Housing Act , which provides that it is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States and prohibits any person from discriminating in the sale or rental of housing , the financing of housing , or the provision of brokerage services, including otherwise ;making unavailable or denying a dwelling to any person, because of race, color , religion , sex , or national origin. Title VIII further requires the Secretary to administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of Title VIII . Pursuant to this statutory direction, the Secretary requires that grantees administer all programs and activities related to housing and community development in a manner to affirmatively further the policies of Title VIII; furthermore, section 104 (b) (2) of the Act requires that each grantee receiving funds under section 106 of the Act (entitlement or small cities grantees) certify to the satisfaction of the Secretary that it will affirmatively further fair housing. (I (c) Executive Order 11063, as amended by Executive Order 12259 , directs the Department to take all action necessary and • appropriate to prevent discrimination because of race, color , religion (creed) , sex , or national origin, in the sale, leasing , rental, or other disposition of residential property and related facilities (including land to be developed for residential use) , or in the use or occupancy thereof, if such property and related facilities are, among other things, provided in whole or in part with the aid of loans, advances, grants, or contributions agreed to be made by the Federal Government. HUD regulations implementing Executive Order 11063 are contained in 24 CFR Part 107. 5 570.602 Section 109 of the Act. (a) Section 109 of the Act requires that no person in the United States shall on the ground of race , color , national origin or sex, be excluded from participation in, be denied the benefits of , or be subjected to discrimination under , any program or activity funded in whole or in part with community development funds made available pursuant to the Act. For purposes of this section "program or activity" is defined as any function conducted by an identifiable administrative unit of the recipient, or by any unit of government, subrecipient, or K--3 9/88 • • • private contractor receiving community development funds or loans from the recipient. "Funded in whole or in part with community development funds" means that community development funds in any amount in the form of grants or proceeds from HUD guaranteed loans have been transferred by the recipient or a subrecipient to an identifiable administrative unit and disbursed in a program or activity. In subsection (b) of this section, "recipient" means recipient as defined in 24 CFR 1.2 (f) . (b) Specific discriminatory actions prohibited and corrective actions. • (1) A recipient may not, under any program or activity to which the regulations of this part may apply, directly or through contractual or other arrangements, on the ground of race, color , national origin, or sex: (i) Deny any individual any facilities, services, financial aid or other benefits provided under the program or activity. (ii) Provide any facilities, services, financial aid or other benefits which are different, or are provided in a different form, from that provided to others under the program or activity. (iii) Subject an individual to segregated or separate treatment in any facility in, or in any matter of process related to receipt of any service or benefit under the program or activity. (iv) Restrict an individual in any way in access to, or in the enjoyment of, any advantage or privilege enjoyed by others in connection with facilities, services, financial aid or other benefits under the program or activity. (v) Treat an individual differently from others in determining whether the individual satisfies any admission, enrollment, eligibility, membership, or other requirement or condition which the individual must meet in order to be provided any facilities, services or other benefit provided under the program or activity. (vi) Deny an individual an opportunity to participate in a program or activity as an employee. (2) A recipient may not use criteria or methods of administration which have the effect of subjecting persons to discrimination on the basis of race, color, national K-4 9/88 ,.a y r . origin, or sex , , or have the effect of defeating or substantially impairing accomplishment of the objectives of the program or activity with respect to persons oC a particular race, color , national origin, or sex . (3) A recipient, in determining the site Or location of housing or facilities provided in whole or in part with • funds under this part, may not make selections of such site or location which have the effect of excluding • . persons from, denying them the benefits of , or subjecting them to discrimination on the ground of race, color , • national origin, or sex; or which have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act and of this section. (4) (i) In administering a program or acti';ity funded in whole or in part with CDBG funds regarding which the recipient has previously discriminated against j.ersons on the ground of race , color , national origin or sex , or if .there is sufficient evidence to conclude that such discriminaticn existed, the recipient . must take remedial affirmative action to overcome the effects of prior discrimination. The word "previously" does not o exclude current discriminatory practices. ( , In the absence of discrimination, a recipient, in administering a program or activity funded in whole or in part with funds made available under this part, may take any nondiscriminatory affirmative action necessary to ensure that the program or activity is open to all without regard to race, color, national origin or sex, (iii) After a finding of noncompliance or after a recipient has a firm basis to conclude that discrimination has occurred , a recipient shall not be prohibited by this section from taking any action eligible under Subpart • C to ameliorate an imbalance in services or facilities provided to any geographic area or specific group of persons within its jurisdiction, where the purpose of . such action is to remedy prior discriminatory practice . or usage. - - (5) Notwithstanding anything to the contrary in this section, nothing contained herein shall be construed to prohibit . any recipient from maintaining or constructing separate living facilities or rest room facilities for the different sexes. Furthermore , selectivity on the basis of sex is not prohibited when institutional or custodial 9/ag 1 h J i services can properly be performed only by a member of the same sex as the recipients of the services. (c) Section 109 of the Act further provides that any prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. 6101 et aeg. ) or with respect to an otherwise qualified handicapped person as provided in section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) shall also apply to any program or activity funded in whole or in part with funds made available pursuant to the Act. HUD regulations implementing the Age Discrimination Act are contained in 24 CFR Part 146 and the regulations implementing section 504 are contained in 24 CFR Part 8. S 570.603 Labor standards. Section 110 of the Act requires that all laborers and mechanics employed by contractors or subcontractors on construction work financed in whole or in part with assistance received under the Act shall be paid wages at rates not less than those prevailing on similar construction in the locality as determined by the Secretary of Labor in accordance with the Davis-Bacon Act, as amended (40 U.S.C. 276a - 276a-5) . By reason of the foregoing requirement, the Contract Work Hours and Safety Standards Act (40 U.S.C. 327 et seq. ) also applies. However, these requirements apply to the rehabilitation of residential property only if such property contains not less than 8 units. With respect to the labor J/% standards specified in this section, the Secretary of Labor has the authority and functions set forth in Reorganization Plan Number 14 of 1950 (5 U.S.C. 1332-15) and section 2 of the Act of June 13, 1934 , as amended (40 U.S.C. 276c) . S 570.604 Environmental standards. Section 104 (g) expresses the intent that "the policies of the National Environmental Policy Act of 1969 and other provisions of law which further the purposes of such Act (as specified in regulations issued by the Secretary) . . . [be] most effectively implemented in connection with the expenditure of funds under" the Act. Such other provisions of law which further the purposes of the National Environmental Policy Act of 1969 are specified in regulations issued pursuant to section 104 (g) of the Act and contained in 24 CFR Part 58. Section 104 (g) also provides that, in lieu of the environmental protection procedures otherwise applicable, the Secretary may under regulations provide for the release of funds for particular projects to grantees who assume all of the responsibilities for environmental review, decisionmaking, and action pursuant to the National Environmental Policy Act of 1969 , and the other provisions of law specified by the Secretary as described above , that would apply to the Secretary were he/she to A-G 9/88 t undertake such projects as Federal. projects. Grantees assume such environmental review, decisionmaking , and action responsibilities by execution of grant agreements with the. Secretary. The procedures for carrying out such environmental responsibilities are contained in 24 CFR Part 58. S 570.605 National Flood Insurance Program. Section 202 (a) of the Flood Di aster Protection Act of ]:973 (42 U.S.C. 4106) provides that no Federal officer or agency shall approve any financial assistance for acquisition or construction purposes (as defined under • section 3 (a) of said Act (42 U.S.C . 4O0 (a) ) , one .year after a community has been formally notified of its identification as a community containing an area of special flood hazard , for use in any area that has been identified by the • Director of the Federal Emergency Management Agency as an area having special flood hazards unless the community in which such area is situated is . then participating In the National Flood Insurance Program. Notwithstanding the date of HUD approval of the recipient ' s application (or , in the case of grants made under Subpart D, the date of submission of the grantee' s final statement pursuant to 5 570. 302) , funds provided under this part shall not be . expended • for acquisition or construction purposes in an area that has been identified by the Federal Emergency Management Agency - (FEMA) as having special flood hazards unless the community in which the area is situated is participating in the National Flood ' Insurance Program in accordance with 44 CFR Parts 59-79, or less than a year has passed since FEMA notification to the community regarding such hazards; and flood insurance is obtained in 1 accordance with section 102 (a) of the Flood Disaster Protection Act 1 of 1973 (42 U.S.C. 4001) . g 570.606 Relocation, displacement and acquisition. y i (a) Uniform-_ Relocation Act. (1) The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) (42 U.S.0 4601) and HUD implementing regulations at 24 CFR Part 42 apply to ` the acquisition of real property by a State agency for an activity assisted under this part and to the displacement of any family, individual, , business, nonprofit • organization or farm .that results from such acquisition. - The grantee' s certification of compliance with. the URA is required in the grant agreement. (2) An acquisition and resulting displacement by a State i agency is "for an assisted activity" if it occurs. on or after the date of the initial submission of a final statement under 24 CFR 570. 302 (a) (2) (Entitlement Grants) ; 9/88 • F Yee t. ; • • c • • 1 J the initial submission of an application to MUD by a unit of general local government under SS 570. 426, 570.430, or 570.435 (d) that is granted for the requested activity UD administered Small Cities Program) ; or the submission Hof an application to HUD by a city or urban county under S 570.458 that is granted for the requested activity (UDAG) . However, an acquisition or displacement that occurs on or after the described date is not subject to the URA if the grantee determines that the acquisition or displacement was not carried out for an assisted activity, and the HUD Field Office concurs in that determination. An acquisition or displacement that occurs before the described date is subject to the URA, if the grantee or the HUD Field Office determines that the acquisition or displacement was carried out for the assisted activity. The grantee may, at any time, request a HUD determination whether an acquisition or displacement will be considered to be for an assisted activity and thus subject to these regulations. To be eligible for relocation assistance, however , a person must also meet the eligibility criteria in 24 CFR Part 42. (b) Residential antidisplacement and relocation assistance plan. Under section 104 (d) of the Act, each grantee must adopt, make public and certify that it is following a residential antidisplacement and relocation assistance plan providing one- for-one replacement units (paragraph (b) (1) of this section) , and relocation assistance (paragraph (b) (2) of thisJO section) . The plan must also indicate the steps that will be taken consistent with other goals and objectives of this part to minimize the displacement of persons from their homes as a result of any activities assisted under this part. (1) One-for-one replacement units. (i) All occupied and vacant occupiable low/moderate-income dwelling units that are demolished or converted to a use other than as low/moderate-income dwelling units as a direct result of an activity assisted under this part must be replaced by governmental agencies or private developers with low/moderate-income dwelling units. Replacement low/moderate-income dwelling units may include public housing, or existing housing receiving Section 8 project-based assistance under the United States Housing Act of 1937. The replacement low/moderate-income dwelling units must be provided within three years of the commencement of the demolition or rehabilitation related to the conversion, and must meet the following requirements: (A) The units must be located within the grantee 's jurisdiction. K-8 9/88 r • q: 1 1 r I t • (B) The units must be sufficient in number and size to house at least the number of occupants that could have been housed in the units that are demolished or converted. The number of occupants that may he housed in units shall be determined in accordance with local housing occupancy codes. (C) The units must be provided in standard condition. Replacement low/moderate-income dwelling units may include units that have been raised to standard from substandard condition. (0) The units must be designed to remain low/moderate- income dwelling units for at least 10 years from the date of initial occupancy. (ii) Before obligating or expending funds provided under this part for any activity that will directly result in the demolition of low/moderate-income dwelling units or the conversion of low/moderate-income dwelling units to another use , the grantee must make public, and submit the following information in writing to HUD: (A) A description of the proposed assisted activity; (B) The general location on a map and approximate number of dwelling units by size (number of bedrooms) that will be demolished or converted to a use other than for low/moderate-income dwelling units as a direct result of the assisted activity; (C) A time schedule for the c;,nmencement and completion of the demolition or conversion; (D) The general location on a map and approximate number of dwelling units by size (number of bedrooms) that will be provided as replacement dwelling units; (E) The source of funding and a time schedule for the . provision of replacement dwelling units; (F) The basis .for concluding that each replacement dwelling unit will remain a low/moderate-income dwelling unit for at least 10 years from the date of initial occupancy. 1 (iii) (A) The requirements of paragraph (b) (1) of this section do not apply if the HUD Field Office determines , based upon objective data, that there is an adequate supply of vacant low/moderate-income dwelling units K-9 9/88 • r.: ; ; `) • • in standard condit ion available on a nondiscriminatory basis within the grantee 's jurisdiction. In making this determination, the HUD Field Office will consider the housing vacancy rate for the jurisdiction, the number of vacant low/moderate-income dwelling units in the jurisdiction (excluding units that will be demolished or converted) and the number of eligible families on waiting lists for housing assisted under the United States Housing Act of 1937 in the jurisdiction. (B) The HUD Field Office may consider the supply of vacant low/moderate-income dwelling units in standard condition available on a nondiscriminatory basis in an area that is larger than the grantee's jurisdiction. Such additional dwelling units shall be considered if the HUD Field Office determines that the units would be suitable to serve the needs of the low- and moderate income households that could be served by the low/moderate-income dwelling units that are to be demolished or converted to another use. The HUD Field Office must base this determination on geographic and demographic factors, such as location and access to places of employment and to other facilities. (C) The grantee must submit a request for a determination under paragraph (b) (1) (iii) of this section, directly to the HUD Field Office. (2) Relocation assistance. (i) Each low- or moderate-income household that is displaced by demolition or by the conversion of a low/moderate income dwelling unit to another use as a direct result of an activity assisted under this part shall be provided with relocation assistance. The low- or moderate-income household may elect to receive relocation assistance described at 24 CFR Part 42 (HUD's regulations implementing the URA) , or may elect to receive the following relocation assistance: (A) The relocation assistance described at 24 CFR Part 42, Subpart C (General Relocation Requirements) and Subpart D (Payment for Moving and Related Expenses) . Relocation notices must be issued consistent with, and in the manner prescribed under, 24 CFR 42.203. The definition of "comparable replacement dwelling" used in 24 CFR Part 42 is modified as described in paragraph (b) (3) (i) of this section. Displaced households provided with replacement housing assistance under paragraph K-10 9/88 (b) (2) ( i) (C) this section, in the form of a certificate or housing voucher under Section 8 of the • United States Housing Act of 1937 , must be provided referrals to comparable replacement dwelling units whose owners are willing to participate in the housing voucher or certificate program. Tile grantee shall advise tenants of their rights under the Federal Fair • Housing Law (Title VIII) and of replacement housing • opportunities in such a manner that, whenever feasible, they will have a choice between relocating within their neighborhoods and other neighborhoods consistent with the grantee 's responsibility to affirmatively further fair housing (3) The reasonable and necessary cost of any security deposit ' required to rent the replacement dwelling • unit, and credit checks required to rent or purchase • :1 the replacement dwelling unit ; and (C) Replacement housing assistance. Households are eligible to receive one of the following forms of } replacement housing assistance : (1) Each household must be offered compensation designed to ensure that, for a five-year period, the displaced household will not bear, after • relocation , a ratio of shelter costs to income that exceeds 30 percent. Such compensation shall be either : } (i) A certificate or housing voucher for rental assistance provided through the local Public Housing Agency under Section 8 of the United State Housing Act of 1937: or (ii) Cash rental assistance equal to 60 times the amount that is obtained by subtracting 30 percent of the displaced household 's monthly gross income (with such adjustments as the grantee may deem appropriate) from the lesser of : the monthly cost of rent and utilities at a • comparable replacement dwelling unit or the • monthly cost oc rent and utilities at the decent, safe and sanitary replacement dwelling to which the household relocates. The grantee may provide the cash , payment in either a lump 1 sum or in installments. The grantee may at its discretion offer the household a choice between the certificate/housing voucher or cash rental 1 assistance. • K-11 9/88 1 r . (2) If the household purchases an interest in a housing cooperative or mutual housing association and occupies a decent, safe and �� sanitary unit in the cooperative or association, the household may elect to receive a lump sum payment. This lump sum payment shall be equal to the capitalized value of 60 monthly installments of the amount that is obt ained by subtracting30 percent of the displaced household 's monthly gross income (with such adjustments as the grantee may deem appropriate) from the monthly cost of rent and utilities at a comparable replacement dwelling unit. To compute the capitalized value, the installments shall be discounted at the rate of interest paid on passbook savings deposits by a federally- insured bank or savings and loan institution conducting business within the grantee's jurisdiction. To the extent necessary to minimize hardship to the household, the grantee shall, subject to appropriate safeguards, issue a payment in advance of the purchase of the interest in the housing cooperative or mutual housing association. (ii) Eligibility for relocation assistance. (A) A low- or moderate-income household that is required Ili) to move as a direct result of demolition or conversion of a low/moderate income dwelling unit to another use, is eligible for relocation assistance under paragraph (b) (2) of this section if: (1) The household is required to move from the dwelling unit on or after the date that the owner submits a request to the grantee for financial assistance that is later approved for the requested activity. (This applies to dwelling units owned by a person other than a • Federal or State agency, as defined under the URA) . (?) The household is required to move from the dwelling unit on or after the date of the initial submission of a final statement under 24 CFR 570.302 (a) (2) (Entitlement Grants) ; the initial submission of an application to HUD by a unit of general local government under SS 570.426, 570.430, or 570.435(d) that is granted for the requested activity (HUD administered Small Cities Program) ; or the submission of an application to HUD by a city •or urban county under S 570.458 that is granted for 41/ K-12 9/88 .wR • 1 • _ • • )t • P A } the requested activity (UDAG) . (This applies to dwelling units owned by a Federal or State agency as defined 'under the URA. ) (B) If the displacement occurs on or after the appropriate date described in paragraph (b) (2) (ii) (A) of this section, the low- or moderate-income household is not eligible for relocation assistance if: • (1) The household is evicted for cause ; (2) . The household moved into the property on or after the date described in paragraph (b) (2) (ii) (A) of this section, after receiving written notice of the expected displacement; or (3) The grantee determines that the displacement was not a direct result of the I assisted activity, and the HUD office concurs in that determination. (C) If the displacement occurs before the appropriate date described in paragraph (b) (2) (ii) (A) of this section, the low- or moderate-income household is eligible for relocation assistance if the grantee or HUD determines that the displacement was a direct result of an activity assisted under this part. (3) Definitions. For the purposes of paragraph (b) of this section: (i) 'Comparable replacement dwelling unit" means a • dwelling unit that: (A) Meets the criteria of 24 CFR 42.2 (c) (1) through (4) ; . and - (II) Is available at a monthly cost for rent plus estimated average monthly utility costs that does not exceed 30 percent of the household's average gross monthly income (with such adjustments to income as the grantee may deem appropriate) after taking into account any rental assistance the household would receive. Where a certificate or housing voucher is provided to a household under paragraph (b) (2) (i) (C) (1) (i) of this section, the dwelling unit must .be available to the household at a monthly cost • for rent and estimated average monthly utility cost that does not exceed the Fair Market Rent or the payment standard, respectively. , c K-13 9/88 • r• I. (ii) "Decent, safe and sanitary dwelling" means a decent, safe and sanitary dwelling as defined in 24 CFR 42.2 (e) . (iii) "Low/moderate income dwelling unit" means a dwelling unit with a market rental ( including utility costs) that does not exceed the applicable Fair Market Rent (FMR) for existing housing and moderate rehabilitation established under 24 CFR Part 888. (iv) "Occupiable dwelling unit" means a dwelling unit that is in a standard condition , or is in a substandard • condition, but is suitable for rehabilitation. (v) "Standard condition" and "substandard condition suitable for rehabilitation. " If the grantee has a HUD-approved Housing Assistance Plan, the definitions of "standard condition" and "substandard condition suitable for rehabilitation" established in the plan will apply. If the grantee does not have a HUD- approved Housing Assistance Plan, the grantee must establish and make public its definition of these terms consistent with the requirements of S 570.306 (e) (1) . (4) Effective date. For all grants except those made under Subpart D of this part (Entitlement Grants) , the �. provisions of this paragraph (b) are applicable to grants s made on or after October 1, 1988. For grants made under Subpart D, these provisions will govern all activities for which funds are first obligated by the grantee on or after the date the first grant is made after September 30, 1988, without regard to the source year of the funds used for the activity. (c) Section 104 (k) relocation requirements. Section 104(k) of the Act requires that reasonable relocation assistance be provided to persons (families, individuals, businesses, nonprofit organizations, or farms) displaced (i .e. , moved permanently and involuntarily) as a result of the use of assistance received under this part to acquire or substantially rehabilitate property. If such displacement is subject to paragraph (a) or (b) of this section, above, this paragraph does not apply. The grantee must develop, adopt and provide to persons to be displaced a written notice of the relocation assistance for which they are eligible. The minimum requirements for such assistance under the UDAG Program are described at 5 570.457 (b) . Under CDBG programs, persons entitled to assistance under this paragraph must be provided relocation assistance, including at a minimum: (1) Reasonable moving expenses; K-14 9/88 1 • ., . • T- (2) Advisory services needed to help in relocating . The grantee shall advise tenants of their rights under the Federal Fair Housing Law (Title VIII) and of replacement housing opportunities in such a manner that, whenever feasible, they will have a choice between relocating within their neighborhoods and other neighborhoods consistent with the grantee 's responsibility to affirmatively further fair housing ; and (3) Financial assistance sufficient to enable any person displaced from his or her dwelling to lease and occupy a suitable, decent, safe and sanitary replacement dwelling where the cost of rent and utilities does not exceed 30 percent of the household 's gross income. (d) Optional relocation assistance. Under section 105 (a) (11) of the Act, the grantee may provide relocation payments and other relocation assistance for individuals, families, businesses, nonprofit organizations and farms displaced by an activity not subject to paragraphs (a) , (b) or (c) of this section, The grantee may also provide relocation assistance to persons covered under paragraphs (a) , (b) or (c) of this section beyond that required. Unless such assistance is provided pursuant to State or local law, the grantee must provide the assistance only upon the basis of a written determination that the assistance is appropriate and must adopt a written policy available to the public that describes the relocation assistance that the grantee has elected to provide and that provides for equal relocation assistance within each class of displacees. (e) Appeals. If a person disagrees with the grantee's determination concerning the person's eligibility for, or the amount of a relocation payment under this section, the person may file a written appeal of that determination with the grantee. The appeal procedures to be followed are described in 24 CFR 42. 10. A low- or moderate-income household that has been displaced from a dwelling may file a written request for review of the grantee decision, to the HUD Field Office. (f) Responsibility of grantee. (1) The grantee is responsible for ensuring compliance with the requirements of this section, notwithstanding any third party's contractual obligation to the grantee to comply with the provisions of this part. (2) The cost of assistance required under this section may be paid from local public funds, funds provided under this part, or funds available from other sources. K-1S 9/88 •it -• T , (3) The grantee must maintain records in sufficient detail to demonstrate compliance with the provisions of this section. (g) Displacement. For the purposes of this section, a "displaced person" is a person that is required to move permanently and involuntarily and includes a residential tenant who moves from the real property if : (1) The tenant has not been provided with a reasonable opportunity to lease and occupy a suitable, decent, safe and sanitary dwelling in the same building or in a nearby • building on the real property following the completion of the assisted activity at a monthly rent and estimated average cost for utilities that does not exceed the greater of (i) 30 percent of the tenant household 's average monthly gross income; or (ii) The tenant 's monthly rent and average cost for utilities before (A) The date that the owner submits a request to the grantee for financial assistance that is later approved for the requested activity. (This applies to dwelling units owned by a person other than a Federal or State agency, as defined under the URA) ; __14, or (B) The date of the initial submission of a final statement under S 570.302(a) (2) (Entitlement Grants) ; the initial submission of an application to HUD by a unit of general local government under S 570.426, 570.430, or . 570.435 (d) that is granted for the requested activity (HUD administered Small Cities Program) ; or the submission of an application to HUD by a city or urban county under S 570.458 that is granted for the requested activity (UDAG) . (This applies to dwelling units owned by a Federal or State agency as defined under the URA) ; or (2) The tenant is required to move to another dwelling in the real property but is not reimbursed for all actual reasonable out-of-pocket costs incurred in connection with the move; or (3) The tenant is required to relocate temporarily and : ( i) Is not reimbursed for all reasonable out-of-pocket expenses incurred in connection with the temporary relocation, including moving costs and any increased rent and utility costs; or K-16 9/88 n. . • p . ( ii) Other conditions of the temporary relocation are not reasonable . S 570.607 Employment and contracting opportunities. (a) Grantees shall comply with Executive Order 11246 , as amended by Executive Order 12086 , and the regulations issued pursuant thereto (41 CFR Chapter 60) which provide that no person shall be discriminated against on the basis of race , color , religion , sex, or national origin in all phases of employment during the performance of Federal or . federally assisted construction contracts. As specified in Executive Order 11246 and the implementing regulations, contractors and subcontractors on Federal or federally assisted construction contracts shall take affirmative action to ensure fair treatment in employment, upgrading , demotion or transfer , recruitment or recruitment advertising , layoff or termination, rates of pay, or other forms of compensation and selection for • training and apprenticeship. (b) Section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u) requires, in connection with the planning and carrying out of any project assisted under the Act, that to the greatest extent feasible opportunities for training and employment be given to low and moderate income persons [ residing within the unit of local government or the 1 1f• metropolitan area (or nonmetropolitan county) as determined by the Secretary, in which the project is located, and that contracts for work in connection with the project be awarded 1 to eligible business concerns which are located in, or owned 1 in substantial part by persons residing in the same metropolitan area (or nonmetropolitan county) as the project. Grantees shall adopt appropriate procedures and i requirements to assure good faith efforts toward compliance i with the statutory directive. HUD regulations at 24 CFR Part ( 135 are not applicable to activities assisted under this part 1 but may be referred to as guidance indicative of the p Secretary's view of the statutory objectives in other y contexts. 1 4 S 570.608 Lead-based paint. (a) Prohibition against the use of lead-based paint. Section 401(b) of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4831 (b) ) directs the Secretary to prohibit the use of lead-based paint in residential structures constructed or rehabilitated with Federal assistance. Such prohibitions are ( contained in 24 CFR Part 35, Subpart B, and are applicable to residential structures constructed or rehabilitated with assistance provided under this part. K-17 9/88 • t� `1 i . • (b) Notification of hazards of lead-based paint poisoning. (1) The Secretaryhas promulgated requirements regarding notification to purchasers and tenants of HUD-associated housing constructed prior to 1978 of the hazards of lead- based paint poisoning at 24 CFR Part 35, Subpart A. This paragraph is promulgated pursuant to the authorization granted in 24 CFR 35.5 (c) and supersedes, with respect to all housing to which it applies, the notification requirements prescribed by Subpart A of 24 CFR Part 35. (2) For properties constructed prior to 1978, applicants for • rehabilitaion ' assistance provided under this part and tenants or purchasers of properties owned by the grantee or its subrecipient and acquired or rehabilitated with assistance provided under this part shall be notified : (i) That the property may contain lead-based paint; (ii) of the hazards of lead-based paint; (iii) of the symptoms and treatment of lead-based poisoning ; (iv) of the precautions to be taken to avoid lead-based paint poisoning (including maintenance amd removal techniques for eliminating such hazards) ; (v) of the advisability and availability of blood lead level screening for children under seven years of age; and (vi) that in the event lead-based paint is found on the property, appropriate abatement procedures may be undertaken. (c) Elimination of lead-based paint hazards. The purpose of this paragraph is to implement the provisions of section 302 of the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. 4822, by establishing procedures to eliminate as far as practicable the hazards due to the presence of paint which may contain lead and to which children under seven years of age may be exposed in existing housing which is rehabilitated with assistance provided under this part. The Secretary has promulgated requirements regarding the elimination of lead-based paint hazards in HUD-associated housing at 24 CFR Part 35, Subpart C. This paragraph is promulgated pursuant to the authorization granted in 24 CFR 35.24 (b) (4) and supersedes, with respect to all housing to which it applies, the requirements prescribed by Subpart C of 24 CFR Part 35. K-18 9/88 1 (1) Applicability. This paragraph applies to the rehabilitation of applicable surfaces in existing housing which is assisted under this part. The following , activities assisted under the Community Development Block . Grant program are not covered by this paragraph : (i) Emergency repairs (not including lead-based paint- related emergency repairs) ; i • (ii) weatherization ; (iii) water or sewer hook-ups; 1 (iv) installation of security devices; (v) facilitation of tax exempt bond issuances which provide funds for rehabilitation; (vi) other similar types of single-purpose programs that do I not include physical repairs or remodeling of applicable surfaces (as defined in 24 CFR 35.22) of I residential structures; and I (vii) any non-single purpose rehabilitation that does not involve applicable surfaces (as defined in 24 CFR 35.22) that does not exceed $3,000 per unit. (2) Definitions. - Applicable surface. All intact and nonintact interior and exterior painted surfaces of a residential structure. Chewable surface. All chewable protruding painted surfaces up to five feet from the floor or ground, which are readily accessible to ,children under seven years of age , e.g. , protruding corners, windowsills and frames, doors and frames, and other protruding woodwork. Defective paint surface. Paint on applicable surfaces . that is cracking , scaling, chipping, peeling or loose. Elevated blood lead level or EBL. Excessive absorption of • • lead, that is, a confirmed concentration of lead in whole . blood of 25 ug/dl (micrograms of lead per deciliter of whole blood) or greater. Lead-based paint surface. A paint surface, whether or not defective, identified ag having a lead content greater than or equal to 1 mg/cm • ( (3) Inspection and Testing l 1 ( K-19 9/88 ,_., S r i y • (i) Defective paint surfaces. The grantee shall inspect for defective paint surfaces in all units constructed prior to 1978 which are occupied by families with children under seven years of age and which are proposed for rehabilitation assistance. The inspection shall occur at the same time the roerty is being inspected for rehabilitation. Defective paint conditions will be included in the work write-up for the remainder of the rehabilitation work. • (ii) Chewable surfaces. The grantee shall be required to test the lead content of chewable surfaces if the family residing in a unit, constructed prior to 1978 and receiving rehabilitation assistance, includes a child under seven years of age with an identified EBL condition. Lead content shall be tested by using an X-ray fluorescence analyzer (XRF) or other method approved by HUD. Test readings of 1 mg/cm2 or higher using an XRF shall be considered positive for presence of lead-based paint. (iii) Abatement without testing. In lieu of the procedures set forth in paragraph (c) (3) (ii) of this section, in the case of a residential structure constructed prior to 1978, the grantee may forgo testing and abate all applicable surfaces in accordance with the methods set out in 24 CFR 35.24 (b) (2) (ii) . • (4) Abatement Actions. (i) For inspections performed under S 570. 608 (c) (3) (i) and where defective paint surfaces are found, treatment shall be provided to defective areas. Treatment shall be performed before final inspection and approval of the work. (ii) For testing performed under 5 570.608 (c) (3) (ii) and where interior chewable surfaces are found to contain lead-based faces in any affectedar room shall betreated. Whereior chewable r exterior chewable surfaces are found to contain lead-based paint, the entire exterior chewable surface shall be treated. Treatment shall be performed before final inspection and approval of the work. (iii) When weather prohibits repainting exterior surfaces before final inspection, the grantee may permit the owner to abate the defective paint or chewable lead- based paint as required by section and aree to repaint by a specified date. t A s separate inspection is required. • i K-20 9/88 41 (5) Abatement. methods. At a minimum, treatment 'of the defective areas and chewable lead-based paint surfaces shall consist of covering or removal of the painted surface as described in 24 CFR 35 . 24 (b) (2) (ii). . (6) Funding for inspection, testing and abatement. Program requirements and local program design will determine whether the cost of inspection, testing or abatement is to be borne by the owner/developer, the grantee or a combination of the owner/developer and the grantee. (7) Tenant protection. The owner/developer shall take appropriate action to protect tenants from hazards associated with abatement procedures. Where necessary, these actions may include the temporary relocation of tenants during the abatement process. The owner/developer shall notify the grantee of all such actions taken. (8) Records. The grantee shall keep a copy of each inspection and/or test report for at least three years. (9) Monitoring and enforcement. HUD field office monitoring of rehabilitation programs includes reviews for compliance with applicable program requirements for lead-based paint. The CPD Field Monitoring Handbook which currently includes instructions for monitoring lead-based paint requirements will be amended as appropriate. In cases of noncompliance, HUD may impose conditions or sanctions on grantees to encourage prompt compliance. (10) Compliance with other program requirements, Federal, State and local laws. (i) Other program requirements. To the extent that assistance from any of the programs covered by this section is used in conjunction with other HUD program assistance which have lead-based paint requirements which may have more or less stringent requirements, the more stringent requirements will prevail. (ii) HUD responsibility. If HUD determines that a State or local law, ordinance, code or regulation provides for lead-based paint testing or hazard abatement in a manner which provides a level of protection from the hazards of lead-based paint poisoning at least comparable to that provided by the requirements of this section and that adherence to the requirements of this subpart would be duplicative or otherwise cause inefficiencies, HUD may modify or waive the requirements of this section in such manner, as may be appropriate to promote efficiency while ensuring such comparable level of protection. J K-21 9/88 • C ',' S r (iii) Grantee responsibility. Nothing in this section is intended to relieve any grantee in the programs covered by this section of any responsibility for compliance with State br local laws, ordinances, codes or regulations governing lead-based paint testing or hazard abatement. (iv) Disposal of lead-based paint debris. Lead-basd paint and defective paint debris shall be disposed of in accordance with applicable Federal, State or local requirements. (See, e.g . , 40 CFR Parts 260 through 271. ) S 570.609 Use of debarred, suspended, or ineligible contractors o,r subrecipients. Assistance under this part shall not be used directly or indirectly to employ, awatd contracts to, or otherwise engage the services of, or fund any contractor or subrecipient during any period of debarment, suspension, or placement in ineligibility status under the provisions of 24 CPR Part 24. S 570.610 Uniform administrative requirements and cost principles. The recipient, its agencies or instrumentalities, and subrecipients shall comply with the policies, guidelines, and requirements of 24 CFR Part 85 and OMB Circulars A-87, A-110, A 122, and A-128 (implemented at 24 CFR Part 44) , as applicable, as they relate to the acceptance and use of Federal funds under this part. The applicable sections of 24 CFR Part 85 and OMB Circular A-110 are set forth at S 570.502. S 570.611 Conflict of interest. (a) Applicability. (1) In the procurement of supplies, equipment, construction, and services by recipients, and by subrecipients (including those specified at S 570.204 (c) ) , the conflict of interest provisions in 24 CFR 85.36 and OMB Circular A- 110, respectively, shall apply. (2) In all cases not governed by 24 CFR 85.36 and OMB Circular A-110, the provisions of this section shall apply. Such cases include the acquisition and disposition of real property and the provision of assistance by the recipient, by its subrecipients, or to individuals, businesses and other private entities under eligible activities which authorize such assistance (e.g . , rehabilitation, K-22 9/88 1 • Fr ' . ' • .. , preservation, and other improvements of private properties or facilities pursuant to S 570.202, or grants, loans and I other assistance to businesses, individuals and other private entities pursuant to 5 570.203, S 570.204 or 5 570.455) . (b) Conflicts prohibited. Except for the use of CDBG funds to pay salaries and other related administrative or personnel costs, the general rule is that no persons described in paragraph (c) • of this section who exercise or have exercised any functions or responsibilities with respect to CDBG activities assisted . under this part or who are in a position to participate in a decisionmaking process or gain inside information with regard to such activities, may obtain a personal or financial interest or benefit from a CDBG assisted activity, or have an interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for themselves or those with whom they have family or business ties, during their tenure or for one year thereafter. For the UDAG program, the above restrictions shall apply to all activities that are a part of the UDAG project, and shall cover any such interest or benefit during, or at any time after, such person's tenure. } (c) Persons covered. The conflict of interest provisions of paragraph (b) of this section apply to any person who is an employee, agent, consultant, officer , or elected official or ) appointed official of the recipient, or of any designated public agencies, or subrecipients which are receiving funds under this part. (d) Exceptions : threshold requirements. Upon the written request of the recipient, HUD may grant an exception to the provisions of paragraph (b) of this section on a case-by-case basis when it determines that such an exception will serve to further the purposes of the Act and the effective and efficient administration of the recipient's program or project. An exception may be considered only after the recipient has i . provided the following: (1) A disclosure of the nature of the conflict, accompanied by . an assurance that there has been public disclosure of the conflict and a description of how the public disclosure • was made; and (2) An opinion of the recipient's attorney that the interest for which the exception is sought would not violate State or local law. , (e) Factors to be considered for exceptions. In determining ' whether to grant a requested exception after the recipient has satis.fact.:rily met the requirements of paragraph (d) of this j K-23 9/83 'I ` ' t \ section, HUD shall consider the cumulative effect of the following factors , where applicable : (1) Whether the exception would provide a significant cost benefit or an essential degree of expertise to the program • or project which would otherwise not be available; (2) Whether an opportunity was provided for open competitive bidding or negotiation; • • (3) Whether the person affected is a member of a group or class of low or moderate income persons intended to be the beneficiaries of the assisted activity, and the exception will permit such person to receive generally the same interests or benefits as are being made available or provided to the group or class; (4) Whether the affected person has withdrawn from his or her functions or responsibilities, or the decisionmaking process with respect to the specific assisted activity in question; fl (5) Whether the interest or benefit was present before the affected person was in a position as described in paragraph (b)' of• this section; (6) Whether undue hardship will result either to the recipient or the person affected when weighed against the public interest served by avoiding the prohibited conflict; and (7) Any other relevant considerations. S 570.612 Executive Order 12372. (a) General. Executive Order 12372, Intergovernmental Review of Fed Programs, and the Department 's implementing regulations at 24 CFR Part 52, allow each State to establish its own process for review and comment on proposed Federal financial assistance programs. (b) Applicability. Executive Order 12372 applies to the . CDBG Entitlement program and the UDAG program. The Executive Order applies to all activities proposed to be assisted under UDAG, but it applies to the Entitlement program only where a grantee • proposes to use funds for the planning or construction (reconstruction or installation) of water or sewer facilities. Such facilities include storm sewers as well as all sanitary sewers, but do not include water and sewer lines connecting a structure to the lines in the public right-of-way or easement. 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