Ordinance No. 7,007940526-1
ORDINANCE NO. 7007
• AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER
TO EXECUTE AND THE CITY CLERK TO ATTEST TO A COOPERATIVE
AGREEMENT WITH THE U.S. FISH AND WILDLIFE SERVICE TO
RESTORE AREAS OF THE BAYTOWN NATURE CENTER (BROWNWOOD);
AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
WHEREAS, the U. S. Fish and Wildlife Service wish to assist the
City in cleaning and restoring certain areas of the Baytown Nature
Center; and
WHEREAS, the initial project to be performed will consist of
cleanup of debris, demolition of houses, removal of slabs and
driveways, construction of a wave barrier, and establishment of a
one -acre marsh at San Jacinto Point; and
WHEREAS, upon successful completion of this project, the U.S.
Fish and Wildlife Service anticipates that funds for additional
projects will be available for 1995 and succeeding years
thereafter; and
WHEREAS, the City will initially be responsible for the outlay
of the monies associated with this project; however, the U.S. Fish
and Wildlife Service shall reimburse the City as frequently as
monthly upon submission of proper invoices for all project expenses
contemplated in this agreement up to an amount of $50,000 per year;
NOW THEREFORE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That the City Council of the City of Baytown,
Texas, hereby authorizes and directs the City Manager and City
Clerk of the City of Baytown to execute and attest to a Cooperative
Agreement with the U.S. Fish and Wildlife Service. A copy of said
agreement is attached hereto, marked Exhibit "A," and made a part
hereof for all intents and purposes.
Section 2: This ordinance shall take effect immediately from
and after its passage by the City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the
City Council of the City of Baytown this the 26th day of May, 1994.
/
.,� Co.
PETE C. ALFARO, Mayor
0
• ATTEST.
Ah"") V"-9161
E LEEN P. P., C ty Clerk
4NICr�IORAZMI&EZ, SP., City Attorney
•
940526-1a
Cooperative Agreement Hos 1448-00002-94-�_
DC 2 N/A
. Cost structures N/A
Amount Obligated: N/A
•
coon
Between
U.S. FISH AND WILDLIFE SERVICE
ASaIQN 2
P.O. BOX 1306
ALBUQUERQUR, NEW MEXICO 87103-1306
100
And
CITY OF BAYTOWN
2401 ahPJeT sTRaar
BAYTOWN, TEXAS 77522-0424
The City of Baytown, hereinafter referred to as the "City", has as its
purpose the management of public park lands for the City of Baytown,
Texas. The V.S. Fish and Wildlife Service, hereinafter referred to as
the "Sorvice-, has interests in and responsibilities for the protection
and enhancement of coastal habitats used by migratory birds, endangered
species, and wetland communities.
The purpose of this agreement is to facilitate the cooperative efforts of
the City and the Service to support work by the City to protect and
enhance the public's enjoyment of, and restore to a natural condition
certain areas that have been degraded due to subsidence, erosion, and
past storm events that are administered by the City.
This agreement is entered into under authorities of the Fish and Wildlife
coordination Act, 16 U.S.C. 661 to 666, Migratory Bird Treaty Act of
1318, 16 V.S.C. 703 to 712, and the Endangered Species Act of 1973, 16
V.S.C. 1531-15341 as amended.
II.Scene of ffgr
A. The service shall provide expertise and a portion of the funding
necessary for the planning and restoration of shoreline vegetation,
enhancement of wetland areas, and placement of public use areas to
maximise the habitat diversity and public enjoyment_
B. The City shall provide necessary staff time, administration, and
labor necessary to plan and construct the restoration features and
the public use facilities.
C. Both parties agree to work together to enhance this area that was
degraded by subsidence to an area to natural habitats suitable for
this area by judicious habitat improvement projects. And, both
parties mutually agree to work together to enhance this area so it
can be better utilized by native enthusiast such as birdwatchers,
fishermen, hikers, bicyclists, educational groups, and photographers.
Page 1 of 4
EXHIBIT A
Cooperative Agreement No: 1449 -00002 -94 -
III. sveeial Provisions
A. The results of any studies or investigations accomplished under this
agreement may be published jointly by the parties or by either party
separately. Appropriate credits to the United States Department of
the Interior, FLsh and Wildlife service, shall be included in any
formally published article providing the service does not otherwi"
deem it appropriate to issue a disclaimer. Authorship shall not
incur any privileges of copyright or restriction on distribution.
B. Any research data collection under this agreement shall be jointly
owned by the parties to this agreement. Both parties shall have
complete and unlimited access to all such data.
le
C. hews releases and other publicity issued by either party will give
due credit to this agreement and cooperators to this agreement and be
approved prior to release by the Service's Regional Public Affairs
Office.
D. Title to all property acquired with Service funds will remain vested
in the Service.
B. No member of, or delegate to, the Congress or resident commissioner,
shall be admitted to any share or part of this agreementf or to any
benefit that may rise therefrom. This provision shall not be
construed to extend to this agreement if made with a corporation for
its general benefit.
F. This agreement will become effective upon the date of the last
signature(s) by both/all parties to the agreement. It will remain in
force thereafter, unless terminated by tither party. It rill be
subject to annual amendments, or as otherwise becomes necessary,
which outline annual projects to be accomplished within the agreement
year. In no event will this agreement remain in effect for an
overall period longer then five (5) years from its original effective
date, nor shall funding exceed a grand total level of 5250,000.
G. This agreement may be amended or revised by written mutual agreement
of the parties, or may be terminated by a party 60 calendar days from
receipt of written notice.
$. Nothing herein shall be construed as delegating the service to
expend, or as involving the united States in any contract or other
obligation for the future payment of funds in excess of
appropriations authorized by law and administratively allocated for
this work.
IV. General EXRXLGLOM2
The V.S. Fish and Wildlife service General Provisions for Grants and
Cooperative Agreements, dated April 1993, are incorporated as attached,
Attachment A.
V. Period of P-arfo=anc*
The overall performance of this Cooperative Agreement is for a period of
five (5) years from the date of the last signature. The period of
• performance for the present agreement shall not exceed the last date of
the government's current fiscal year.
Page 2 of 4
•
Cooperative Agreement Not 1448-00002►94-
Financial contribution by the Service to carry out projects agreed upon
by the parties to this agreement shall be up to $50,000 in any fiscal
year, as specifically defined and itemised in each amendment. As much as
80 percent of the projected cost, on a project -by -project basis, may be
requested at any time during the life of this agreement. The remaining
amount will be made available after the Service project officer accepts
the final report.
Funds not expended during the year of obligation Will be carried forward
to the succeeding fiscal year to continue the work for which funds were
originally obligated. Prior year funds shall be expended prior to
expending current year funds.
The City shall account for and invoice all project expenditures under
this agreement on a monthly basis throughout each fiscal year. In
accordance with the Q.S. Treasury regulations, paynmts Hili be made
within 30 calendar days after receipt and approval of a proper invoice.
Invoices shall be submitted to the Service Project officer for review and
recommendation for payment to be forwarded to the Contracting Officer for
approval and submission for disbursement.
A. U.S. Fish and Wildlife Service:
Chief, Branch of Contaminants
17629 E1 Camino Real, Suite 1211
Houston, Texas 77038
Phone: (713) 286-8282
B. city of Baytown:
Bobby Rountree, city Manager (and/or his successors)
2401 Market Street
P.O. Box 424
Baytown, Texas 77522-0424
Phone: (713) 420-6500
V111. Reports
Reports shall be submitted on a annual basis to the Service Project
Officer, outlining the status of the program and the accomplishments to
date. All reports shall be provided as required at the time projects are
consummated and as added by amendments to the original agreement.
IX. Certifications
certifications applicable to Federal Grants and Cooperative Agreements
are subject to execution and are made a part of this agreement as
attached, Attachment 8.
Page 3 of 4
Cooperative Agreemat Flo: 1448.00002-94-
In Witness Whereof, the parties have caused this Cooperative Agreement to
be wwouted as of the date of last signature below:
FOR THE CITY OF BATTOWB:
m
Bobby Rountree, City Manager
FOR THz V.S. rIsH AND WILOLiFE SERVICE, REGION 2
Regional Director
Chief, Contracting and General services
Page 4 of 4
0
Date
Data
Date
n
L�
•
Cooperative Agreement NO:
Dcx:
Cost Structures
Amount obligated:
Amendment No. 1 (FT 1994)
1448-00002-94-
20181-4-
21430-1124-0000
Ss0,000.00
I . Pow rao�a
A. This amendment to the existing cooperative agreement of ,
1994, between the V.S. Fish and Wildlife Service (Service) and the
City of Baytown (City) is entered into to lacilitats enhancement and
management of the area that was environmentally degraded by
subsidence and is currently administered by the City.
B. : During the part 30 years, land -surface subsidence around
Crystal and Surnett nays resulted in inundation of the 400+ acres
during higher than normal tides. A hurricane in 1983 caused
extensive.damage to all the houses and other buildings in the area,
which ultimately resulted in a government sponsored buyout of all the
willing property owners. Remnant structures, concrete slabs, and
household debris are presently scattered throughout the area. Lw ss
that subsided are now wetlands or covered with thick shrubs. Sams
high ridges still support large oak trees which are used by
neotropical migrants for shelter, feeding and nesting sites. The
shoreline of the former subdivision has receded partly due to wave
action caused by ship traffic in the Houston Ship Channel. Salt
water from the bay intrudes into the low wetlands causing vegetation
dieoff and habitat changes.
C. Go s The goals of this project are toe
1. enhance the freshwater wetlands (formerly lawns) by removing
concrete or asphalt driveways so they can be interconnected and
improve vegetative growth on the sloped edges=
2. stabilize the shoreline on San Jacinto Point from erosional wave
action and provide habitat for estuarine aquatic organimw;
3. enhance the natural beauty of San Jacinto Point by debris removal
and providing access trails, rest facilities, and wildlife
viewing areas for all visitors.
__. 022 of Work
A. The Service Will provide not in excess of $501000 to the City for
this project.
B. The City will provide the nQcessary facilities, equipment, supplies,
general supervision and labor for this project.
The period of this amendment is from the effective date being the data of
the last signature on this document to the completion date of June 30,
1995.
Page 1 of 3
Cooperative Agreement No: 1448 -00002 -94 -
Amendment #1 (FY 1994)
0 Iv.
The total cost of this amendment shall not exeeed $50,000. Reimbursement
will be made to the city as frequently as monthly upon submission of
proper invoices. Progress reports will be provided at the and of each
fiscal year. Funds not expended in FY 1994 will be carried over to LrY
1995.
V.S. Fish and Wildlife Service:
Chief, Branch of Contaminants �
17629 81 camino Real, suite #211
Houston, Texas 77058-3051
Phones (713) 286-8282
City of Baytown:
Bobby Rountree, City Manager (and/or his successors)
2401 Market Street
P.O. Box 424
Baytown, Texas 77522-0424
Phones (713) 420-6500
IM wlTNESS TS$REOF, the parties have executed this Cooperative agreement on this
day, month, year below their respective signatures thereof:
V.s. Fish and wildlife Service
Region 2, Albuquerque, NX
Emma Bickley; Chief,
contracting & General Services
Date:
•
city of Baytown
Bobby Rountree,
city Xanager
Date:
Page 2 of 3
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Cooperative Agreement No: 1448 -00002 -24 -
Amendment ill (FY 1994)
EiTIjMM PROJECT BUDGET
for
Amendment No. 1 (FY 1994)
of the
O.S. Fish and Wildlife Service
cooperative Agreement
with
The city of Baytown
,fin San Jaointo Point Improvements
A. construction
1. Removal and laadfiliing of household debris and two $12,000.00
houses.
Z. Breakup of 15 concrete slabs and removal to the 15,000.00
shoreline.
3. Removal of six driveways and placing material on an 3.000.00
upland site.
4. sloping of surface for wetland creation. 61000.00
S. Restoring wave barrier at San Jacinto Point and placing 12,000.00
fill material to create one acre of spartina marsh.
6. Miscellaneous signs and traffic barriers. _ 22
,000.00
O.S. Fish and Wildlife Service Costs' S50,000.00
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Page 3 of 3
ATTACHMENT IL
U.S. FISH AND WILDLIFE SERVICE
GENERAL PROVISIONS
FOR
GRANTS AND COOPERATIVE AGREEMENTS
1. Definitions
2. Allowable Costs
3. Payment Requirements
4. Bonding and Insurance
5. Cash Depositories
6. Retention and Custodial Requirements for Records
7. Program Income
8. Cost Sharing and Matching
9. Standards for Financial Management Systems
10. Financial Reporting Requirements
11. Monitoring and Reporting Program Performance
12. Revision of Financial Plans
13. Closeout Procedures
14. Suspension and Termination Procedures
15. Property Management Standards
16. Procurement Standards
17A. Audit Requirements - [Educational Institutions, Hospitals and Other
Non -Profit Organizations)
17B. Audit Requirements - [State and Local Governments]
17C. Audit Requirements - [Commercial Organizations)
18. Standard Patent Rights
19. Data Collection
20. Rights in Technical Data and Computer Software
21. 'Restrictions on Printing
22. Other Administrative.Provisions and Assurances
23. Order of Precedence
24. Officials not to Benefit
25. Covenant Against Contingent Fees
26. Limitation on Payments to Influence Certain Federal Transactions
Revised 4/93
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GENERAL PROVISIONS
• 1. DEFINITIONS
Throughout the assistance agreement, the following terms, in so far as they -
are used, shall have the meanings set forth below:
a.' The term "Head of the Agency" or "Secretary" means the Secretary, or
any Assistant Secretary of the United States Department of the Interior; and the
term "his duly authorized representative" means any person or persons or Board
authorized to act for the head of the Agency or the Secretary.
b. The term "Department" means the United States Department of the
Interior (USDI).
c. The terms "Agency" or "Service" means the U.S. Fish and Wildlife
Service (FWS).
d. The term "Signing Official" or "SO" means any person authorized to
execute the agreement on behalf of the Service and includes, except as otherwise
provided in the agreement, the authorized representative of the Signing Official
acting within the limits of his authority.
e. The term "FWS Project Officer" means the SO's authorized representative
responsible for the technical administration of the agreement, the evaluation of
performance under the agreement, the acceptance of technical reports, and for
such other specific responsibilities as may be stipulated in various provisions
of the agreement.
f. The term "Recipient" includes the following:
(1) States, local governments or Federally recognized Indian tribal
governments as defined in OMB Circular A-102.
(2) Nonprofit organizations including public and private institutions
of higher education, public and private hospitals and other quasi public and
private nonprofit organizations as further described in OMB Circular A-110.
(3) Commercial organizations are organizations which are not otherwise
included among those specified in OMB Circulars A-102 or A-110; international
organizations; or businesses organized for profit.
g. The term "Grant Agreement" means the legal instrument between the
Service and the recipient which provides for the transfer of Federal resources to
the recipient to accomplish a public purpose activity for which no substantial
involvement between the parties is anticipated during performance.
h. The term "Cooperative Agreement" means the legal instrument between the
Service and the recipient which provides for the transfer of Federal resources to
the recipient to accomplish a public purpose activity for which substantial
involvement between the parties is anticipated during performance.
i. The acronym "OMB" means Office of Management and Budget.
j. The acronym "FAR" means Federal Acquisition Regulations.
F.
B
• 2. ALLOWABLE COSTS - [This clause is applicable to all assistance agreements
involving the transfer of Federal funds)
a. Payments up to the amount specified in the assistance agreement shall.
be made only for costs determined by the SO to be allowable, allocable and
reasonable in conducting the work under the agreement in accordance with its
terms and with the following cost principles:
(1) OMS Circular A-21 shall be applicable to educational institutions.
(2) OMB Circular A-87 shall be applicable state and local
governments and federally recognized Indian governments.
(3) On Circular A-122 shall be applicable to other. non-profit
organizations.
(4) Federal Acquisition Regulations (FAR) 31.2 shall be applicable to
all other recipients.
l from the SO are found
b. ExpendituresFederal costsring prior written principles or FWS policy pn
and are summarized below:
the applicable
(l) purchase or rental of
items of tem of office equipmentose ,�u egardlessent lof
a unit cost of $300 or more; and
cost, if not itemized in the approved budget.
(2) Purchase or rental of any item of special purpose equipment having
a unit cost of $1,000 or more if not itemized in the approved budget.
(3) Insurance on Federal government-owned equipment unless required or
approved. and maintained under the terms of the agreement.
(4) Personnel movement of a special or mass nature not itemized in the
approved budget.
(5) Foreign travel (each separate trip).
(6) Domestic travel when not included in the approved budget and when
the cumulative travel expenditures will exceed the approved travel budget by $500
or 25 percent, whichever is greater.
(7) Expenditures for consultant services not itemized in the approved
budget.
(8) Subcontracts not itemized in the approved budget.
(9) Expenditures for the purchase or lease of any interest in real
property.
C. The FWS may provide in advance for scheduled apparent allowable costs
to be incurred or will reimburse apparent allowable costs accrued by the
• recipient up to the maximum amount of the Federal assistance payable for the
periodno performance. nstitutowavfinalsuch determination by FWrovision of S fost thepursuant to allowabilitythe
of
clause shall
such cost and shall not constitute a waiver of any violation of the terms of the
•assistance agreement committed by the recipient. FWS shall make a final
determination as to allowability only after final audit is completed, if
required, or at the time of final payment.
3. PAYMENT REQUIREMENTS - (OMB Circulars A -102/A-110) - [This clause is
applicable to all assistance agreements involving the transfer of Federal funds]
a. Payments can be made to recipients through a letter -of -credit, an
advance by Treasury check, or a reimbursement by Treasury check. The following
definitions apply for the purpose of this clause:
(1) tetter -of -Credit - A letter -of -credit is an instrument certified
by an authorized official of a Federal sponsoring agency that authorizes a
recipient to draw funds when needed from the Treasury, through a Federal Reserve
bank and the recipient's commercial bank, in accordance with the provisions of
Treasury Circular No. 1075, as revised.
(2) Advance by Treasury check - An advance by Treasury check is a
payment made by a Treasury check to a recipient upon its request before outlays
are made by the recipient, or through the use of predetermined payment schedules.
(3) Reimbursement by Treasury check - A reimbursement by Treasury
check is a Treasury check paid to a recipient upon request for reimbursement from
the recipient.
b. Except for construction grants and other construction agreements for
which optional payment methods are authorized, as described in paragraph d, the
letter -of -credit method shall be used by FWS if all of the following conditions
exist:
• (1) If. there is or will be a continuing relationship between a
recipient and FWS for at least- a 12 -month period and the total amount of advance
payments expected to be received within that period from FWS is $120,000 or more
as prescribed by Treasury Circular No. 1075.
(2) If the recipient has established or demonstrated to FWS the
willingness and ability to maintain procedures that will minimize the time
elapsing between the transfer of funds and their disbursement by the recipient.
(3) If- the recipient's financial management system meets the
prescribed standards for fund control and accountability.
c. The method of advancing funds by Treasury check shall be used- in
accordance with the provisions of Treasury Circular No. 1075, when the recipient -
meets all of the requirements specified in paragraph b. above, except those in
subparagraph b.l.
d. The reimbursement by Treasury check method shall be the preferred
method if the recipient does not meet the requirements specified in subparagraphs
b.2. and b.3. above. FWS may require that this method be used on any
construction project, or if the major portion of the program is accomplished
through private market financing or Federal loans, and the Federal assistance
• constitutes a minor portion of the program. When the reimbursement method is
used, FWS shall make payment within 30 days after receipt of the billing, unless
4
• the billing is improper. With respect to subcontractors, recipients shall not be
reimbursed for amounts that are to be withheld to assure satisfactory completion
of the work. These' amounts will be paid when recipients make final payment
including amounts withheld.
0
e. When the letter -of -credit procedure is used, the recipient shall be.
issued nne consolidated letter -of -credit whenever possible to cover anticipated
cash needs for all grants and other agreements awarded by FWS. Likewise, to the
extent possible, when the advance by Treasury check method is used, advances
should be consolidated (pooled) for all grants and other agreements made by FWS.
f. FWS shall not withhold payments for proper charges made by recipients
at any time during the project or program period unless (a) a recipient has
failed to comply with the program objectives, award conditions, or Federal
reporting requirements; or (b) the recipient is indebted to the United States,
and collection of the indebtedness will not impair accomplishment of the
objectives of a project or program sponsored by the United States.
Under such conditions, FWS may, upon reasonable notice, inform the
recipient that payments will not be made for obligations incurred after a
specified date until the conditions are corrected or the indebtedness to the
Federal Government is liquidated.
4. BONDING AND INSURANCE - (OMB Circulars A -102/A-110) - [This clause is
applicable to all assistance agreements involving the performance of construction
or facility improvements]
a. Except as otherwise required by law, a grant or other agreement 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, FWS may accept the bonding policy and
requirements of the grantee provided FWS has made a determination that the
Government's interest is adequately protected. If such a determination has not
been made, the minimum requirements shall be as follows:
I. A bid guarantee tr m ea n Mager a ulvaler1 w LAIC 1'-=- � �..�
bid orice - 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 will, 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 ori - 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 gn tne Dan ot the contraLLur rur juu usuaLLL.-we
the contract price - A "payment bond" is one executed in connection with a
contract to assure payment as required by law of all persons supplying labor and
material in the execution of the work provided for in the contract.
5
b. Where the Federal Government guarantees or insures the repayment of
•money borrowed by the recipient, FWS, 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.
c. FWS may require adequate fidelity bond coverage where the recipient has
no coverage and the bond is needed to protect the Government's interest.
d. Where bonds are required in the situations described above, the bonds
shall be obtained from companies holding certificates of authority as acceptable
sureties (31 CFR 223).
5. CASH DEPOSITORIES - (OMB Circulars A -102/A-110) - [This clause is applicable
to all assistance agreements involving the advancement of Federal funds] -
a. If funds are to be advanced under a letter -of -credit agreement with the
recipient which provides that draw downs will be made when the recipient's checks
are presented to the bank for payment, the recipient shall establish a separate
bank account as the depository for such.funds.
b. Any moneys advanced to a recipient which are subject to the control or
regulation of the United States or any of its officers, agents or employees
(public moneys as defined in Treasury Circular No. 176, as amended) must be
deposited in a bank with Federal Deposit Insurance Corporation (FDIC) insurance
coverage and the balance exceeding the FDIC coverage must be collaterally
secured.
c. Consistent with the national goal of expanding the opportunities for
minority business enterprises, recipients and subrecipients shall be encouraged
to use minority banks (a bank which is owned at least 50 percent by minority
group members.
6. RETENTION AND CUSTODIAL 'REQUIREMENTS FOR RECORDS - (OMB Circulars A -102/A-
110) - [This clause is applicable to all assistance agreements with primary
recipients and to grants or other agreements awarded by the primary recipients to
subrecipients performing substantive work].
a. Financial records, supporting documents, statistical records, and all
other records pertinent to an agreement shall be retained for a period. of 3
years,'with the following qualifications:
1. If any litigation, claim or audit is started before the expiration
of the 3 -year period, the records shall be retained until all litigations,
claims, or audit findings involving the records have been resolved.
2. Records for nonexpendable property acquired with Federal funds
shall be retained for 3 years after its final disposition.
3. When records are transferred to or maintained by FWS, the 3 -year
retention requirement is not applicable to the recipient.
b. The retention period starts from the date of the submission of the
final expenditure report, or final payment, whichever occurs last.
•
0
.c. Recipient organizations gray be authorized by FWS, to substitute
microfilm copies in lieu of original records.
d. FWS shall request transfer of certain records to its custody from
recipient organizations when it determines that the records possess long-term
retention value. However, in order to avoid duplicate record-keeping, FWS -may
make arrangements with recipient organizations to retain any records that are
continuously needed for joint use.
e. The Director of FWS and trepresentatives,troller eneral shallohavee United access to any
or any of their duly authorized
pertinent books, documents, papers, and records of the recipient organization and
their subrecipients to make audits, examinations, excerpts and transcripts.
7. PROGRAM INCOME - (DMB Circulars A -102/A-110) - [(This clause is applicable
if program income, as defined below, is anticipated from projects financed in
whole or in part with Federal funds.)]
a. Recipient organizations shall account for program income resulting from
projects financed in whole or in part with Federal funds. Program income
represents gross income earned by the recipient from the federally supported
activities. Such earnings exclude interest earned on advances and may include,
but will not be limited to, -A ncome from service fees, sale of commodities, usage
or rental fees, and royalties on patents and copyrights.
b. Interest earned on advances of Federal funds shall be remitted to FWS
except for interest earned on advances to States or instrumentalities of a State
as provided by the Intergovernmental Cooperation Act of 1968 (Public Law 90- 577)
and tribal organizations pursuant to sections 102, 103, or 104 of the Indian Self
Determination Act (Public law 93-638).
c. Proceeds from the sale of real and personal property either provided by
the Federal Government or purchased in whole or in part with Federal funds, shall
be handled in accordance with the clause entitled ProDerty Management Standards.,
d. Unless the agreement provides otherwise, recipients shall have no
obligation to the Federal Government with respect to royalties received as a
result of copyrights or patents produced under the grant or other agreement.
e. All other program income earned during the project period shall be
retained by the recipient and, in accordance with the grant or other agreement,
shall be:
(1) Added to funds committed to the project by FWS and recipient
organization and be used to further eligible program objectives;
(2) Used to finance the non -Federal share of the project when approved
by FWS; or
(3) Deducted from the total project costs in determining the net costs
on which the Federal share of costs will be based.
f. State, local. or Federally recognized Indian tribal governments shall
• record the receipt and expenditure of revenues (such as taxes, special
assessments, levies, fines, etc.) as a part of'project transactions when such
revenues are specifically earmarked -for a project in accordance with assistance
agreements.
8. COST SHARING AND MATCHING - (OMB Circulars A -102/A-110) - [This clause is
applicable to all assistance agreements if the recipient, subrecipient or third
parties are required to make cash or in-kind contributions to satisfy cost
sharing and matching requirements of the FWS].
a. The following definitions apply for the purpose of this clause:
(1) Pro-iect costs - Project costs are all allowable costs (as set
forth in the applicable Federal cost principles) incurred by a recipient and the
value of the in-kind contributions made .by the recipient or third parties in
accomplishing the objectives of the grant or other agreement during the project
or program period.
(2) Cost sharing and matching - In general, cost sharing and matching
represent -that portion of project or program costs not borne by the Federal
Government. Any minimum percentage for matching share provided by -program
legislation and matching share requirements are included in the assistance
agreement.
(3) Cash contributions - Cash contributions represent the recipient's
cash outlay, including the outlay of money contributed to the recipient by non -
Federal third parties. When authorized by Federal legislation, Federal funds
received from other grants or other agreements may be considered as grantees'
cash contributions.
-(4) In-kind contributions - In-kind contributions represent the value
of noncash- contributions provided by the recipient and non -Federal third parties.
Only when authorized by Federal legislation may property purchased with Federal
funds be considered as the recipient's in-kind contributions. In-kind
contributions may be in the form of charges for real property and non -expendable
personal property, and the value of goods and services directly benefiting and
specifically identifiable to the project or program.
b. General guidelines for computing cost sharing or matching are as .
follows:
(1) Cost sharing or matching may consist of:
(a) Charges incurred by the recipient as project costs. (Not
all charges require cash outlays by the recipient during the project period
examples are depreciation and use charges for buildings and equipment.)
(b) Project costs financed with cash contributed or donated to
the recipient by other non -Federal public agencies and institutions, and private
organizations and individuals, and
(c) Project costs represented by services and real and personal
property, or use thereof, donated by other non -Federal public agencies and
finstitutions, and private organizations and individuals.
L
ted
(2) All contributions, both
matching when such contributions pmeetaallaof
of the recipient's cost sharing and
the following criteria:
(a) Are verifiable from the recipient's records;
(b) Are not included as contributions for any other Federally -
assisted program;
Are necessary and reasonable for proper and efficient
(c)
accomplishment of project objectives;
(d) Are types of charges
applicable cost principles;
(e) Are not paid by the
assistance agreement (unless the agreement
used for -cost sharing or matching); . the
(f) Are provided for in
Federal agency; and
(g) Conform to other provisions of this clause.
that would be allowable under the
Federal Government under another
is authorized by Federal law to be
approved budget when required by the
C. Values for recipient -kind contributions will be established in
accordance with the applica cost principles.
d. Specific procedures for the recipients in establishing the value of in-
kind contributions from non -Federal third parties are set forth below.
(1) Valuation of volunteer services - Volunteer services may be
furnished by professional andnica ices omayl �beocountedt as andasher sharing skilled or
and unskilled labor. Volunteer
matching if the service is an integral and necessary part of an approved program.
(a) Rates for volunteer cervi es - Rates for volunteers should
be consistent with those Phthe required similar killsaranot fund
in
b recipient's
tin therecipient
1n those instances in whit quired
organization, rates should becien�compewith those tes far the kind of servicesfor similar �involvedthe
labor market in which the ret'p P
qn
(b) Volunteers m 14n an
1 d b services of anjLtemployee,these
employer other than the recipient furnishes theexclusive of
services shall be valued at the employees regular rate of pay
fringe benefits and overhead costs) provided these services are in the same skill
for which the employee is normally paid.
nalro art - 'Donated,
endable equipment, office
supplies. Value assessed
matching share should be
e property at the time of
(2) Valuation or oonaLeu CA CIBUMv.- -•-
expendable personal property includes such items as exp
supplies, laboratory supplies or workshop and classroom
ebpersonal
eiurin the o
reasonabland shouldnot excedthe maket valuef tl
the donation.- .
(3) Va uati n of donated nonexpendable personal property, buildings
and land or use th reof.
(a) The method used for charging cost sharing or matching for
donated nonexpendable personal property, buildings and land may differ according
to the purpose of the grant or other agreement as follows:
9
(i) If the purpose of the grant or other agreement 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.
n
U
(ii) If the purpose of the agreement is to support
activities that require the use of equipment, buildings or land, depreciation or
use charges to charges for equipment and buildings may be made. The full value
of equipment or other capital assets and fair rental charges for land may be
allowed provided that the FWS has approved the charges.
(b) The value of donated property will be determined in
accordance with the usual accounting policies of the recipient with the
following qualifications:
(i) Land and builds - The value of donated land and
buildings may 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 GSA representatives) and certified by a responsible
official of the recipient.
(ii) Nonexpendablg personal property - The value of donated
nonexpendable personal property shall not exceed the fair market value of
equipment and property of the same age and condition at the time of donation.
(iii) Use of space - The value of donated space shall not
exceed the fair rental value of comparable space as established by an independent
appraisal or comparable space and facilities in a privately -owned building in the
same locality. ...
(iv) Loaned equipment - The value of loaned equipment shall
not exceed its fair rental value.
e. -The following requirements pertain to the- recipient's supporting
records for in-kind contributions from non -Federal third parties:
(1) Volunteer services must be documented and, to the extent feasible,
supported by the same methods used by the recipient for its employees.
(2)- The basis for determining the valuation for personal services,
material, equipment, buildings and land must be documented.
9. STANDARDS FOR FINANCIAL MANAGEMENT SYSTEMS (OMB Circulars A -102/A-110). -
[This clause is applicable to all assistance agreements involving the transfer_of
Federal funds)
a. Recipient's financial management systems shall provide for:
(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 the clause entitled Financial Reporting Reauirements.
10
.(2) Records .that identify adequately .the source and application of
funds for Federally sponsored activities. These records shall contain
information pertaining ets, out ays,
Federal
and Ards, authorizations, obligations,
unobligated balances, as
.(3) Effective control over and accountability for all funds, property
and other assets. Recipientsused solely for authorized purposes uard all
such assets and
shall assure that they are
(4) Comparison of actual outlays with budget amounts for each grant or
other agreement.
(5) Procedures to minimize the time elapsing between the transfer of
funds from the U.S. Treasury and the disbursement by the recipient, whenever
funds are advanced by FWS. When advances are made by a letter -of -credit method,
the recipient shall make drawdowns as close as possible to the time of making
disbursements. Advances made by primary recipient organizations (those which
receive payments standards
ofytiming Fand amount as to apply toients hall advancesorm by FWSbtoaprimary
to the same standards
recipient organizations.
(6) Procedures for determining the reasonableness, allowability and
allocability of costs in termsdofctheith grant orrotherons of the agreement,applicable Federal
costs principles and th
(7) Accounting records that are supported by source documentation:
(8) A systematic method to assure timely and appropriate resolution of
audit findings and recommendations.
b. Primary recipients shall require subrecipients to adopt the standards
aph a. above except for the requirement in paragraph a.(1) regarding
in paragr
reporting forms and frequencies prescribed in the clause entitled Financial_
Reporting Re uirements.
10. FINANCIAL REPO TING REQUIREMENT - (OMB Circulars A -102/A-110) - [This clause
is applicable to all assistance agreements involving the transfer of Federal
funds)
a. The following definitions apply for purposes of this clause:
(1) Accrued expenditures - Accrued expenditures are the charges
incurred by the recipient during a given period requiring the provision of funds
for: (a) goods and other tangible property received; (b) services performed by
employees, contractors, subrecipients, and other payees; and (c) other amounts.
becoming owed under programs for which no current services or performance is
required.
(2) AccrgjCjnume - Accrued income is the sum of (a) earnings
suring
a given period from (i) services performed by the recipient; and (ii) goods
other tangible property delivered to purchasers; and (b) amounts becoming owed to
the recipient for which no current. services or performance is required by the
• recipient.
11
• (3) Federal funds authorized - Federal funds authorized are the total
amount of Federal funds obligated by FWS for use by the recipient. This amount
may include any authorized carryover of unobligated funds from prior fiscal years
when permitted by the law or FWS regulation.
- (4) In-kind contributions - In-kind contributions are defined in the
clause entitled Cost Sharing and Matchin .
(5) Obligations - Obligations are the amounts of orders placed,
contracts and grants awarded, services received, and similar transactions during
a given period that will require payment by the recipient during the same or a
future period.
(6) Outlays - Outlays or expenditures represent charges made to the
project or program. They are to be reported on an accrual basis. For reports
prepared on an accrual basis, outlays are the sum of actual cash disbursements
for direct charges for goods and services, the amount of indirect expense
incurred, the value of in-kind contributions applied, and the net increase (or
decrease) in the amounts owed by the recipient for goods and other property
received for services performed by employees, contractors, subrecipients and
other payees and other amounts becoming owed under programs for which no current
services or performance are required.
(7) Program income - Program income is defined in the clause entitled
Program Income. It is to be reported on an accrual basis.
(8) Unobligated balance - The unobligated balance is the portion of
the funds authorized by FWS that -has not been obligated by the recipient and is
determined by deducting the cumulative obligations from the cumulative funds
authorized.
(9) Unliquidated obligations - For reports prepared on an accrued
expenditure basis, unliquidated obligations represent the amount of obligations
incurred by, the recipient for which an outlay has not been recorded.
b. The recipient shall utilize the following forms for reporting financial
information:
(1) Financial Status -Report (SF- 9 - For all non -construction
projects, the recipient shall submit an original and two copies of this report 30
days after the completion of each quarter of the project with the exception that
the final Financial Status Report shall be due 90 days after project completion.
Extensions to reporting due dates may be granted upon request. The report shall
be on an accrual basis; however, if the recipient's accounting records are not
normally kept on the accrual basis, the recipient shall not be required to
convertits accounting system, but shall develop such information through best
estimates based on an analysis of the documentation on hand.
(2) Federal Transactions Report (SF -2721 - In the event funds are
advanced to recipients, the recipient shall submit an original and two copies of
a Federal Cash Transaction Report 15 days following the end of each quarter.
• c. The recipient shall utilize the following forms for requesting advances
and reimbursements:
12
non -
(1) Reauest for Advance or R imbursement SF-27
ipiell shall
construction projects when a letter of credit is not used, the rec
submit an original and two copies of this form on a monthly basis.
(2) Oull a Ken.orT ana KeU,ucZ 16 1 vtt
Programs (SE-7711
theor all recipientsshallion submit answhen a originallett;r 6f and -two copies ofsthis
been authorize P
form on a monthly basis.
d. When the FWS needs additional information in usingithese forms or more
frequent reports, the following shall be -observed:
(1) When additional information is needed to comply with legislative
requirements, FWS shall issue instructions to require recipients to submit such
information under the "Remarks" section of the reports.
(2) When necessary to meet specific program needs, FWS shall submit
the proposed reporting requirements to the Financial Management Branch, Budget
Review Division, Office of Management and Budget for approval prior to submission
of the reports for clearance under the provisions of 5 LFR Part 1320.
(3) When FWS has determined that a recipient's accounting system does
not meet the requirements contained in the clause entitled Standards for
Financial Manaaem nt Systems, additional pertinent information to further monitor
grants and other agreements may be obtained upon written notice to the recipient
until such time as the system is brought up to standard.
e. FWS shall reserve the option of shading out any line item on any report
that is unnecessary for decision-making purposes.
ient
f. FWS shall oat or computeridentical
printouts in lieuinformation
prescribed formats. in
machine useable P
g. FWS may provide computer outputs to recipients when it will expedite or
contribute to the accuracy of reporting.
11. MONITORING AND REPORTING PROGRAM PERFORMANCE (OMB Circulars A -102/A-110) -
(This clause is applicable to all assistance agreements)
a. Recipients shall monitor the performance under grants and other
agreements and, where appropriate, ensure that time schedules are being met,
projected work units by time periods are being accomplished, and other
performance goals
or activire ty of Bved. This review each agreement as setall forthein a
de for each
program, function, approved
,
application or award document. -
b. Recipientsisubmit
performance
rn(technical ,
each agreementhatbriefly presents he followingiformtion for each program,
function, or activity involved: -
(1) A comparison of actual accomplishments with the goals established
for the period, the findings of the investigator, or both. If the output of
programs or projects can be readily quantified, such quantitative data should be
related to cost data for computation of unit costs.
13
• (2) Reasons -why established goals were not met.
(3) Other pertinent information including, when appropriate, analysis
and explanation of cost overruns or high unit costs.
C. Recipients shall submit the performance or technical reports quarterly
with the Financial Status Report (or Request for Advance or Reimbursement if used
in lieu of the Financial Status Report); the final technical or performance
report shall be submitted 90 days after completion of the project.
d. Between the required performance reporting dates, events may occur that
have significant impact upon the project or program. In.such instances, the
recipient shall inform the SO as soon as the following types of conditions become
known.
(1) Problems, delays, or adverse conditions that will materially
affect the ability to attain program objectives, prevent the meeting of time
schedules and goals, or preclude the attainment of project work units by
established time periods. This disclosure shall be accompanied by a statement of
the action taken, or contemplated, and any Federal assistance needed to resolve
the situation.
(2) Favorable developments or events that enable time schedules to be
met sooner than anticipated or more work units to be produced than originally
projected.
e: If any performance review conducted by the recipient discloses the need
for change in the budget estimates, the recipient shall submit a request for
budget revision.
12. REVISION OF FINANCIAL PLANS - (OMB Circulars A -102/A-110) [This clause is
applicable to all assistance agreements involving the transfer of Federal funds].
a. The financial plan is the financial expression of the project or
program as approved during the application and/or award process. It may include
both the Federal and non -Federal share. It should be related to performance for
program evaluation purposes whenever appropriate and required.
b. For nonconstruction awards, recipients shall immediately request
approvals from Federal sponsoring agencies when there is reason to believe that a
revision will be necessary for the following reasons:
(1) Changes in the scope or the objective of the project or program:
(2) The need for additional Federal funding.
(3) The transfer of amounts budgeted for indirect costs to absorb
increases in direct costs or vice versa.
(4) The expenditures require approval in accordance with. the
applicable provisions of OMB Circular A -2P, "Cost Principles for Educational
Institutions; "OMB Circular A-87, "Cost Principles for State and Local
Governments;" OMB Circular A-122, "Cost Principles for Non Profit Organizations;"
or Federal Acquisition Regulations (FAR) 31.2, "Cost Principles... with Commercial
Organizations."
14
0
llotted
(5) Recipients
trainees)plan
t000thertransfer
categoriesaof expensefor
training allowances
(direct payments to
c. None of the substantive programmatic work under a grant or other
agreement may be subcontracted or'transferred chaseof without
suppliesrior material,�al of FWS.
equipment,
This provision does not apply to thep
or general support services.
d. The recipient may not transfer funds ng direct cumulativecagories for
awards in which the Federal share exceeds 5100,000
such transfers exceeds or is expected to -exceed 5 percent of the total budget as
last approved. The same criteria shall apply to the cumulative amount of
transfer among programs, functions, and activities when budgeted separately for
an award, except that or
artsshall thereof,permit no to be used for fer that purposes then than thoscause a e
Federal appropriation,p
intended.
e. For construction awards, recipients shall request prior approvals
promptly from FWS for budget revisions wherever:
(1) The revision results from changes in the scope or the objective of
the project or program, and
(2) The revision increases the budget amounts of Federal funds needed
to complete the project.
f. When a grant or other agreement provides support for both construction
and nonconstruction work, the fersibetweenshall
the two typuest es roval of of workfrom
supportedior to
making any fund or budget trans
For both construction and nonconstruction awards, the recipients shall
notify the FWS promptly whenever the amount of Federal authorized funds is
expected to exceed the needs of the recipient by more than $5,000 or 5 percent of
the Federal' award, whichever is greater.
h. When requesting approval for budget revisions, or recipients
shall use
detailing
either the budget forms that were used in the app
licationthe revisions.
J. Within 30 calendar days from the date of receipt of the request for
budget revisions, FWS shall review the request and notify the recipient whether
the budget revisions have been approved. if the revision is still' under
consideration at to whend of 30 n the recipie tamayaexQect the decisioFWS shall infon the recipient in
writing of the da
j. FWS shall not be obligated to reimburse the recipient for outlayt
(costs) in excess of the Federally funded amount of the assistance agreement
unless and until the SO executes -a modification which increases the Federally
funded amount. The Federallyhanort the budgeted Feder
funded equal amount ithe
ed shareder the
of the
agreement which may be less
agreement.
15
U
13. CLOSEOUT PROCEDURES - (OMB Circulars A -.102/A-110) - [This clause is
applicable to all assistance agreements]
a. The following definitions shall apply for the purpose of this clause.
(1) Closeout - The closeout of a grant or other agreement is the
process by which FWS determines that all applicable administrative actions and
all required work of the agreement have been completed by the recipient and the
FWS.
(2) Date of completion - The date of completion is the date on which
all work under the grant or other agreement is completed or the date on the award
document, or any supplement or amendment thereto, on which FWS sponsorship ends.
(3) Disallowed costs - Disallowed costs are those charges to a grant
or other agreement that the FWS or its representative determines to be
unallowable, in accordance with the applicable Federal cost principles or other
conditions contained in the agreements.
b. The parties shall close out assistance agreements in accordance with
the following procedures:
(1) Upon.request, FWS shall make prompt payments to a recipient for
allowable reimbursable costs under the grant or other agreement being closed out.
(2) -The recipient shall immediately refund any balance of unobligated
(unencumbered) cash that FWS advanced or paid and that is not authorized to be
retained by the recipient.
(3) The FWS shall obtain from the recipient within 90 calendar days
after the date of completion of the agreement all financial, performance, and
other reports required as the condition of the agreement. The agency may grant
extensions when requested by the recipient.
-(4) When authorized by the grant or other agreement, FWS shall make a
settlement for any upward or downward adjustments to the Federal share of costs
after these reports are received.
(5). The recipient shall account for any property acquired with Federal
funds, or received from the Government in accordance with the provisions of the
clause entitled Ptoperty PropertyManagement Standards.
(6) In the event a final audit has not been performed prior to the
closeout of the grant or other agreement, FWS shall retain the right to recover
an appropriate amount after fully considering the recommendations on disallowed
costs resulting from the final audit.
(7) The recipient shall complete and submit a final report in
compliance with the clause entitled 51andard Patent Rights within 90 calendar
days after the date of completion. The form used shall be Department of the
Interior (DI) Form 1216, entitled "Summary Report of Inventions and
Subcontracts."
16
14. 'SUSPENSION AND TERMINATION assistance agreements)
en B ]Circul ars ' A -102/A-110) _ - [This
• clause is applicable to
a. The following definitions shall apply for the purpose -of this clause.
(1) T rmination - The termination of a grant or other agreement means
the cancellation of Federalof campletiann whole or in part under an agreement
at any time prior to the date
(2) 5usRension - The suspension of a grant or other agreement is an
action by FWS that temporarily suspends Federal sponsorship, pending corrective
action by the recipient or pending a decision to terminate the grant or other
agreement by FWS.
b. If the recipient fails to comply with the terms of the grant or other
agreement, the SO may, on reasonable notice to the recipient, suspend the grant
or other agreement, and withhold further payments and prohibit the recipient from
incurring additional obligations of funds, pending corrective action by the
recipient; or decide to terminate in accordance with paragraph c. 'All necessary
and proper costs that thelrecipient
l c dent could
of r they meet 'avoid
provisions period the
of suspension shall be provided
applicable cost principles.
C. This grant or other agreement may be terminated as follows:
(1) Termination for cause - The SO may terminate any grant or other
er
agreement in whole or G patany
time
has beforiledet h comply ofe date completion,with
thetcconditions
vof
it is determined thatrecipient
the agreement. The S0, shall promptly no the recipient in writing of the
the efectve
determination and the sos ifor
the
ermi obligations after the ether with ffectivefdatelof
date. The recipient shalln
the termination notice and shall cancel as many outstanding obligations as
possible. Payments made to.
recipients
be in accordance wilS under t the legal rights
grantsor reveries bther
and
agreements terminated for cause
liabilities of the parties.-
(2)
arties:(2) Termination for convenient - Grants and other agreements may be
terminated in whole or in r when produce beneficoth ial results rties acommensu ate with ree that the ttheafurther
of
the project would not gradthe
expenditure of funds. The two parties shall agree the ncase termination
partial
conditions, including the effective date and,
terminations, the portion to be terminated. In the event that both parties
cannot agree, the SO reserves the right to unilaterally terminate the assistance
agreement for thee termninatedsportioniafter theheffectiivent shall not date, and shallcur new
cancel
obligations for tThe allow ullredit to
as many outstanding obligationsshare of oss�theble�noncance�lablel obligations,cproperly
the recipient for the Federal
incurred by the recipient prior to termination.
d. The parties shall promptly settle the terminated agreement in
accordance with the applicable requities shall execute a modificationclause forth
Procedures. In addition,
the
parties
the terms and conditions of the final settlement as a result of the termination
of the agreement.
17
15. PROPERTY MANAGEMENT STANDARDS (OMB Circulars A -102/A-110) - [This clause is
• applicable to all assistance agreements involving government -furnished property
or recipient -acquired property for which the costs will be reimbursed by the FWS]
a. The recipient and approved subrecipients shall observe the standards
governing the management of property prescribed by this clause. The recipient
may use its own property management standards and procedures provided it observes
the provisions of this clause.
b. The following definitions apply for the purpose of this clause:
(1) Real Dro.pertY - Real property means land, including land
improvements, structures and appurtenances thereto, but excluding movable
machinery and equipment.
(2) Personal property - Personal property of any kind except real
property. It may be tangible - -having physical existence, or intangible - -having
no physical existence, such as patents, inventions and copyrights.
(3) NonexRendable personal. proverix - Nonexpendable personal property
means tangible personal property having a useful life of more than 1 year and an
acquisition cost of $300 or more per unit except that recipients subject to Cost
Accounting Standards Board regulations may use the CASB standard of $500 per unit
and useful life of 2 years. A recipient may use its own definition of
nonexpendable personal property provided that the definition would at least
include all tangible personal property as defined above.
(4) Expendable_personal property - Expendable personal property refers
to all tangible personal property other than nonexpendable property.
(5) Excess DrORerty - Excess property means property under the control
of an Federal agency that, as determined by the head thereof, is no longer
required for its needs or the.discharge of its responsibilities.
(b) Acquisition cost of purchased Donexpendabie Dersonai properxv -
Acquisition cost of an item of purchased nonexpendable personal property means
the net invoice unit price of the property including the cost of modifications,
attachments, accessories, or auxiliary apparatus necessary to make the property
useable 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.
(7) Exempt property - Exempt property means tangible personal property
acquired in whole or in part with Federal funds, and title to which is'vested in
the recipient without further obligation to the Federal Government except as -
provided in subparagraph f.(1) below. Such unconditional vesting of title will
be pursuant to any Federal legislation that provides FWS with adequate authority.
C. If real property is acquired as a requirement of this grant or other
agreement, the following shall apply:
(1) 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 is it is needed.
18
(2) The recipient shall obtain FWS approval for the use of real
property in other 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 other Federally sponsored projects (i.e., g
or other agreements) or programs that have purposes consistent with those
b
authorized for support y F
(3) When the real property is no longer
needed instructions provided
FWSorits
and
(2) above, the recipient shall request disposition
successor Federal sponsoring agency.
d. Federally owned nonex4en able personal oro�erty - 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
FNS. Upon completion of the agreement or -when the property is no longer needed,
the recip'.ont shall report the property to FWS for further agency utilization.
e;xem ro rt - When statutory authority exists (e:g., P.L. 95-224)
title to nonexpendable personal property acquired with project funds, shall be
vested irn the recipient upon acquisition unless it is determined that to do so is
not in furtherance of the objectives of the FWS. When title is vested- in the
recipient, the recipient shall have no other obligation or accountability to the
Federal government for its use or disposition except as provided in f.(1) below.
f. Other nonexoendable_oroaertY - When other nonexpendable
shall inoe
personal property is acquired by a recipient with project funds,
be taken by the Federal government but shall vest in the recipient subject to the
following conditions:
(1) gight to transfer title - For items of nonexFWS reserves tendable hersonal
property having a unit acquisition cost of $1,000 or more,
to transfer the title to the Federal government or to a third party.
(a) The recipient shall use the property in the project or
program for which it was acquired as long as needed, whether or not the project
or program continues to be supported by Federal funds. When no longer needed for
se the property in
the original project or program, the recipient shall u
Connection with its other Federally sponsored activities, inhefollowin n r ed
of priority: (i) activities sponsored by the FWS; and (ii) activities
by other Federal agencies.
(b) Sh rL_q—st During the time that nonexempt nonexpendable'
personal property is held for use on the project or program for which it was
acquired, the recipient usell willake it rgot interfere available
with the work onher theproects or
pro
programs if such other ject or
program for which the property was originally. acquired. First preference for
such other use shall be givento ive other projects or or por rog rams ssponsored sponsoredby
other
second preference shall be -given P
Federal agencies. if the property is owned by the Federal government, use on
other activities not Sponsored shall be considered if appropriatovernment shall be permissible if
authorized by FWS. User charges
19
(3) Disposition of other nonexpendable property - When the recipient
no longer needs the property as provided in f(2) above, the property may be used
for other activities in accordance with the following standards:
(a) Nonexpendable property with a unit acouisition cost of -less
than $1.000 - The recipient. may use the property for other activities without
reimbursement to the Federal government or sell the property and retain the
proceeds.
(b) Nonexpendable personal property with a unit acquisition cost
of 51.440 or more - The recipient may retain the property for other uses provided
that compensation is made to FWS. 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 property. If the
recipient has no need for the property and the property has further use value,
the recipient shall request disposition instructions from FWS.
(4) Property management standards for nonexpendable property - The
recipient's property management standards for nonexpendable personal property
shall include the following procedural requirements:
(a) Property records shall be maintained accurately and shall
include:
(i) A description of the property.
Manufacturer's serial number, model number, Federal
stock number, national stock number, or other identification number.
(iii) Source of the property, including grant or other
agreement number.
(iv) Whether title vests in the recipient or the FWS;
(v) Acquisition date (or date received, if the property
was furnished by the FWS) and cost.
(vi) Percentage (at the end of the budget year) of
Federal participation in the cost of the project or program for which the
property was acquired.. (Not applicable to property furnished by the FWS.)
'(vii) Location, use and condition of the property 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 FWS for its share.
(b) Property owned by the FWS must be marked to indicate Federal
ownership.
(c) A physical inventory of property shall be taken and the
results reconciled with the property records at least once every 2 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 property.
20
(d) A.control system shall be An effect to insure adequate
safeguards to prevent loss, damage, or theft of the property. Any loss, damage,
or theft of nonexpendable property shall be investigated and fully documented; if
the property was owned by the Federal Government, the recipient shall promptly
notify FWS.
(e) Adequate maintenance procedures shall be implemented to keep
the property in good condition.
(f) Where the recipient is authorized or required to sell the
property, proper sales procedures shall *be established which would provide for
competition to the extent practicable and result in the highest possible return.
g. Exoendable narsenal property - Title to expendable personal property
shall vest in the recipient upon acquisition. If there is a residual inventory
of such property exceeding $1,000 in total aggregate fair market value, upon
termination or completion of the grant or other agreement, and the property is
not needed for any other Federally sponsored project or program, the recipient
shall retain the property for use on non Federally sponsored activities, or sell
it, but must in either case, compensate FWS for its share. The amount of
compensation shall be computed in the same manner as nonexpendable personal
property.
h. Intangible property.
(1) Inventions andpatent-s- - If any program produces patentable items,
patent rights, processes, or inventions, in the course of work sponsored by the
Federal government, such fact shall be promptly and fully reported to FNS.
Unless there is a prior agreement between the recipient and FWS on disposition of
such items the FWS shall determine whether protection on the invention or
discovery shall be sought. FWS will also determine how the rights in the
invention or discovery --including rights under any patent issued thereon --shall
be allocated and administered in order to protect the public interest consistent
with current Government Patent Policy.
(a) Copyrights Except as otherwise provided in the terms and
conditions of the agreement, the author or the recipient organization is free to
copyright any books, publications, or other copyrightable materials developed in
the course of or under a Federal agreement, but FWS shall reserve a royalty -free,
nonexclusive and irrevocable right to reproduce, publish, or otherwise use, and
to authorize others to use, the work for Government purposes.
i. Excess personal proDerty - When title to excess property is vested in
recipients, such property shall be accounted for and disposed of in accordance
with disposition instructions from FWS.
16. PROCUREMENT S R 5 (OMB Circulars A -102/A-110) - [This clause is
applicable to all assistance agreements involving recipient procurement of
supplies, equipment, construction or other services and reimbursement with
Federal funds]
a. The standards contained in this clause do not relieve the recipient of
the contractual responsibilities arising under its contracts. The recipient is
the responsible authority, without recourse to FWS regarding the settlement and
satisfaction of all contractual and administrative issues arising out ort
21
procurements entered into, in support of a grant or other agreement._ These
include disputes, claims, protests of award, source evaluation or other matters
of a contractual nature. Matters concerning violation of law are to be referred
to such local, State or Federal authority as may have property jurisdiction.
. b. Recipients may use their own procurement policies and procedures.
However, all recipients shall adhere to the standards set forth in this clause
and applicable Federal law.
c. Code of conduct - The recipient shall maintain a code of standards of
conduct that shall govern the 'performance of its officers, employees or agents
engaged in the awarding and administration of contracts using Federal funds. No
employee, officer or agent shall participate in the selection, award, or
administration of a contract in which Federal funds are used, where, to his
knowledge, he or his immediate family, partners, or organization in which he or
his immediate family or partner has a financial interest or with whom he is
negotiating or has any arrangement concerning prospective employment. The
recipients' officers, employees or agents shall neither solicit nor accept
gratuities, favors or anything of monetary value from contractors or potential
contractors. Recipients may set minimum rules where the financial interest is
not substantial or the gift is an unsolicited item of nominal intrinsic value.
To the extent permitted by State or local law or regulations, such standards of
conduct shall provide for penalties, sanctions, or other disciplinary actions for
violations of such standards by the grantee's officers, employees, or agents, or
by contractors or their agents.
d. Procurement transactions - Alli procurement transactions shall be
conducted in a manner to provide, to the maximum extent practical, open and free
competition. The recipient should be alert to organizational conflicts of
interest or 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 should be excluded from
competing Jor such procurements. Awards shall be made to the bidder/offeror
whose bid/offer is responsive to the solicitation and is most advantageous -to the
recipient, price and other factors considered. Solicitations shall clearly set
forth all requirements that the bidder/offers must fulfill in order for his
bid/offer to -be evaluated by the recipient. Any and all bids/offers may' be
rejected when it is the recipient's interest to do so.
e. Procurement procedures- All recipients shall establish procurement
procedures that provide for, at a minimum, the following procedural requirements.
(1) Proposed procurement actions shall follow a procedure to assure
the avoidance of purchasing unnecessary or duplicative items. Consideration -
should be given to consolidation or breaking out to obtain a more, economical
purchase. Where appropriate, an analysis shall be made of lease versus purchase,
alternatives, and any other appropriate analysis to determine which would be the
most economical, practical procurement.
(2) Solicitations for goods and services shall be based upon a clear
and accurate description of the technical requirements for the material, product
or service to be procured. Such a description shall not, in competitive
procurements, contain features which unduly restrict competition. "Brand name or
22
0
equal" descriptions may be used as a means to define the. performance or other
salient requirements. of a procurement, and when so used the specific features of
the named brand which must be met by bidders/offerors shall be clearly specified.
(3) Positive efforts shall be made by the recipients to utilize small
business and minority-owned business sources of supplies and services. Such
efforts should allow these sources the maximum feasible opportunity to compete
for contracts utilizing Federal funds.
(4) The type of procuring instruments' used, e.g., fixed price
contracts, cost reimbursable contracts, purchase orders, incentive contracts,
shall be determined by the recipient but must be appropriate for the particular
procurement and for promoting the best interest of the program involved. The
"cost -plus -a -percentage -of -cost" method of contracting shall not be used.
(5) Contracts shall be made only with responsible contractors who
possess the potential ability to perform successfully under the terms and
conditions of a proposed procurement. Consideration shall be given to such
matters as cantrac orr access�bilityrtoord otherf necessaast ryrresources, financial and
techni-cal resources
(6) Review and approval by the SO of the recipient's proposed
contracts and related procurement documents is required when the procurement is:
000 and is to be awarded without competition or only
(a) expected to exceed $10, "
one offer is received, (b) expected to exceed $10,000 and specifies a brand
name" product, or (c) the recipient's procurement procedures or operations fail
to comply with this clause.* The provisions of this paragraph are waived in the
event the recipient's procurement
rouremenPoliCem has been certified in accordance -with
the Office of Federal Procurement,
(7) Some form of pror cost analysis should be made in connection
with every procurement action. Price analysis may be 'accomplished in various
ice
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. Costs or prices based on estimated costs for subcontract under the
grant or other agreemented shall
nenegotiated pribe allowed ces the extent are consistent twithtapplicable
incurred
or cost estimates int
cost principles.
(8) Procurement records and files for purchases in excess of $10,000
shall include the following:
(a) Basis for contractor selection;
(b) Justification for lack of competition when competitive bids
or offers are not obtained;
(c) Basis for award cost or price.
(g) A system for contract administration
specificationsofcontract
contractor conformance with terms, conditionsP
and to ensure adequate and timely followup of all purchases.
23
•f.
and !ah
(1)- It is national policy- *to award a fair share of contracts to small,
and minority business firms, women -owned businesses and labor surplus area firms.
The recipient agrees to use its best efforts to carry out this policy in the
award of subcontracts or other agreements to the fullest extent consistent with
the efficient performance of this assistance agreement.
(2) Dgfinitions
(a) The term *small business concern" shall mean a small
business as defined pursuant to Section 3 of the Small Business Act and in
relevant regulations promulgated pursuant thereto.
(b) The term minority firm ("small business concern owned and
controlled by socially and economically disadvantaged individuals*) shall mean a
small business concern:
(i) which is at least 51 percent owned by one or more
socially and economically disadvantaged individuals; or in the case of any
publicly owned business, at least 51 percent of the stock of which is,owned by
one or more socially or economically disadvantaged individuals; and
(ii) whose management and daily business operations are
controlled by one or more of such individuals.
The recipient shall presume that socially and economically
disadvantaged individuals include Black Americans, Hispanic Americans, Native
Americans, Asian -Pacific Americans, and other minorities, or any other individual
found to be disadvantaged , by the Small Business Administration pursuant to
Section 8(a) of the Small Business Act..
(c) A "woman -owned business" concern means a business that is at
least 51 percent owned by a woman or women that also control and operate it.
"Control" in this context means being actively involved in the day-to-day
management. "Women" mean all women business owners.
(d) The term "labor surplus area concern" means a concern that
together with its first-tier subcontractors will perform substantially in labor
surplus areas. Performance is substantially in labor surplus areas if the costs
incurred under the contract on account of manufacturing, production, or
performance of appropriate services in labor surplus areas exceed 50 percent of
the contract price. '
(3) Accordingly, recipients shall take steps to assure that such
preference firms are utilized when possible as sources of suppliers, equipment,
construction and services. Affirmative steps shall include the following:
(a) Including qualified small and minority businesses on
solicitation lists.
• (b) Assuring that small and minority businesses are solicited
whenever they are potential sources.
24
small tasks or
participation.
(c) When economically emt bmaximumismalland minority t requirements
business
quantities so as to pi
(d)
schedules which will
Where the requirement permits, establishing delivery
encourage participation by small and minority business.
of the Small Business
of the Department of
Office of Small and
of the Interior, and
U.S. fish and Wildlife
(e) Using the services and assistance
Administration, the Minority Business Development Agency
Commerce, the Community Services Administration,
the
Disadvantaged Business Utilization of the and Development Specialists
s of Department
Business Utilization the
Service.
are to be let, requiring the prime contractor to also take
s in (a) through (e) above.
(4) Recipients shall take similar appropriate affirmative action in
support of women's business enterprises.
(5) Recipients are encouraged to procure goods and services from labor
surplus areas.
(6) Where app
ortunities for subcontracting or other subagreements
exist, the recipient shall submit a czatioon t w thiDepartment0 days fterfithe nend � of or each
1925) Minority Business ane icopy°shall be provided to each of the following
fiscal year quarter.
addresses:
Business Utilization Development Specialist
Division of Contracting and General Services
U.S. Fish and Wildlife Service
Room 821, Riddell Building
18th & C Streets, NW
Washington, DC 20240
If any subcontracts
the affirmative step
(CGS)
Director, Office of -Small and Disadvantaged Business Utilization
Office of the Secretary
U.S. Department of the Interior
18th & C Streets, NW
Washington, DC 20240
The requirement for smentation of this
Executivei Ordersi2432f
the Interior's imple
entitled "Minority Business Enterprise Development."
The recipient shall include, in addition
complete agreement, the following provisions
shall also be applied to subcontracts.
the U.S. Department of
dated July 14, 1983,
o ract nrovision� -
provisions r_
ions to define a sound and
all contracts. These provisions
(1) Contracts
provisions or conditions
• remedies in instances in
provide for such remedial
to
in
tual
in excess ofS10,0snall ocontractualtorclegal
that will allow for administrative,
which contractors vio reach contract terms, and
actions as may be appropriate.
25
(2) All contracts in excess of $10,000 shall contain -suitable
• provisions for termination by the recipient including the manner by which the
termination will 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.
(3) In all contracts for construction or facility improvement awarded
for more than $100,000, recipients shall observe the bonding requirements
provided in the clause entitled Bonding and Insurance.
• (4) All contracts awarded by recipients and their contractors or
subgrantees having a value of more than $10,000, shall contain a provision
requiring compliance with Executive 11246, entitled "Equal Employment
Opportunity," as amended by Executive Order 11375, and as supplemented in
Department of Labor regulations (41 CFR, Part 60).
(5) All contracts and -subgrants in excess of $2,000 for construction
or repair awarded by recipients and subrecipients shall include a provision for
compliance with the Copeland "Anti -Kick Back" Act (18. U.S.C. 874) as
supplemented in Department of Labor regulations (29 CFR, Part 3). This Act
provides that each contractor or subgrantee 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
FWS.
(6) When required by the Federal program legislation, all construction
contracts awarded by the recipients and subrecipients of more than 52,000 shall
include a provision for compliance with the Davis -Bacon Act (40 U.S.C. 276a to a-
7) and as supplemented by Department of Labor regulations (29 CFR, Part 5).
Under thi-s 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 SO.
(7) When required by the Federal program legislation, recipients in
excess of $2,000 for construction contracts and in excess of $2,500 for other
contracts that involve the employment of mechanics or laborers, shall include a
provision for compliance with sections 103 and 107 of the Contract Work Hours and
Safety Standards Act (40 U.S.C. 327-330) as supplemented by Department of Labor
regulations (29 CFR, Part 5). Under section 103 of the Act, each contractor`
shall be required to compute the wages of every mechanic and laborer on the basis
of a standard work day of 8 hours and a standard work week of 40 hours. Work in
excess of the standard workday or workweek 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 8 hours in any calendar day or 40 hours in
the .workweek. 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 to his
health and safety as determined under construction safety and -health standards
26
promulgated by the Secretary of Labor. 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.
(8) Contracts or agreements, the principal purpose of which is to
create, develop or improve products, processes or methods; or for exploration
into fields that cie directly or technologylic in whichhthere has beenor littler contracts
significant
in the field of sciencea notice
experience outside of work re ardingd byrightsatoFederlainve tionssistances andlmaterialsngenerated
to the effect that matter g
under the contract or agreement are subject to the regulations issued by FWS and
the recipient.
(9) All negotiated contracts (except those of $10,000 or less) awarded
by recipientshall include provision
to the effect
that the
recipient, FWS,
the Comptroller Genes othUnited States, or any of their dulyauthorized
a ers and retards of
representatives, shall have access aotosa specificsprogram for the purpose
the contractor which are directly pertinent
of making audits, examinations, �in all prequiredr records transcriptions.
3 years Recipientsshall
tithe
require contractors to ma
recipient makes final payment and all pending matters are closed.
(10) Contracts and subgrants of amounts in excess of $100,O00 shall
ly with all
contain a provision Chat order orires regulati regulations pursuient to ant toree othe Clean Air Act
applicable standards,
of 1970 (42 U.S.C. 1857 et seq.) and the Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.,) as amended. Violations shall be reported to FWS and the
regional office of the Environmgntal Protection Agency.
licies
(11) Contractsall r whichZ area contained standards
the St teo energy
relating to energy efficiency
conservation plan issued in compliance with the Energy Policy and Conservation
Act (P.L. 9.4-163).
as
h. If the recipient is a �tatsh 11 local
adhere otos the tor other following additional
defined in OMB Circular A-102,
provisions:
In order to foster greater economy and efficiency, recipients are
encouraged to enter into State and local intergovernmental agreements for
procurements or use of common goods and services.
Procurements shall be made by one of the following methods, as
described herein:. (a) small purchase procedures; (b) competitive sealed pe bids
(formal advertising); (c) competitive negotiation; and (d)
negotiation.
(1) Small purchase procedures are those relatively simple and informal
procurement methods that are sound and appropriate for a
pnot rocuremmoren t of ser0i000.
supplies or other property, costing in the aggregate
Recipients shall comply with Stateaused for a prat cement underl small urchase dollar ie grant, If small purchase procedures are
price or rate.quotations shall be obtained from an adequate number of qualified
sources.
27
• (2) In competitive sealed bids (formal advertising), sealed bids are
publicly solicited and a firm -fixed-price contract (lump sum or unit price) is
awarded to the responsible bidder whose bid, conforming with all the material_
terms and conditions of the invitation for bids, is lowest in price.
(a) In order for formal advertising to be feasible, appropriate
conditions must be present, including, as a minimum, the following:
(i) A complete, adequate and realistic specification or
purchase description is available.
(ii) Two or more responsible suppliers are willing and
able to compete effectively for the recipient's business.
(iii) The procurement lends itself to a firm -fixed-price
contract, and selection of the successful bidder can appropriately be made
principally on the basis of price.
(b) If formal advertising is used for a procurement under a
grant or other agreement, the following requirements shall apply:
(i) A sufficient time prior to the date set for opening
of bids, bids shall be solicited from an adequate number of known suppliers. In
addition, the invitation shall be publicly advertised.
(ii) The invitation for bids, including specifications
and pertinent attachments, shall clearly define the items or services needed in
order for.the bidders to properly respond to the invitation.
(iii) All bids shall be opened publicly at the time and
place stated in the invitation for bids.
(iv) A firm -fixed-price contract award shall be made by
written notice to that responsible bidder whose bid, conforming to the invitation
for bids,"is lowest. Where specified in the bidding documents, factors such as
discounts, transportation costs and life cycle costs shall be considered in
determining which bid is lowest. Payment discounts may only be used to determine
low bid when prior experience of the grantee indicates that such discounts are
generally taken.
(v) Any or all bids may be rejected when there.are sound
documented business reasons in the best interest of the program.
(3) In competitive negotiation, proposals are requested from a number
of sources and the Request for Proposal is publicized, negotiations are normally
conducted with more than one of the sources submitting offers, and either a
fixed-price or cost -reimbursable type contract is awarded, as appropriate.
Competitive negotiation may be used if conditions are not appropriate for the use
of formal advertising. If competitive negotiation is used for a procurement
under a grant or other agreement, the following requirements shall apply:
0
• (a) Proposals shall be solicited from an adequate number of
qualified sources to permit reasonable competition consistent with the nature and
requirements of the euRequest
oposal slpublicized
and reasonable requests byo her sourceto compete shall be honored to the
maximum extent practicable.
(b) The Request for Proposal shall identify all significant
evaluation factors, including price or cost where required and their relative
importance.
(c) The recipient shall provide mechanisms for technical
evaluation ooftwrittenoorloral discuss ons, and selection fodeterminations of rnsible contractawards for
the purpose o
(d) Award may be made to the responsible offeror whose proposal
will be most advantageous to the procuring party, price and other factors
considered. Unsuccessful offerors should be notified promptly.
(e) Recipients may utilize competitive negotiation procedures
for procurement of architectural/engineering professional services, whereby
competitors' qualifications 9
negotiation ofafaireand nd the easonabletcompensation. ualified ompetitor is
selected, subject
(4) Noncompetitive negotiation is procurement through solicitation of
a proposal from only one source, or after solicitation of a number of sources,
competition is determined inadequate. Noncompetitive negotiation may be. used
when the award of a contract is infeasible under small purchase, competitive
bidding (formal advertising), or competitive negotiated procedures.
Circumstances under which a contract may be awarded by 'noncompetitive negotiation
-are limited to the following:
(a) The item is available only from a single source;
(b) Public exigency or emergency when the urgency for the
requirement -will not permit a delay incident to competitive solicitation;
(c) FWS authorizes noncompetitive negotiations; or
(d) After solicitation of a number of sources, competition is
determined inadequate.
17A. AUDIT REOUIREMENTS (OMB CIRCULAR A-110) - [This clause is applicable
and to all
assistance agreements with institutions of higher education,
hospitalsother nonprofit organizations involving the transfer of Federal funds]
a. Recipients' financial management systems shall provide for examina-
tions in the form of audits or internal audits. Such audits shall be made by
qualified individuals who are sufficiently independent of those who authorize the
expenditure of Federal funds, to produce unbiased opinions, conclusions or
judgments. They shall met the independence criteria along the
lines
rdsoforf Chapter
3, Part 3 of the U.S. General Accounting Office publication,
of Governments Or anizations Pr rams ActiviLi s and Functions. These
• examinations are intended to ascertain the effectiveness of the financial
management systems and internal procedures that have been established to meet the
terms and conditions of the agreements. It is not intended that each agreement
29
awarded to the recipient be examined. Generally, examinations should be
conducted on an organization -wide basis to test the fiscal integrity of financial
transactions, as well as compliance, with the terms and conditions of the Federal
grants and other agreements. Such tests would include an appropriate sampling of -
Federal agreements. Examinations will be conducted with reasonable frequency, on
a continuing basis or at scheduled intervals, usually annually, but not less
frequently than every 2 years. The frequency of these examinations shall depend
upon the nature, size and the complexity of the activity. These examinations do
not relieve Federal agencies of their audit responsibilities, but may affect the
frequency and scope of such audits.
b. The primary recipient shall require its subrecipients to adapt the
above standards.
17B. AUDIT REQUIREMENTS (OMB Circular A-128) - [This clause is applicable to all
assistance agreements with State and local governments and Federally recognized
Indian tribal governments)
a. Definitions - For the purposes of this clause the following definitions
from the Single Audit Act apply:
(1) "Cognizant agency" means the Federal agency assigned by the Office
of Management and Budget to carry out their audit responsibilities.
(2) "Federal financial assistance" means assistance provided by a
Federal agency in the form of grants, contracts, cooperative agreements, loans,
loan guarantees, property, interest subsidies, insurance, or direct
appropriations, but does not include direct Federal cash assistance to
individuals. It includes awards received directly from Federal agencies, or
indirectly through other units of State and local governments.
(3) "Federal agency." has the same meaning as the term "agency" in
section 551(1) of Title 5, United States Code.
(4) "Generally accepted accounting principles" has the meaning
specified in the generally accepted government auditing standards.
(5) "Generally accepted government auditing standards" means the
Functions, issued by the Comptroller General on February 27, 1981.
(6) "Independent auditor" means:
(a) An external State or local government auditor who meets the. -
independence standards specified in generally accepted government auditing
standards; or
(b) A public accountant who meets such independence standards.
(7) "Internal controls" means the plan of organization and methods and
procedures adopted by management to ensure that:
0 (a) Resource use is consistent with laws, regulations, and
policies;
30
• (b) Resources are safeguarded against waste, loss, and misuse;
and
(c) Reliable data are obtained, maintained and fairly disclosed
in.reports.
n
LJ
(8) "Indian tribe" means any Indian tribe, band, nations, or other
organized group or community, including any Alaskan Native village or regional or
village corporations (as defined in, or established under, the Alaskan Native
claims Settlement pro rams) and tis servicesgnize provided by ththe e United Statesed States' as 'to'ble for
Indians
the specs programs
because of their status as Indians.
(9) "Local government" means any unit of local government within a
State,_ including a county, a borough, municipality, city, town, township, parish,
local public authority, special district, school district, intrastate district,
council of governments, and any other instrumentality of local government.
(10) "Public accountants" means those individuals who meet the
qualification standards included in generally accepted government auditing
standards for personnel performing government audits:
(11) "State" means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American
Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust territory
of the Pacific Islands, any instru;aentality thereof, and any multi -State
regional, br interstate entity that has governmental functions and any Indian
tribe.
(12) "Subrecipient" means any person or government department, agency
or establishment that receives Federal financial assistance to carry out a
program through a State or local government, but does not include an individual
that is a beneficiary of such a program. A subrecipient may also be a direct
recipient of Federal Financial Assistance.
b. Scope of audit - The Single Audit Act provides that:
(1) The audit shall be made by an independant, auditor in accordance
with generally accepted government auditing standards covering financial and
compliance audits.
(2) Each audit shall cover the entire operations of a State or local
government or, at the option of that government, it may cover departments,
agencies or establishments that received, expended, or otherwise administered
Federal financial assistance during the year. However, if a State or locale
government receives over $25,000 in General Revenue Sharing funds in a fiscal
year, it shall have an audit of the entire organization. A series of audits of
individual departments, agencies, and establishments for the same fiscal year may
be considered a single audit.
31
(3) Public. hospitals and public colleges and universities may be
excluded from State and local audits and the requirements of this clause.
However, if such entities are excluded, audits of these entities shall be made in_
accordance with statutory requirements and the provisions of OMB Circular A-110,
"Uniform Requirements for Grants and Agreements with Institutions of Higher
Education, Hospital(s) and Other Nonprofit Organizations."
(4) The auditor shall determine whether:
(a) The financial statements of the government, department,
agen6, or establishment present fairly its financial position and the results of
its financial operations in accordance with generally accepted accounting
principles;
(b) The organization has internal -accounting and other control
systems to provide reasonable assurance that it is managing Federal financial
assistance programs in compliance with applicable laws and regulations; and
(c) The- organization has complied with laws and regulations that
may have a material effect upon each major Federal assistance program.
C. Fre uenc of audit - Audits shall be made annually unless the State or
local government has by January 1, 1987, a constitutional or statutory
requirement for less frequent audits. For those governments, the cognizant
agency shall permit biennial audits, concerning both years, if the government so
requests. It shall also honor requests for biennial audits by governments that
have an administrative policy calling for audits less frequent than annual, but
only for fiscal years beginning before January 1, 1987.
d. „internal control and compliance reviews - The Single Audit Act requires
that the independent auditor determine and report on whether the organization has
internal control systems to provide reasonable assurance that it is managing
Federal' assistance programs in compliance with applicalbe laws and regulations.
(1) Internal -control review. In order to provide this assurance the
auditor must make a study and evaluation of internal control systems used in
administering Federal assistance programs. The study and evaluation must be made
whether or not the auditor intends to place reliance on such systems. As part of
this review, the auditor shall:
(a) , Test whether these internal control systems are functioning
in accordance with prescribed procedures.
(b) Examine the recipient's system for monitoring subrecipients
and obtaining and acting on subrecipient audit reports.
(2) Compliance review - The law also requires the auditor to determine
whether the organization has complied with laws and regulations that have a
material effect upon each major Federal assistance program.
(a) In order to determine which- major programs are to be tested
for compliance, State and local governments shall identify in their accounts all
• Federal funds received and expended and the programs under which they were
received. This shall include funds received directly from Federal agencies and
through other State and local governments.
32
(b) The review must include the selection and testing of a
representative number of charges from each major Federal assistance program. The
selection and testing of transactions shall be based on the auditor's
professional judgment considering such factors as the amount of expenditures for
the program and the individual awards; the newness of the program or changes in
its conditions; prior experience with the program particularly as revealed in
audits and other evaluations (e.g., inspections, program reviews); the extent to
which the program is carried out through subrecipients; the extent 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 adherencettol thefor
applicablec lawsaand; the regul tieonstiand theadherence
potential
lack of a
impact of adverse findings.
(i) In making these 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
benefits were eligible to receive them.
(ii) In addition to transaction testing, the auditor shall
determine whether:
--matching requirements, levels of effort and
earmarking limitations were met,
--Federal financial reports and claims for advances and
reimbursements contain information that is supported by the books and records
from which the basic financial statements have been prepared, and
--amounts claimed or used for matching were determined
in accordance with OMB Circular A-87, "Cost Principles for State and Local
Governments" and OMB Circular A-102, "Uniform Requirements for Grants and
Agreements with State and Local Governments."
(iii) The principal compliance requirements of the largest
Federal aid programs may be ascertained by referring the the Compliance
u lement for
Single Audits f� S ate and Local Gov rnment, issued by OMB and
available from the Government Printing Office. For those programs not covered in
the Compliance Supplement, the auditor may ascertain compliance requirements by
researching the statutes, regulations, and agreements governing individual
programs.
(c) Transactions related to other Federal assistance programs that are
d connection xi financial
aaievaluations
of internal controls shall betested forcompliance with Federal laws and
regulations that apply to such transactions.
e. S br tance nts and - State or local provides $25 000 orgmorenofnts that it in a fiscalvyeardtoaa
financial asses
subrecipient shall:
(1) Determine whether State or local subrecipients have met the audit
requirements of this clause and whether subrecipients covered by OMB Circular
Hospit sq and Other tion -Profit Organiuirements for zations,* havrants and ermetents with that requirement;sities,
Hospitals, and
33
(2) Determine whether the subrecipient spent Federal assistance funds
provided in accordance with applicable laws and regulations. This may be
ac,complished by reviewing an audit of the subrecipient made in accordance with
this clause. OMB Circular A-110, or through other means (e.g., program reviews)
if the subrecipient has not had such an audit;
(3) Ensure that appropriate corrective action is taken within 6 months
after issuance of the audit report in instances of noncompliance with laws and
regulations;
. (4) Consider whether subrecipient audits necessitate adjustment of the
recipient's own records; and
(5) Require each subrecipient to permit independent auditors to have
access to the records and financial statements as necessary to comply with this
clause.
f. Relation to other audit requirements.
.(1) The provisions of this clause do not limit the authority if FWS to
make, or contract for audits and evaluations of Federal financial assistance
programs, nor do they limit the authority of any Federal agency Inspector General
or other Federal audit official.
(2) FWS shall make any additional audits that are necessary to carry
out its responsibilities under Federal law or regulations. The provisions of
this clause do not authorize any State or local government (or subrecipient
thereof) to constrain, in any manner, FWS from carrying out such additional
audits.
(3) If FWS makes or contracts for audits in addition to the audits
made by- recipients pursuant to this clause, it shall, consistent with other
applicable laws and regulations, provide for the cost of such additional audits.
Such additional audits include economy and efficiency audits, program results
audits, and program evaluations.
g. Illegal acts or irregularities - If the auditor becomes aware of
illegal acts or other irregularities, prompt notice shall be give to recipient
management officials above the level of involvement. The recipient, in turn,
shall promptly notify the cognizant agency of the illegal acts or -irregularities
and of proposed -and actual actions,. if any. Illegal acts and irregularities
include such matters as conflicts of interest, falsification of records or
reports, and misappropriations of funds or other assets.
h.. Audit Reports - Audit reports must be prepared at the completion of the.
audit and shall include the following:
(l) The audit report shall state that the audit was made. in accordance
with the provisions of this clause. The report shall be made up of at least:
34
(a) The auditor's report on financial statements and -on a
• schedule of Federal assistance; otal financialthe statements;
for Beach Federal assistance
chedule of
ex assistance
Federal assistance showing the P
program as identified in the �atatoebeen Fassigned a scatalogin m er sh llerbe
programs or grants that have no
identified under the caption "other Federal Assistance."
(b) The auditor's report on the study and evaluation of internal
control systems must identify thorganization's
gztoi Prov denificant reasonable internalaccounting
that
controls, and those controls designed com liance with laws and regulations. It
Federal programs are being managed in P
must also identify the controls that were
identifiedtas+atresult of the evaluation�t
evaluated, and the material weaknesses
(c) The auditor's report on compliance containing:
(i) A statement of positive assurance with respect to
those items tested for compliance
and advances and reimbursements; liance with law and lations
pertaining to financial reports those items not tested;
er 9 on
P -assurance {ii} Negative and
(iii) A summary of all in a�famountsplque ti�oned, if
(iv) An identification
of tot
any, for each Federal assistance award, as a result of noncompliance.
(2) The three parts of the se report
oate docume be bound into a single
report, or presented at the same time as Par
• (3) All fraud abuse,
s s the resultal acts rof these acts t at indications of auditors
including all questioned costs found a
become aware of, should normally be covered in a separate written report.
(4) In addition to the audit report,
reportiincludingient aa plan
ide
comments on the findings and recommendations in
correctsve actions taken or plannedlfn�orrtive action ison the -not not of corrective
va
action taken on prior findings
statement describing the reason it is not should accompany the audit report.
(5) The reports shall be
made 30 daysaal letion ofthe athe audit. te or cal
government for public inspection withftercomp
ndar
b In accordance with generally accepted government a dit sda andds,
reports shall be submitted by the auditor to the organization
recipient shall
to
re
those requiring or arranging for the audit. In addition, the that provided
submit copies of the reports to each Federal department or agency
Federal assistance funds to theFederale assistancec�fundss sThe reports ienthall submitcshall be
recipients that provided themut no later than one
sent within 30 days after the comunless aetion of the longersperiod is agreed to withythe
after the end of the audit period
cognizant agency.
t7) Recipients of more than ss afte00�ssuancein eral to afunds centralall tlearbmit one
inghouse
of the audit report within 30 day et. The clearinghouse will
copyManagement and Budget. to be designated by the Office of
keep completed audits on file and follow up with State and local governments that
have not.submitted required audit reports.
35
• (8) Recipients shall keep audit reports on file for three years from
thier issuance.
(i) Audit Resolution - The conizant agency shall be responsible for
overseeing the resolution of audit findings that affect the programs of more than
one Federal agency. Resolution of findings that relate solely to the programs of
FWS will be the responsibility of the recipient and FWS. Alternate arrangements
may be made on a case-by-case basis by agreement between the agencies concerned.
Resolution shall be made within six months after receipt of the --report
by the departments and agencies. Corrective action should proceed as rapidly as
possible.
(j) Audit workpaper and reports Workpapers and reports shall be retained
for a minimum of three years from the .date of the audit report, unless the
auditor is notified in writing by the cognizant agency to extend the retention
period. Audit workpapers shall be made available upon request to the cognizant
agency or its designee or the General Accounting Office, at the completion of the
audit.
(k) Audit Costs - The cost of audits made in accordance with the provisions
of this clause are allowable charges to Federal assistance programs.
(1) The charges may be considered a direct cost or' an allocated
indirect cost, determined in accordancee with the provisions of Circular A-87,
"Cost Principles for State and Local Governments."
(2) Generally, the percentage of costs charged to Federal assistance
programs for a single audit shall not exceed the percentage that Federal funds
represent of total expenditures of the recipient during the fiscal year. The
percentage may be exceeded, however, if appropriate documentation demonstrates
higher actual cost.
(1) Sanctions - No cost may be charges to Federal assistance programs for
audits required by the Act that are not made in accordance with this clause. In
cases of continued inability or unwillingness to have a proper audit, FWS may
consider other appropriate sanctions including:
(1) withholding a percentage of assistance payments until the audit is
completed satisfactorily.
(2) withholding or disallowing overhead costs, or
(3) suspending the Federal assistance agreement until the audit is
made.
(m) Auditor Selection - In arranging for audit services State and local
governments shall follow the procurement standards prescribed in Clause 16. The
standards provide that while recipients are encouraged to. enter into
intergovernmental agreements for audit and other services, analysis should be
made to determine whether it would be more economical to purchase the services.
• from private firms. In instances where use of such intergovernmental agreements
are required by State statutes (e.g., audit services) these statutes will take
precedence.
36
• (n) Small and M I inority Audit Firms - Small audit firms and audit firms
owned and controlled by socially and economically disadvantaged individuals shall
have the maximum practicable opportunity to participate in the performance of ..
of tracti Federalaassista assistance shalled to l the take thedit followRecipients
following steps to further this goal
of Fe
(1)andAssure
economi�callyat small
disadvantagedfirms
and audit individuals firms
controlled
by socially are used to the fullest
extent practicable.
(2) Make information on forthcoming opportunities available and
arrange timeframes rmsthe
and audit
audito as to firms owned and
socially facilitate
and participation
by small audit f .
disadvantaged individuals.
(3) Consider in the contract process whether firms competing for
larger audits intend to subcontract 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 such cases where this is hot
possible, assure that these firms are givern consideration for audit
subcontracting opportunities.
(5) Encourage contracting with consortiums of small audit firms as
described n firm ooraauditph 1)firmvow ed aboe when
a contract is too lare and controlled by sociallyfor a
n individual
small auditand economically
disadvantaged individuals.
(6) Use the services and assistance, as appropriate, of such
organSmall
Administration
rit
ion and
utilization
tilizationof small audit firms or audiitfirmsowed and cotrolledbysocially
and economically disadvantaged individuals.
17C. AUDIT REQUIREMENTS - (April. 1984, Deviations, FAR 52.215.2) - [This clause
is applicable to all assistance agreements with commercial organizations
involving the transfer of Federal funds]
a. Examination of Cost - The recipient shall maintain --and the SO or
representatives of the SO shall have the right to examine and audit --books,
records, documents, and other evidence and accounting procedures and practices,
sufficient to reflect properly all costs claimed to have been incurred or
anticipated to be incurred in performing this agreement. This right of
examination shall include inspection at all reasonable times of the recipient's
facilities or parts of them, engaged in the performance of the agreement.
b, Cost or PriciDg Data The SO or representatives of the SO shall have the
right to examine and audit -all books, records, documents, and other data of the
recipient (including computations and projections) related to pricing or
performing the
initial
agreement
currencysubsequent
the costforatins pricingndataorder to evaluate
completeness the accuracy,
37
.c. Reports - If the recipient is required to furnish cost, funding, or
• performance reports, the SO or representatives of the SO shall have the right to
examine and audit books, records, other documents, and supporting materials, for
the purpose of evaluating (1) the effectiveness of the recipient's policies and
procedures to produce data compatible with the objectives of these reports and
(2) the data reported.
d.- Availabilitx - The recipient shall make available at its office at all
reasonable times the materials described, in paragraphs a and b above, for
examination, audit, or reproduction, as specified in the clause entitled
Retention and Custodial Reauirements for Records.
In addition, the recipient shall insert a clause containing all the terms of this
clause, including this paragraph, in all subcontracts over $100,000 under this
agreement, altering the clause only as necessary to identify properly the
contracting parties and the SO under the Government prime agreement.
18. STANDARD PATENT RIGHTS - (OMB Circular A-124) - [This clause is applicable
to all assistance agreements for the performance of research and development work
unless otherwise superceded in the Special Provisions of the individual
assistance agreement]
a. Definitions
(1) "Invention" means any invention or discovery which is or may be
patentable or otherwise protectable under Title 35 of the United States Code.
(2) "Subject Invention" means any invention of the recipient conceived
or first actually reduced to practice in the performance of work under this
agreement.
(3) "Practicable' Application" means to manufacture in the case of a
composition or product, to practice in the case of a process or method, or to
operate in the case of a machine or system; and, in each case, under such
conditions as to establish that the invention is being utilized and that its
benefits are, to the extent permitted by law or Government regulations, available
to the public on reasonable terms.
(4) '"Made" when used in relation to any invention means the conception
or first actual reduction to practice of such invention.
(5) "Small Business Firm" means a domestic small business concern as
defined at section 2 of Public Law 85-536 (15 U.S.C. 632) and implementing
regulations of the Administrator of the Small Business Administration. For the
purpose of this clause,the size, standards for small business concerns involved
in Government procurement and subcontracting at 13 CFR 121.3-12, respectively,
shall be used.
(6) "Nonprofit Organization" means a domestic university or other
institution of higher education or an organization of the type described in
section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)) and
exempt from taxation under section 501(a) of the Internal Revenue Code (26 U.S.C.
501(a)) or' any domestic nonprofit scientific or educational organization
• qualified under a state nonprofit organization statute.
38
b, llocation of Princi le Ri ht - The recipient may retain the -entire
• ughout the world to each subject invention subject
right, title, and interest thro
to the provisions of this clause and 35 U.S.C. 203. With respect to any subject
invention in which the recipient retains title,
the Federal Government shall have
a non-exclusive non -trans n ebeh if of irrevocable,
United States these to subjectrai vention,
e or
have practiced for
throughout the world.
(1) The recipient shall disclose each subject invention to Fws witnin
2 months after the inventordiscloses
disclosure to WS shall be ito nient the formoofea
responsible for patent matters.
written report and shall identify the agreement under which the invention was
made and the inventor(s). it shall be sufficiently complete in technical detail
to convey a clear understanding,eooset operation,eandnt known at the physical, chemical, ime of the
biological
disclasure, of the natu , p
or electrical characterisoticsale th inv nti not t eeinvention r ndswhether sa
identify any publication,
manuscript describing the
v}on forhas publeen submitted fr cation at the timepofl disclosures' In
so, whether it has been accepted
addition, after disclosureuscrito ht describingthe e the i nve tilon for publ cation FWS Of of
the acceptance of any man p
any on sale or public use planned by the recipient.
(2) The recipient shall elect in writing whether or not to retain
title to any such invention by
inany notifying csehwhere publication, the FWS within 12 nhs of sale,dorclosure
public
to the recipient, provided that
use has initiated the one year statutory period wherein valid patent protection
can still be obtained in the United
date that isates, the no more thaniod of 60 days election
tofthetitle
endmof
be shortened by FWS to
the statutory period.
(3) The recipient shall file its initial patent application on an
elected invention within 2 yearn aft'valid
election stent protect onif s can be obtained ior to the
the
of any statutory period where P
United States after a publitaatdiditionalon scountrieor suwithinuse.
eitherThe
10emonthstofshall
the
file patent applications in
corresponding initial patent
plication or 6 mon and Trademarks ths from
file foreign permission
granted by the Commissionerof Patents
applications where such filing has been prohibited by a Secrecy Order. -
(4) Requests for extension of the
time
ibe forgrandisclosure to FWS,
election, and filing may, at the discretion
d, renditions When the Governme Ma btain Title - The recipient shall
convey to FWS, upon written request, title to any subject invention:
(1) If the recipient fails to disclose or elect the subject invention
within the times specified in da s after or elects le ruing oftto retain the recipienttsefailuremto
only request title within 60 y
• report or elect within the specified times.
39
(2) In those countries in which the recipient fails to file patent
applications with the times specified in c. above; provided, however, that if the
recipient has filed a patent application in a country after the times specified --
in c. above, but prior to its receipt of the written request of
FWS, the recipient shall continue to retain title in that country.
(3) In any country in which the recipient decides not to continue the
prosecution of any application for, to pay the maintenance fees on, or defend in
reexamination or opposition proceeding, on a patent on a subject invention.
e. Minimum Rights to Recipient
(1) The recipient shall retain a nonexclusive, royalty -free license
throughout the world in each subject invention to which the Government obtains
title except if the recipient fails to disclose the subject invention within the
times specified in c. above. The recipients's license extends to its domestic
subsidiaries and affiliates, if any, within the organizational structure of which
the recipient is a party and includes .the right to grant sublicenses of the same
scope to -the extent the recipient was legally obligated to do so at the time the
agreement was awarded. The license is transferable only with the approval of FWS
except when transferred to the successor of that party of the recipient's
business to which the invention pertains.
(2) The recipient's domestic license may be revoked or modified by FWS
to the extent necessary to achieve expeditious practical application of the
subject invention pursuant to an application for an exclusive license submitted
in accordance with applicable provisions in the Federal Property Management
Regulations and FWS licensing regulations (if any). This license shall not be
revoked in that field of use or the geographical areas in which the recipient has
achieved practical application and continues to make the benefits of the
invention reasonably accessible to the public. The license •in any foreign
country. may be revoked or modified at the discretion of FWS to the extent the
recipient, its licensees, or its domestic subsidiaries or affiliates have failed
to achieve practical application in the foreign country.
(3) Before revocation or modification of the license, FWS shall
furnish the recipient a written notice of its intention to revoke or modify the
license, and the recipient shall be allowed 30 days (or such other time as may be
authorized by the FWS for good cause shown by the recipient) after the notice to
show cause why the license should not be revoked or modified.' The recipient has
the right to appeal, in accordance with applicable FWS licensing regulations (if
any) and the Federal Property Management Regulations concerning the licensing•of
Government-owned inventions, any decision concerning the revocation or
modification of its license.
f. Recipient tion to Protect the Government's Interest
(1) The recipient agrees to execute or to have executed and promptly
deliver to FWS all instruments necessary to (i) establish or confirm the rights
the Government has throughout the world in those subject inventions to which the
recipient elects to retain title, and (ii) convey title to FWS when requested
under paragraph d. above, and to enable the Government to obtain patent
protection throughout the world in that subject invention.
40
(2) The recipient agrees to require, by written agreement, its
employees, other than clerical and nontechnical employees, to disclose promptly
in writing to personnel identified as responsible for the administration of
patent matters and in a format suggested by the recipient each subject invention
made under agreement in order that the recipient can comply with the disclosure
provisions- of paragraph c. above, and to execute all papers necessary to file
patent applications on subject inventions and to establish the Government's
rights in the subject inventions. This disclosure
format The recipient sh require,
as ca
minimum, the information required by c(1) sclos
such employees through employee agreements or other suitable educational programs
on the importance of reportingo
{invsntio s in sufficient
rs
time to
permit the -filing
gn
of patent applications prior
(3) The recipient shall notify FWS of any decision not to continue the
prosecution of a patent application, pay maintenance fees, or defend in a
reexamination or opposition proceeding on a patent, in any country, not less than
30 days before the expiration of the response period required by the relevant
patent office.
(4) The recipient agrees, to include, within the specification any
United States patent application and any patent issuing thereon covering a
subject invention, the following statement: "This invention was made with
Government support under overnmentythe has certain rightsent aineth is invention."Fish and
Wildlife Service). Th
g. Subcontracts - The recipient shall include this clause suitably
modified to identify the parties, in all subagreements, regardless of tier, for
experimental, developmental, or research work to be performed by a small business
firm or nonprofit organization. The subrecipient shall retain all rights
provided for the recons for awardi g clause,
and the ubagreementpiobtainent alrights in l not, as pthe
art
of the 'consideration
subrecipient's subject inventions.
h. Reporting utilization of Subject Inventions - The recipient agrees to
submit on request periodic reports no more frequently than annually on the
utilization of a subject invention or on efforts at obtaining such utilization
that.are being made by the recipient or its licensees or assignees. Such reports
shall include information regarding the status of development, date of first
commercial sale or use, gross royalties received by the recipient, and such other
data and information as the agency may reasonably equested.by The reci ie n nt aiso
agrees to provide additional reports as may
with any march -in proceedings undertaken by FWS in accordance with paragraph j.
of this clause. To the extent data or information supplied under this section is
considered by the recipient, its licensee or assignee to be privileged and
confidential and is so marked, FWS agrees that, to the extent permitted by law,
it shall not disclose such information to persons outside the Government.
i. Preference for United States_IndusC - Notwithstanding any other
provision of this use, the recipient agrees that neither it nor any assignee
will grant to any person the exclusive right to use or sell any subject invention
in the United Stites unless sufaciured substantially rees that in the Unit d St troducts esing the
subject invention shall be man
41
However, in individual, cases, the requirement for such an agreement may be waived
by the FWS upon a showing by the recipient or its assignee that reasonable but
unsuccessful efforts. have been made to grant licenses on similar terms to
potential licensees that would be -likely to manufacture substantially in the
United States or that under the circumstances domestic manufacture is not
commercially feasible.
J.' March -in -Rights - The recipient agrees that with respect to any subject
invention in which it has acquired title, FWS has the right in accordance with
the procedures in OMB Circular A-124 to require the recipient, an assignee or
exclusive licensee of a subject invention to grant a non-exclusive, partially
exclusive, or exclusive license in any field of use to a responsible applicant or
applicants, upon terms that are reasonable under the circumstances, and if the
recipient, assignee, or exclusive licensee refuses such a request, FWS has the
right to grant such a license itself if FWS determines that:
(1) Such action is necessary because the recipient or assignee has not
taken, or is not expected to take within a reasonable time, effective steps to
achieve practical application of the subject invention in such field of use;
(2) Such action is necessary to alleviate health or safety needs which
are not reasonably satisfied by the recipient, assignee, or their licensees;
(3) Such action is necessary to meet requirements for public use
specified by Federal regulations and such requirements are not reasonably
satisfied by the recipient, assignee, or licensees; or
(4) Such action is necessary because the agreement required by
paragraph i..of this clause has not been obtained or waived or because a license
of the exclusive right to use or sell any subject invention in the United States
is in breach of such agreement.
k. Special Provisions for Agreements with Non - ofit Organizations - If the
recipient is a nonprofit organization, it agrees that:
(1) Rights to a subject invention in the United States may not be
assigned without the approval of FWS, except where such assignment is made to an
organization which has as one of its primary functions the management of
inventions and which is not, itself, engaged in or does not hold a substantial
interest in other organizations engaged in the manufacture or sale of products or
the use of processes that might utilize the invention or be in competition with
embodiments of the invention (provided that such assignee shall be subject to the
same provisions as the recipient);
(2) The recipient may not grant exclusive licenses under United States -
patents or patent applications in subject inventions to persons other than small
business firms for a period in excess of the earlier of:
invention; or
C
(i) Five years from first commercial sale or use of the
42
• (ii) Eight years from the date of.the exclusive license excepting
that time before regulatory agencies necessary to obtain premarket clearance,
unless on a case-by-case basis, FWS approves a longer exclusive license. if
exclusive field of use licenses are -granted, commercial sale or use in one field
of use shall not be deemed commercial
i tosale or end these with exclusivesperiod toect to a product of
different
the invention shall no be
subsequent product's covered by the invention.
(3) The recipient shall share royalties collected on a subject
invention with the inventor; and
(4) The balance of any royalties or income earned by the recipient
with respect to subject inventions, after payment of expenses (including payments
to inventors) incidential to the administration of subject inventions, shall be
utilized for the support of scientific research or. education.
19. DATA CO LECTION - (Paperwork Reduction Act of 1980) - [This clause shall be
applicable to all assistance agreements through which FWS sponsors the collection
of information as defined in 5 CFR* 1320.1]
a. OMS requires review and approval of plans and reports used to collect
identical information from 10 or more persons (other than Federal employees)
under assistance agreements sponsored by FWS. A collection of information
undertaken by a recipient is considered to be "sponsored" by FWS only if:
(1) The recipient is collecting information at the specific request of
FWS; or
(2) The terms and conditions of. the agreement require specific
approval by FWS of the collection of information or the collection procedures.
b. Unless otherwise specified, data collection conducted under.t_he
assistance agreement is.the responsibility of the recipient, and FWS support bf
the project does not constitute FWS approval of the survey design, questionnaire
content, or data collection procedures. The recipient shall not represent to
respondents that such data is being collected for, or in association with, the
FWS or any Federal agency without the specific written approval of such data
collection plan or device by the FWS. However, this requirement is not intended
to preclude mention of FWS support of the
projion of this data to any inquire or
acknowledgement of such support in any p
2O. RiGHTs IH TECHNICAL A AND COMPUTER SOFTWARE - [This clause shall be
applicable to all assistance agreements involving the accumulation of technical
data or the development of computer software financed in whole or in part with
Federal funds)
a. Definitions
(1) The term "technical data" means recorded information, regardless
of form or characteristic, of a scientific or technical nature. Technical data
does not include computer software, and it .does not include financial,
administrative, cost pricing, and management data, or other information
• incidental.to contract administration.
43
• (2) Computer Software - Computer programs and computer data bases.
(3) Computer Software Docume t tio - Technical data, including
computer listings and printouts, in human -readable form which (i) documents the•_
design or details of computer software, (ii) explains the capabilities of the
software, or (iii) provides operating instructions for using the software to
obtain desired results from a computer.
(4) Unlimited Rights means rights to use, duplicate, or disclose
technical data or computer software in whole or in part, in any manner and for
any purpose whatsoever, and to have or permit others to do so.
(3) Limited Rights means rights to use, duplicate, or disclose
technical data, in whole or in part, by or for the Government, with the express
limitation that such technical data shall not, without the written permission of
the party furnishing such technical data be (a) released or disclosed in whole or
in part outside the Government, (b) used in whole or in part by the Government
for manufacture, or in the case of computer software documentation, for preparing
the same or similar computer software, or (c) used by a party other than the
Government, except for emergency repairs or release to a foreign government as
the interest of the United States may require. --
(6) Restricted Rights apply only to computer software and include, as
a minimum, the right to: (i) use computer software with the computer (or if
inoperative, a backup) for which it was acquired at any Government installation;
(ii) copy computer programs for safekeeping (archives) or backup purposes; (iii)
modify computer software or combine it with other software, subject to
continuation of the existing restricted rights provisions.
b. Government Rights
(1) Unlimited Rights - The Government shall have unlimited rights in:
(a) ' Technical data and computer software resulting directly from
performance of experimental, developmental or research work which was specified
as an element of performance in this or any other Government assistance agreement
or contract, at any tier;
(b) Computer software required to be originated or developed or
generated as a necessary part performance under this or any other Government
assistance agreement or contract, at any tier;
(c) Computer data bases prepared under this or any other
Government assistance agreement or contract at any tier consisting of information
supplied by the Government, information in which the Government has unlimited,
rights, or information which is in the public domain;
(d) Technical data or computer software, constituting
corrections or changes to Government -furnished data or computer software,
prepared or required to be delivered under this or any other Government
assistance agreement or contract at any tier;
(e) Technical dataor computer software which is in the public
domain or has been or is normally released or disclosed by the recipient or
subrecipients without restriction or further disclosure;
44
• (f) Technical data or computer software listed -or described
elsewhere in this assistance agreement which the parties have predetermined and
agreed will be furnished with unlimited rights. -
(2) Limited Riohts - The Government shall have -limited rights in:
(a) Technical data, listed or described elsewhere in this
assistance agreement which the parties have agreed will be furnished with limited
rights;
(b) Unpublished technical data developed at private expense and
unpublished computer software documentation related to computer software that is
acquired with restricted rights provided that the data to which the Government's
rights are limited i's identified.
(3) Restricted Rights - The Government shall have restricted rights in
computer software, listed or described elsewhere in this assistance agreement,
which -the parties have agreed will be furnished with restricted rights, provided
further that:
(a) The recipient clearly marks the computer software with a
restricted rights legend and the related computer software documentation includes.
a prominent statement of the restrictions applicable to the computer software.
Failure of the recipient to apply a restricted rights legend to such computer
software shall relieve the Government of liability with respect to such unmarked
software.
(b) The recipient may not place any legend on computer software
indicating restrictions on the Government's rights in such software unless the
restrictions are set forth elsewhere in this assistance agreement and agreed to
by the parties prior to the delivery data of the software.
(4)' No legend shall be marked on, nor shall any limitation or
restriction on rights of use* to any data or computer software which the recipient
has previously delivered to the Government without restriction. The limited or
restricted rights provided for by this clause shall not impair the right.of the
Government to use similar or identical data or computer software acquired from
other sources.
C. lndemnifi ation - The recipient shall indemnify -and save and hold
harmless the Government, its officers, agents, and employees acting within the
scope of their- official duties against any liability, including costs and
expenses, resulting from any willful or intentional violation by the recipient of
proprietary rights; copyrights, or rights or privacy, arising out of the.
publication, translation, reproduction, delivery, performance, use or disposition
of any data furnished under this assistance agreement.
d. AcQuisition of Technical Data and Computer 5oftware from Subcontractors
(1) Whenever any technical data or computer software is to be obtained
from a subcontractor under this agreement, the recipient shall use this same
clause in the subcontract, without -alteration, and no other clause shall be used
to enlarge or diminish the Government's or the recipient's rights in that
subcontractor data or computer software which is required for the Government.
45
(2) The recipient and higher -tier subcontractors will not use their
• power to award subcontracts as -economic leverage to acquire rights in technical
data or computer software from their subcontractors for themselves.
e. Relation to Patents - Nothing contained in this clause shall imply a'-
license to the Government under any patent or be construed as affecting the scope
of any license or other right otherwise granted to the Government under any
patent.
21. RESTRICTIONS ON PRINTING -(Government Printing and Binding Regulations
published by the Joint . Committee on Printing, Congress of the United States) -
[This clause is applicable to all assistance agreements except those in which the
entire cost of printing is not borne by the FWS or the printing is not
exclusively for the FWS' use)
a. This assistance agreement is not made primarily or substantially for
the purpose of typesetting or having material printed for FWS use.
b. Recipients may reproduce without further authorization, reports, data,
or other written material required -under the terms of the agreement for the use
of FWS, provided that the material duplicated does not exceed 5,000 units of only
one page, or that items consisting of multiple pages do not exceed 25,000 units
in the aggregate. Recipients -must advise the SO if the estimated quantities will
exceed these ceilings so that Departmental/Committee approval can be obtained.
c. These restrictions do not preclude the writing, editing, preparation of
manuscript copy and relEted illustrative material, or the publication of findings
by recipients; or the administrative printing requirements of the recipient
required for its own use to respond to the terms of the agreement.
22. NISTRATIVE PROVISIONS AND ASSURANCES - [The following provisions
and assurances are applicable to all assistance agreements]
The recipient hereby assures and certifies that:
a. It possesses legal authority to apply for and accept this Agreement;
that any necessary resolution, motion or similar action has been duly adopted or
passed as an official act of it's governing body, authorizing the filing of any
application, 'including all understandings and assurances contained therein and
directing and authorizing any person identified as it's official representative
to act in connection with any application or acceptance and to provide such
information as may be required.
b. It shall comply with Title VI of the Civil Rights Act of 1964 (P.L. 88-
352), and in accordance with Title VI of the Act, 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 otherwise subjected to
discrimination under any program or activity for which recipient receives Federal
financial assistance and shall immediately take any measures necessary to
effectuate this Agreement.
46
. c . it shall comply with Title VI of Civil Rights Act of 1964 (42-U.S.C.
• 2000d) prohibiting employment discrimination where (i) the primary purpose of an
agreement is to provide employment or (ii) discriminatory employment practices
will result in unequal treatment of persons who are or should be benefiting form
the assistance -aided activity.
d. It shall comply with the provisions of the Age Discrimination Act of
1975 (PI.L. 94-135; 42 U.S.C. 6101, et. seq.) and in accordance with that Act,
shall prohibit discrimination on the basis of age.
e.. It, shall comply, to the extent applicable, with Title IX of the
Education Amendments of 1972 (20 U.S.C. 1681, et. seq.) which provides that no
person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination
under any educational program or activity receiving Federal financial assistance.
f. It shall comply with Section 504 of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 794, P.L. 93-112), and all requirements imposed by or pursuant
to the regulations of .the Department of Health, Educatior4 and -Welfare (45 CFR
Parts 80, 81 and 84), promulgated under the foregoing statute. It agrees 'that,
in accordance with the foregoing requirements, no otherwise qualified handicapped
person, by reason of handicap, shall be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance, and that it shall take any measures
necessary to effectuate this Agreement.
g. It shall comply 'With requirements of the provisions of the Uniform
Relocation Assistance and Real Property Acquisitions Act of 1970 (P.L. 91-646; 42
U.S.C. 4601, et. seq.) which provides for fair and equitable treatment of persons
displaced as a result of Federal and Federally assisted programs.
h. It shall comply with the minimum wage and maximum hours provisions of
the Federal Fair Labor Standards Act (29 U.S.C.- 500, et. seq.) requiring. the
payment of the minimum wage for all covered employees and the payment of
overtime.
J. It shall establish safeguards to prohibit employees from using their
positions for a purpose that is or gives the appearance of being motivated by a
desire for private gain for themselves or others, particularly those with whom
they have family, business, or other ties.
J. It shall assure that no member of or delegate to Congress, or resident
Commissioner, will be admitted to any share or part of this assistance agreement,
or to any benefit that may arise from it. And further, it shall comply with the
provisions of 18 U.S.C. 1913 which prohibits the direct or indirect use of any
funds appropriated by Congress to pay for any personal service, advertisement,
telegram, telephone, letter, printed or written matter, or other device intended
or designed to influence a member of Congress, to favor or oppose, any
legislation or appropriation, whether before or after the introduction of any
bill or resolution proposing such legislation or appropriation. Finally, it
warrants that it has not paid and agrees not to pay any bonus, commission or fee
for the purpose of obtaining approval of it's application for the financial
assistance agreement.
:�i
k. It shall comply with the flood insurance purchase requirements of
•Section 102(a) of the Flood Disaster Protection Act of 1973 (P.L. 93-234, 87
•Stat. 975 approved December 13, 1975) which call for the purchase of flood
insurance in•communities where such insurance is available as a condition for the -.
receipt of any Federal financial assistance for construction or acquisition
purposes 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. The
phrase "Federal financial assistance" includes any form of loan, grant, guaranty,
insurance payment, rebate, subsidy, disaster assistance loan or grant, or any
other form of direct or indirect Federal assistance.
1. It shall ensure, pursuant to Executive Order 11738, that the facilities
under its ownership, lease, or supervision, which shall be utilized in the
accomplishment of the agreement are not listed on the Environmental Protection
Agency (EPA) list of violating facilities and that it shall notify FWS of the
receipt of any communication from the. Director of the EPA Office of Federal
Activities indicating that a facility to be used in the project is .under
consideration for listing by the EPA.
M. It shall comply with the provisions of the National Environmental
Policy Act of 1969, (P.L. 91-190) and Executive Order 11514, as amended by
Executive Order 11991, which promotes efforts to prevent or eliminate damage to
the environment and biosphere and requires an Environmental Impact Statement when
plans and programs may affect the quality of the environment.
n. It shall comply, to the extent applicable, with all the requirements of
Section 114 of the Clean Air Act, as amended (42 U.S.C. 1857, et. seq., as
amended by P.L. 91-604) and Section 308 of the Federal Water Pollution Control
Act (33 U.S.C. 1251 et. seq., as amended by P.L. 92-500), respectively, relating
to inspection, monitoring, entry, reports, and information, as well as other
requirements specified in Section 114 and Section 308 of the Air Act and the
Water Act, respectively, and all regulations and guidelines issued thereunder.
o. It will comply with the provisions of Executive Order 11288, relating
to the prevention, control and abatement of water pollution.
p. It shall assist FWS in its compliance with Section 106 of the National
Historic Preservation Act of 1966, as amended (16 U.S.C. 470), Executive Order
11593, and the Archaeological and Historic Preservation Act of 1966 (16 .U.S.C.
469a-1 et. seq.) by (i) consulting with the State Historic Preservation Officer
on the conduct of investigations, as necessary, to identify properties listed in
or eligible for inclusion in the National Register of Historic Places that are
subject to adverse effects (see 36 CFR Part 800.8) by the activity; and notifying
FWS of the existence of any such properties, and by (b) complying with all
requirements established by FWS to avoid or mitigate adverse effects upon such,
properties.
q. -It shall comply with the provisions of the Cargo Preference Act of 1958
(46 U.S.C. 1241(b)(1)) as it relates to ensuring fair and reasonable
participation by privately owned U.S. Flag commercial vessels in transporting
cargos and the requirement of the International Air Transportation Fair
Competitive Practices Act of 1974 (49 U.S.C. 11596) for preferential use of U.S.
• Flag air carriers for the international transportation of persons, personal
effects and other cargo.
48
r. It shall comply with the provisions of Section 176 (c) of the -Clean Air
• Act (42 U.S.C. 7401, et seq.) to assure that Federal assistance activities do not
detrimentally affect State efforts to attain and maintain the national ambient
air quality standards and protect air quality cleaner than the standards.
S. It shall comply with the provisions of the Endangered. Species Act of
1973, as amended (16 U.S.C. 1531, et. seq.) to assure that Federal assistance
activities are not likely to jeopardize the continued existence of any endangered
or threatened species or result in the destruction or adverse modification of
critical habitat of such species.
0
t. It shall comply with the provisions of,the Marine Mammal Protection Act
of 1972, as amended (16 U.S.C. 1361, et. seq.) as it relates to restriction on
the taking and use of marine mammals.
u.' It shall comply with the requirements of the Laboratory Animal Welfare
Act of 1966, as amended (7 U.S.C. 2131, et. seq.) and the regulations promulgated
by the U.S. Department of Agriculture pertaining to the care, handling and
treatment of warm-blooded animals held or used for research, teaching or other
activities supported by Federal funds.
V. It shall comply with the requirements of the Federal Insecticide,
Fungicide and Rodenticide Act, as amended (7 U.S.C. 135, et. seq.) as it relates
to the application of any pesticide.
W. It shall comply with the requirements of the National Research Act of
1974, as amended [42 U.S.C. 289 (1)(3)] and regulations issued by the U.S.
Department of Health and Human Services (45 CFR, Part 46) as they relate to
safeguarding the rights and welfare of any human subjects involved in research,
development and related activities supported by Federal assistance funding.
X. It shall comply with the requirements of the Privacy Act of 1974 [5
U.S.C. 552(a)], OMB Circular A-108 and the Freedom of Information Act (5 U.S.C.
552) as amended, as they relate to the design, development or operation of any
system of records on individuals performed by the Federal assistance recipient or
subrecipient involving the performance of the government function, including the
collection, use, and dissemination of records.
y. It shall comply with the provisions of Executive Order 12372, as
implemented by Department of Interior regulations [43 CFR Part 9; 48 FR 29224,
June 24, 1983] as they relate to Intergovernmental Review of Federal Programs.
Z. It shall comply with all requirements imposed by a Federal agency
concerning special requirements of law, program requirements, and other
administrative requirements approved in accordance with applicable OMB Circulars.
[The following additional administrative provisions and recipient assurances are
applicable to assistance agreements with State and local governments.]
aa. It shall comply with the provisions of the Hatch Political Act of 1940
(5 U.S.C. 1501) which limits the political activity of State and local government
employees whose salaries are paid from Federal assistance funds.
49
bb. It shall comply with the requirements_ of the Coastal Tone Management
• Act of 1972, as amended (16 U.S:C..1451 et. seq.) to assure -that Federal
assistance activities are consistent with Federally- approved State coastal
management programs designed to preserve, protect, develop and, where possible,.
restore or enhance the nation's coastal resources.
[The following additional administration provisions and recipient assurances are
applicable to assistance agreements involving construction and improvements.]
cc. It will have sufficient funds available to meet the non -Federal share
of the cost for construction projects. Sufficient funds will be available when
construction is completed to assure effective operation and maintenance of the
facility for the purposes constructed.
dd. It will require the facility to be designed to comply with the
"American Standard Specializations for making Buildings and Facilities Accessible
to, and Usable by, the Physically Handicapped," Number A111.1-1961, as modified,
(41 GFR 101-19.603). The applicant will be responsible for conducting
inspections to insure compliance with these specifications by the contractor.
ee. It will obtain approval by FWS of the final working drawings and
specifications before the project is advertised or placed on the market for
bidding; that it will construct the project, or cause it to be constructed, to
final completion in accordance with the application and approved plans and
specifications; that it will submit to FWS for prior approval changes that alter
the costs of the project, use of space, or functional layout;' that it will not
enter into a construction contract(s) for the project or undertake other
activities until the conditions of the construction grant.program(s) have been
met.
€f. It will cause work on the project to be commenced within a reasonable
time after receipt of notification from FWS that funds have been approved and
that the project will be prosecuted to completion with reasonable diligence.
gg. It will dispose of or encumber its title or other interests in the site
and facilitate during the period of Federal interest or while the Government
holds bonds, whichever is the longer.
hh. It will provide and maintain competent and adequate architectural
engineering supervision and inspection at the construction site to insure that
the completed work conforms with the approved plans and specifications; that it
will furnish progress reports and such other information as FWS may require.
ii. It will operate and maintain the facility in accordance with the
minimum standards as may be required or prescribed by the applicable Federal,
State and local agencies for the maintenance and operation of such facilities.
JJ. It shall assist in compliance with Executive Order 11988, Flood Plain
Management which requires avoidance, to the extent possible, of the long -and -
short -term adverse impacts associated with the occupancy and modification of
flood plains and to avoid the direct or indirect support of flood plain
development whenever there is a practicable alternative.
50
0
Ak. It shall assist in compliance with Executive Order 11990, "Protection
of Wetlands" which requires mimizing the destruction, nhance their natural loss or and be efecialavaluesf
wetlands and efforts to preserveande
23. ORDER OF PRECEDENCE " [This clause shall- be applicable to all assistance
agreements]
In. the event of any inconsistency between any provisions of this agreement,
the following order of precedence shall apply:
a. Statement of Work (excluding the recipient's proposal, if
incorporated).
b. Special Provisions.
c. General Provisions.
d. Recipient's Proposal (if incorporated).
24. FFIC ALS OTT BENEFI
No member of or delegate to Congress, or resident commissioner,
arising from
be
admitted to any share or part of this contract, Y it
it. However, this made clause th an rpopration this
for thecontract
corporation's extent
general
this contract is m
benefit.
25. COVENANT AGAINST CONTINGENT FEES
(a) The Contractor warrants that no person or agency has been employed
or retained to solicit or obtain this contract upon an agreement or
understanding for a contingent fee, except a bona fide employee or agency.
For breach or violation of this warranty, the Government shall have the right
to h annul this rice contract
o stout ideration lior otherwise recover, in its ithe fullto educt amountrom
of
the Contract price
the contingent fee.
(b) "Bona fide agency," as used in this clause, means an established
commercial or selling agency, maintained by a contractor for the purpose of
securing business, that neither exerts nor proposes to exert improper
influence to solicit or obtain Government contracts nor holds itself out as
being able to obtain any Government contract or contracts through improper
influence.
"Bona fide employee," as used in this clause, means a" person,
employed by a Contractor and subject to the Contractor's supervision and
control as to time, place, -and manner of performance, who neither exerts nor
proposes to exert improper
tuoence obtain to sanycGovernmentit or i contract or contracts
n Government contracts
nor holds out as bung
through improper influence.
51
• "Contingent fee," as used in this clause, means any commission,
percentage, brokerage, or other fee that is contingent upon the success that a
person or concern has in securing a Government contract.
"Improper influence," as used in this clause, means any influence
that induces or tends to induce a Government employee or officer to give
consideration or to act regarding a Government contract on any basis other
than the merits of the matter.
26. LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL TRANSACTIONS
(a) Definitions.
"Agency," as used in this clause means executive agency as defined in
2.101.
"Covered Federal action," as used in this clause, means any of the
following Federal actions:
(a) The awarding of any Federal contract.
(b) The making of any Federal grant.
(c) The making of any Federal loan.
(d) The entering into of any cooperative agreement.
(e) The extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
"Indian tribe" and "tribal organization," as used in this clause,
have the meaning provided in section 4 of the Indian Self -
Determination and Education Assistance Act (25 U.S.C. 4508) and
include Alaskan Natives.
"Influencing or attempting to influence," as used in this clause,
means making, with the intent to influence, any communication to or
appearance before 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 any covered Federal action.
"Local government," as used in this clause, means a unit of government in
a State and, if chartered, established, or otherwise recognized by a State
for the performance of a governmental duty, including a local public
authority, a' special district, an intrastate district, a council- of
governments, a sponsor group representative organization, and any other
instrumentality of a local government.
"Officer or employee of an agency," as used in this clause, includes the
following individuals who are employed by an agency:
(a) An individual who is appointed to a position in the Government under
title 5, United States Code, including a position under a temporary
appointment.
(b) A member of the uniformed services, as defined in subsection 101(3),
title 37, United States Code.
(c) A special Government employee, as defined in section 202, title 18,
United States Code.
52
10 (d) An individual' who is a member of a Federal advisory committee, as
defined by the Federal Advisory Committee Act, title 5, United States
Code, appendix 2.
"Person," as used in this clause, meansartnn individual,corporation, i
company, association, authority, firm, p society, y, ora
local government, regardless of whether such entity is operated for
profit, or not for profit. This term excludes an Indian tribe, tribal
organization, or any other Indian organization with respect to
expenditures specifically permitted by other Federal law.
"Reasonable compensation," as used in this clause, means, with respect to
a regularly employed officer or employee of any person, compensation that
is consistent with the normal compensation for such officer or employee
for work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
"Reasonable payment," as used in this clause, means, with respect to
professional and other technical services, a payment in an amount that 'is
consistent with the amount normally paid for such services in the private
sector.
"Recipient," as used in this clause, includes the Contractor and all
subcontractors. This term excludes an Indian tribe, tribal organization,
or any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
"Regularly employed," as used in this clause, means, with respect to an
officer or employee of a person requesting or receiving a Federal
contract, an officer or employee who is employed by such person for at
least 130 working days within 1 year immediately preceding the date of the
submission that initiates agency consideration of such person for receipt
of such contract. An officer or employee who is employed by such person
for less than 130 working days within 1 year immediately preceding the
date of the submission that initiates agency consideration of such person
shall be considered to be regularly employed as soon as he or she is
employed by such person for 130 working days.
"State," as used in this clause, means a State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, a territory or
possession of the United States, an agency or instrumentality of a State,
and multi -State, regional, or interstate entity having governmental duties
and powers.
(b) Prohibitions.
(1) Section 1352 of title 31, United States Code, among other
things, prohibits a.recipient of a Federalcontract,
funds to
loan, or cooperative agreement from using appropriated o
pay 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 any of the following covered Federal
actions: 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; or the modification of any
Federal contract, grant, loan, or cooperative agreement.
53
• (2). The Act also requires Contractors to furnish a disclosure if any
funds other than Federal appropriated funds (including profit or
fee received under a covered Federal transaction) 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 a Federal
contract, grant, loan, or cooperative agreement.
(3) The prohibitions of the Act do not apply under the following
conditions:
(i) Agency and legislative liaison by own employees.
(A) The prohibition on the use of appropriated funds, in
subparagraph (b)(1) of this clause, does not apply. in
the case of a payment of reasonable compensation made
:to an officer or employee of a person requesting or
receiving a covered Federal action if the payment is
for .agency and legislative liaison activities not
directly related to a covered Federal action.'
(B) For purposes of subdivision (b)(3)(i)(A) of this
clause, providing any information specifically
requested by an agency or Congress is permitted at any
time.
(C). The following agency and legislative liaison
activities are permitted at any time where they are
not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency the qualities and
characteristics (including individual
demonstrations) of the person's products or
services, conditions or terms of sale, and
service capabilities.
(2) Technical discussions and other activities
regarding the application or adaptation of the
person's products or services for an agency's
use.
(D) The following agency and legislative liaison
activities are permitted where they are prior to
formal solicitation of any covered Federal action -
(1) Providing any information not specifically
requested but necessary for an agency to make an
informed decision about initiation of a covered
Federal action;
. (2) Technical discussions regarding the preparation
of an unsolicited proposal prior to its official
submission; and
54
• (3) capability presentations by persons seeking
awards from an agency pursuant to the provisions
of the Small Business Act, as amended by Pub. L.
95-507, and subsequent amendments.
(E) Only those se3v ices ofpthisrepermitted
sclause aauhorized e
subdivision (b)( )( )( )
under this clause.
Professional and technical services.
(A) The prohibition on the use of appropriated funds, in
subparagraph (b)(1) of this clause, does not apply in
the case of -
(1) A payment of reasonable compensation made to an
officer or employee of a person, requesting or
receiving a covered Federal action or an
extension, continuation, renewal, amendment, or
modification of "a covered Federal action, if
payment is for professional or technical services
rendered directly in the preparation, submission,
or negotiation of any bid, proposal, or
application for that Federal action or for
meeting requirements imposed by or pursuant to
law as a condition for receiving that Federal
action.
(2) Any reasonable payment to a person, other than an
officer or employee of - a person requesting or
receiving a covered Federal action or an
extension, continuation, renewal, amendment, or
modification of a covered Federal action if the
payment is for professional or technical services
rendered directly in the preparation, submission,
or negotiation of any bid, proposal, or
application for that Federal action or for
meeting requirements imposed by or pursuant to
law as a condition for receiving that Federal
action. Persons other than officers or employees
of a person requesting or receiving a covered
Federal action include consultants and trade
associations.
(B) For purposes of subdivision (b)(3)(ii)(A) of this
clause,"professional and technical services"
shall be limited to advice and analysis directly
applying any professional or technical
discipline. For example, drafting of a legal
document accompanying a bid or proposal by a
lawyer is allowable. Similarly, technical advice
• provided by an engineer on the performance or
operational capability of a piece of equipment
rendered directly in the negotiation of a
contract is allowable. However, communications
with the intent to influence made by a
55
professional (such as a licensed lawyer) or a
technical person (such as a licensed accountant)
are not allowable under this section unless they
provide' advice and analysis directly applying
their professional or technical expertise and
unless the advice or analysis is rendered
directly and solely in the preparation,
submission or negotiation of a covered Federal
action. Thus, for example, communications with
the intent to influence made by a lawyer that do
not provide legal advice or analysis directly and
solely related to the legal aspects of his or her
clients a proposal, but generally advocate one
proposal over another are not allowable, under
this section because the lawyer is not providing
professional legal services. Similarly,
communications with the intent to influence made
by an engineer providing an engineering analysis
prior to the preparation or submission of a bid
or proposal are not allowable under this section
since the engineer is providing technical
services but not directly in the preparation,
submission or negotiation of a covered Federal
action.
(C) Requirements imposed by or pursuant to law as a
condition for receiving a covered Federal award
include those required by law or regulation and
any other requirements in the actual award
documents.
(0) Only those services expressly authorized by
subdivisions (b)(3)(ii)(A)(1) and (2) of this
clause are permitted under this clause.
(E) The reporting requirements of FAR 3.803(a) shall
not apply with respect to payments of reasonable
compensation made to regularly employed officers
or employees of a person.
(iii) Disclosure.
(A) The Contractor who requests or receives from an
agency a Federal contract shall file with that
agency a disclosure form, OMB standard form LLL,
Disclosure of Lobbying Activities, if such person
has made or has agreed to make any payment using
nonappropriated funds (to include profits from
any covered Federal action), which would be
prohibited under subparagraph (b)(1) of this
clause,•if paid for with appropriated funds.
• (B) The Contractor shall file a disclosure form at
the end of each calendar quarter in which there
occurs any event that materially affects the
accuracy of the information contained in any
disclosure form previously filed by such person
under subparagraph (c)(1) of this clause. An
56
(1) A cumulative increase of 525,000 or more in
• the amount paid or expected to be paid for
influencing or attempting to influe7tce a
covered Federal action; or
(2) A change in the person(s) or individual(s)
influencing or attempting to influence a
covered Federal action; or
(3) A change in the officer(s), employee(s), or
Member(s) contacted to influence or attempt
to influence a covered Federal action.
(C) The Contractor shall require the submittal of a
certification, and if required, a disclosure form
by any person who requests or received any
subcontract exceeding $100,000 under the Federal
contract.
(D) All subcontractor disclosure forms (but not
certifications) shall be forwarded -from tier to
tier until received by the prime Contractor. The
prime Contractor shall submit all disclosures to
the Contracting Officer at the end of the
calendar quarter in which the disclosure form is
submitted by the subcontractor. Each
subcontractor certification shall be retained in
the subcontract file of the awarding Contractor.
(iv) Agreement. The Contractor agrees not to make any
payment prohibited by this clause.
(v) Penalties.
(A) Any person who makes an expenditure prohibited
under paragraph (a) of this clause or who fails
to file or amend the disclosure form to be filed
or amended by paragraph (b) of this clause shall
be subject to civil penalties as provided for by
• 31 U.S.C. 1352. An imposition of a civil penalty
does not prevent the Government from seeking any
other remedy that may be applicable.
(B) Contractors may rely without liability on the
representation made by their subcontractors in
the certification and disclosure form.
(vi) Cost allowability. Nothing in this clause makes
allowable or reasonable any costs which would
otherwise be unallowable or unreasonable. Conversely,
costs made specifically unallowable by the
requirements in this clause will not be made allowable
• under any other provision.
(END OF CLAUSE)
57.
14-48-0002- -
ATTACHMENT B—
CERTIFICATIONS APPLICABLE TO FEDERAL
GRANTS AND COOPERATIVE AGREEMENTS
All of the following certifications concern a matter within the jurisdiction
of an agency of the United States Government and the making of a false,
fictitious, or fraudulent certification, in addition to other remedies
available to the Federal Government, may result in cancellation of Federal
sponsorship and may be cause for reimbursement in whole or in part of
Federal funds paid to the recipient.
An officer or employee of the recipient responsible for this Agreement shall
certify, to the best of his or her knowledge and belief that:
1. Certification Regarding Proposal Submission
This Agreement is for the support and stimulation of the recipient's
project; that the request for Financial assistance and the related
proposal have not been submitted in response to a request from the
Government to undertake work to support a specific Government project;
and that the proposal has been prepared without the assistance and/or
input of Federal personnel except -as -noted'. (When necessary, attach an
explanation of the extent of assistance or input received from Federal
personnel in the preparation of the proposal).
2. Certification_ Regarding -Conflict _of_Interest
There are no relevant facts. or circumstances which could give rise to
either an individual or organizational conflict of interest. Such
conflict of interest could involve such things as Government employees
being associated with or a member of the requesting organization and
being in a position to influence the awarding of a grant or
cooperative agreement.The recipient agrees that if an actual or
potential conflict of interest is discovered the recipient shall make a
full disclosure in writing to the Contracting Officer. This disclosure
shall include a description of actions which the recipient has taken or
proposes to take, after consultation with the Contracting Officer, to
avoid, mitigate or neutralize the actual or potential conflict.
3.
(a) No Federal appropriated funds have been paid or will be paid, by
or on behalf of'the undersigned, 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 the awarding
of any. Federal contract, the making of any Federal grant, the
1
3
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, or 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 undersigned shall
complete and submit Standard Farm -LLL, "Disclosure Form to Report
Lobbying,".in accordance with its instructions.
(c) The - undersigned shall require that the language of this
certification be included in the award documents for all subawards
at all tiers (including subcontracts, subgrants, and contracts
under grants, loans, and cooperative agreements) and that all
subrecipients shall certify and disclose accordingly.
(d) This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered
into. Submission of this certification is a prerequisite for
making or entering into this transaction imposed by section 1352,
title 31, U.S. Code. Any person who fails to file the required
certification shall be subject to A ciwil.•penalty of not less than
$10,000 and not more than $100,000 for each such failure.
Appendix 2 for Instructions
The prospective primary participant certifies to the best of its
knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from covered
transactions by any Federal department or agency;
(b) Have not within a three-year period preceding this proposal been
convicted of or had a civil judgement rendered against them for
commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public (Federal,
State or local) transaction or contract under a public
transaction; violation of Federal or State antitrust statutes or
commission of embezzlement, theft, forgery, bribery, falsification
or destruction of records, making false statements, or receiving
stolen property;,
(c) Are not presently indicted for or otherwise criminally or civilly
charged by a governmental entity (Federal, State, or local) with
commission of any of the offenses enumerated in paragraph (b) of
this certification; and
2
5.
(d) Have not within a three-year period preceding this
application/proposal had one or more public transactions
(Federal,State, or local) terminated for cause or default.
(e) Where the prospective primary participant is unable to certify to
any of the statements in this certification, such prospective
participant shall attach an explanation to their proposal.
The prospective lower tier participant certifies to the best of its
knowledge and belief that it and its principals:
(a) By the submission of their proposal, that neither it nor its
principals is presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from
participation in this transaction by any Federal department or
agency.
(b) Where the prospective lower tier participant is unable to certify
to any of the statements in this certification, such prospective
participant shall attach an explanation to their proposal.
6. Certification Regarding Drug -Free Workplace Requirements
Instructions for Certification
(a) By signing and/or submitting this application or grant agreement,
the grantee is providing the certification set out below.
(b) The certification set out below is a material representation of
fact upon which reliance was placed when the agency determined to
award the grant. If it is later determined that the grantee
knowingly rendered a false certification or otherwise violates the
requirements of the Drug -Free Workplace Act, the agency, in
addition to any other remedies available to the Federal
Government, may take action authorized under the Drug -Free
Workplace Act.
(c) For grantees other than individuals, Alternate I applies.
(d) For grantees who are individuals, Alternate II applies.
Certification Regarding Drug -Free Workplace Requirements
Alternate I
40 A. The grantee certifies that it will provide a drug-free workplace
by:
3
(a) Publishing.a statement notifying employees that the unlawful
manufacture, distribution, dispensing, possession or use of a
controlled substance is prohibited in the grantee's workplace
and specifying the actions that will be taken against -
employees for violation of such prohibition;
(b) Establishing a drug-free awareness program to inform
employees about:
(1) The dangers of drug abuse in the workplace,
(2) The grantee's policy of maintaining a drug-free
workplace,
(3) Any available drug counseling, rehabilitation, and
employee assistance programs, and
(4) The .penalties that may be imposed upon employees for
drug abuse violation occurring in the workplace;
(c) Making it a requirement that each employee to be engaged in
the performance of the grant be given a copy of the statement
required by paragraph (a);
(d) Notifying the employee In, "the 'statement required by
paragraph (a) that, as a condition of employment under the
grant, the employee will:
(1) Abide by the terms of the statement, and
(2) Notify the employer of any criminal drug statute
conviction for a. violation occurring in the workplace no
later than five days after such conviction,
(e) Notifying the agency within ten days after receiving notice
under subparagraph (d)(2) from an employee otherwise
receiving actual notice of such conviction,
(f) Taking one of the following actions, within 30 days of
receiving notice under subparagraph (d)(2), with respect to
any employee who is so convicted:
(1) Taking appropriate personnel action against such an
employee, up to and including termination; or
(2) Requiring such employee to participate satisfactorily
in a drug abuse assistance or rehabilitation program approved
for such purposes by a Federal, State, or local health, law
enforcement, or other appropriate agency;
(g) Making a good faith effort to continue to maintain a drug-
free workplace through implementation of paragraphs (a), (b),
(c), (d), (e) and (f).
4
�I
B. The grantee shall insert in the space provided below the site(s)
for the performance of work done in connection with the specific
grant:
Place of Performance (Street address, city, county, state, zip
code) 2.
(Street address)
(City and County)
(State and Zip Code)
Alternate II.
The Grantee certifies that as a condition of the grant, he or she will
not engage in the unlawful manufacture,....distribution, dispensing,
possession or use of a controlled-subsfarice in*conducting any activity
with the Grant.
The undersigned certifies that he/she has read the above and has/will take
any and all actions necessary to comply with the certifications.
(Name of Authorized Representative)
(Title)
(Signature)
(Date)
•
5
APPENDIX 1
DISCLOSURE OF LOBBYING ACTIVITIES " pravvdb'O,
0348-00"
Complete this form to disclose lobbying activities pursuant to 31 U.S.C. 1352
(See reverse for public burden disclosure.)
Type of Federal Action_
2 Status of Federal Action:
3. Report Type.
a. contract
b.
❑ a. bidfoffer/application
❑ a. initial filing
grant
cooperative agreement
b. initial award
b. material change
l
d. o
c, post -award
For Material Change OnIJr.
e. loan guarantee
year quarter
f. loan insurance
date of last report
4. Name and Address of Reporting Entity:
S. If Reporting Entity in No. 4 is Subawardee, Enter Name
C3 Prime ❑ Subawardee
and Address of Prime:
Tier. ; if known:
Congressional District. if known:
Congressional District, if known:
&. Federal Department/Agency.
7. Federal Program Name(Description:
CFDA Number, if applicable:
$. Federal Action Number, if known:
9. Award Amount. if known:
$
10. a. Name and Address of Lobbying Enu b. lndividuals.4erfacmin Services (including address if
(if individual, last name, fast name, 1): different from Na ION
(fast name. Arst name, Mfr
tafrach eandnr anon i(sISF-M-Ailaccessarfo
esra
11. Amount of Payment (check all that apply):
13. Type of Payment (check all that apply):
S ❑ actual ❑ planned
❑ a. retainer
❑ b. one-time fee
12 Form of Payment (check all that apply):
❑ c. commission
p a. cash
❑ d. contingent fee
❑ b. in-kind; specify:' nature
❑ e. deferred
value
❑ f- other, specify:
14. Brief Description of Services Performed or to be Performed and Date(s) of Service, including officer(s). employee(s).
or Members) contacted. for Payment Indicated in (tem 11:
attach Continmaden Sheelftp Sf-LLL-A if necerra
1S. Continuation Sheet(s) SF -CLL A attached: ❑ Yes O No
k4mmation «puesud dwwgh d%ia foae it saha&W br tide 11 U.S.C.
section 1351 Ibis ditdea4ro d k6bf+o[ wtmtias :t a ,N,,e" mpremnution
Signature.-
-W Out Lpon w.h:dt tafim a w.a p"ced by the liir abow whon th.s
ltawaa"W" Was wu16 W one- W :.w This ditdouro i #WRUiw! PWr.ant to
Print Name.
11 LLiC 1751 This 66mmmtion MM be nppnad 10 dw Caegmr< wati-
ba
Title:
anw&&r and -4 4-4464 for p.bGc ntpeomL i4W.p - who rya to
Q* dw RMP"d dado.uw " d0 uA4* t to a sial P.odry of rat trta ducat
sMAN and n« om.e Wao s XKMM far eadt mah carne.
Telephone No.: Date;
R:M ".•-!^yx%n 'J.•-'. �oK'iS.5 _. ,_..ryif'••'f 4v.3y,'..w 4.
DISCLOSURE OF LOBBYING ACTIVITIES Apar-odbyoma
CONTINUATION SHEET 014&0046
cporting Entity: page of
j
t
a
A•
Audsorix" IOt toe_a Reprodu�t[on
SEWW" d rwm - U1 -A
INSTRUCTIONS FOR COMPLETION OF SF -LLL, DISCLOSURE OF LOBBYING ACTIYTTIES
This disclosure form shall be completed by the reporting entity, whether subawardee or prime Federal recipient, at the
rtratron or receipt of'a covered Federal action, or a material change to a previous filing, pursuant to title 31 U.S.C.
ection 1352. The filing of a form is required for each payment or agreement to make payment to any lobbying entity for
influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer of -
employee of Congress, or an employee of a Mernber of Congress in connection with a covered Federal action. Use the
SF-U.L A Continuation Sheet for additional information if the space on the form is inadequate. Complete all items that
apply for both the initial [fling aitd material lunge report. Refer to the implementing guidance published by the Office*of
Management and Budget for additional information.
1. Identify the type of covered Federal action for which lobbying activity is andlor has been secured to influence the
outcome of a covered Federal action.
2. Identify the status of the covered Federal action.
3. Identify the appropriate classification of this report. If this is a followup report Bused by a material change to the
information previously reported, enter the year and quarter in which the change occurred. Enter the date of the last
previously submitted report by this reporting entity for this covered Federal action.
4. Enter the full name, address, city, state and zip code of the reporting entity. Include Congressional District, if
known. Check the appropriate classification of the reporting entity that designates if it is, or expects to be, a prime
or subaward recipient. identify the tier of the subawardee, e.g., the first subawardee of the prime is the 1st tier.
Subawards include but are not limited to subcontracts, subgrants and contract awards under grants.
S. If the organization filing the report in item 4 checks "Subawardee", then enter the* full name, address, city, state and
zip code of the prime Federal recipient. Include Congressional District„ if known.
6. Enter the name of the Federal agency making the award or loan commitment. Include at least one organizational
level below agency name, if known. For example, Department of Transportation, United States Coast Guard.
7. Enter the Federal program name or description for the covered Federal action (item 1). If known, enter the full
Catalog of Federal Domestic Assistance (CFDA) number for grants, .cooperative agreements, loans, and loan
commitment.
B. Enter the most appropriate Federal identifying number available for the Federal action identified in item 1 (e.g.,
Request for Proposal (RFP) number, Invitation for Bid (IFB) number, grant announcement number, the contract,
get. or loan award number, the applicadocvproposal control number assigned by the Federal agency). Include
prefixes, e.g., ORFP-DE-90-041.0
9. For a covered Federal action where there has been an award or loan commitment by the Federal agency, enter the
— Federal amount of the awarddoan commitment for the prime entity identified in item 4 or S.
M. (a) Enter the full name, address, city, state and rip code of the lobbying entity engaged by the reporting entity
identified in item 4 to influence the covered Federal action.
(b)Enter the full names of the indivfdual(s) performing services, and include full address if different from 10 (a).
Enter Last Name, First Name, and Middle Initial (MI).
11.'Enter the amount of compensation paid or reasonably expected to be paid by the reporting entity (item 4) to the
lobbying entity (item 10). Indicate whether the payment has been made (actual) or will be made (planned). Check
all boxes that apply. If this is a material change report enter the cumulative amount of payment made or planned
to be made.
12. Check the appropriate box(es). Check all boxes that apply. if payment is mads through an in-kind contribution,
specify the nature and value of the in-kind payment.
13- Check the appropriate box(es). Check all boxes that apply. if other, specify nature.
14. Provide a specific and detailed description of the services that the Iobbyist has performed, or w11 be expected to
perform, and the date(s) of arty services rendered. include all preparatory and related activity, not just time spent in
actual contact with Federal officials. Identify the Federal offidal(s) or employee(s) contacted or the officer(s),
employee(s), or Member(s) of Congress that were contacted.
15. Check whether or not a SF -ILL -A Continuation Sheet(s) is attached.
16. The certifying official shall sign and date the form, print hislher name, title, and telephone number.
PuWie reporting twnien for this collection of information is estimated to average 30 nhintues per response. including time for reviewing
imstn"Gm start "existing daft sources, gathering and maintaining the data needed, and cumpteting and reviewing the collection of
information. Send corwnents reg3r&'5 the burden estimate or any other aspect of this collection of information, including suggestions
for reducing this burden. to the Office of Muhagenumt and Budget Paperwork Reduction Project (034&0046), wsshinxtom D.C. 20503.
APPENDIX 2
'1' f:' 1'4: •'41 17.'' �
MENEM
1. By signing and submitting this proposal, the prospective participant is providing the
certification set out below.
2. The inability of a person to provide the certification required below will not necessarily
result in denial of participation in this covered transaction. The prospective participant
shall submit an explanation of why it cannot provide the certification set out below. The
certification or explanation will be considered in connection with the department or agexy,s
determination whether to enter into this transaction. However; failure of the prospective
participant to furnish a certification or an explanation shall disqualify such a person from
participation in this transaction.
3. The certification in this clause is a material representation of fact upon which reliance was
placed when the deparimt or agency determined to enter into this transaction. If it is later
determined that the prospective participant knowingly Yendered an erroneous certification, in
addition to other mredies available to the Federal Goverment, the department or agency may
terminate this transaction for cause of default.
4. The prospective participant shall provide immediate written notice to the department or agency
to wham this proposal is submitted if at any time the prospective participant learns that its
certification was erroneous when submitted or -has become erroneous by reason of changed
circumstances.
5. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered
transaction," "participant," "person," "primary covered transaction," "principal," "proposal,"
and "voluntarily excluded," as used in this clause, have -the mwdngs set out in the Winitions
and Coverage sections of the rules inplementing Executive Order 12549. You may contact the
department or agency to which this proposal is being submitted for assistance in obtaining a
copy of those regulations.
6. The prospective participant agrees by submitting this proposal that, should the proposed oxered
transaction be entered into, it shall not knowingly enter into any lower tier covered
transaction with a person who is debarred, suspended, declared ineligible, or voluntarily
excluded from participation in this covered transaction, unless authorized by the department or
agency entering into this transaction.
7. The prospective participant further agrees by submitting this proposal, that it will include the
clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary
Exclusion -Lower Tier Covered Transaction," provided by the department or agency entering into
this covered transaction, without modification, in all lower tier covered transactions and in
all solicitations for lower tier covered transactions.
8. A participant in a covered transaction may rely upon a certification of a prospective
participant in a lower tier covered transaction that it is not debarred, suspended, ineligible,
or voluntarily excluded from the covered transaction, unless it knows that the certification is
erroneous. A participant may decide the method and frequency by which it determines the
eligibility of its principals. Each participant may, but is not required to, check the
Nonprocurement List.
9. Nothing contained in the foregoing shall be construed to mire establishment of a system of
records in order to render in good faith the certification required by this clause. The
knowledge and information of a participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business dealings.
10. Except for transactions authorized under paragraph 6 of these instructions, if a participant in
a covered transaction knowingly enters into a lower tier covered transaction with a person who
is suspended, debarred, ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal Government, the department
or agency may terminate this transaction for cause or default.