1 U.S. DEPARTMENT OF COMMERCE ECONOMIC

U.S. DEPARTMENT OF COMMERCE

ECONOMIC DEVELOPMENT ADMINISTRATION

STANDARD TERMS AND CONDITIONS FOR CONSTRUCTION PROJECTS

Title II of the Public Works and Economic Development Act of 1965

Public Works and Economic Development Facilities

and

Economic Adjustment Assistance Construction Components

March 22, 2021

Table of Contents

PART I: GENERAL PROVISIONS ........................................................................................................................ 4

A. Construction Award Purpose ........................................................................................................................... 4

B. Authorities ........................................................................................................................................................ 4

1. In General ........................................................................................................................................... 4

2. PWEDA ............................................................................................................................................. 4

3. EDA Regulations ............................................................................................................................... 4

4. Conflicts Among Authorities ............................................................................................................. 4

C. Updates to Authorities ...................................................................................................................................... 4

1. Updates to Regulations and Requirements ........................................................................................ 4

2. Applicability to the Award ................................................................................................................. 5

D. Variances ........................................................................................................................................................ 5

E. Recipient as Trustee ...................................................................................................................................... 5

F. Additional Funding ....................................................................................................................................... 5

G. Definitions .................................................................................................................................................... 5

H. Reaffirmation of Application and Award Acceptance .................................................................................. 5

PART II: SPECIAL REQUIREMENTS FOR EDA CONSTRUCTION PROJECTS ............................................ 7

A. Financial Requirements ................................................................................................................................ 7

1. Financial Reports ............................................................................................................................... 7

2. Disbursements .................................................................................................................................... 7

3. Federal and Non-Federal Cost Sharing .............................................................................................. 8

4. Budget Revisions and Transfer of Funds ................................................................

........................... 8

5. Indirect Costs and Facilities and Administrative Costs ..................................................................... 9

6. Incurring Costs Prior to Award ........................................................................................................ 10

7. Program Income ............................................................................................................................... 10

B. Programmatic Requirements ...................................................................................................................... 10

1. Project Progress and Performance Reporting .................................................................................. 10

2. Time Extensions ............................................................................................................................... 11

3. Interim Reporting of Significant Project Developments .................................................................. 12

4. Programmatic Changes .................................................................................................................... 12

5. Government Performance and Results Act ...................................................................................... 12

6. Beneficiary Compliance ................................................................................................................... 13

7. Hold Harmless ................................................................................................................................. 13

8. Prohibition on Use of Third Parties to Secure Award ...................................................................... 13

9. Payment of Attorneys’ or Consultants’ Fees ................................................................................... 13

10. Recipient’s Duty to Refrain from Employing Certain Government Employees .............................. 13

11. Commencement of Construction ..................................................................................................... 14

12. Project Sign and Use of EDA Logo ................................................................................................. 14

13. Efficient Administration of Project .................................................................................................. 15

14. Conflicts-of-Interest Rules ............................................................................................................... 15

15. Records-Keeping Requirements ...................................................................................................... 16

16. Termination Actions ........................................................................................................................ 17

17. Project Closeout Procedures ............................................................................................................ 18

18. Freedom of Information Act ............................................................................................................ 20

C. Additional Requirements Related to Construction Projects ....................................................................... 20

1. The Davis-Bacon Act, as amended (40 U.S.C. §§ 3141–3144, 3146, 3147; 42 U.S.C. § 3212) ..... 20

2. The Contract Work Hours and Safety Standards Act, as amended (40 U.S.C. §§ 3701-3708) ....... 20

3. The National Historic Preservation Act of 1966, as amended (54 U.S.C. § 300101 et seq.), and the

Advisory Council on Historic Preservation Guidelines (36 CFR part 800) .................................... 20

4. Preservation of Historical and Archeological Data (54 U.S.C. § 312502) ...................................... 20

5. The Architectural Barriers Act of 1968, as amended (42 U.S.C. § 4151 et seq.) ............................ 21

6. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as

amended (42 U.S.C. § 4601 et seq.) ................................................................................................ 21

7. The Energy Conservation and Production Act (42 U.S.C. § 6834 et seq.) ...................................... 21

8. Executive Order 13717, “Seismic Safety of Federal and Federally Assisted or Regulated New

Building Construction ..................................................................................................................... 21

9. Compliance with Local Construction Requirements ....................................................................... 21

D. Non-Discrimination Requirements ............................................................................................................. 21

E. Audits .......................................................................................................................................................... 21

1. General ............................................................................................................................................. 21

2. Requirement to Submit a Copy of the Audit to EDA ...................................................................... 22

F. Tribal Employment Rights Ordinances ...................................................................................................... 22

G. EDA Contracting Provisions for Construction Projects ............................................................................. 22

H. Property ...................................................................................................................................................... 22

1. Standards ......................................................................................................................................... 22

2. Title .................................................................................................................................................. 23

3. EDA’s Interest in Award Property ................................................................................................... 23

4. Insurance and Bonding ..................................................................................................................... 25

5. Leasing Restrictions. ........................................................................................................................ 25

6. Eminent Domain .............................................................................................................................. 26

7. Disposal of Real Property ................................................................................................................ 26

8. Reporting on Property ...................................................................................................................... 26

I. Environmental Requirements ..................................................................................................................... 27

1. General. ............................................................................................................................................ 27

2. Compliance with Other Applicable Environmental Requirements .................................................. 27

J. American-Made Equipment and Products .................................................................................................. 28

PART III: DEPARTMENT OF COMMERCE STANDARD TERMS AND CONDITIONS .............................. 29

PART I:

GENERAL PROVISIONS

A. Construction Award Purpose

This financial assistance award (the Award), executed by the Economic Development

Administration (EDA) and the recipient (Recipient or non-Federal entity), is awarded for the purpose

of carrying out the design, engineering, or construction of certain physical infrastructure as

specifically set forth in the Award’s scope of work.

B. Authorities

1. In General

Recipient must administer this Award in conformance with the terms of the Award, including

any properly executed amendment thereto, the EDA-approved budget and scope of work, these

EDA Standard Terms and Conditions for Construction Projects (EDA Construction STCs) and

the Department of Commerce (DOC) Financial Assistance Standard Terms and Conditions

(DOC Standard Terms and Conditions), as well as any specific award conditions; relevant

policies issued by EDA; applicable Federal statutes, regulations, and Executive Orders; and the

provisions of the Office of Management and Budget (OMB) Uniform Administrative

Requirements, Cost Principles, and Audit Requirements for Federal Awards codified at

2 CFR part 200 (OMB Uniform Guidance).

2. PWEDA

The Public Works and Economic Development program is authorized under section 201 and the

Economic Adjustment Assistance program is authorized under section 209 of PWEDA

(42 U.S.C. §§ 3141 and 3149, respectively).

3. EDA Regulations

The regulations implementing PWEDA are contained in chapter III of title 13 of the Code of

Federal Regulations (CFR), and apply in full to this Award. The regulations specific to EDA

construction projects can be found at 13 CFR parts 305 and 314, and subpart A to part 307.

4. Conflicts Among Authorities

Any inconsistency or conflict among the authorities governing the Recipient’s administration of

this Award will be resolved in the following order of precedence: Federal laws and regulations

(including the OMB Uniform Guidance), applicable notices published in the Federal Register,

Executive Orders, OMB circulars, these EDA Construction STCs, specific award conditions, and

any written policy guidance issued by EDA. However, a specific award condition may amend or

take precedence over a provision of these EDA Construction STCs on a case-by-case basis, when

warranted by the specific circumstances of the Award. In the event of a conflict between Parts I

or II of these EDA Construction STCs and Part III, which incorporates the DOC Standard Terms

and Conditions, Parts I and II will control.

C. Updates to Authorities

1. Updates to Regulations and Requirements

The DOC, EDA, or OMB may issue changes from time to time to the regulations and other

policies and requirements that apply to this Award. Such changes may upon occasion increase

administrative or programmatic flexibility in administering this Award in a manner that is

mutually beneficial to EDA and the Recipient. In addition, if required by law, these changes may

impose new requirements. The implementation of any such regulatory, administrative, or

programmatic change in administering this Award requires EDA’s prior written approval.

2. Applicability to the Award

These EDA Construction STCs apply to the Award as of the Federal award date, as defined at

2 CFR § 200.1, or, if attached to the Award by amendment, as of the effective date of such

amendment.

D. Variances

EDA’s policy is to administer all awards uniformly; however, there may be special circumstances

that warrant a variance. To accommodate these circumstances and to encourage innovative and

creative ways to address economic development problems, EDA will consider requests for variances

to the procedures set out in these EDA Construction STCs if they do not conflict with applicable

Federal statutory and regulatory requirements, are consistent with the goals of EDA’s programs, and

make sound economic and financial sense. Any approved variance will be implemented through a

specific award condition incorporated under the Award.

E. Recipient as Trustee

The Recipient holds grant funds and any property acquired or improved with EDA assistance in trust

for the public purposes of an Award. The Recipient’s obligation to the Federal Government

continues for the estimated useful life of the Project, as determined by EDA, during which EDA

retains an undivided equitable reversionary interest (the Federal Interest) in property acquired or

improved, in whole or in part, with EDA investment assistance. See 13 CFR § 314.2

(“Federal Interest”).

If EDA determines that the Recipient fails or has failed to meet this obligation, EDA may exercise

any rights or remedies with respect to its Federal Interest in the Project. However, EDA’s

forbearance in exercising any right or remedy in connection with the Federal Interest does not

constitute a waiver thereof.

F. Additional Funding

EDA has no obligation to provide any additional funding in connection with the Award. Any change

to the Award to increase funding or to extend the period of performance is at the discretion of EDA,

subject to the availability of funds, via an amendment executed by the Grants Officer.

G. Definitions

Capitalized terms and acronyms used but not otherwise defined in these EDA Construction STCs

have the meaning ascribed to them at 13 CFR §§ 300.3, 302.20, 307.8, and 314.1, and subpart A to

2 CFR part 200.

H. Reaffirmation of Application and Award Acceptance

By accepting this Award, the Recipient’s authorized representative hereby reaffirms and states that:

1. All data in the Application were true and correct when the Application was submitted and remain

true and correct as of the date of this Award;

2. The Application was, as of the date of submission and the date of this Award, duly authorized as

required by local law by the governing body of the Recipient; and

3. The Recipient has read, understood, and will comply with all terms of this Award, including the

assurances and certifications submitted as part of the Application (including assurances

submitted through the System for Award Management (SAM.gov)).

Acceptance of the Award is established by any action on the part of the Recipient indicating an

intent to accept the Award, including by signing the Financial Assistance Award (Form CD-450)

(either via a “wet” signature or electronically) or by requesting any disbursement of Award funds.

“Application” means all forms, documentation, and any information submitted to EDA as part and in

furtherance of a request for an Award and includes submissions made in response to any request by

EDA after submission of the initial Application.

PART II:

SPECIAL REQUIREMENTS FOR EDA CONSTRUCTION PROJECTS

A. Financial Requirements

1. Financial Reports

a. During the period of performance, the Recipient must submit financial reports as follows,

unless otherwise specified in a specific award condition.

i. Reports on Award reimbursements. In accordance with 2 CFR § 200.328 (“Financial

reporting”), the Recipient must submit a “Federal Financial Report” (Form SF-425 or any

successor form) on a semi-annual basis for the periods ending March 31 and September

30, or any portion thereof, unless otherwise specified in a specific award condition.

Reports are due no later than 30 calendar days following the end of each reporting period,

and instructions for completing and submitting Form SF-425 will be discussed during the

Project kick-off meeting. Recipients may contact their EDA Project Officer with

questions on how to complete or submit the report, if necessary, but they must submit

reports on time and are encouraged to pose such questions sufficiently before the

deadline to allow for complete, accurate, and timely submission of required reports.

ii. Reports on Award advances. While EDA generally does not advance funds, when the

agency does so, the Recipient must submit Form SF-425 within 15 business days

following the end of each quarter for an award where the Federal share of costs is under

$1 million. In accordance with 2 CFR § 200.328, because of increased risk and the need

to ensure the appropriate use of Federal funds, where EDA advances funds under an

award where the Federal share of costs is $1 million or more the Recipient must submit

Form SF-425 within 15 business days following the end of each month, or as otherwise

specified in a specific award condition.

b. The Recipient must submit a final Form SF-425 no later than 120 calendar days after the end

date of the period of performance. See also Part II, section B.16.c “Final reporting deadline”

of these EDA Construction STCs.

c. Noncompliance with the financial reporting requirements may result in appropriate

enforcement action under this Award, including but not limited to suspension of Award

payments, disallowance of costs or termination of an award. A Recipient’s non-compliance

with financial reporting requirements will also be taken into account in EDA’s consideration

of any future applications for EDA financial assistance (see 2 CFR § 200.206(b)(2)(iii) and

section A.06 (Unsatisfactory Performance or Non-Compliance with Award Provisions) of the

DOC Standard Terms and Conditions, which are incorporated in Part III of these

EDA Construction STCs).

d. Financial reports should be submitted to the Project Officer in electronic format, unless

otherwise specified in the specific award conditions.

2. Disbursements

a. Method of payment. The Grants Officer determines the appropriate method of payment.

Unless otherwise specified in a specific award condition, the method of payment under this

Award will be reimbursement. Payments will be made through electronic funds transfers

directly to the Recipient’s bank account and in accordance with the requirements of the Debt

Collection Improvement Act of 1996 (31 U.S.C. § 3720B et seq.). The Award number must

be included on all payment-related correspondence, information, and forms.

b. Disbursement requests. The Recipient must use Form SF-271, “Outlay Report and Request

for Reimbursement for Construction Programs,” to request reimbursement under the Award.

Substantiating invoices and/or vouchers also must be provided. Each request for the

disbursement of funds must be made to the Project Officer. Form SF-271 can be downloaded

from the Grants.gov post-award reporting forms website at

https://www.grants.gov/web/grants/forms/post-award-reporting-forms.html.

i. Initial disbursement request. For the initial disbursement only, the Recipient must

complete and submit Form SF-3881, “ACH Vendor/Miscellaneous Payment Enrollment

Form,” along with Form SF-271, to the Project Officer.

ii. Interim disbursement requests. All requests for interim disbursement must be submitted

using Form SF-271 and include substantiating invoices and/or vouchers.

iii. Final disbursement request. See Part II, section B.16 “Project Closeout Procedures” of

these EDA Construction STCs.

3. Federal and Non-Federal Cost Sharing

a. For purposes of this Award, the Federal share is the amount of EDA funds invested under the

Award, while the non-Federal share, or “Matching Share,” means non-EDA funds and any

in-kind contributions that are approved by EDA and provided by the Recipient or by third

parties as a condition of the Award.

b. By accepting the Award, the Recipient certifies that the Matching Share of Project costs is

committed to the Project, available as needed, and not conditioned or encumbered in any way

that precludes its use consistent with the requirements of the Award. See 13 CFR § 301.5

(“Matching share requirements”).

c. In the case of an overrun at the construction bid opening, the Recipient may augment the

Matching Share by an amount sufficient to cover the excess cost. The Recipient must furnish

a letter to EDA identifying the source of the additional funds and confirming that all

Matching Share meets the requirements of 13 CFR § 301.5. See 13 CFR § 305.10

(“Bid underrun and overrun”).

4. Budget Revisions and Transfer of Funds

a. Approved budget plan; notification of deviations. The EDA-approved budget set forth in the

specific award conditions or otherwise incorporated under the Award is the budget plan for

the Project. The Recipient must notify EDA of deviations from the budget in accordance with

2 CFR § 200.308 (“Revision of budget and program plans”). If prior written approval is not

required under 2 CFR § 200.308, the Recipient may request the Grants Officer’s review of

and guidance on proposed revisions to the budget.

b. Requesting budget revisions. Requests for budget revisions to the EDA-approved budget must

be submitted through the Project Officer to the Grants Officer, who will make the final

determination on such requests and notify the Recipient in writing.

c. Budget revisions that require an amendment. In accordance with 2 CFR § 200.308(f) and (h),

an amendment executed by the Grants Officer are required for budget revisions when:

i. The revision results from changes in the scope or the objective of the Project;

ii. The need arises for additional EDA funds to complete the Project;

iii. The Federal share exceeds the simplified acquisition threshold (currently set at

$250,000) and the cumulative amount of transfers among direct cost categories exceeds

or is expected to exceed 10 percent of the total budget as last approved by EDA; and

iv. A revision is desired that involves specific costs for which prior written approval

requirements may be imposed consistent with applicable cost principles listed in subpart E

of 2 CFR part 200 (“Cost Principles”).

d. Prior approval for transfers between construction and non-construction items. When an

Award supports both construction and non-construction work, the Recipient must obtain

prior written approval from the Grants Officer before making any fund or budget transfer

from non-construction to construction or vice versa. See 2 CFR § 200.308(h)(5).

e. Project underrun amounts. Underrun amounts will be transferred to the contingencies line

item. Contingency funds are to be used to address situations resulting from unknown

conditions and changes required for the fulfillment of authorized activities under this Award.

EDA may approve the use of underrun funds to increase the Federal share of the Project or

further improve the Project, as long as EDA determines that the use is consistent with the

original purpose of the Award. See 13 CFR § 308.1 (“Use of funds in projects constructed

under projected cost”).

f. Additional EDA funding in case of Project overrun amounts. In accepting this Award, the

Recipient agrees to fund any overrun amounts from non-Federal sources, or if the Recipient is

unable or unwilling to do so, to request termination of the Award. Additional EDA assistance

for the Project is at the discretion of EDA and may not be approved.

5. Indirect Costs and Facilities and Administrative Costs

a. Indirect costs, or facilities and administrative (F&A) costs for educational institutions, are

generally not applicable under this Award. See the definition of “indirect (facilities and

administrative) (F&A)) costs” at 2 CFR § 200.1.

b. When indirect costs are applicable, they will not be allowable charges against the Award

unless approved under the Award and specifically included as a line item in the Award’s

approved budget. See section B.06 of the DOC Standard Terms and Conditions (“Indirect or

Facilities and Administrative Costs”), which are incorporated into these EDA Construction

STCs in Part III.

6. Incurring Costs Prior to Award

Project activities, including the procurement of good and services, which may include

construction activities, carried out prior to EDA’s approval of this Award are done at the sole risk

of the Recipient and at the risk of not being reimbursed by EDA. Such activity may result in the

rejection of the Application, the disallowance of costs, or other adverse consequences as a result

of noncompliance with EDA or Federal requirements, including but not limited to procurement

requirements, civil rights requirements, Federal labor standards, or environmental and historic

preservation requirements. The Grants Officer must authorize pre-award costs and activities in

writing, and such costs must also be allowable under relevant Federal cost principles and the

specific Award terms and be included in the EDA-approved budget. Pre-award costs not included

in the authorized budget are not allowable and will not be reimbursed. See 13 CFR § 302.8

(“Pre-approval Investment Assistance costs”).

7. Program Income

For Projects that generate revenue (e.g., rent for buildings or real property constructed or

improved with EDA funds, rent or fees charged for use of equipment purchased with EDA funds,

fees charged by the Recipient or a third party in connection with Project operations, etc.), the

Recipient agrees, for the estimated useful life of the EDA-assisted facility or equipment, to use

income generated from the facility or equipment, in the following order of priority unless

modified by a specific award condition:

a. Administration, operation, maintenance, and repair of Project facilities in a manner consistent

with good property management practice and in accordance with established building codes.

This includes, where applicable, repayment of indebtedness resulting from any

EDA-approved encumbrance (e.g., approved mortgage) on the EDA-assisted facility. In the

case of equipment, administration, operation, maintenance, and repair of the equipment, or

the facility in which the equipment is located as required to maintain and operate the

equipment, for the equipment’s estimated useful life.

b. Economic development activities that are authorized for support by EDA, provided such

activities meet the economic development purposes of PWEDA and are located within the

designated Project region.

Any program income in excess of paragraphs a. and b. of this section that is generated during

the period of performance must be deducted from total allowable Project costs in accordance

with 2 CFR § 200.307(e)(1). See also 2 CFR § 200.307 (“Program income”).

8. Information on Recipient integrity. The Recipient agrees to provide EDA with information

and documentation necessary for EDA to conduct due diligence to ensure the financial integrity

and responsibility of the Recipient and key individuals associated with the Recipient in the

management or administration of this Award.

B. Programmatic Requirements

1. Project Progress and Performance Reporting

a. Project progress reports must be submitted in accordance with the procedures set out in

2 CFR § 200.329 (“Monitoring and reporting program performance”), as applicable, and as

indicated below. Failure to submit required reports in a complete, accurate, and timely manner

may result in the withholding of payments under this Award; deferral of processing of new

awards, amendments, or supplemental funding; or other appropriate enforcement action.

See 13 CFR § 302.18 (“Post-approval requirements”) and section A.06 (Unsatisfactory

Performance or Non-Compliance with Award Provisions) of the DOC Standard Terms and

Conditions, which are incorporated in Part III of these EDA Construction STCs.

b. Unless otherwise specified in a specific award condition, the Project progress report must

contain the following information for each Project program, function, or activity:

i. A comparison of planned and actual accomplishments according to the timetable or list of

Project objectives in this Award;

ii. An explanation of any delays or failures to meet the Project timetable or Project goals; and

iii. Any other pertinent information including, when appropriate, analysis and explanation of

cost overruns or high unit costs.

Project progress reports must be submitted for each calendar quarter to the Project Officer.

Each Project progress report must be submitted in accordance with the deadlines outlined in

the specific award conditions, or, when not otherwise specified, Project progress reports will

be due on a quarterly basis not later than January 31, April 30, July 31, and October 31 for

the immediately previous quarter. The final Project progress report must be submitted to EDA

no later than 120 calendar days after the end date of the period of performance. See Part II,

section B.16.c “Project Closeout Procedures” of these EDA Construction STCs for more

information on Project Closeout.

c. The Recipient must submit quarterly Project progress reports to the EDA Project Officer

electronically unless otherwise specified in the specific award conditions.

2. Time Extensions

a. Unless otherwise authorized by a specific award condition, any extension of the period of

performance can only be authorized by the Grants Officer in writing.

b. The Recipient is responsible for implementing the Project in accordance with the

development time schedule contained in this Award. As soon as the Recipient becomes aware

that it may not be possible to meet the development time schedule, the Recipient must notify

the Grants Officer. The Recipient’s notice to EDA must contain the following:

i. An explanation of the Recipient’s inability to complete work by the specified date (e.g., a

lengthy period of unusual weather delayed the contractor’s ability to excavate the site,

major re-engineering required in order to obtain State or Federal approvals, unplanned

environmental mitigation required);

ii. A statement describing any other contemplated changes to the Project;

iii. Documentation that demonstrates there is still a bona fide need for the Project; and

iv. A statement that no further delay is anticipated and that the Project can be completed

within the revised time schedule.

EDA reserves the right to withhold disbursements while the Recipient is not in compliance with

the time schedule and to suspend or terminate this Award if the Recipient fails to proceed with

reasonable diligence to accomplish the Project as intended.

3. Interim Reporting of Significant Project Developments

The Recipient must promptly report any event that may have a significant impact upon the

Project, including delays or adverse conditions that may materially affect the ability of the

Recipient to attain Project objectives within established time periods or meet the development

time schedule without waiting for the next quarterly progress report. The Recipient should report

such events to the Project Officer in the most time-expedient way possible and then, if the initial

report was not in writing, report the event to the Project Officer in writing. Such a report must

include a statement of the event or issue, a statement of the course of action taken or

contemplated to resolve the matter, and any Federal assistance needed to resolve the situation. If

budget changes are required, the Recipient must submit a written budget revision request.

See 2 CFR § 200.329(e) (“Monitoring and reporting program performance”) and Part II,

section A.4. “Budget Revisions and Transfers of Funds” of these EDA Construction STCs.

4. Programmatic Changes

a. In accordance with 2 CFR § 200.308 (“Revision of budget and program plans”), the Recipient

must submit a written request for any proposed programmatic changes, including all changes

to the scope of the Award, to the Project Officer. See Part II, section A.4 “Budget Revisions

and Transfers of Funds” of these EDA Construction STCs for budget revisions that may

require the prior written approval of EDA. In these cases, the Project Officer will forward the

request to the Grants Officer, who makes the final decision on approving the request. In

addition, the Recipient must request prior written approvals for certain items of cost in

accordance with 2 CFR § 200.407 (“Prior written approval (prior approval)”).

b. Any changes made to the Project without EDA’s approval are made at the Recipient’s own

risk, and may result in disallowance of costs, suspension, termination, or other EDA action

with respect to the Award. See 13 CFR § 302.7(b) (“Amendments and changes”).

c. Contract Change Orders. After construction contracts for the Project have been executed, it

may become necessary to alter them through a formal contract change order that must be

issued by the Recipient and accepted by the contractor. All contract change orders must be

reviewed by EDA, even if EDA is not participating in the cost of the change order or the

contract price is to be reduced. Work on the Project may continue pending EDA review and

approval of the change order, but all such work will be at the Recipient’s risk as to whether

the cost of the work is eligible for EDA reimbursement. See 13 CFR § 305.13 (“Contract

change orders”).

5. Government Performance and Results Act

In addition to quarterly Project progress reports, EDA may require the Recipient to report on

Project performance beyond the end date of the period of performance for Government

Performance and Results Act (GPRA) or other purposes. In no case will the Recipient be required

to submit any GPRA report more than ten years after the date of Award closeout. Data used by the

Recipient in preparing reports must be accurate and, whenever possible, from independent

sources. See 13 CFR § 302.16 (“Accountability”).

6. Beneficiary Compliance

In the event a beneficiary of the Project fails to comply in any manner with certifications,

assurances, or agreements that such beneficiary has entered into in accordance with EDA’s

requirements, the Recipient will reimburse EDA the Award amount or an amount to be

determined by the EDA pursuant to 13 CFR §§ 314.4 (“Unauthorized use of property”) and

314.5 (“Federal share”). When EDA determines that the failure of a beneficiary to comply with

EDA requirements affects a portion of the property benefited by the Award, the Recipient will

reimburse EDA proportionately.

7. Hold Harmless

To the maximum extent permitted by law, the Recipient agrees to indemnify and hold the

United States harmless from and against all liabilities that the United States may incur due to the

actions or omissions of the Recipient, including to the extent that such liabilities are incurred

because of toxic or hazardous contamination or groundwater, surface water, soil, or other

conditions caused by actions of the Recipient or any of its predecessors (other than the United

States or its agents) on the property. See 13 CFR § 302.19 (“Indemnification”).

8. Prohibition on Use of Third Parties to Secure Award

Unless otherwise specified in the application materials supporting this Award, the Recipient

warrants that no person or selling agency has been employed or retained to solicit or secure this

Award upon an agreement or understanding for a commission, percentage, brokerage, or

contingent fee, excepting bona fide employees, or bona fide established commercial or selling

agencies maintained by the Recipient for the purpose of securing business. For breach or

violation of this warranty, EDA has the right to terminate this Award for material noncompliance,

or at its discretion, to deduct from the Award amount, or otherwise recover, the full amount of

such commission, percentage, brokerage, or contingent fee.

9. Payment of Attorneys’ or Consultants’ Fees

No Award funds may be used, directly or indirectly, to reimburse attorneys’ or consultants’ fees

incurred in connection with obtaining an award under PWEDA, such as, for example, preparing

an application for EDA assistance. However, ordinary and reasonable attorneys’ and consultants’

fees incurred for meeting Award requirements (e.g., conducting a title search or preparing plans

and specifications) may be eligible Project costs and may be paid out of Award funds, provided

such costs are otherwise eligible. See 13 CFR § 302.10 (“Attorneys’ and consultants’ fees,

employment of expediters, and post-employment restriction”).

10. Recipient’s Duty to Refrain from Employing Certain Government Employees

a. Pursuant to section 606(2) of PWEDA (42 U.S.C. § 3216), for the two-year period beginning

on the date EDA executes this Award, any Recipient that is a nonprofit organization,

District Organization, or for-profit entity agrees that it will not employ, offer any office or

employment to, or retain for professional services any person who:

i. On the date EDA executes this Award or within the one-year period ending on that date,

served as an officer, attorney, agent, or employee of the Department, and

ii. Occupied a position or engaged in activities that the Assistant Secretary determines

involved discretion with respect to the funding of an Award.

b. In addition to the types of Recipients noted in paragraph a. above, EDA may require another

Eligible Applicant to execute an agreement to abide by the above-described post-employment

restriction on a case-by-case basis—for example, when an institution of higher education

implements activities under or related to the Award through a separate nonprofit organization

or association.

c. The two-year period and associated restrictions referenced above also will apply beginning on

the date that EDA executes any cost amendment to this Award that provides additional funds

to the Recipient.

See also 13 CFR § 302.10 (“Attorneys’ and consultants’ fees, employment of expediters, and

post-employment restriction”).

11. Commencement of Construction

a. Delayed construction starts. If significant construction (as determined by EDA) is not

commenced within two years of the Award date or by the date estimated for start of

construction in this Award (or the expiration of any extension granted in writing by EDA),

whichever is later, this Award will be automatically suspended by a written notification

issued by the Grants Officer and may be terminated if EDA determines, after consultation

with the Recipient, that construction to completion cannot reasonably be expected to proceed

promptly and expeditiously.

b. Early construction starts. The Recipient must make a written request to EDA for early

construction start permission (that is, after the date of Award, but before EDA gives formal

approval for construction to commence). Costs incurred under a contract are only allowable

after EDA determines that the award of the contract is in compliance with all terms and

conditions of the Award. If construction commences prior to EDA’s determination, the

Recipient proceeds at its own risk until EDA’s review and concurrence. See 13 CFR § 305.11

(“Contract awards; early construction start”).

12. Project Sign and Use of EDA Logo

a. Project sign. The Recipient is responsible for constructing, erecting, and maintaining in good

condition throughout the construction period a sign (or signs) in a conspicuous place at the

Project site indicating that the Federal Government is participating in the Project. EDA will

provide specifications for the sign and may require more than one sign if site conditions so

warrant. If the EDA-recommended sign specifications conflict with State or local law, the

Recipient may modify such recommended specifications so as to comply with State or local

law. See 13 CFR § 305.12 (“Project sign”).

b. Use of EDA logo. With EDA’s prior written permission, the Recipient may use the EDA logo

to publicize the Award as well as to amplify the impact of the Award. In such cases, the EDA

logo may be displayed on Award-related materials that discuss or advertise the purpose or

use of the Project (e.g. websites, social media, fliers, pamphlets, brochures). To seek

permission to use the EDA logo, the Recipient must contact the EDA Project Officer and

provide a written description of how the Recipient proposes to use the EDA logo. In general,

the EDA logo may be used either alone or next to Recipient’s logo. The EDA logo may not

be used to endorse a third party as interpreted at EDA’s sole discretion. The Recipient must

not use the EDA logo in a negative or defamatory manner, and the Recipient must not use the

U.S. Department of Commerce (DOC) logo. EDA may rescind such permission at any time.

13. Efficient Administration of Project

The Recipient agrees to properly and efficiently administer, operate, and maintain the Project for

its estimated useful life, as required by section 504 of PWEDA (42 U.S.C. § 3194). If EDA

determines at any time during the estimated useful life of the facility that the Project is not being

properly and efficiently administered, operated, and maintained, EDA may terminate this Award

(if it is still active) and/or may take appropriate enforcement action to protect the Federal Interest

in the Project, including requiring the Recipient to repay the Federal Share. See 13 CFR

§§ 302.12 (“Project administration, operation and maintenance”), 302.18 (“Post-approval

requirements”), and 314.2 (“Federal Interest”) through 314.5 (“Federal Share”).

14. Conflicts-of-Interest Rules

a. An “Interested Party” is defined in 13 CFR § 300.3 (“Definitions”) as “any officer, employee,

or member of the board of directors or other governing board of the Recipient, including any

other parties that advise, approve, recommend, or otherwise participate in the business

decisions of the Recipient, such as agents, advisors, consultants, attorneys, accountants, or

shareholders.” An Interested Party includes the Interested Party’s Immediate Family and other

persons directly connected to the Interested Party by law or through a business organization.

“Immediate Family” is defined in 13 CFR § 300.3 as “a person’s spouse (or domestic partner

or significant other), parents, grandparents, siblings, children and grandchildren, but does not

include distant relatives, such as cousins, unless the distant relative lives in the same

household as the person.”

b. The Recipient must disclose in writing any potential conflicts of interest to EDA or the

pass-through entity as soon as practicable after the identification of such potential conflict. In

addition, the Recipient must maintain written standards of conduct to establish safeguards to

prohibit an Interested Party from using its position for a purpose that constitutes or presents

the appearance of personal or organizational conflicts-of-interest or of personal gain in the

administration of an award. See 13 CFR § 302.17(a) and (b) (“Conflicts of interest”), 2 CFR

§ 200.112 (“Conflict of interest”), as applicable, and assurances submitted as part of the

Application, including assurances submitted through SAM.gov or via Form SF-424D

(“Assurances – Construction Projects”).

c. An Interested Party must not receive any direct or indirect financial or personal benefit in

connection with this Award or its use for payment or reimbursement of costs by or to the

Recipient. A conflict of interest generally exists when an Interested Party participates in a

matter that has a direct and predictable effect on the Interested Party's personal or financial

interests. A conflict also may exist where there is an appearance that an Interested Party's

objectivity in performing his or her responsibilities under the Project is impaired. For

example, an appearance of impairment of objectivity may result from an organizational

conflict where, because of other activities or relationships with other persons or entities, an

Interested Party is unable to render impartial assistance, services or advice to the Recipient, a

participant in the Project or to the Federal government. Additionally, a conflict of interest

may result from non-financial gain to an Interested Party, such as benefit to reputation or

prestige in a professional field. See 13 CFR § 302.17(a) and (b).

d. Section F.01.c of the DOC Standard Terms and Conditions, which are incorporated as Part III

of these EDA Construction STCs, specifies procurement-related conflicts of interest

requirements. See also 2 CFR §§ 200.317-200.327 (“Procurement Standards”).

15. Records-Keeping Requirements

a. Records. The Recipient must maintain records that document compliance with the terms and

conditions of this Award. At a minimum, the Recipient’s records must fully disclose:

i. The amount and disposition of all EDA funding under the Award;

ii. All Project expenditures and procurement actions;

iii. The total cost of the Project that the Award funds;

iv. Copies of all reports and disbursement requests submitted to EDA;

v. The benefits/impacts of the Project, as reported through GPRA and other reports to EDA;

vi. The amount and nature of the portion of Project costs provided by non-EDA sources;

vii. Contractor compliance with applicable Federal requirements; and

viii.Such other records as EDA requires the Recipient to maintain, including such records as

will facilitate an effective audit.

b. Records retention. In general, and in accordance with 2 CFR § 200.334 (“Retention

requirements for records”), all records pertinent to this Award must be retained for a period of

three years from the date of submission of the final Project expenditure report (the final

Form SF-271 for disbursement). The only exceptions are the following:

i. If any litigation, claim, or audit is started before the expiration of the three-year period, the

records must be retained until all litigation, claims, or audit findings involving the records

have been resolved and final actions taken.

ii. When the Recipient is notified in writing by EDA, its cognizant agency for either audit or

indirect costs, its oversight agency for audit, or the relevant pass-through entity to extend

the retention period, it must retain the records as directed.

iii. Records for real property and equipment acquired with Federal funds must be retained for

three years after final disposition of the relevant real property or equipment.

iv. When records are transferred to or maintained by EDA or pass-through entity, the

three-year retention requirement is not applicable to the Recipient.

v. Records for program income transactions after the period of performance. In some cases,

Recipients must report program income after the period of performance. Where there is

such a requirement, the retention period for the records pertaining to the earning of the

program income starts from the end of the Recipient’s fiscal year in which the program

income is earned. See also Part II, section A.7 “Program Income” of these

EDA Construction STCs.

vi. Indirect cost rate proposals and cost allocation plans. This paragraph applies to the

following types of documents and their supporting records: indirect cost rate

computations or proposals, cost allocation plans, and any similar accounting

computations of the rate at which a particular group of costs is chargeable (such as

computer usage chargeback rates or composite fringe benefit rates).

(1) If submitted for negotiation. If the proposal, plan, or other computation is required to

be submitted to the Federal Government (or to the pass-through entity) to form the

basis for negotiation of the rate, then the three-year retention period for its supporting

records starts from the date of such submission.

(2) If not submitted for negotiation. If the proposal, plan, or other computation is not

required to be submitted to the Federal Government (or to the pass-through entity) for

negotiation purposes, then the three-year retention period for the proposal, plan, or

computation and its supporting records starts from the end of the fiscal year (or other

accounting period) covered by the proposal, plan, or other computation.

c. Monitoring and reporting obligations. The Recipient is responsible for monitoring any

subrecipients and contractors to ensure their compliance with the records retention

requirements. The Recipient must immediately notify the Project Officer if records are lost.

See 2 CFR §§ 200.331 – 200.333 (“Subrecipient Monitoring and Management).

16. Termination Actions

a. In accordance with 2 CFR § 200.340 (“Termination”), this Award may be terminated in

whole or in part as follows:

i. Termination by EDA for the Recipient’s failure to comply with the terms and conditions

of the Award. EDA may terminate this Award, in whole or in part, if the Recipient fails to

comply with the Terms and Conditions of the Award, including but not limited to:

(1) Any representation made by the Recipient to the Federal awarding agency in

connection with the Application for Federal assistance is incorrect or incomplete

in any material respect;

(2) The Project has changed substantially, without EDA prior approval, so as to affect

significantly the accomplishment of the Project as intended (including an

unauthorized use of property as provided in 13 CFR § 314.4 (“Unauthorized use of

property”);

(3) The Recipient has violated commitments it made in its Application and supporting

documents or has violated any of the Terms and Conditions of the Award;

(4) The conflicts-of-interest rules at 13 CFR § 302.17 (“Conflicts of interest”) are

violated; or

(5) The Recipient fails to report immediately to EDA any change of authorized

representative acting in lieu of or on behalf of the Recipient.

See also section A.06 (Unsatisfactory Performance or Non-Compliance with Award

Provisions) of the DOC Standard Terms and Conditions, which are incorporated in Part III

of these EDA Construction STCs.

ii. Termination by EDA when the Award no longer effectuates program goals or agency

priorities. To the greatest extent authorized by law, EDA may terminate this Award if it

no longer effectuates program goals or agency priorities.

iii. Termination by the Recipient. The Recipient may terminate this Award in whole or in

part upon by sending the EDA Grants Officer written notification setting forth the reasons

for such termination, the effective date, and, in the case of partial termination, the portion

to be terminated. However, if EDA determines in the case of partial termination that the

reduced or modified portion of the EDA Award will not accomplish the purposes for

which the EDA Award was made, EDA may terminate the Award in its entirety.

iv. Termination pursuant to Award termination provisions. EDA or the pass-through entity

may terminate this Award pursuant to termination provisions included in the Award. Any

Award-specific termination provision will be included as a specific award condition.

v. Termination upon mutual agreement. EDA and the Recipient may mutually agree to

terminate this Award in whole or in part. In such cases, EDA and the Recipient must agree

upon the termination conditions, including the effective date and, in the case of partial

termination, the portion to be terminated.

b. If the Award is wholly or partially terminated, the Recipient remains responsible for

compliance with the requirements in 2 CFR §§ 200.344 (“Closeout”) and 200.345

(“Post-closeout adjustments and continuing responsibilities”).

17. Project Closeout Procedures

a. Project Closeout. As defined at 2 CFR § 200.1, Project Closeout means the process by which

EDA determines that all applicable administrative actions and all required work of the Award

have been completed and takes actions as described at 2 CFR § 200.344 (“Closeout”). In the

context of an EDA construction award, Project Closeout generally begins with the

Recipient’s acceptance of the Project from the contractor(s).

b. Final disbursement. When Project construction and final inspection have been completed, or

substantially completed as determined by EDA, and the Recipient has accepted the Project

from the contractor(s), the Recipient can begin the Closeout process by submitting the

following documentation to EDA:

i. A request for final disbursement on an executed Form SF-271;

ii. A written certification that all costs charged against this Award (Federal and non-Federal

shares) are for eligible activities and represent allowable costs, for which there is

documentation in the Recipient’s records;

iii. An executed certificate of final acceptance signed by the Recipient and the Recipient’s

architect/engineer;

iv. The Recipient’s certification that its current audit (in accordance with subpart F of 2 CFR

part 200), if applicable, has been submitted to the Federal Audit Clearinghouse;

v. The Recipient’s certification that its currently valid single or program-specific audit in

accordance with subpart F of 2 CFR part 200 (“Audit Requirements”), if applicable, does

not contain any material findings (if the Recipient’s currently valid audit does contain

material findings, the Recipient must submit the applicable audit preferably via e-mail to

the Project Officer, who will review with the Grants Officer); and

vi. Other documentation as may be required by EDA.

EDA will advise the Recipient of costs determined to be allowable and unallowable. If a

balance of this Award is due to the Recipient, the balance will be paid by EDA. If the

Recipient has received an amount in excess of the amount due the Recipient, the Recipient

must refund the excess to EDA. The Recipient must contact the Project Officer for refund

instructions.

As noted above, if the Recipient’s most recent audit completed pursuant to subpart F of

2 CFR part 200 contains material findings, the Recipient must submit the audit, preferably via

e-mail, to the Project Officer, who will review with the Grants Officer before final

disbursement. If e-mail is unavailable, the Recipient may submit a hardcopy version of the

audit to the Project Officer.

c. Final reporting deadline. The Recipient must submit, no later than 120 calendar days after

the end date of the period of performance, all financial, performance, and other reports as

required by the Terms and Conditions of this Award. The Grants Officer may extend the

120 calendar day submission period upon a written request from the Recipient.

d. Deadline to liquidate obligations. Unless EDA authorizes an extension, the Recipient must

liquidate all financial obligations incurred under this Award no later than 120 calendar days

after the end date of the period of performance.

e. Post-Closeout requirements. As noted above in section B.12 “Efficient Administration of

Project” of these EDA Construction STCs, after construction is completed and the Project is

closed out financially, the Recipient has an ongoing responsibility to properly administer,

operate, and maintain the Project for its estimated useful life (as determined by EDA) in

accordance with Award purposes. See 13 CFR § 302.12 (“Project administration, operation

and maintenance”). The Recipient must comply with all Award requirements and maintain

records to document such compliance, which must be made available for inspection by EDA

or other Government officials as required.

In addition, in accordance with 2 CFR § 200.345 “Post-closeout adjustments and continuing

responsibilities,” the Closeout of this Award does not affect any of the following:

i. The right of EDA to disallow costs and recover funds on the basis of a later audit or

other Project review;

ii. The Recipient’s obligation to return any funds due as a result of later corrections or

other transactions;

iii. Audit requirements per subpart F of 2 CFR part 200; and

iv. Requirements for property management and disposition, records retention, and

performance measurement reports. See subpart D of 2 CFR part 200 (“Post

Federal Award Requirements”), as applicable.

f. GPRA reporting. As required under GPRA and in accordance with a schedule that will be

provided by EDA, the Recipient must submit additional Performance Measurement Reports,

generally three, six, and nine years after the date of the Award to accurately and completely

report the impacts of the Project, especially in terms of job creation and private investment

leveraging.

18. Freedom of Information Act

EDA is responsible for meeting its Freedom of Information Act (“FOIA”) (5 U.S.C. § 552)

responsibilities for its records. DOC regulations at 15 CFR part 4 set forth the requirements and

procedures that EDA must follow in order to make the requested material, information, and

records publicly available. Unless prohibited by law and to the extent required under the FOIA,

contents of Applications and other information submitted by applicants and Recipients may be

released in response to a FOIA request. The Recipient should be aware that EDA may make

certain Application and other submitted information publicly available. Accordingly, as set forth

in 15 CFR § 4.9 (“Confidential commercial information”), the Recipient should identify in its

Application any “business information” it believes to be protected from disclosure pursuant to

5 U.S.C. § 552(b)(4).

C. Additional Requirements Related to Construction Projects

The Recipient and any subrecipients, must, in addition to other statutory and regulatory requirements

detailed in these EDA Construction STCs and the assurances made to EDA in connection with the

Award, comply and require each of its contractors and subcontractors employed in the completion of

the Project to comply with all applicable Federal, State, territorial, and local laws, and in particular,

the following Federal laws (and the regulations issued thereunder), executive orders, OMB circulars,

OMB Uniform Guidance, and local law requirements.

1. The Davis-Bacon Act, as amended (40 U.S.C. §§ 3141–3144, 3146, 3147;

42 U.S.C. § 3212), which requires minimum wages for mechanics and laborers employed on

Federal Government public works projects to be based on the wages that the Secretary of

Labor determines to be prevailing for the corresponding classes of laborers and mechanics

employed on projects of a character similar to the contract work in the civil subdivision of the

State in which the Project is to be performed, or in the District of Columbia if the Project is to

be performed there.

2. The Contract Work Hours and Safety Standards Act, as amended (40 U.S.C.

§§ 3701-3708), which provides work hour standards for every laborer and mechanic employed

by any contractor or subcontractor in the performance of a Federal public works project.

3. The National Historic Preservation Act of 1966, as amended (54 U.S.C. § 300101 et seq.),

and the Advisory Council on Historic Preservation Guidelines (36 CFR part 800), which

require stewardship of historic properties in projects involving Federal funds.

4. Preservation of Historical and Archeological Data (54 U.S.C. § 312502), which requires

appropriate surveys and preservation efforts if a

Federally licensed project may cause

irreparable loss or destruction of significant scientific, prehistorical, historical, or

archeological data.

5. The Architectural Barriers Act of 1968, as amended (42 U.S.C. § 4151 et seq.), and the

regulations issued thereunder, which prescribe standards for the design and construction of any

building or facility intended to be accessible to the public or that may house handicapped

employees.

6. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,

as amended (42 U.S.C. § 4601 et seq.), and implementing regulations issued at 49 CFR

part 24 (“Uniform Relocation Assistance and Real Property Acquisition for Federal and

Federally Assisted Programs”), which establish uniform policies for the fair and equitable

treatment of persons, businesses, or farm operations affected by the acquisition, rehabilitation,

or demolition of real property acquired for a project financed wholly or in part with Federal

financial assistance.

7. The Energy Conservation and Production Act (42 U.S.C. § 6834 et seq.), which establishes

energy efficiency performance standards for the construction of new residential and

commercial structures undertaken with Federal financial assistance.

8. Executive Order 13717, “Seismic Safety of Federal and Federally Assisted or Regulated

New Building Construction”, which requires that new buildings constructed with Federal

assistance comply with the earthquake-resistant design provisions of the 2015 editions of the

International Building Code (IBC) or the International Residential Code (IRC), nationally

recognized building codes promulgated by the International Code Council (ICC), or

equivalent codes, consistent with the provisions of and to the extent required by 40 U.S.C.

§ 3312.

9. Compliance with Local Construction Requirements. The Recipient will comply with

current local building codes, standards, and other requirements applicable to the Project.

D. Non-Discrimination Requirements

No person in the United States shall, on the ground of race, color, national origin, handicap, age,

religion, or sex, be excluded from participation in, be denied the benefits of, or be subject to

discrimination under any program or activity receiving Federal financial assistance. In addition to the

non-discrimination requirements set forth in section G.02 “Non-Discrimination Requirements” of

the DOC Standard Terms and Conditions, which are incorporated in Part III of these Construction

STCs, the Recipient agrees to comply with Pub. L. No. 92-65, 42 U.S.C. § 3123, which proscribes

discrimination on the basis of sex in assistance provided under PWEDA.

E. Audits

1. General

a. Recipients must comply with the audit requirements set out as subpart F to 2 CFR part 200

(“Audit Requirements”). Generally, if the Recipient expends $750,000 or more in Federal

awards during the Recipient’s fiscal year, the Recipient must have a single or

program-specific audit conducted for that fiscal year. The cost of preparing the audit may be

included in the Project budget.

b. For program specific audits, EDA’s Public Works and Economic Adjustment Assistance

programs generally have specific audit guidelines that will be incorporated into the Award

and may be found in the annual Compliance Supplement, which is Appendix XI to 2 CFR

part 200 and available on OMB’s website. When DOC does not have a program-specific

audit guide available for the program, the auditor will follow the requirements for a

program-specific audit as described in 2 CFR § 200.507 (“Program-specific audits”).

2. Requirement to Submit a Copy of the Audit to EDA

If the Recipient’s current audit required under subpart F of 2 CFR part 200

(“Audit Requirements”) contains material findings, the Recipient must submit a copy of the

audit to the Project Officer, who will review it with the Grants Officer. See also Part II,

section B.16 “Project Closeout Procedures” of these EDA Construction STCs.

See section D “Audits” of the DOC Standard Terms and Conditions, which are incorporated in

Part III of these EDA Construction STCs, for additional information related to audit requirements.

F. Tribal Employment Rights Ordinances

As set out in 31 U.S.C. § 1352, special provisions are applicable to Indian Tribes, Tribal

organizations, and other Indian organizations eligible to receive Federal contracts, grants, loans, or

cooperative agreements. In accordance with DOC policy, EDA recognizes Tribal Employment Rights

Ordinances (“TEROs”), which may provide for preferences in contracting and employment, in

connection with its financial assistance awards. Federal awards granted to American Indian and

Alaska Native Tribal governments generally may provide for preference to qualified Indians in all

aspects of employment, contracting, and other business activities, as well as the payment of a TERO

fee. The payment of the TERO fee, which supports the Tribal employment rights office to administer

the preferences, should generally be allowable as an expense that is “necessary and reasonable for

the performance of the Federal award,” as provided under 2 CFR § 200.403 (“Factors affecting

allowability of costs”).

G. EDA Contracting Provisions for Construction Projects

The Recipient must use the “EDA Contracting Provisions for Construction Projects” as guidance in

developing all construction contracts. The “EDA Contracting Provisions for Construction Projects”

lists applicable EDA and other Federal requirements for construction contracts.

H. Property

1. Standards

With respect to any property acquired or improved in whole or in part with Award funds, the

Recipient must comply with the Property Standards set forth at 2 CFR §§ 200.310 (“Insurance

coverage”) through 200.316 (“Property trust relationship”), and EDA’s regulations at

13 CFR part 314. Property acquired or improved in whole or in part by the Recipient under this

Award may consist of real property; personal property, including equipment and supplies; and

intangible property, such as money, notes, contractual rights, and security interests. Any property

reports required under 2 CFR §§ 200.310 through 200.316, such as periodic inventories and requests

for disposition instructions, must be submitted to the Grants Officer through the Project Officer on

Form SF-428 and/or SF-429, as applicable. See also section A.01.d “Real Property, Tangible

Property and Intangible Property Reports and Requests for Dispositions” of the DOC Standard

Terms and Conditions, which are incorporated in Part III of these EDA Construction STCs.

2. Title

a. Title to equipment, supplies, and intangible property acquired in whole or in part under this

Award generally vests upon acquisition in the Recipient. The use, management and

disposition of equipment, supplies, and intangible property acquired in whole or in part under

this Award must be in accordance with 2 CFR §§ 200.313 (“Equipment”), 200.314

(“Supplies”), and 200.315 (“Intangible property”), as applicable, and EDA regulations at

13 CFR part 314. See also section C.03 “Intellectual Property Rights” of the DOC Standard

Terms and Conditions, which are incorporated in Part III of these EDA Construction STCs.

b. Title to real property acquired in whole or in part under this Award generally vests upon

acquisition in the Recipient, subject to the condition that the Recipient uses the real property

for the authorized purpose of the Project. See 2 CFR § 200.311 (“Real property”) and EDA

regulations at 13 CFR part 314.

3. EDA’s Interest in Award Property

a. General - evidence of title. As stated in Part I, section E, of these EDA Construction STCs

“Recipient as Trustee”, real property, equipment, and intangible property acquired or

improved under this Award must be held in trust by the Recipient as trustee for the public

purposes of an Award. This trust relationship exists throughout the duration of the property’s

estimated useful life, as determined by EDA, during which time EDA retains an undivided,

equitable reversionary interest in the property (“Federal Interest”). See 13 CFR § 314.2.

Before advertising for construction bids or at such other time as EDA requires, the Recipient

must furnish evidence, satisfactory in form and substance to EDA, that title to real property

required for the Project (other than property of the United States and as provided in 13 CFR

§ 314.7(c) (“Title”)) is vested in the Recipient and that such easements, rights-of-way, State or

local government occupancy or use permits, long-term leases, or other property interests or

access rights required for the Project have been or will be obtained by the Recipient within an

acceptable time, as determined by EDA. All liens, mortgages, other encumbrances,

reservations, reversionary interests, or other restrictions on title or the Recipient’s interest in

the property must be disclosed to EDA. See 13 CFR § 314.7 (“Title”). With limited

exceptions set forth at 13 CFR §§ 314.6(a) and (b) (“Encumbrances”) or as otherwise

authorized by EDA, Recipient-owned property acquired or improved in whole or in part with

Award funds must not be used to secure a mortgage or deed of trust or in any way otherwise

encumbered. See 13 CFR § 314.6.

b. Recording EDA’s Interest in Real Property.

i. For all Projects involving the acquisition, construction, or improvement of a building,

infrastructure, or other real property, as determined by EDA, the Recipient must execute

and furnish to EDA, prior to initial Award disbursement or at such other time as EDA

requires, a lien, covenant, or other statement, satisfactory to EDA in form and substance,

of EDA’s interest in the property acquired or improved in whole or in part with the funds

made available under this Award. EDA may permit such statement to be recorded after

initial Award disbursement in the event that grant funds are being used to acquire such

property or for authorized costs, such as design and engineering services. The statement

must specify the estimated useful life of the Project and must include the disposition,

encumbrance, and the Federal Share compensation requirements, as well as any other

requirements specified by EDA in its reasonable discretion. See 13 CFR §§ 314.1

(“Definitions”) and 314.8(a) (“Recorded statement for real property”). See also 2 CFR

§ 200.316 (“Property trust relationship”).

ii. This lien, covenant, or other statement of the Federal interest must be perfected and placed

of record in the real property records of the jurisdiction in which the property is located,

all in accordance with applicable law. EDA may require an opinion of counsel for the

Recipient to substantiate that the document was validly executed and properly recorded.

See 13 CFR § 314.8(b).

iii. Facilities in which the EDA assistance is only a small part of a larger project, as

determined by EDA, may be exempted from the requirements listed in paragraphs H.3.b.i

and ii above. See 13 CFR § 314.8(c).

iv. In extraordinary circumstances and at EDA’s discretion, EDA may choose to accept

another instrument to protect EDA’s interest in the Project property, such as an escrow

agreement or letter of credit, provided that EDA determines such instrument is adequate

and a recorded statement in accord with section H.3.b.i above is not reasonably available.

The terms and provisions of the relevant instrument must be satisfactory to EDA. The

costs and fees for escrow services or letters of credit must be paid by the Recipient.

See 13 CFR § 314.8(d).

c. Recording EDA’s Interest in Personal Property. For all Projects involving the acquisition or

improvement of significant items of equipment or other tangible personal property, including

but not limited to watercraft, motor vehicles, machinery, equipment, removable fixtures, or

structural components of buildings, the Recipient must execute a security interest, covenant, or

other statement of EDA’s reversionary interest in the personal property acceptable in form and

substance to EDA, which statement must be perfected and placed of record in accordance with

applicable law (usually accomplished by filing a Uniform Commercial Code Financing

Statement (Form UCC-1), as provided by State law), with continuances re-filed as

appropriate. EDA may require an opinion of counsel for the Recipient to substantiate that the

Form UCC-1 or other filing was validly executed and properly recorded. See 13 CFR § 314.9

(“Recorded statement for Project personal property”).

d. EDA’s Interest and the estimated useful life. The Recipient acknowledges that EDA retains

an undivided equitable reversionary interest in property acquired or improved in whole or in

part with grant funds made available through this Award throughout the estimated useful life

(as determined by EDA) of the Project, except in applicable instances set forth at 13 CFR

§ 314.7(c) (“Title”). See 13 CFR § 314.2(a) (“Federal interest”).

e. Unauthorized Use of Award Property. The Recipient agrees that if any interest in property

acquired or improved in whole or in part with Award funds is disposed of, encumbered, or

alienated in any manner, or no longer used for the authorized purposes of the Award during

the Project’s estimated useful life without EDA’s written approval, EDA will be entitled to

recover the Federal Share, as defined at 13 CFR § 314.5 (“Federal share”). Examples of

alienation of Award property include sale or other conveyance of the Recipient’s interest,

leasing or mortgaging the property, or granting an option for any of the foregoing.

If, during the Project’s estimated useful life, the property is no longer needed for the purposes

of the Award, as determined by EDA, EDA may permit its use for other acceptable purposes

consistent with those authorized by PWEDA and 13 CFR Chapter III. See 13 CFR § 314.3(b)

(“Authorized use of property”) or may direct the Recipient to sell the property and remit the

Federal Share of the sales proceeds to EDA. See 2 C.F.R. §§ 200.311, 200.313.

f. Calculating the Federal Share. For purposes of any lien or security interest, the amount of the

Federal Share is the portion of the current fair market value of any property (after deducting

any actual and reasonable selling and repair expenses incurred to put the property into

marketable condition) attributable to EDA’s participation in the Project. See 13 CFR § 314.5

(“Federal share”).

4. Insurance and Bonding

a. Insurance. The Recipient must, at a minimum, provide the equivalent insurance coverage for

real property and equipment acquired or improved with Federal funds as provided for

property owned by the Recipient. Federally owned property need not be otherwise insured

unless required by the Terms and Conditions of the Award. See 2 CFR § 200.310

(“Insurance coverage”).

b. Bonding. If the Award exceeds the simplified acquisition threshold as defined at 2 CFR

§ 200.1, EDA may accept the Recipient’s or subrecipient’s bonding policy and requirements

if EDA or the pass-through entity determines that the Federal Interest is adequately protected.

If not, the following minimum requirements will apply:

i. A bid guarantee from each bidder equivalent to five percent of the bid price. The “bid

guarantee” must 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 the bid, execute such contractual documents as may be required within the

time specified.

ii. A performance bond on the part of the contractor for 100 percent of the contract price. A

“performance bond” is one executed in connection with a contract to secure fulfillment of

all the contractor’s obligations under such contract.

iii. A payment bond on the part of the contractor for 100 percent of the contract price. A

“payment bond” is one executed in connection with a contract to ensure payment as

required by law of all persons supplying labor and material in the execution of the work

provided for in the contract. See 2 CFR § 200.326 (“Bonding requirements”).

5. Leasing Restrictions.

Leasing or renting of facilities or property is prohibited unless specifically authorized by EDA.

The Recipient agrees that any leasing or renting of any facilities or property involved in this

Project will be subject to the following:

a. That said lease arrangement is consistent with the authorized general and special purpose of

the Award;

b. That said lease arrangement is for adequate consideration;

c. That said lease arrangement is consistent with applicable EDA requirements concerning but

not limited to nondiscrimination and environmental compliance; and

d. That all revenue derived from said leasing arrangement shall be subject to Part II, section A.7

“Program Income” of these EDA Construction STCs.

6. Eminent Domain

The Recipient will use funds solely for the authorized purpose of the Project. Pursuant to

Executive Order 13406, “Protecting the Property Rights of the American People,” the Recipient

agrees:

a. Not to exercise any power of eminent domain available to the Recipient (including the

commencement of eminent domain proceedings) for use in connection with the Project for

the purpose of advancing the economic interests of private parties; and

b. Not to accept title to land, easements, or other interests in land acquired by the exercise of

any power of eminent domain for use in connection with the Project for such purposes.

The Recipient agrees that any use of the power of eminent domain to acquire land, easements,

or interests in land, whether by the Recipient or any other entity that has the power of eminent

domain, in connection with the Project without the prior written consent of EDA is an

unauthorized use of the Project. If the Recipient puts the Project to an unauthorized use, the

Recipient must compensate EDA for the Federal Share in accordance with 13 CFR §§ 314.4

(“Unauthorized use of property”) and 314.5 (“Federal share”), as the same may be amended

from time to time.

7. Disposal of Real Property

a. During the estimated useful life of the Project, if EDA and the Recipient determine that

property acquired or improved in whole or in part with Award funds is no longer needed for

the original purposes of this Award, EDA may, in its discretion, approve use of the property

in other Federal grant programs or in programs that have purposes consistent with those

authorized by PWEDA and 13 CFR chapter III. See 13 CFR § 314.3(b) (“Authorized use of

property”).

b. When property is not authorized for other uses as provided in section H.7.a above, EDA will

provide disposition instructions to the Recipient, which may include directing the Recipient to

sell the property and remit the Federal Share of the sales proceeds to EDA.

8. Reporting on Property.

a. Real Property status reports and requests for disposition. In accordance with 2 CFR

§ 200.330 “Reporting on real property”, the Recipient must submit reports using

Form SF-429 (Real Property Status Report), including appropriate attachments, at least

annually on the status of real property in which EDA retains an interest, which generally

includes real property acquired or improved under the award, unless such interest extends

15 years or longer. If EDA’s interest is for a period of 15 years or longer, unless otherwise

specified in a specific award condition, the Recipient must submit an annual report for the

first three years of the award and thereafter submit a real property status report every

five years. If the Recipient wishes to dispose of real property acquired or improved under an

EDA award, the Recipient must request disposition instructions, including the submission of

Form SF-429, with appropriate attachments, from the Grants Officer in accordance with

2 CFR 200.311(c).

b. Tangible Personal Property status reports and requests for dispositions. The Recipient must

submit periodic reports as specified in the terms of the Award using Form SF-428 (Tangible

Personal Property Report), including appropriate attachments thereto, concerning tangible

personal property that is Federally owned or tangible personal property in which EDA retains

an interest. In addition, if the Recipient wishes to dispose of tangible personal property

acquired or improved under an EDA award, the Recipient must request disposition

instructions, including the submission of Form SF-428, with appropriate attachments, from

the Grants Officer in accordance with 2 CFR 200.313(e).

See also section A.01.d of the DOC Standard Terms and Conditions, which are incorporated

in Part III of these EDA Construction STCs.

I. Environmental Requirements

1. General. In addition to the environmental statutes, executive orders, and requirements set forth

in section G.04 of the DOC Standard Terms and Conditions “Environmental Requirements,”

which are incorporated in Part III of these EDA Construction STCs, the Recipient must comply

with the following:

a. Environmental Quality Improvement Act of 1970, as amended (42 U.S.C.

§§ 4371-4375). Federally supported public works facilities and activities that affect the

environment must be implemented in compliance with policies established under existing law.

b. The Lead-Based Paint Poisoning Prevention Act (42 U.S.C. § 4821 et seq.). Use of

lead-based paint in residential structures improved with Federal assistance is prohibited.

c. The Farmland Protection Policy Act (7 U.S.C. §§ 4201–4209). Projects are subject to

review under this Act if they may irreversibly directly or indirectly convert farmland,

including forest land, pastureland, cropland, or other land, to nonagricultural use.

d. The Noise Control Act of 1972 (42 U.S.C. § 4901 et seq.). Federally supported facilities and

activities must comply with Federal, State, interstate, and local requirements respecting

control and abatement of environmental noise to the same extent that any person is subject to

such requirements.

e. The Native American Graves Protection and Repatriation Act (25 U.S.C. § 3001 et seq.).

This Act provides a process for returning certain Native American cultural items to lineal

descendants, culturally affiliated Indian tribes, and Native Hawaiian organizations.

2. Compliance with Other Applicable Environmental Requirements

The Recipient agrees to promptly notify the Grants Officer in writing of any environmental

requirement or restriction, regulatory or otherwise, with which it must comply. Before Project

Closeout and final disbursement of Award funds, the Recipient further agrees to provide evidence

satisfactory to the Grants Officer that any required environmental remediation has been

completed: (1) in compliance with all applicable Federal, State and local regulations; and (2) in

accordance with any legally enforceable restrictions related to environmental restriction on the

property such as environmental easements, deed restrictions, no further action determinations, or

voluntary cleanup certifications. Compliance with said laws or restrictions must be included in

any contract documents for Project construction. The Recipient must certify compliance before

final disbursement of grant funds.

J. American-Made Equipment and Products

Recipients are hereby notified that they are encouraged, to the greatest extent practicable, to purchase

American-made equipment and products with funding provided under this Award.

See also section G.05.a (Buy-American Preferences) of the DOC Standard Terms and Conditions,

which are incorporated in Part III of these EDA Construction STCs.

PART III:

DEPARTMENT OF COMMERCE

STANDARD TERMS & CONDITIONS

The DOC Standard Terms and Conditions dated November 12, 2020 are incorporated herein by

reference herein as Part III of these EDA Construction STCs.

In the event of a conflict between Parts I or II of these EDA Construction STCs and Part III, which

incorporates the DOC Standard Terms and Conditions, Parts I and II will control.

12 November 2020

DEPARTMENT OF COMMERCE

FINANCIAL ASSISTANCE

STANDARD TERMS AND CONDITIONS

1 | 12 November 2020

DEPARTMENT OF COMMERCE

FINANCIAL ASSISTANCE STANDARD TERMS AND CONDITIONS

Table of Contents

PREFACE ....................................................................................................................................... 5

A. PROGRAMMATIC REQUIREMENTS ................................................................................ 6

.01 Reporting Requirements .................................................................................................. 6

.02 Revisions of Program Plans ............................................................................................. 8

.03 Other Federal Awards with Similar Programmatic Activities ......................................... 9

.04 Prohibition against Assignment by a Non-Federal Entity ............................................... 9

.05 Disclaimer Provisions ...................................................................................................... 9

.06 Unsatisfactory Performance or Non-Compliance with Award Provisions ...................... 9

B. FINANCIAL REQUIREMENTS .......................................................................................... 10

.01 Financial Management ................................................................................................... 10

.02 Award Payments ............................................................................................................ 10

.03 Federal and Non-Federal Sharing .................................................................................. 12

.04 Budget Changes and Transfer of Funds among Categories ........................................... 12

.05 Program Income ............................................................................................................. 13

.06 Indirect or Facilities and Administrative Costs ............................................................. 13

.07 Incurring Costs or Obligating Federal Funds Before and After the Period of

Performance ................................................................................................................... 15

.08 Tax Refunds ................................................................................................................... 16

.09 Internal Controls ............................................................................................................ 16

C. PROPERTY STANDARDS .................................................................................................. 16

.01 Standards ........................................................................................................................ 16

.02 Real and Personal Property ............................................................................................ 16

.03 Intellectual Property Rights ........................................................................................... 17

D. AUDITS ................................................................................................................................ 19

.01 Organization-Wide, Program-Specific, and Project Audits ........................................... 19

.02 Audit Resolution Process ............................................................................................... 20

E. DEBTS .................................................................................................................................. 21

.01 Payment of Debts Owed to the Federal Government .................................................... 21

.02 Late Payment Charges ................................................................................................... 21

.03 Barring Delinquent Federal Debtors from Obtaining Federal Loans or Loan Insurance

Guarantees ...................................................................................................................... 22

2 | 12 November 2020

.04 Effect of Judgment Lien on Eligibility for Federal Grants, Loans, or Programs ........... 22

F. CONFLICT OF INTEREST, CODE OF CONDUCT AND OTHER REQUIREMENTS

PERTAINING TO DOC FINANCIAL ASSISTANCE AWARDS, INCLUDING

SUBAWARD AND PROCUREMENT ACTIONS ............................................................. 22

.01 Conflict of Interest and Code of Conduct ...................................................................... 22

.02 Nonprocurement Debarment and Suspension ................................................................ 23

.03 Requirements for Subawards ......................................................................................... 23

.04 Requirements for Procurements ..................................................................................... 23

.05 Whistleblower Protections ............................................................................................. 24

.06 Small Businesses, Minority Business Enterprises and Women’s Business Enterprises 24

G. NATIONAL POLICY REQUIREMENTS ........................................................................... 25

.01 United States Laws and Regulations .............................................................................. 25

.02 Non-Discrimination Requirements ................................................................................ 25

a. Statutory Provisions ....................................................................................................... 25

b. Other Provisions............................................................................................................. 26

c. Title VII Exemption for Religious Organizations ......................................................... 27

.03 LOBBYING RESTRICTIONS ...................................................................................... 27

a. Statutory Provisions ....................................................................................................... 27

b. Disclosure of Lobbying Activities ................................................................................. 27

.04 Environmental Requirements......................................................................................... 27

a. The National Environmental Policy Act (42 U.S.C. §§ 4321 et seq.) ........................... 28

b. The National Historic Preservation Act (16 U.S.C. §§ 470 et seq.) .............................. 28

c. Executive Order 11988 (Floodplain Management) and Executive Order 11990

(Protection of Wetlands) ................................................................................................ 29

d. Clean Air Act (42 U.S.C. §§ 7401 et seq.), Federal Water Pollution Control Act (33

U.S.C. §§ 1251 et seq.) (Clean Water Act), and Executive Order 11738 (“Providing for

administration of the Clean Air Act and the Federal Water Pollution Control Act with

respect to Federal contracts, grants or loans”) ............................................................... 29

e. The Flood Disaster Protection Act (42 U.S.C. §§ 4002 et seq.) .................................... 29

f. The Endangered Species Act (16 U.S.C. §§ 1531 et seq.) ............................................. 29

g. The Coastal Zone Management Act (16 U.S.C. §§ 1451 et seq.) .................................. 29

h. The Coastal Barriers Resources Act (16 U.S.C. §§ 3501 et seq.) .................................. 30

i. The Wild and Scenic Rivers Act (16 U.S.C. §§ 1271 et seq.) ....................................... 30

j. The Safe Drinking Water Act of 1974, as amended, (42 U.S.C. §§ 300f et seq.) ......... 30

k. The Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 et seq.) ................. 30

3 | 12 November 2020

l. The Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA, commonly known as Superfund) (42 U.S.C. §§ 9601 et seq.) and the

Community Environmental Response Facilitation Act (42 U.S.C. § 9601 note et seq.) 30

m. Executive Order 12898 (“Federal Actions to Address Environmental Justice in

Minority Populations and Low Income Populations”) .................................................. 30

n. The Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. § 1801

et seq.) ............................................................................................................................ 30

o. Clean Water Act (CWA) Section 404 (33 U.S.C. § 1344) ............................................ 31

p. Rivers and Harbors Act (33 U.S.C. § 407) .................................................................... 31

q. The Migratory Bird Treaty Act (16 U.S.C. §§ 703-712), Bald and Golden Eagle

Protection Act (16 U.S.C. § 668 et seq.), and Executive Order 13186 (Responsibilities

of Federal Agencies to Protect Migratory Birds, January 10, 2001) ............................. 31

r. Executive Order 13112 (Invasive Species, February 3, 1999) ...................................... 31

s. Fish and Wildlife Coordination Act (16 U.S.C. § 661 et seq.) ...................................... 31

.05 OTHER NATIONAL POLICY REQUIREMENTS ..................................................... 32

a. Buy-American Preferences ............................................................................................ 32

b. Criminal and Prohibited Activities ................................................................................ 32

c. Drug-Free Workplace .................................................................................................... 33

d. Foreign Travel ................................................................................................................ 33

e. Increasing Seat Belt Use in the United States ................................................................ 34

f. Federal Employee Expenses and Subawards or Contracts Issued to Federal Employees

or Agencies .......................................................................................................................... 34

g. Minority Serving Institutions Initiative ......................................................................... 34

h. Research Misconduct ..................................................................................................... 35

i. Research Involving Human Subjects ............................................................................. 35

j. Care and Use of Live Vertebrate Animals ..................................................................... 36

k. Management and Access to Data and Publications ....................................................... 37

l. Homeland Security Presidential Directive ..................................................................... 38

m. Compliance with Department of Commerce Bureau of Industry and Security Export

Administration Regulations ........................................................................................... 38

n. The Trafficking Victims Protection Act of 2000 (22 U.S.C. § 7104(g)), as amended,

and the implementing regulations at 2 C.F.R. Part 175 ................................................. 40

o. The Federal Funding Accountability and Transparency Act (FFATA) (31 U.S.C. §

6101 note) ...................................................................................................................... 42

p. Recipient Integrity and Performance Matters (Appendix XII to 2 C.F.R. Part 200) ..... 47

q. Never Contract with the Enemy (2 C.F.R Part 183; 2 C.F.R. § 200.215) ..................... 49

4 | 12 November 2020

r. Prohibition on certain telecommunications and video surveillance services or

equipment (Public Law 115-232, section 889; 2 C.F.R. ⸹ 200.216) ............................. 50

s. Federal Financial Assistance Planning During a Funding Hiatus or Government

Shutdown ....................................................................................................................... 51

5 | 12 November 2020

PREFACE

This document sets out the standard terms and conditions (ST&Cs) applicable to this U.S.

Department of Commerce (DOC or Commerce) financial assistance award (hereinafter referred

to as the DOC ST&Cs or Standard Terms). A non-Federal entity

receiving a DOC financial

assistance award must, in addition to the assurances made as part of the application, comply and

require each of its subrecipients, contractors, and subcontractors employed in the completion of

the project to comply with all applicable statutes, regulations, executive orders (E.O.s), Office of

Management and Budget (OMB) circulars, provisions of the OMB Uniform Administrative

Requirements, Cost Principles, and Audit Requirements for Federal Awards (codified at 2 C.F.R.

Part 200) (OMB Uniform Guidance), provisions of these Standard Terms, and any other terms

and conditions incorporated into this DOC financial assistance award. In addition, unless

otherwise provided by the terms and conditions of this DOC financial assistance award, Subparts

A through E of 2 C.F.R. Part 200 and the Standard Terms are applicable to for-profit entities,

foreign public entities and to foreign organizations that carry out a DOC financial assistance

award.

This award is subject to the laws and regulations of the United States. Any inconsistency or

conflict in terms and conditions specified in the award will be resolved according to the

following order of precedence: federal laws and regulations, applicable notices published in the

Federal Register, E.O.s, OMB circulars, DOC ST&Cs, agency standard award conditions (if

any), and specific award conditions. A specific award condition may amend or take precedence

over a Standard Term on a case-by-case basis, when indicated by the specific award condition.

Some of the Standard Terms herein contain, by reference or substance, a summary of the

pertinent statutes, regulations published in the Federal Register or Code of Federal Regulations

(C.F.R.), E.O.s, OMB circulars, or the certifications and assurances provided by applicants

through Standard Forms (e.g., SF-424s) or through DOC forms (e.g. Form CD-511). To the

extent that it is a summary, such Standard Term provision is not in derogation of, or an

amendment to, any such statute, regulation, E.O., OMB circular, certification, or assurance.

Note that the OMB Uniform Guidance uses the term “non-Federal entity” to generally refer to an entity that carries

out a Federal award as a recipient or subrecipient. Because some of the provisions of these DOC ST&Cs apply to

recipients rather than subrecipients, or vice versa, for clarity, these DOC ST&Cs use the terms “non-Federal entity,”

“recipient,” and “subrecipient” consistent with their meanings in the OMB Uniform Guidance. In addition, the

OMB Uniform Guidance uses the term “pass-through entity” to refer to a non-Federal entity that makes a subaward.

As defined at 2 C.F.R. § 200.1:

“Non-Federal entity” is “a state, local government, Indian tribe, institution of higher education (IHE), or nonprofit

organization that carries out a Federal award as a recipient or subrecipient.”

“Recipient” is “an entity, usually but not limited to non-Federal entities, that receives a Federal award directly from

a Federal awarding agency. The term recipient does not include subrecipients or individuals that are beneficiaries of

the award.”

“Subrecipient” is “an entity, usually but not limited to non-Federal entities, that receives a subaward from a pass-

through entity to carry out part of a Federal award; but does not include an individual that is a beneficiary of such

award. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency.”

“Pass-through entity” is “a non-Federal entity that provides a subaward to a subrecipient to carry out part of a

Federal program.”

See 2 C.F.R. § 200.1 for the definitions of “foreign public entity” and “foreign organization.”

6 | 12 November 2020

DOC commenced implementation of the Research Terms and Conditions (RT&Cs) for Federal

awards effective October 1, 2017; the RT&Cs address and implement the Uniform Guidance

issued by OMB. For awards designated on the Form CD-450 (Financial Assistance Award) as

Research, both the DOC ST&Cs and the RT&Cs as implemented by DOC apply to the award.

The RT&Cs as well as the DOC implementation statement, agency specific requirements, prior

approval matrix, subaward requirements, and national policy requirements are posted on the

National Science Foundation’s website – https://www.nsf.gov/awards/managing/rtc.jsp. The

DOC ST&Cs and the RT&Cs are generally intended to harmonize with each other; however,

where the DOC ST&Cs and the RT&Cs differ in a Research award, the RT&Cs prevail, unless

otherwise indicated in a specific award condition.

A. PROGRAMMATIC REQUIREMENTS

.01 Reporting Requirements

a. Recipients must submit all reports as required by DOC, electronically or, if unable to

submit electronically, in hard copy, as outlined below and as may be supplemented by the terms

and conditions of a specific DOC award.

b. Performance (Technical) Reports. Recipients must submit performance (technical)

reports to the Program Officer. Performance (technical) reports should be submitted in the same

frequency as the Form SF-425 (Federal Financial Report), unless otherwise directed by the

Grants Officer.

1. Performance (technical) reports must contain the information prescribed in 2 C.F.R. §

200.329 (Monitoring and reporting program performance), unless otherwise specified in the

award conditions.

2. As appropriate and in accordance with the format provided by the Program Officer (or

other OMB-approved information collections, including the Research Program Performance

Report [RPPR] as adopted by DOC for use in research awards), recipients are required to

relate financial data to the performance accomplishments of this Federal award. When

applicable, recipients must also provide cost information to demonstrate cost effective

practices (e.g., through unit cost data). The recipient’s performance will be measured in a

way that will help DOC to improve program outcomes, share lessons learned, and spread the

adoption of best or promising practices. As described in 2 C.F.R. § 200.211 (Information

contained in a Federal award), DOC will identify the timing and scope of expected

performance by the recipient as related to the outcomes intended to be achieved by the

Federal program.

3. Recipients (or pass-through entities as applicable) must submit a final performance report

within 120 calendar days after the expiration of the period of performance. The subrecipient

is required to submit its final performance report to the pass-through entity within 90

calendar days unless an extension has been granted.

7 | 12 November 2020

c. Financial Reports. In accordance with 2 C.F.R. § 200.328 (Financial reporting), the

recipient must submit a Form SF-425 (Federal Financial Report) or any successor form on a

semi-annual basis for the periods ending March 31 and September 30, or any portion thereof,

unless otherwise specified in a specific award condition. Reports must be submitted to DOC as

directed by the Grants Officer, in accordance with the award conditions and are due no later than

30 calendar days following the end of each reporting period. Recipients (or pass-through entities

as applicable) must submit a final Form SF-425 within 120 calendar days after the expiration of

the period of performance. The subrecipient is required to submit its financial report to the pass-

through entity within 90 calendar days unless an extension has been granted. A recipient may

submit a final financial report in lieu of an interim financial report due at the end of the period of

performance (e.g., in lieu of submitting a financial report for the last semi-annual or other

reporting under an award, a recipient may submit a final (cumulative) financial report covering

the entire award period).

d. Real Property, Tangible Personal Property and Intangible Property Reports and Requests

for Dispositions. Unless otherwise required by the terms and conditions of a DOC financial

assistance award, where real property, tangible personal property or intangible property is

acquired or improved (in the case of real property or tangible personal property), or produced or

acquired (in the case of intangible property), pursuant to a DOC award, non-Federal entities are

required to submit the following real property, tangible personal property and intangible property

reports (as appropriate):

1. Real Property Status Reports and Requests for Dispositions: Non-Federal entities must

submit reports using Form SF-429 (Real Property Status Report) or any successor form,

including appropriate attachments thereto, at least annually disclosing the status of real

property that is Federally-owned property or real property in which the Federal Government

retains a Federal Interest, unless the Federal Interest in the real property extends 15 years or

longer. In cases where the Federal Interest attached is for a period of 15 years or more, the

DOC or pass-through entity, at its option, may require the non-Federal entity to report at

various multi-year frequencies (e.g., every two years or every three years, not to exceed a

five-year reporting period; or, the DOC or pass-through entity may require annual reporting

for the first three years of a Federal award and thereafter require reporting every five years).

In addition, DOC or a pass-through entity may require a non-Federal entity to submit Form

SF-429, with appropriate attachments, relating to a non-Federal entity’s request to acquire,

improve or contribute real property under a DOC financial assistance award.

Non-Federal entities wishing to dispose of real property acquired or improved, in whole or in

part, pursuant to a DOC award must request disposition instructions, including the

submission of Form SF-429, with appropriate attachments, from the Grants Officer in

accordance with the requirements set forth in 2 C.F.R. § 200.311(c). See also the real

property standards set forth in Section C. of these Standard Terms (Property Standards).

2. Tangible Personal Property Status Reports and Requests for Dispositions: DOC or a

pass-through entity may also require a non-Federal entity to submit periodic reports using

Form SF-428 (Tangible Personal Property Report) or any successor form, including

appropriate attachments thereto, concerning tangible personal property that is Federally-

owned or tangible personal property in which the Federal Government retains an interest. In

8 | 12 November 2020

addition, DOC or a pass-through entity may require a non-Federal entity to submit Form SF-

428 in connection with a non-Federal entity’s request to dispose of tangible personal property

acquired under a DOC financial assistance award. Non-Federal entities wishing to dispose of

tangible personal property acquired or improved, in whole or in part, pursuant to a DOC

award must request disposition instructions, including the submission of Form SF-428, with

appropriate attachments, from the Grants Officer in accordance with the requirements set

forth in 2 C.F.R. § 200.313(e). See also the tangible property standards set forth in Section

C. of these Standard Terms (Property Standards).

3. Intangible Property Status Reports and Requests for Dispositions: The specific

requirements governing the development, reporting, and disposition of rights to intangible

property, including inventions and patents resulting from DOC awards, are set forth in 37

C.F.R. Part 401, which is hereby incorporated by reference into this award. Non-Federal

entities are required to submit their disclosures, elections, and requests for waiver from any

requirement for substantial U.S. manufacture, electronically using the Interagency Edison

extramural invention reporting system (iEdison) at www.iedison.gov. Non-Federal entities

may obtain a waiver of this electronic submission requirement by providing to the Grants

Officer compelling reasons for allowing the submission of paper reports. When no longer

needed for the originally authorized purpose, disposition of the intangible property must

occur in accordance with the provisions in 2 C.F.R. § 200.313(e). See also the intangible

property standards set forth in Section C. of these Standard Terms (Property Standards).

e. Subawards and Executive Compensation Reports. For reporting requirements on

subawards and Executive Compensation, see paragraph G.05.o of these Standard Terms (The

Federal Funding Accountability and Transparency Act (FFATA) (31 U.S.C. § 6101 note)).

f. Recipient Integrity and Performance Matters. For reporting requirements pertaining to

integrity and performance matters, see paragraph G.05.p of these Standard Terms (Recipient

Integrity and Performance Matters (Appendix XII to 2 C.F.R. Part 200)).

g. Research Performance Progress Reports. All research awards shall submit the Research

Performance Progress Report (RPPR) in accordance with instructions set forth in the following

link: RPPR Instructions.

.02 Revisions of Program Plans

In accordance with 2 C.F.R. § 200.308 (Revision of budget and program plans) and 2 C.F.R.

§ 200.407 (Prior written approval (prior approval)), the recipient must obtain prior written

approval from the DOC Grants Officer for certain proposed programmatic change requests,

unless otherwise provided by the terms and conditions of a DOC award. Requests for prior

approval for changes to program plans must be submitted to the Federal Program Officer (or

electronically for awards administered through Grants Online). Requests requiring prior DOC

approval are not effective unless and until approved in writing by the DOC Grants Officer.

9 | 12 November 2020

.03 Other Federal Awards with Similar Programmatic Activities

The recipient must immediately provide written notification to the DOC Program Officer and

the DOC Grants Officer if, subsequent to receipt of the DOC award, other financial assistance is

received to support or fund any portion of the scope of work incorporated into the DOC award.

DOC will not pay for costs that are funded by other sources.

.04 Prohibition against Assignment by a Non-Federal Entity

A non-Federal entity must not transfer, pledge, mortgage, assign, encumber or hypothecate a

DOC financial assistance award or subaward, or any rights to, interests therein or claims arising

thereunder, to any party or parties, including but not limited to banks, trust companies, other

financing or financial institutions, or any other public or private organizations or individuals

without the express prior written approval of the DOC Grants Officer or the pass-through entity

(which, in turn, may need to obtain prior approval from the DOC Grants Officer).

.05 Disclaimer Provisions

a. The United States expressly disclaims all responsibility or liability to the non-Federal

entity or third persons (including but not limited to contractors) for the actions of the non-Federal

entity or third persons resulting in death, bodily injury, property damages, or any other losses

resulting in any way from the performance of this award or any subaward, contract, or

subcontract under this award.

b. The acceptance of this award or any subaward by the non-Federal entity does not in any

way constitute an agency relationship between the United States and the non-Federal entity or

the non-Federal entity’s contractors or subcontractors.

.06 Unsatisfactory Performance or Non-Compliance with Award Provisions

a. Failure to perform the work in accordance with the terms of the award and maintain

satisfactory performance as determined by DOC may result in the imposition of additional award

conditions pursuant to 2 C.F.R. § 200.208 (Specific conditions) or other appropriate enforcement

action as specified in 2 C.F.R. § 200.339 (Remedies for noncompliance).

b. Failure to comply with the provisions of an award will be considered grounds for

appropriate enforcement action pursuant to 2 C.F.R. § 200.339 (Remedies for noncompliance),

including but not limited to: the imposition of additional award conditions in accordance with 2

C.F.R. § 200.208 (Specific conditions); temporarily withholding award payments pending the

correction of the deficiency; changing the payment method to reimbursement only; the

disallowance of award costs and the establishment of an accounts receivable; wholly or partially

suspending or terminating an award; initiating suspension or debarment proceedings in

accordance with 2 C.F.R. Parts 180 and 1326; and such other remedies as may be legally

available.

c. 2 C.F.R. §§ 200.340 (Termination) through 200.343 (Effects of suspension and

termination) apply to an award that is terminated prior to the end of the period of performance

10 | 12 November 2020

due to the non-federal entity’s material failure to comply with the award terms and conditions.

In addition, the failure to comply with the provisions of a DOC award may adversely impact the

availability of funding under other active DOC or Federal awards and may also have a negative

impact on a non-Federal entity’s eligibility for future DOC or Federal awards.

B. FINANCIAL REQUIREMENTS

.01 Financial Management

a. In accordance with 2 C.F.R. § 200.302(a) (Financial Management), each State must

expend and account for the Federal award in accordance with State laws and procedures for

expending and accounting for the State’s own funds. In addition, the State’s and any other non-

Federal entity’s financial management systems, including records documenting compliance with

Federal statutes, regulations, and the terms and conditions of the Federal award, must be

sufficient to permit the preparation of reports required by general and program-specific terms

and conditions; and the tracing of funds to a level of expenditures adequate to establish that such

funds have been used in accordance with Federal statutes, regulations, and the terms and

conditions applicable to the Federal award. See also 2 C.F.R. § 200.450 (Lobbying) for

additional management requirements to verify that Federal funds are not used for unallowable

lobbying costs.

b. The financial management system of each non-Federal entity must provide all

information required by 2 C.F.R. § 200.302(b). See also 2 C.F.R. §§ 200.334 (Retention

requirements for records); 200.335 (Requests for transfer of records); 200.336 (Methods for

collection, transmission and storage of information); 200.337 (Access to records); and 200.338

(Restrictions on public access to records).

.02 Award Payments

a. Consistent with 2 C.F.R. § 200.305(a) (Federal payment), for States, payments are

governed by Treasury-State Cash Management Improvement Act (CMIA) agreements and

default procedures codified at 31 C.F.R. Part 205 (Rules and Procedures for Efficient Federal-

State Funds Transfers) and Treasury Financial Manual Volume I, 4A-2000 (Overall Disbursing

Rules for All Federal Agencies).

b. Consistent with 2 C.F.R. § 200.305(b), for non-Federal entities other than States,

payment methods must minimize the amount of time elapsing between the transfer of funds from

the U.S. Treasury or the pass-through entity and the disbursement by the non-Federal entity.

1. The Grants Officer determines the appropriate method of payment and, unless otherwise

stated in a specific award condition, the advance method of payment must be authorized.

Advances must be limited to the minimum amounts needed and be timed to be in accordance

with the actual, immediate cash requirements of the non-Federal entity in carrying out the

purpose of the approved program or project. Unless otherwise provided by the terms and

conditions of a DOC award, non-Federal entities must time advance payment requests so that

Federal funds are on hand for a maximum of 30 calendar days before being disbursed by the

11 | 12 November 2020

non-Federal entity for allowable award costs.

2. If a non-Federal entity demonstrates an unwillingness or inability to establish procedures

that will minimize the time elapsing between the transfer of funds and disbursement by the

non-Federal entity or if a non-Federal entity otherwise fails to continue to qualify for the

advance method of payment, the Grants Officer or the pass-through entity may change the

method of payment to reimbursement only.

c. Unless otherwise provided for in the award terms, payments from DOC to recipients

under this award will be made using the Department of Treasury’s Automated Standard

Application for Payment (ASAP) system. Under the ASAP system, payments are made through

preauthorized electronic funds transfers directly to the recipient’s bank account, in accordance

with the requirements of the Debt Collection Improvement Act of 1996. To receive payments

under ASAP, recipients are required to enroll with the Department of Treasury, Financial

Management Service, Regional Financial Centers, which allows them to use the on-line and

Voice Response System (VRS) method of withdrawing funds from their ASAP established

accounts. The following information will be required to make withdrawals under ASAP:

1. ASAP account number – the Federal award identification number found on the cover

sheet of the award;

2. Agency Location Code (ALC); and

3. Region Code.

d. Recipients enrolled in the ASAP system do not need to submit a Form SF-270 (Request

for Advance or Reimbursement) for payments relating to their award. Awards paid under the

ASAP system will contain a specific award condition, clause, or provision describing enrollment

requirements and any controls or withdrawal limits set in the ASAP system.

e. When the Form SF-270 or successor form is used to request payment, the recipient must

submit the request no more than monthly, and advances must be approved for periods to cover

only expenses reasonably anticipated over the next 30 calendar days. Prior to receiving

payments via the Form SF-270, the recipient must complete and submit to the Grants Officer the

Form SF-3881 (ACH Vendor Miscellaneous Payment Enrollment Form) or successor form along

with the initial Form SF-270. Form SF-3881 enrollment must be completed before the first

award payment can be made via a Form SF-270 request.

f. The Federal award identification number must be included on all payment-related

correspondence, information, and forms.

g. Non-Federal entities receiving advance award payments must adhere to the depository

requirements set forth in 2 C.F.R. §§ 200.305(b)(7) through (b)(11). Interest amounts up to $500

per non-Federal entity’s fiscal year may be retained by the non-Federal entity for administrative

expenses.

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.03 Federal and Non-Federal Sharing

a. Awards that include Federal and non-Federal sharing incorporate a budget consisting of

shared allowable costs If actual allowable costs are less than the total approved budget, the

Federal and non-Federal cost shares must be calculated by applying the approved Federal and

non-Federal cost share ratios to actual allowable costs. If actual allowable costs exceed the total

approved budget, the Federal share must not exceed the total Federal dollar amount authorized

by the award.

b. The non-Federal share, whether in cash or third-party in-kind contributions, is to be paid

out at the same general rate as the Federal share. Exceptions to this requirement may be granted

by the Grants Officer based on sufficient documentation demonstrating previously determined

plans for, or later commitment of, cash or third-party in-kind contributions. In any case, the

recipient must meet its cost share commitment as set forth in the terms and conditions of the

award; failure to do so may result in the assignment of specific award conditions or other further

action as specified in Standard Term A.06 (Unsatisfactory Performance or Non-Compliance with

Award Provisions). The non-Federal entity must create and maintain sufficient records

justifying all non-Federal sharing requirements to facilitate questions and audits; see Section D

of these Standard Terms (Audits), for audit requirements. See 2 C.F.R. § 200.306 for additional

requirements regarding cost sharing.

.04 Budget Changes and Transfer of Funds among Categories

a. Recipients are required to report deviations from the approved award budget and request

prior written approval from DOC in accordance with 2 C.F.R. § 200.308 (Revision of budget and

program plans) and 2 C.F.R. § 200.407 (Prior written approval (prior approval)). Requests for

such budget changes must be submitted to the Grants Officer (or electronically for awards

serviced through Grants Online) who will notify the recipient of the final determination in

writing. Requests requiring prior DOC approval do not become effective unless and until

approved in writing by the DOC Grants Officer.

b. In accordance with 2 C.F.R. § 200.308(f), transfers of funds by the recipient among direct

cost categories are permitted for awards in which the Federal share of the project is equal to or

less than the simplified acquisition threshold. For awards in which the Federal share of the

project exceeds the simplified acquisition threshold, transfers of funds among direct cost

categories must be approved in writing by the Grants Officer when the cumulative amount of

such direct costs transfers exceeds 10 percent of the total budget as last approved by the Grants

Officer. The 10 percent threshold applies to the total Federal and non-Federal funds authorized

by the Grants Officer at the time of the transfer request. This is the accumulated amount of

Federal funding obligated to date by the Grants Officer along with any non-Federal share. The

same requirements apply to the cumulative amount of transfer of funds among programs,

functions, and activities. This transfer authority does not authorize the recipient to create new

budget categories within an approved budget without Grants Officer approval. Any transfer that

causes any Federal appropriation, or part thereof, to be used for an unauthorized purpose is not

and will not be permitted. In addition, this provision does not prohibit the recipient from

requesting Grants Officer approval for revisions to the budget. See 2 C.F.R. § 200.308 (Revision

13 | 12 November 2020

of budget and program plans) (as applicable) for specific requirements concerning budget

revisions and transfer of funds between budget categories.

.05 Program Income

Unless otherwise indicated in the award terms, program income may be used for any required

cost sharing or added to the project budget, consistent with 2 C.F.R. § 200.307 (Program

income).

.06 Indirect or Facilities and Administrative Costs

a. Indirect costs (or facilities and administration costs (F&A)) for major institutions of

higher education and major nonprofit organizations can generally be defined as costs incurred for

a common or joint purpose benefitting more than one cost objective, and not readily assignable

to the cost objectives specifically benefited, without effort disproportionate to the results

achieved. Indirect costs will not be allowable charges against an award unless permitted under

the award and specifically included as a line item in the award’s approved budget.

b. Unrecovered indirect costs, including unrecovered indirect costs on cost sharing or

matching, may be included as part of cost sharing or matching as allowed under 2 C.F.R. §

200.306(c) (Cost sharing or matching) or the terms and conditions of a DOC award.

c. Cognizant Agency for Indirect (F&A) Costs. OMB established the cognizant agency

concept, under which a single agency represents all others in dealing with non-Federal entities in

common areas. The cognizant agency for indirect costs reviews and approves non-Federal

entities’ indirect cost rates. In accordance with Appendices III – VII to 2 C.F.R. Part 200 the

cognizant agency for indirect costs reviews and approves non-Federal entities’ indirect cost rates.

With respect to for-profit organizations, the term cognizant Federal agency generally is defined

as the agency that provides the largest dollar amount of negotiated contracts, including options.

See 48 C.F.R. § 42.003. If the only Federal funds received by a commercial organization are

DOC award funds, then DOC becomes the cognizant Federal agency for indirect cost

negotiations.

1. General Review Procedures Where DOC is the Cognizant Agency.

i. Within 90 calendar days of the award start date, the recipient must submit to the

Grants Officer any documentation (indirect cost proposal, cost allocation plan, etc.)

necessary to allow DOC to perform the indirect cost rate proposal review. Below are two

sources available for guidance on how to put an indirect cost plan together:

(A) Department of Labor: https://www.dol.gov/oasam/boc/dcd/np-comm-guide.htm

(B) Department of the Interior: https://www.doi.gov/ibc/services/finance/indirect-

Cost-Services/.

ii. The recipient may use the rate proposed in the indirect cost plan as a provisional rate

until the DOC provides a response to the submitted plan.

14 | 12 November 2020

iii. The recipient is required to annually submit indirect cost proposals no later than six

months after the recipient’s fiscal year end, except as otherwise provided by 2 C.F.R. §

200.414(g).

2. When DOC is not the oversight or cognizant Federal agency, the recipient must provide

the Grants Officer with a copy of a negotiated rate agreement or a copy of the transmittal

letter submitted to the cognizant or oversight Federal agency requesting a negotiated rate

agreement within 30 calendar days of receipt of a negotiated rate agreement or submission of

a negotiated rate proposal.

3. If the recipient is proposing indirect costs as part of a project budget, but is not required

to have a negotiated rate agreement pursuant to 2 C.F.R. Part 200, Appendix VII, Paragraph

D.1.b (i.e., a governmental department or agency that receives $35 million or less in direct

Federal funding), the recipient may be required to provide the Grants Officer with a copy of

its Certificate of Indirect Costs as referenced in 2 C.F.R. Part 200, Appendix VII, Paragraph

D.3. or such other documentation, acceptable in form and substance to the Grants Officer,

sufficient to confirm that proposed indirect costs are calculated and supported by

documentation in accordance with 2 C.F.R. Part 200, Appendix VII. In cases where the

DOC is the recipient’s cognizant Federal agency, the DOC reserves the right, pursuant to 2

C.F.R. Part 200, Appendix VII, Paragraph D.1.b, to require the recipient to submit its indirect

cost rate proposal for review by DOC.

d. If the recipient fails to submit required documentation to DOC within 90 calendar days of

the award start date, the Grants Officer may amend the award to preclude the recovery of any

indirect costs under the award. If the DOC, oversight, or cognizant Federal agency determines

there is a finding of good and sufficient cause to excuse the recipient’s delay in submitting the

documentation, an extension of the 90-day due date may be approved by the Grants Officer.

e. The maximum dollar amount of allocable indirect costs for which DOC will reimburse

the recipient is the lesser of:

1. The line item amount for the Federal share of indirect costs contained in the approved

award budget, including all budget revisions approved in writing by the Grants Officer; or

2. The Federal share of the total indirect costs allocable to the award based on the indirect

cost rate approved by the cognizant agency for indirect costs and applicable to the period in

which the cost was incurred, in accordance with 2 C.F.R 200 Appendix III, C.7, provided

that the rate is approved on or before the award end date.

f. In accordance with 2 CFR § 200.414(c)(3), DOC set forth policies, procedures, and

general decision-making criteria for deviations from negotiated indirect cost rates. These

policies and procedures are applicable to all Federal financial assistance programs awarded and

administered by DOC bureaus as Federal awarding agencies and may be found at

http://www.osec.doc.gov/oam/grants_management/policy/documents/FAM%202015-02.pdf.

15 | 12 November 2020

g. In accordance with 2 CFR § 200.414(g), any non-Federal entity that has a negotiated

indirect cost rate may apply to the entity’s cognizant agency for indirect costs for a one-time

extension of a currently negotiated indirect cost rate for a period of up to four years, reducing the

frequency of rate calculations and negotiations between an institution and its cognizant agency.

h. In accordance with 2 CFR § 200.414(f), any non-Federal entity that does not have a

current negotiated (including provisional) rate, except for those non-Federal entities described in

paragraph D.1.b of Appendix VII to 2 CFR Part 200, may elect to charge a de minimis rate of 10

percent of modified total direct costs. No documentation is required to justify the 10 percent de

minimis indirect cost rate.

.07 Incurring Costs or Obligating Federal Funds Before and After the Period

of Performance

a. In accordance with 2 C.F.R. § 200.309 (Modifications to Period of Performance) and the

terms and conditions of a DOC award, a non-Federal entity may charge to the Federal award

only allowable costs incurred during the period of performance, which is established in the

award document. As defined at 2 C.F.R. § 200.1, the “period of performance” means the total

estimated time interval between the start of an initial Federal award and the planned end date,

which may include one or more funded portions, or budget periods. Identification of the Period

of Performance in the Federal award per § 200.211(b)(5) does not commit the awarding agency

to fund the award beyond the currently approved budget period.” The period of performance

may sometimes be referred to as the project period or award period. This Standard Term is

subject to exceptions for allowable costs pertaining to: (i) pre-award costs (see 2 C.F.R. §

200.458); (ii) publication and printing costs (see 2 C.F.R. § 200.461); and administrative costs

incurred relating to the close-out of an award (see 2 C.F.R. § 200.344).

b. Reasonable, necessary, allowable and allocable administrative award closeout costs are

authorized for a period of up to 120 calendar days following the end of the period of

performance. For this purpose, award closeout costs are those strictly associated with close-out

activities and are typically limited to the preparation of final progress, financial, and required

project audit reports, unless otherwise approved in writing by the Grants Officer. A non-Federal

entity may request an extension of the 120-day closeout period, as provided in 2 C.F.R. §

200.344 (Closeout).

c. Unless authorized by a specific award condition, any extension of the period of

performance may only be authorized by the Grants Officer in writing. This is not a delegable

authority. Verbal or written assurances of funding from anyone other than the Grants Officer

does not constitute authority to obligate funds for programmatic activities beyond the end of the

period of performance.

d. The DOC has no obligation to provide any additional prospective funding. Any

amendment of the award to increase funding and to extend the period of performance is at the

sole discretion of DOC.

16 | 12 November 2020

.08 Tax Refunds

The non-Federal entity shall contact the Grants Officer immediately upon receipt of the

refund of any taxes, including but not limited to Federal Insurance Contributions Act (FICA)

taxes, Federal Unemployment Tax Act (FUTA) taxes, or Value Added Taxes (VAT) that were

allowed as charges to a DOC award, regardless of whether such refunds are received by the non-

Federal entity during or after the period of performance. The Grants Officer will provide written

disposition instructions to the non-Federal entity, which may include the refunded taxes being

credited to the award as either a cost reduction or a cash refund, or may allow the non-Federal

entity to use such refunds for approved activities and costs under a DOC award. See 2 C.F.R. §

200.470 (Taxes (including Value Added Tax)).

.09 Internal Controls

Each recipient must comply with standards for internal controls described at 2 C.F.R. §

200.303 (Internal controls). The “Standards for Internal Control in the Federal Government”

issued by the Comptroller General of the United States referenced in § 200.303 are available

online at http://www.gao.gov/assets/80/76455.pdf and the “Internal Control Integrated

Framework” issued by the Committee of Sponsoring Organizations of the Treadway

Commission (COSO) is available online at Internal Control Guidance.

C. PROPERTY STANDARDS

.01 Standards

Each non-Federal entity must comply with the Property Standards set forth in 2 C.F.R. §§

200.310 (Insurance coverage) through 200.316 (Property trust relationship).

.02 Real and Personal Property

a. In accordance with 2 C.F.R. § 200.316 (Property trust relationship), real property,

equipment, and other personal property acquired or improved with a Federal award must be held

in trust by the non-Federal entity as trustee for the beneficiaries of the project or program under

which the property was acquired or improved. This trust relationship exists throughout the

duration of the property’s estimated useful life, as determined by the Grants Officer in

consultation with the Program Office, during which time the Federal Government retains an

undivided, equitable reversionary interest in the property (Federal Interest). During the duration

of the Federal Interest, the non-Federal entity must comply with all use and disposition

requirements and restrictions as set forth in 2 C.F.R. §§ 200.310 (Insurance coverage) through

200.316 (Property trust relationship), as applicable, and in the terms and conditions of the

Federal award.

b. The Grants Officer may require a non-Federal entity to execute and to record (as

applicable) a statement of interest, financing statement (form UCC-1), lien, mortgage or other

public notice of record to indicate that real or personal property acquired or improved in whole

or in part with Federal funds is subject to the Federal Interest, and that certain use and disposition

17 | 12 November 2020

requirements apply to the property. The statement of interest, financing statement

(Form UCC 1), lien, mortgage or other public notice must be acceptable in form and substance to

the DOC and must be placed on record in accordance with applicable State and local law, with

continuances re-filed as appropriate. In such cases, the Grants Officer may further require the

non-Federal entity to provide the DOC with a written statement from a licensed attorney in the

jurisdiction where the property is located, certifying that the Federal Interest has been protected,

as required under the award and in accordance with applicable State and local law. The

attorney’s statement, along with a copy of the instrument reflecting the recordation of the Federal

Interest, must be returned to the Grants Officer. Without releasing or excusing the non-Federal

entity from these obligations, the non-Federal entity, by execution of the financial assistance

award or by expending Federal financial assistance funds (in the case of a subrecipient),

authorizes the Grants Officer and/or program office to file such notices and continuations as it

determines to be necessary or convenient to disclose and protect the Federal Interest in the

property. The Grants Officer may elect not to release any or a portion of the Federal award

funds until the non-Federal entity has complied with this provision and any other applicable

award terms or conditions, unless other arrangements satisfactory to the Grants Officer are made.

.03 Intellectual Property Rights

a. General. The rights to any work or other intangible property produced or acquired under

a Federal award are determined by 2 C.F.R. § 200.315 (Intangible property). The non-Federal

entity owns any work produced or purchased under a Federal award subject to the DOC’s

royalty-free, nonexclusive, and irrevocable right to obtain, reproduce, publish, or otherwise use

the work or authorize others to receive, reproduce, publish, or otherwise use the work for

Government purposes.

b. Inventions. Unless otherwise provided by law, the rights to any invention made by a

non-Federal entity under a DOC financial assistance award are determined by the Bayh-Dole

Act, Pub. L. No. 96-517, as amended, and as codified in 35 U.S.C. § 200 et seq., and modified by

E.O. 12591 (52 FR 13414), as amended by E.O. 12618 (52 FR 48661). 35 U.S.C. § 201(h)

defines “small business firm” as “a small business concern as defined at section 2 of Public Law

85–536 (15 U.S.C. 632) and implementing regulations of the Administrator of the Small

Business Administration.” Section 1(b)(4) of E.O. 12591 extended the Bayh-Dole Act to non-

Federal entities “regardless of size” to the extent permitted by law. The specific requirements

governing the development, reporting, and disposition of rights to inventions and patents

resulting from Federal awards are described in more detail in 37 C.F.R. Part 401, which

implements 35 U.S.C. 202 through 204 and includes standard patent rights clauses in 37 C.F.R. §

401.14, which is hereby incorporated by reference into this award.

The Bayh-Dole regulations set forth in 37 C.F.R. parts 401 and 404 were amended by 83 FR

15954, with an effective date of May 14, 2018 (Amended Bayh-Dole Regulations). The

Amended Bayh-Dole Regulations apply to all new financial assistance awards issued on or after

May 14, 2018. The Amended Bayh-Dole Regulations do not apply to financial assistance

awards issued prior to May 14, 2018, including amendments made to such awards, unless an

award amendment includes a specific condition incorporating the Amended Bayh-Dole

Regulations into the terms and conditions of the subject award.

18 | 12 November 2020

1. Ownership. A non-Federal entity may have rights to inventions in accordance with 37

C.F.R. Part 401. These requirements are technical in nature and non-Federal entities are

encouraged to consult with their Intellectual Property counsel to ensure the proper

interpretation of and adherence to the ownership rules. Unresolved questions pertaining to a

non-Federal entities’ ownership rights may further be addressed to the Grants Officer.

2. Responsibilities - iEdison. The non-Federal entity must comply with all the requirements

of the standard patent rights clause and 37 C.F.R. Part 401, including the standard patent

rights clause in 37 C.F.R. § 401.14. Non-Federal entities are required to submit their

disclosures, elections, and requests for waiver from any requirement for substantial U.S.

manufacture, electronically using the Interagency Edison extramural invention reporting

system (iEdison) at www.iedison.gov. Non-Federal entities may obtain a waiver of this

electronic submission requirement by providing the Grants Officer with compelling reasons

for allowing the submission of paper reports.

c. Patent Notification Procedures. Pursuant to E.O. 12889 (58 FR 69681), the DOC is

required to notify the owner of any valid patent covering technology whenever the DOC or a

non-Federal entity, without making a patent search, knows (or has demonstrable reasonable

grounds to know) that technology covered by a valid United States patent has been or will be

used without a license from the owner. To ensure proper notification, if the non-Federal entity

uses or has used patented technology under this award without a license or permission from the

owner, the non-Federal entity must notify the Grants Officer.

This notice does not constitute authorization or consent by the Government to any copyright or

patent infringement occurring under the award.

d. A non-Federal entity may copyright any work produced under a Federal award, subject to

the DOC’s royalty-free, nonexclusive, and irrevocable right to obtain, reproduce, publish, or

otherwise use the work, or authorize others to do so for Government purposes. Works jointly

authored by DOC and non-Federal entity employees may be copyrighted, but only the part of

such works authored by the non-Federal entity is protectable in the United States because, under

17 U.S.C. § 105, copyright protection is not available within the United States for any work of

the United States Government. On occasion and as permitted under 17 U.S.C. § 105, DOC may

require the non-Federal entity to transfer to DOC a copyright in a particular work for

Government purposes or when DOC is undertaking primary dissemination of the work.

e. Freedom of Information Act (FOIA). In response to a FOIA request for research data

relating to published research findings (as defined by 2 C.F.R. § 200.315(e)(2)) produced under a

Federal award that were used by the Federal government in developing an agency action that has

the force and effect of law, the DOC will request, and the non-Federal entity must provide,

within a reasonable time, the research data so that they can be made available to the public

through the procedures established under the FOIA.

19 | 12 November 2020

D. AUDITS

Under the Inspector General Act of 1978, as amended, 5 U.S.C. App. 3, §§ 1 et seq., an audit

of the award may be conducted at any time. The Inspector General of the DOC, or any of his or

her duly authorized representatives, must have the right to access any pertinent books,

documents, papers, and records of the non-Federal entity, whether written, printed, recorded,

produced, or reproduced by any electronic, mechanical, magnetic, or other process or medium, to

make audits, inspections, excerpts, transcripts, or other examinations as authorized by law. This

right also includes timely and reasonable access to the non-Federal entity’s personnel for

interview and discussion related to such documents. See 2 C.F.R. § 200.337 (Access to records).

When the DOC Office of Inspector General (OIG) requires a program audit on a DOC award, the

OIG will usually make the arrangements to audit the award, whether the audit is performed by

OIG personnel, an independent accountant under contract with DOC, or any other Federal, State,

or local audit entity.

.01 Organization-Wide, Program-Specific, and Project Audits

a. A recipient must, within 90 days of the end of its fiscal year, notify the Grants Officer of

the amount of Federal awards, including all DOC and non-DOC awards, that the recipient

expended during its fiscal year.

b. Recipients that are subject to the provisions of Subpart F of 2 C.F.R. Part 200 and that

expend $750,000 or more in a year in Federal awards during their fiscal year must have an audit

conducted for that year in accordance with the requirements contained in Subpart F of 2 C.F.R.

Part 200. Within the earlier of 30 calendar days after receipt of the auditor’s report(s), or nine

months after the end of the audit period, unless a different period is specified in a program-

specific audit guide, a copy of the audit must be submitted electronically to the Federal Audit

Clearinghouse (FAC) through the FAC’s Internet Data Entry System (IDES)

(https://harvester.census.gov/facides/). In accordance with 2 C.F.R. § 200.425 (Audit services),

the recipient may include a line item in the budget for the allowable costs associated with the

audit, which is subject to the approval of the Grants Officer.

c. Unless otherwise specified in the terms and conditions of the award, entities that are not

subject to Subpart F of 2 C.F.R. Part 200 (e.g., for-profit entities, foreign public entities and

foreign organizations) and that expend $750,000 or more in DOC funds during their fiscal year

(including both as a recipient and a subrecipient) must submit to the Grants Officer either: (i) a

financial related audit of each DOC award or subaward in accordance with Generally Accepted

Government Auditing Standards (GAGAS); or (ii) a project specific audit for each award or

subaward in accordance with the requirements contained in 2 C.F.R. § 200.507. Within the

earlier of 30 calendar days after receipt of the auditor’s report(s), or nine months after the end of

the audit period, unless a different period is specified in a program-specific audit guide, a copy of

the audit must be submitted to the Grants Officer. In accordance with 2 C.F.R. § 200.425, the

recipient may include a line item in the budget for the allowable costs associated with the audit,

which is subject to the approval of the Grants Officer. Entities that are not subject to Subpart F

of 2 C.F.R. Part 200 and that expend less than $750,000 in DOC funds in a given fiscal year are

20 | 12 November 2020

not required to submit an audit(s) for that year, but must make their award-related records

available to DOC or other designated officials for review and audit.

d. Recipients are responsible for compliance with the above audit requirements and for

informing the Grants Officer of the status of their audit, including when the relevant audit has

been completed and submitted in accordance with the requirements of this section. Failure to

provide audit reports within the timeframes specified above may result in appropriate

enforcement action, up to and including termination of the award, and may jeopardize eligibility

for receiving future DOC awards.

e. In accordance with 2 C.F.R. § 200.332(d)(3), pass-through entities are responsible for

issuing a management decision for applicable audit findings pertaining only to the Federal award

provided by the pass-through entity to a subrecipient.

.02 Audit Resolution Process

a. An audit of the award may result in the disallowance of costs incurred by the recipient

and the establishment of a debt (account receivable) due to DOC. For this reason, the recipient

should take seriously its responsibility to respond to all audit findings and recommendations with

adequate explanations and supporting evidence whenever audit results are disputed.

b. A recipient whose award is audited has the following opportunities to dispute the

proposed disallowance of costs and the establishment of a debt:

1. The recipient has 30 calendar days from the date of the transmittal of the draft audit

report to submit written comments and documentary evidence.

2. The recipient has 30 calendar days from the date of the transmittal of the final audit

report to submit written comments and documentary evidence.

3. The DOC will review the documentary evidence submitted by the recipient and will

notify the recipient of the results in an Audit Resolution Determination Letter. The recipient

has 30 calendar days from the date of receipt of the Audit Resolution Determination Letter to

submit a written appeal, unless this deadline is extended in writing by the DOC. The appeal

is the last opportunity for the recipient to submit written comments and documentary

evidence to the DOC to dispute the validity of the audit resolution determination.

4. An appeal of the Audit Resolution Determination does not prevent the establishment of

the audit-related debt nor does it prevent the accrual of applicable interest, penalties and

administrative fees on the debt in accordance with 15 C.F.R. Part 19. If the Audit Resolution

Determination is overruled or modified on appeal, appropriate corrective action will be taken

retroactively.

5. The DOC will review the recipient’s appeal and notify the recipient of the results in an

Appeal Determination Letter. After the opportunity to appeal has expired or after the appeal

determination has been rendered, DOC will not accept any further documentary evidence

from the recipient. No other administrative appeals are available in DOC.

21 | 12 November 2020

E. DEBTS

.01 Payment of Debts Owed to the Federal Government

a. The non-Federal entity must promptly pay any debts determined to be owed to the

Federal Government. Any funds paid to a non-Federal entity in excess of the amount to which

the non-Federal entity is finally determined to be entitled under the terms of the Federal award

constitute a debt to the Federal government. In accordance with 2 C.F.R. § 200.346 (Collection

of amounts due), if not paid within 90 calendar days after demand, DOC may reduce a debt owed

to the Federal Government by:

1. Making an administrative offset against other requests for reimbursement;

2. Withholding advance payments otherwise due to the non-Federal entity; or

3. Taking any other action permitted by Federal statute.

The foregoing does not waive any claim on a debt that DOC may have against another entity,

and all rights and remedies to pursue other parties are preserved.

b. DOC debt collection procedures are set out in 15 C.F.R. Part 19. In accordance with 2

C.F.R. § 200.346 (Collection of amounts due) and 31 U.S.C. § 3717, failure to pay a debt owed

to the Federal Government must result in the assessment of interest, penalties and administrative

costs in accordance with the provisions of 31 U.S.C. § 3717 and 31 C.F.R. § 901.9. Commerce

entities will transfer any Commerce debt that is delinquent for more than 120 calendar days to

the U.S. Department of the Treasury’s Financial Management Service for debt collection

services, a process known as cross-servicing, pursuant to 31 U.S.C. § 3711(g), 31 C.F.R. §

285.12, and 15 C.F.R. § 19.9. DOC may also take further action as specified in DOC ST&C

A.06 (Unsatisfactory Performance or Non-Compliance with Award Provisions). Funds for

payment of a debt must not come from other Federally-sponsored programs, and the DOC may

conduct on-site visits, audits, and other reviews to verify that other Federal funds have not been

used to pay a debt.

.02 Late Payment Charges

a. Interest will be assessed on the delinquent debt in accordance with section 11 of the Debt

Collection Act of 1982, as amended (31 U.S.C. § 3717(a)). The minimum annual interest rate to

be assessed is the U.S. Department of the Treasury’s Current Value of Funds Rate (CVFR). The

CVFR is available online at https://www.fiscal.treasury.gov/fsreports/rpt/cvfr/cvfr_home.htm

and also published by the Department of the Treasury in the Federal Register

(http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR) and in the Treasury

Financial Manual Bulletin. The assessed rate must remain fixed for the duration of the

indebtedness.

b. Penalties will accrue at a rate of not more than six percent per year or such other higher

rate as authorized by law.

22 | 12 November 2020

c. Administrative charges, i.e., the costs of processing and handling a delinquent debt, will

be determined by the Commerce entity collecting the debt, as directed by the Office of the Chief

Financial Officer and Assistant Secretary for Administration.

.03 Barring Delinquent Federal Debtors from Obtaining Federal Loans or

Loan Insurance Guarantees

Pursuant to 31 U.S.C. § 3720B and 31 C.F.R. § 901.6, unless waived by DOC, the DOC is

not permitted to extend financial assistance in the form of a loan, loan guarantee, or loan

insurance to any person delinquent on a nontax debt owed to a Federal agency. This prohibition

does not apply to disaster loans.

.04 Effect of Judgment Lien on Eligibility for Federal Grants, Loans, or

Programs

Pursuant to 28 U.S.C. § 3201(e), unless waived by the DOC, a debtor who has a judgment

lien against the debtor’s property for a debt to the United States is not eligible to receive any

grant or loan that is made, insured, guaranteed, or financed directly or indirectly by the United

States or to receive funds directly from the Federal Government in any program, except funds to

which the debtor is entitled as beneficiary, until the judgment is paid in full or otherwise

satisfied.

F. CONFLICT OF INTEREST, CODE OF CONDUCT AND OTHER

REQUIREMENTS PERTAINING TO DOC FINANCIAL ASSISTANCE AWARDS,

INCLUDING SUBAWARD AND PROCUREMENT ACTIONS

.01 Conflict of Interest and Code of Conduct

a. DOC Conflict of Interest Policy. In accordance with 2 C.F.R. § 200.112 (Conflict of

interest), the non-Federal entity must disclose in writing any potential conflict of interest to the

DOC or pass-through entity. In addition, a non-Federal entity will establish and maintain written

standards of conduct that include safeguards to prohibit employees from using their positions for

a purpose that constitutes or presents the appearance of personal or organizational conflict of

interest, or personal gain in the administration of an award. It is the DOC’s policy to maintain

the highest standards of conduct and to prevent real or apparent conflicts of interest in

connection with DOC financial assistance awards.

b. A conflict of interest generally exists when an interested party participates in a matter that

has a direct and predictable effect on the interested party’s personal or financial interests. A

financial interest may include employment, stock ownership, a creditor or debtor relationship, or

prospective employment with the organization selected or to be selected for a subaward. A

conflict also may exist where there is an appearance that an interested party’s objectivity in

performing his or her responsibilities under the project is impaired. For example, an appearance

of impairment of objectivity may result from an organizational conflict where, because of other

activities or relationships with other persons or entities, an interested party is unable to render

23 | 12 November 2020

impartial assistance, services or advice to the recipient, a participant in the project or to the

Federal Government. Additionally, a conflict of interest may result from non-financial gain to an

interested party, such as benefit to reputation or prestige in a professional field. For purposes of

the DOC Conflict of Interest Policy, an interested party includes, but is not necessarily limited to,

any officer, employee or member of the board of directors or other governing board of a non-

Federal entity, including any other parties that advise, approve, recommend, or otherwise

participate in the business decisions of the recipient, such as agents, advisors, consultants,

attorneys, accountants or shareholders. This also includes immediate family and other persons

directly connected to the interested party by law or through a business arrangement.

c. Procurement-related conflict of interest. In accordance with 2 C.F.R. § 200.318 (General

procurement standards), non-Federal entities must maintain written standards of conduct

covering conflicts of interest and governing the performance of their employees engaged in the

selection, award and administration of contracts. See paragraph F.04 of these Standard Terms

(Requirements for Procurements).

.02 Nonprocurement Debarment and Suspension

Non-Federal entities must comply with the provisions of 2 C.F.R. Part 1326

(Nonprocurement Debarment and Suspension), which generally prohibit entities that have been

debarred, suspended, or voluntarily excluded from participating in Federal nonprocurement

transactions either through primary or lower tier covered transactions, and which set forth the

responsibilities of recipients of Federal financial assistance regarding transactions with other

persons, including subrecipients and contractors.

.03 Requirements for Subawards

a. The recipient or pass-through entity must require all subrecipients, including lower tier

subrecipients, to comply with the terms and conditions of a DOC financial assistance award,

including applicable provisions of the OMB Uniform Guidance (2 C.F.R. Part 200), and all

associated Terms and Conditions set forth herein. See 2 C.F.R. § 200.101(b)(2) (Applicability to

different types of Federal awards), which describes the applicability of 2 C.F.R. Part 200 to

various types of Federal awards and §§ 200.331-333 (Subrecipient monitoring and management).

b. The recipient or pass through entity may have more restrictive policies for the RTC

waived prior approvals (no-cost extensions, re-budgeting, etc.) for their subaward recipients.

Such restrictive policies must be addressed in their subaward agreements and in accordance with

§200.331.

.04 Requirements for Procurements

a. States. Pursuant to 2 C.F.R. § 200.317 (Procurements by states), when procuring

property and services under this Federal award, a State must follow the same policies and

procedures it uses for procurements from its non-Federal funds. The State must comply with 2

C.F.R. §§ 200.321 (Contracting with small and minority businesses, women’s business

enterprises, and labor surplus area firms), 200.322 (Domestic preferences for procurements), and

24 | 12 November 2020

200.323 (Procurement of recovered materials), and ensure that every purchase order or other

contract includes any clauses required by 2 C.F.R. § 200.327 (Contract provisions).

b. Other Non-Federal Entities. All other non-Federal entities, including subrecipients of a

State, must follow the procurement standards in 2 C.F.R. §§ 200.318 (General procurement

standards) through 200.327 (Contract provisions) which include the requirement that non-

Federal entities maintain written standards of conduct covering conflicts of interest and

governing the performance of their employees engaged in the selection, award, and

administration of contracts. No employee, officer, or agent may participate in the selection,

award, or administration of a contract supported by a Federal award if he or she has a real or

apparent conflict of interest.

.05 Whistleblower Protections

This award is subject to the whistleblower protections afforded by 41 U.S.C. § 4712

(Enhancement of contractor protection from reprisal for disclosure of certain information), which

generally provide that an employee or contractor (including subcontractors and personal services

contractors) of a non-Federal entity may not be discharged, demoted, or otherwise discriminated

against as a reprisal for disclosing to a person or body information that the employee reasonably

believes is evidence of gross mismanagement of a Federal award, subaward, or a contract under

a Federal award or subaward, a gross waste of Federal funds, an abuse of authority relating to a

Federal award or subaward or contract under a Federal award or subaward, a substantial and

specific danger to public health or safety, or a violation of law, rule, or regulation related to a

Federal award, subaward, or contract under a Federal award or subaward. These persons or

bodies include:

a. A Member of Congress or a representative of a committee of Congress.

b. An Inspector General.

c. The Government Accountability Office.

d. A Federal employee responsible for contract or grant oversight or management at the

relevant agency.

e. An authorized official of the Department of Justice or other law enforcement agency.

f. A court or grand jury.

g. A management official or other employee of the contractor, subcontractor, or grantee

who has the responsibility to investigate, discover, or address misconduct.

Non-Federal entities and contractors under Federal awards and subawards must inform their

employees in writing of the rights and remedies provided under 41 U.S.C. § 4712, in the

predominant native language of the workforce.

.06 Small Businesses, Minority Business Enterprises and Women’s Business

Enterprises

In accordance with 2 C.F.R. § 200.321 (Contracting with small and minority businesses,

women’s business enterprises, and labor surplus area firms), the recipient must take all necessary

affirmative steps to assure that minority businesses, women’s business enterprises, and labor

surplus area firms are used when possible. DOC encourages non-Federal entities to use small

25 | 12 November 2020

businesses, minority business enterprises and women’s business enterprises in contracts under

financial assistance awards. The Minority Business Development Agency within the DOC will

assist non-Federal entities in matching qualified minority business enterprises with contract

opportunities. For further information visit MBDA’s website at http://www.mbda.gov. If you

do not have access to the Internet, you may contact MBDA via telephone or mail:

U.S. Department of Commerce

Minority Business Development Agency

Herbert C. Hoover Building

14th Street and Constitution Avenue, N.W.

Washington, D.C. 20230

(202) 482-0101

G. NATIONAL POLICY REQUIREMENTS

.01 United States Laws and Regulations

This award is subject to the laws and regulations of the United States. The recipient must

comply with all applicable requirements of all other Federal laws, executive orders, regulations

and policies governing this program.

.02 Non-Discrimination Requirements

No person in the United States may, on the ground of race, color, national origin, handicap,

age, religion, or sex, be excluded from participation in, be denied the benefits of, or be subject to

discrimination under, any program or activity receiving Federal financial assistance. The

recipient agrees to comply with the non-discrimination requirements below:

a. Statutory Provisions

1. Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) and DOC

implementing regulations published at 15 C.F.R. Part 8 prohibiting discrimination on the

grounds of race, color, or national origin under programs or activities receiving Federal

financial assistance;

2. Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681 et seq.) prohibiting

discrimination on the basis of sex under Federally assisted education programs or activities;

3. The Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.) prohibiting

discrimination on the basis of disability under programs, activities, and services provided or

made available by State and local governments or instrumentalities or agencies thereto, as

well as public or private entities that provide public transportation;

4. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), and DOC

implementing regulations published at 15 C.F.R. Part 8b prohibiting discrimination on the

26 | 12 November 2020

basis of handicap under any program or activity receiving or benefiting from Federal

assistance.

For purposes of complying with the accessibility standards set forth in 15 C.F.R. §

8b.18(c), non-federal entities must adhere to the regulations, published by the U.S.

Department of Justice, implementing Title II of the Americans with Disabilities Act

(ADA) (28 C.F.R. part 35; 75 FR 56164, as amended by 76 FR 13285) and Title III of the

ADA (28 C.F.R. part 36; 75 FR 56164, as amended by 76 FR 13286). The revised

regulations adopted new enforceable accessibility standards called the “2010 ADA

Standards for Accessible Design” (2010 Standards), which replace and supersede the

former Uniform Federal Accessibility Standards for new construction and alteration

projects;

5. The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.), and DOC

implementing regulations published at 15 C.F.R. Part 20 prohibiting discrimination on the

basis of age in programs or activities receiving Federal financial assistance; and

6. Any other applicable non-discrimination law(s).

b. Other Provisions

1. Parts II and III of E.O. 11246 (Equal Employment Opportunity, 30 FR 12319),

which

requires Federally assisted construction contracts to include the nondiscrimination provisions

of §§ 202 and 203 of E.O. 11246 and Department of Labor regulations implementing E.O.

11246 (41 C.F.R. § 60-1.4(b)).

2. E.O. 13166 (65 FR 50121, Improving Access to Services for Persons with Limited

English Proficiency), requiring Federal agencies to examine the services provided, identify

any need for services to those with limited English proficiency (LEP), and develop and

implement a system to provide those services so LEP persons can have meaningful access to

them. The DOC issued policy guidance on March 24, 2003 (68 FR 14180) to articulate the

Title VI prohibition against national origin discrimination affecting LEP persons and to help

ensure that non-Federal entities provide meaningful access to their LEP applicants and

beneficiaries.

3. In accordance with E.O 13798 and Office of Management and Budget, M-20-09 –

Guidance Regarding Federal Grants, states or other public grantees may not condition sub-

awards of Federal grant money in a manner that would disadvantage grant applicants based

on their religious character.

As amended by E.O. 11375(32 FR 14303), E.O. 11478 (34 FR 12985), E.O. 12086 (43 FR 46501), E.O. 12107 (44

FR 1055), E.O. 13279 (F67 FR 77141), E.O. 13665 (79 FR 20749), and E.O. 13672 (79 FR 42971).

27 | 12 November 2020

c. Title VII Exemption for Religious Organizations

Generally, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., provides

that it is an unlawful employment practice for an employer to discharge any individual or

otherwise to discriminate against an individual with respect to compensation, terms,

conditions, or privileges of employment because of such individual’s race, color, religion,

sex, or national origin. However, Title VII, 42 U.S.C. § 2000e-1(a), expressly exempts from

the prohibition against discrimination based on religion, “a religious corporation, association,

educational institution, or society with respect to the employment of individuals of a

particular religion to perform work connected with the carrying on by such corporation,

association, educational institution, or society of its activities.”

.03 LOBBYING RESTRICTIONS

a. Statutory Provisions

Non-Federal entities must comply with 2 C.F.R. § 200.450 (Lobbying), which

incorporates the provisions of 31 U.S.C. § 1352; and OMB guidance and notices on lobbying

restrictions. In addition, non-Federal entities must comply with the DOC regulations

published at 15 C.F.R. Part 28, which implement the New Restrictions on Lobbying. These

provisions prohibit the use of Federal funds for lobbying the executive or legislative branches

of the Federal Government in connection with the award and require the disclosure of the use

of non-Federal funds for lobbying. Lobbying includes attempting to improperly influence,

meaning any influence that induces or tends to induce a Federal employee or officer to give

consideration or to act regarding a Federal award or regulatory matter on any basis other than

the merits of the matter, either directly or indirectly. Costs incurred to improperly influence

are unallowable. See 2 C.F.R. § 200.450(b) and (c).

b. Disclosure of Lobbying Activities

Any recipient that receives more than $100,000 in Federal funding and conducts lobbying

with non-federal funds relating to a covered Federal action must submit a completed Form

SF-LLL (Disclosure of Lobbying Activities). The Form SF-LLL must be submitted within

30 calendar days following the end of the calendar quarter in which there occurs any event

that requires disclosure or that materially affects the accuracy of the information contained in

any disclosure form previously filed. The recipient must submit any required SF-LLL forms,

including those received from subrecipients, contractors, and subcontractors, to the Grants

Officer.

.04 Environmental Requirements

Environmental impacts must be considered by Federal decision makers in their decisions

whether or not to approve: (1) a proposal for Federal assistance; (2) the proposal with mitigation;

or (3) a different proposal having less adverse environmental impacts. Federal environmental

laws require that the funding agency initiate an early planning process that considers potential

impacts that projects funded with Federal assistance may have on the environment. Each non-

Federal entity must comply with all environmental standards, to include those prescribed under

28 | 12 November 2020

the following statutes and E.O.s and must identify to the awarding agency any impact the award

may have on the environment. In some cases, award funds can be withheld by the Grants Officer

under a specific award condition requiring the non-Federal entity to submit additional

environmental compliance information sufficient to enable the DOC to make an assessment on

any impacts that a project may have on the environment.

a. The National Environmental Policy Act (42 U.S.C. §§ 4321 et seq.)

The National Environmental Policy Act (NEPA) and the Council on Environmental

Quality (CEQ) implementing regulations (40 C.F.R. Parts 1500 through 1508) require that an

environmental analysis be completed for all major Federal actions to determine whether they

have significant impacts on the environment. NEPA applies to the actions of Federal

agencies and may include a Federal agency’s decision to fund non-Federal projects under

grants and cooperative agreements when the award activities remain subject to Federal

authority and control. Non-Federal entities are required to identify to the awarding agency

any direct, indirect or cumulative impact an award will have on the quality of the human

environment and assist the agency in complying with NEPA. Non-Federal entities may also

be requested to assist DOC in drafting an environmental assessment or environmental impact

statement if DOC determines such documentation is required, but DOC remains responsible

for the sufficiency and approval of the final documentation. Until the appropriate NEPA

documentation is complete and in the event that any additional information is required during

the period of performance to assess project environmental impacts, funds can be withheld by

the Grants Officer under a specific award condition requiring the non-Federal entity to

submit the appropriate environmental information and NEPA documentation sufficient to

enable DOC to make an assessment on any impacts that a project may have on the

environment.

b. The National Historic Preservation Act (16 U.S.C. §§ 470 et seq.)

Section 106 of the National Historic Preservation Act (NHPA) (16 U.S.C. § 470f) and the

Advisory Council on Historic Preservation (ACHP) implementing regulations (36 C.F.R.

Part 800) require that Federal agencies take into account the effects of their undertakings on

historic properties and, when appropriate, provide the ACHP with a reasonable opportunity

to comment. Historic properties include but are not necessarily limited to districts, buildings,

structures, sites and objects. In this connection, archeological resources and sites that may be

of traditional religious and cultural importance to Federally-recognized Indian Tribes,

Alaskan Native Villages and Native Hawaiian Organizations may be considered historic

properties. Non-Federal entities are required to identify to the awarding agency any effects

the award may have on properties included on or eligible for inclusion on the National

consulting with State or Tribal Historic Preservation Officers, ACHPs or other applicable

interested parties necessary to identify, assess, and resolve adverse effects to historic

properties. Until such time as the appropriate NHPA consultations and documentation are

complete and in the event that any additional information is required during the period of

performance in order to assess project impacts on historic properties, funds can be withheld

by the Grants Officer under a specific award condition requiring the non-Federal entity to

29 | 12 November 2020

submit any information sufficient to enable DOC to make the requisite assessment under the

NHPA.

Additionally, non-Federal entities are required to assist the DOC in assuring compliance

with the Archeological and Historic Preservation Act of 1974 (54 U.S.C. § 312502 et seq.,

formerly 16 U.S.C. § 469a-1 et seq.); Executive Order 11593 (Protection and Enhancement

of the Cultural Environment, May 13, 1971); Executive Order 13006 (Locating Federal

Facilities on Historic Properties in Our Nation’s Central Cities, May 21, 1996); and

Executive Order 13007 (Indian Sacred Sites, May 24, 1996).

c. Executive Order 11988 (Floodplain Management) and Executive Order 11990

(Protection of Wetlands)

Non-Federal entities must identify proposed actions in Federally defined floodplains and

wetlands to enable DOC to decide whether there is an alternative to minimize any potential

harm.

d. Clean Air Act (42 U.S.C. §§ 7401 et seq.), Federal Water Pollution Control Act

(33 U.S.C. §§ 1251 et seq.) (Clean Water Act), and Executive Order 11738 (“Providing

for administration of the Clean Air Act and the Federal Water Pollution Control Act

with respect to Federal contracts, grants or loans”)

Non-Federal entities must comply with the provisions of the Clean Air Act (42 U.S.C. §§

7401 et seq.), Clean Water Act (33 U.S.C. §§ 1251 et seq.), and E.O. 11738 (38 FR 25161),

and must not use a facility on the Excluded Parties List (EPL) (located on the System for

Award Management (SAM) website, SAM.gov) in performing any award that is nonexempt

under 2 C.F.R. § 1532, and must notify the Program Officer in writing if it intends to use a

facility that is on the EPL or knows that the facility has been recommended to be placed on

the EPL.

e. The Flood Disaster Protection Act (42 U.S.C. §§ 4002 et seq.)

Flood insurance, when available, is required for Federally assisted construction or

acquisition in flood-prone areas. Per 2 C.F.R. § 200.447(a), the cost of required flood

insurance is an allowable expense, if it is reflected in the approved project budget.

f. The Endangered Species Act (16 U.S.C. §§ 1531 et seq.)

Non-Federal entities must identify any impact or activities that may involve a threatened

or endangered species. Federal agencies have the responsibility to ensure that no adverse

effects to a protected species or habitat occur from actions under Federal assistance awards

and conduct the reviews required under the Endangered Species Act, as applicable.

g. The Coastal Zone Management Act (16 U.S.C. §§ 1451 et seq.)

Funded projects must be consistent with a coastal State’s approved management program

for the coastal zone.

30 | 12 November 2020

h. The Coastal Barriers Resources Act (16 U.S.C. §§ 3501 et seq.)

Only in certain circumstances can Federal funding be provided for actions within a

Coastal Barrier System.

i. The Wild and Scenic Rivers Act (16 U.S.C. §§ 1271 et seq.)

This Act applies to awards that may affect existing or proposed components of the

National Wild and Scenic Rivers system.

j. The Safe Drinking Water Act of 1974, as amended, (42 U.S.C. §§ 300f et seq.)

This Act precludes Federal assistance for any project that the EPA determines may

contaminate a sole source aquifer which threatens public health.

k. The Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 et seq.)

This Act regulates the generation, transportation, treatment, and disposal of hazardous

wastes, and provides that non-Federal entities give preference in their procurement programs

to the purchase of recycled products pursuant to EPA guidelines.

l. The Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA, commonly known as Superfund) (42 U.S.C. §§ 9601 et seq.) and the

Community Environmental Response Facilitation Act (42 U.S.C. § 9601 note et seq.)

These requirements address responsibilities related to hazardous substance releases,

threatened releases and environmental cleanup. There are also reporting and community

involvement requirements designed to ensure disclosure of the release or disposal of

regulated substances and cleanup of hazards to state and local emergency responders.

m. Executive Order 12898 (“Federal Actions to Address Environmental Justice in

Minority Populations and Low Income Populations”)

Federal agencies are required to identify and address the disproportionately high and

adverse human health or environmental effects of Federal programs, policies, and activities

on low income and minority populations.

n. The Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. §

1801 et seq.)

Non-Federal entities must identify to DOC any effects the award may have on essential

fish habitat (EFH). Federal agencies which fund, permit, or carry out activities that may

adversely impact EFH are required to consult with the National Marine Fisheries Service

(NMFS) regarding the potential effects of their actions and respond in writing to NMFS

recommendations. These recommendations may include measures to avoid, minimize,

mitigate, or otherwise offset adverse effects on EFH. In addition, NMFS is required to

comment on any state agency activities that would impact EFH. Provided the specifications

outlined in the regulations are met, EFH consultations will be incorporated into interagency

31 | 12 November 2020

procedures previously established under NEPA, the ESA, Clean Water Act, Fish and

Wildlife Coordination Act, or other applicable statutes.

o. Clean Water Act (CWA) Section 404 (33 U.S.C. § 1344)

CWA Section 404 regulates the discharge of dredged or fill material into waters of the

United States, including wetlands. Activities in waters of the United States regulated under

this program include fill for development, water resource projects (such as levees and some

coastal restoration activities), and infrastructure development (such as highways and

airports). CWA Section 404 requires a permit from the U.S. Army Corps of Engineers

before dredged or fill material may be discharged into waters of the United States, unless the

activity is exempt from Section 404 regulation (e.g., certain farming and forestry activities).

p. Rivers and Harbors Act (33 U.S.C. § 407)

A permit may be required from the U.S. Army Corps of Engineers if the proposed

activity involves any work in, over or under navigable waters of the United States.

Recipients must identify any work (including structures) that will occur in, over or under

navigable waters of the United States and obtain the appropriate permit, if applicable.

q. The Migratory Bird Treaty Act (16 U.S.C. §§ 703-712), Bald and Golden Eagle

Protection Act (16 U.S.C. § 668 et seq.), and Executive Order 13186 (Responsibilities

of Federal Agencies to Protect Migratory Birds, January 10, 2001)

Many prohibitions and limitations apply to projects that adversely impact migratory birds

and bald and golden eagles. Executive Order 13186 directs Federal agencies to enter a

Memorandum of Understanding with the U.S. Fish and Wildlife Service to promote

conservation of migratory bird populations when a Federal action will have a measurable

negative impact on migratory birds.

r. Executive Order 13112 (Invasive Species, February 3, 1999)

Federal agencies must identify actions that may affect the status of invasive species and

use relevant programs and authorities to: (i) prevent the introduction of invasive species; (ii)

detect and respond rapidly to and control populations of such species in a cost-effective and

environmentally sound manner; (iii) monitor invasive species populations accurately and

reliably; (iv) provide for restoration of native species and habitat conditions in ecosystems

that have been invaded; (v) conduct research on invasive species and develop technologies to

prevent introduction and provide for environmentally sound control of invasive species; and

(vi) promote public education on invasive species and the means to address them. In

addition, an agency may not authorize, fund, or carry out actions that it believes are likely to

cause or promote the introduction or spread of invasive species in the United States or

elsewhere.

s. Fish and Wildlife Coordination Act (16 U.S.C. § 661 et seq.)

During the planning of water resource development projects, agencies are required to

give fish and wildlife resources equal consideration with other values. Additionally, the U.S.

32 | 12 November 2020

Fish and Wildlife Service and fish and wildlife agencies of states must be consulted

whenever waters of any stream or other body of water are “proposed or authorized, permitted

or licensed to be impounded, diverted… or otherwise controlled or modified” by any agency

under a Federal permit or license.

.05 OTHER NATIONAL POLICY REQUIREMENTS

a. Buy-American Preferences

Strengthening Buy-American Preferences for Infrastructure Projects. Recipients of

covered programs (as defined in Executive Order 13858, 31 January 2019, and 2 C.F.R.

§200.322 (Domestic preferences for procurements)) are hereby notified that they are

encouraged to use, to the greatest extent practicable, iron and aluminum as well as steel,

cement, and other manufactured products produced in the United States in every contract,

subcontract, purchase order, or subaward that is chargeable under this Award.

b. Criminal and Prohibited Activities

1. The Program Fraud Civil Remedies Act (31 U.S.C. § 3801 et seq.), provides for the

imposition of civil penalties against persons who make false, fictitious, or fraudulent claims

to the Federal Government for money (including money representing grants, loans, or other

benefits).

2. The False Claims Amendments Act of 1986 and the False Statements Accountability Act

of 1996 (18 U.S.C. §§ 287 and 1001, respectively), provide that whoever makes or presents

any false, fictitious, or fraudulent statement, representation, or claim against the United

States must be subject to imprisonment of not more than five years and must be subject to a

fine in the amount provided by 18 U.S.C. § 287.

3. The Civil False Claims Act (31 U.S.C. §§ 3729 - 3733), provides that suits can be

brought by the government, or a person on behalf of the government, for false claims made

under Federal assistance programs.

4. The Copeland Anti-Kickback Act (18 U.S.C. § 874), prohibits a person or organization

engaged in a Federally supported project from enticing an employee working on the project

from giving up a part of his compensation under an employment contract. The Copeland

Anti-Kickback Act also applies to contractors and subcontractors pursuant to 40 U.S.C. §

3145.

5. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970

(42 U.S.C. § 4601 et seq.) and implementing regulations issued at 15 C.F.R. Part 11, which

provides for fair and equitable treatment of displaced persons or persons whose property is

acquired as a result of Federal or Federally-assisted programs. These requirements apply to

all interests in real property acquired for project purposes regardless of Federal participation

in purchases.

33 | 12 November 2020

6. The Hatch Act (5 U.S.C. §§ 1501-1508 and 7321-7326), which limits the political

activities of employees or officers of state or local governments whose principal employment

activities are funded in whole or in part with Federal funds.

7. To ensure compliance with Federal law pertaining to financial assistance awards, an

authorized representative of a non-Federal entity may be required to periodically provide

certain certifications to the DOC regarding Federal felony and Federal criminal tax

convictions, unpaid federal tax assessments, delinquent Federal tax returns and such other

certifications that may be required by Federal law.

c. Drug-Free Workplace

The non-Federal entity must comply with the provisions of the Drug-Free Workplace Act

of 1988 (41 U.S.C. § 8102) and DOC implementing regulations published at 2 C.F.R. Part

1329 (Requirements for Drug-Free Workplace (Financial Assistance)), which require that the

non-Federal entity take certain actions to provide a drug-free workplace.

d. Foreign Travel

1. Each non-Federal entity must comply with the provisions of the Fly America Act (49

U.S.C. § 40118). The implementing regulations of the Fly America Act are found at 41

C.F.R. §§ 301-10.131 through 301-10.143.

2. The Fly America Act requires that Federal travelers and others performing U.S.

Government-financed air travel must use U.S. flag air carriers, to the extent that service by

such carriers is available. Foreign air carriers may be used only in specific instances, such as

when a U.S. flag air carrier is unavailable or use of U.S. flag air carrier service will not

accomplish the agency’s mission.

3. One exception to the requirement to fly U.S. flag carriers is transportation provided under

a bilateral or multilateral air transport agreement, to which the United States Government and

the government of a foreign country are parties, and which the Department of Transportation

has determined meets the requirements of the Fly America Act pursuant to 49 U.S.C. §

40118(b). The United States Government has entered into bilateral/multilateral “Open Skies

Agreements” (U.S. Government Procured Transportation) that allow federal funded

transportation services for travel and cargo movements to use foreign air carriers under

certain circumstances. There are multiple “Open Skies Agreements” currently in effect. For

more information about the current bilateral and multilateral agreements, visit the GSA

website. Information on the Open Skies agreements (U.S. Government Procured

Transportation) and other specific country agreements may be accessed via the Department

of State’s website.

4. If a foreign air carrier is anticipated to be used for any portion of travel under a DOC

financial assistance award, the non-Federal entity must receive prior approval from the

Grants Officer. When requesting such approval, the non-Federal entity must provide a

justification in accordance with guidance provided by 41 C.F.R. § 301-10.142, which

requires the non-Federal entity to provide the Grants Officer with the following: name; dates

34 | 12 November 2020

of travel; origin and destination of travel; detailed itinerary of travel; name of the air carrier

and flight number for each leg of the trip; and a statement explaining why the non-Federal

entity meets one of the exceptions to the regulations. If the use of a foreign air carrier is

pursuant to a bilateral agreement, the non-Federal entity must provide the Grants Officer with

a copy of the agreement or a citation to the official agreement available on the GSA website.

The Grants Officer must make the final determination and notify the non-Federal entity in

writing (which may be done through the recipient in the case of subrecipient travel). Failure

to adhere to the provisions of the Fly America Act will result in the non-Federal entity not

being reimbursed for any transportation costs for which any non-Federal entity improperly

used a foreign air carrier.

Note: When using code-sharing flights (two or more airlines having flight numbers

assigned to the same flight) involving U.S. flag carriers and non-U.S. flag carriers, the airline

symbol and flight number of the U.S. flag carrier must be used on the ticket to qualify as a

U.S. flag carrier (e.g. "Delta Airlines Flight XXXX, operated by KLM"). Conversely, if the

ticket shows "[Foreign Air Carrier] XXX, operated by Delta," that travel is using a foreign

air carrier and is subject to the Fly America Act and must receive prior approval from the

Grants Officer as outlined in paragraph G.05.d.4.

e. Increasing Seat Belt Use in the United States

Pursuant to E.O. 13043 (62 FR 19217), non-Federal entities should encourage employees

and contractors to enforce on-the-job seat belt policies and programs when operating

company-owned, rented, or personally owned vehicles.

f. Federal Employee Expenses and Subawards or Contracts Issued to Federal

Employees or Agencies

1. Use of award funds (Federal or non-Federal) or the non-Federal entity’s provision of in-

kind goods or services for the purposes of transportation, travel, or any other expenses for

any Federal employee may raise appropriation augmentation issues. In addition, DOC policy

may prohibit the acceptance of gifts, including travel payments for federal employees, from

non-Federal entities regardless of the source. Therefore, before award funds may be used by

Federal employees, non-Federal entities must submit requests for approval of such action to

the Federal Program Officer who must review and make a recommendation to the Grants

Officer. The Grants Officer will notify the non-Federal entity in writing (generally through

the recipient) of the final determination.

2. A non-Federal entity or its contractor may not issue a subaward, contract or subcontract

of any part of a DOC award to any agency or employee of DOC or to other Federal

employee, department, agency, or instrumentality, without the advance prior written approval

of the DOC Grants Officer.

g. Minority Serving Institutions Initiative

Pursuant to E.O.s 13555 (White House Initiative on Educational Excellence for

Hispanics) (75 FR 65417), 13592 (Improving American Indian and Alaska Native

35 | 12 November 2020

Educational Opportunities and Strengthening Tribal Colleges and Universities) (76 FR

76603), and 13779 (White House Initiative to Promote Excellence and Innovation at

Historically Black Colleges and Universities) (82 FR 12499), DOC is strongly committed to

broadening the participation of minority serving institutions (MSIs) in its financial assistance

programs. DOC’s goals include achieving full participation of MSIs to advance the

development of human potential, strengthen the Nation’s capacity to provide high-quality

education, and increase opportunities for MSIs to participate in and benefit from Federal

financial assistance programs. DOC encourages all applicants and non-Federal entities to

include meaningful participation of MSIs. Institutions eligible to be considered MSIs are

listed on the Department of Education website.

h. Research Misconduct

The DOC adopts, and applies to financial assistance awards for research, the Federal

Policy on Research Misconduct (Federal Policy) issued by the Executive Office of the

President’s Office of Science and Technology Policy on December 6, 2000 (65 FR 76260).

As provided for in the Federal Policy, research misconduct refers to the fabrication,

falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting

research results. Research misconduct does not include honest errors or differences of

opinion. Non-Federal entities that conduct extramural research funded by DOC must foster

an atmosphere conducive to the responsible conduct of sponsored research by safeguarding

against and resolving allegations of research misconduct. Non-Federal entities also have the

primary responsibility to prevent, detect, and investigate allegations of research misconduct

and, for this purpose, may rely on their internal policies and procedures, as appropriate, to do

so. Non-Federal entities must notify the Grants Officer of any allegation that meets the

definition of research misconduct and detail the entity’s inquiry to determine whether there is

sufficient evidence to proceed with an investigation, as well as the results of any

investigation. The DOC may take appropriate administrative or enforcement action at any

time under the award, up to and including award termination and possible suspension or

debarment, and referral to the Commerce OIG, the U.S. Department of Justice, or other

appropriate investigative body.

i. Research Involving Human Subjects

1. All proposed research involving human subjects must be conducted in accordance with

15 C.F.R. Part 27 (Protection of Human Subjects). No research involving human subjects is

permitted under this award unless expressly authorized by specific award condition, or

otherwise in writing by the Grants Officer.

2. Federal policy defines a human subject as a living individual about whom an investigator

(whether professional or student) conducting research (1) Obtains information or

biospecimens through intervention or interaction with the individual, and uses, studies, or

analyzes the information or biospecimens; or (2) Obtains, uses, studies, analyzes, or

generates identifiable private information or identifiable biospecimens. Research means a

systematic investigation, including research development, testing and evaluation, designed to

develop or contribute to generalizable knowledge.

36 | 12 November 2020

3. DOC regulations at 15 C.F.R. Part 27 require that non-Federal entities maintain

appropriate policies and procedures for the protection of human subjects. In the event it

becomes evident that human subjects may be involved in this project, the non-Federal entity

(generally through the recipient) must submit appropriate documentation to the Federal

Program Officer for approval by the appropriate DOC officials. As applicable, this

documentation must include:

i. Documentation establishing approval of an activity in the project by an Institutional

Review Board (IRB) under a Federal wide Assurance issued by Department of Health

and Human Services or other Federal agency guidelines (see also 15 C.F.R. § 27.103);

ii. Documentation to support an exemption for an activity in the project under 15 C.F.R.

§ 27.104(d);

iii. Documentation of IRB approval of any modification to a prior approved protocol or

to an informed consent form;

iv. Documentation of an IRB approval of continuing review approved prior to the

expiration date of the previous IRB determination; and

v. Documentation of any reportable events, such as serious adverse events,

unanticipated problems resulting in risk to subjects or others, and instances of

noncompliance.

4. No work involving human subjects may be undertaken, conducted, or costs incurred

and/or charged for human subjects research, until the appropriate documentation is approved

in writing by the Grants Officer. In accordance with 15 C.F.R. § 27.118, if research

involving human subjects is proposed after an award is made, the non-Federal entity must

contact the Federal Program Officer and provide required documentation. Notwithstanding

this prohibition, work may be initiated or costs incurred and/or charged to the project for

protocol or instrument development related to human subjects research.

j. Care and Use of Live Vertebrate Animals

Non-Federal entities must comply with the Laboratory Animal Welfare Act of 1966, as

amended, (Pub. L. No. 89-544, 7 U.S.C. §§ 2131 et seq.) (animal acquisition, transport, care,

handling, and use in projects), and implementing regulations (9 C.F.R. Parts 1, 2, and 3); the

Endangered Species Act (16 U.S.C. §§ 1531 et seq.); Marine Mammal Protection Act (16

U.S.C. §§ 1361 et seq.) (taking possession, transport, purchase, sale, export or import of

wildlife and plants); the Nonindigenous Aquatic Nuisance Prevention and Control Act (16

U.S.C. §§ 4701 et seq.) (ensure preventive measures are taken or that probable harm of using

species is minimal if there is an escape or release); and all other applicable statutes pertaining

to the care, handling, and treatment of warm-blooded animals held for research, teaching, or

other activities supported by Federal financial assistance. No research involving vertebrate

animals is permitted under any DOC financial assistance award unless authorized by the

Grants Officer.

37 | 12 November 2020

k. Management and Access to Data and Publications

1. In General. The recipient acknowledges and understands that information and data

contained in applications for financial assistance, as well as information and data contained

in financial, performance and other reports submitted by recipients, may be used by the DOC

in conducting reviews and evaluations of its financial assistance programs. For this purpose,

recipient information and data may be accessed, reviewed and evaluated by DOC employees,

other Federal employees, Federal agents and contractors, and/or by non-Federal personnel,

all of who enter into appropriate or are otherwise subject to confidentiality and nondisclosure

agreements covering the use of such information. Recipients are expected to support

program reviews and evaluations by submitting required financial and performance

information and data in an accurate and timely manner, and by cooperating with DOC and

external program evaluators. In accordance with 2 C.F.R. § 200.303(e), recipients are

reminded that they must take reasonable measures to safeguard protected personally

identifiable information and other confidential or sensitive personal or business information

created or obtained relating to a DOC financial assistance award.

2. Scientific Data. Non-Federal entities must comply with the data management and access

to data requirements established by the DOC funding agency as set forth in the applicable

Notice of Funding Opportunity and/or in Specific Award Conditions.

3. Publications, Videos, and Acknowledgment of Sponsorship.

i. Publication of results or findings in appropriate professional journals and production

of video or other media is encouraged as an important method of recording, reporting and

otherwise disseminating information and expanding public access to federally-funded

projects (e.g., scientific research). Non-Federal entities must comply with the data

management and access to data requirements established by the DOC funding agency as

set forth in the applicable Notice of Funding Opportunity and/or in Specific Award

Conditions.

ii. Non-Federal entities may be required to submit a copy of any publication materials,

including but not limited to print, recorded, or Internet materials, to the funding agency.

iii. When releasing information related to a funded project, non-Federal entities must

include a statement that the project or effort undertaken was or is sponsored by DOC and

must also include the applicable financial assistance award number.

iv. Non-Federal entities are responsible for assuring that every publication of material

based on, developed under, or otherwise produced pursuant to a DOC financial assistance

award contains the following disclaimer or other disclaimer approved by the Grants

Officer:

This [report/video/etc.] was prepared by [recipient name] using Federal funds under

award [number] from [name of operating unit], U.S. Department of Commerce. The

statements, findings, conclusions, and recommendations are those of the author(s) and do

38 | 12 November 2020

not necessarily reflect the views of the [name of operating unit] or the U.S. Department

of Commerce.

l. Homeland Security Presidential Directive

If the performance of this DOC financial assistance award requires non-Federal entity

personnel to have routine access to Federally-controlled facilities and/or Federally-controlled

information systems (for purpose of this term “routine access” is defined as more than 180

calendar days), such personnel must undergo the personal identity verification credential

process. In the case of foreign nationals, the DOC will conduct a check with U.S.

Citizenship and Immigration Services’ (USCIS) Verification Division, a component of the

Department of Homeland Security (DHS), to ensure the individual is in a lawful immigration

status and that he or she is eligible for employment within the United States. Any items or

services delivered under a financial assistance award must comply with DOC personal

identity verification procedures that implement Homeland Security Presidential Directive 12

(Policy for a Common Identification Standard for Federal Employees and Contractors),

Federal Information Processing Standard (FIPS) PUB 201, and OMB Memorandum M-05-

24. The recipient must ensure that its subrecipients and contractors (at all tiers) performing

work under this award comply with the requirements contained in this term. The Grants

Officer may delay final payment under an award if the subrecipient or contractor fails to

comply with the requirements listed in the term below. The recipient must insert the

following term in all subawards and contracts when the subaward recipient or contractor is

required to have routine physical access to a Federally-controlled facility or routine access to

a Federally-controlled information system:

The subrecipient or contractor must comply with DOC personal identity verification

procedures identified in the subaward or contract that implement Homeland Security

Presidential Directive 12 (HSPD-12), Office of Management and Budget (OMB)

Guidance M-05-24, as amended, and Federal Information Processing Standards

Publication (FIPS PUB) Number 201, as amended, for all employees under this

subaward or contract who require routine physical access to a Federally-controlled

facility or routine access to a Federally-controlled information system.

The subrecipient or contractor must account for all forms of Government-provided

identification issued to the subrecipient or contractor employees in connection with

performance under this subaward or contract. The subrecipient or contractor must

return such identification to the issuing agency at the earliest of any of the following,

unless otherwise determined by DOC: (1) When no longer needed for subaward or

contract performance; (2) Upon completion of the subrecipient or contractor employee’s

employment; (3) Upon subaward or contract completion or termination.

m. Compliance with Department of Commerce Bureau of Industry and Security

Export Administration Regulations

1. This clause applies to the extent that this financial assistance award encompasses

activities that involve export-controlled items.

39 | 12 November 2020

2. In performing this financial assistance award, a non-Federal entity may participate in

activities involving items subject to export control (export-controlled items) under the

Export Administration Regulations (EAR). The non-Federal entity is responsible for

compliance with all applicable laws and regulations regarding export-controlled items,

including the EAR’s deemed exports and re-exports provisions. The non-Federal entity

must establish and maintain effective export compliance procedures at DOC and non-DOC

facilities, including facilities located abroad, throughout performance of the financial

assistance award. At a minimum, these export compliance procedures must include

adequate restrictions on export-controlled items, to guard against any unauthorized exports,

including in the form of releases or transfers to foreign nationals. Such releases or transfers

may occur through visual inspection, including technology transmitted electronically, and

oral or written communications.

3. Definitions

i. Export-controlled items. Items (commodities, software, or technology), that are

subject to the EAR (15 C.F.R. §§ 730-774), implemented by the DOC’s Bureau of

Industry and Security. These are generally known as “dual-use” items, items with

a military and commercial application. The export (shipment, transmission, or

release/transfer) of export-controlled items may require a license from DOC.

ii. Deemed Export/Re-export. The EAR defines a deemed export as a release or transfer

of export-controlled items (specifically, technology or source code) to a foreign person

(foreign national) in the U.S. Such release is “deemed” to be an export to the foreign

person’s most recent country of citizenship or permanent residency (see 15 C.F.R. §

734.13(a)(2) & (b)). A release may take the form of visual inspection or oral or

written exchange of information. See 15 C.F.R. § 734.15(a). If such a release or

transfer is made abroad to a foreign person of a country other than the country where

the release occurs, it is considered a deemed re-export to the foreign person’s most

recent country of citizenship or permanent residency. See 15 C.F.R. § 734.14(a)(2).

Licenses from DOC may be required for deemed exports or re-exports. An act

causing the release of export-controlled items to a foreign person (e.g., providing or

using an access key or code) may require authorization from DOC to the same extent

that an export or re-export of such items to the foreign person would. See 15 C.F.R. §

734.15(b).

4. The non-Federal entity must secure all export-controlled items that it possesses or that

comes into its possession in performance of this financial assistance award, to ensure that

the export of such items, including in the form of release or transfer to foreign persons, is

prevented, or licensed, as required by applicable Federal laws, E.O.s, and/or regulations,

including the EAR.

5. As applicable, non-Federal entity personnel and associates at DOC sites will be informed of

any procedures to identify and protect export-controlled items from unauthorized export.

40 | 12 November 2020

6. To the extent the non-Federal entity wishes to release or transfer export-controlled items to

foreign persons, the non-Federal entity will be responsible for obtaining any necessary

licenses, including licenses required under the EAR for deemed exports or deemed re-

exports. Failure to obtain any export licenses required under the EAR may subject the non-

Federal entity to administrative or criminal enforcement. See 15 C.F.R. part 764.

7. Nothing in the terms of this financial assistance award is intended to change, supersede, or

waive the requirements of applicable Federal laws, E.O.s or regulations.

8. Compliance with this term will not satisfy any legal obligations the non-Federal entity may

have regarding items that may be subject to export controls administered by other agencies

such as the Department of State, which has jurisdiction over exports and re-exports of

defense articles and services subject to the International Traffic in Arms Regulations

(ITAR) (22 C.F.R. §§ 120-130), including the release of defense articles to foreign persons

in the United States and abroad.

9. The non-Federal entity must include the provisions contained in this term in all lower tier

transactions (subawards, contracts, and subcontracts) under this financial assistance award

that may involve research or other activities that implicate export-controlled items.

n. The Trafficking Victims Protection Act of 2000 (22 U.S.C. § 7104(g)), as

amended, and the implementing regulations at 2 C.F.R. Part 175

The Trafficking Victims Protection Act of 2000 authorizes termination of financial assistance

provided to a private entity, without penalty to the Federal Government, if any non-Federal entity

engages in certain activities related to trafficking in persons. The DOC hereby incorporates the

following award term required by 2 C.F.R. § 175.15(b):

Trafficking in persons.

a. Provisions applicable to a recipient that is a private entity.

1. You as the recipient, your employees, subrecipients under this award, and subrecipients’

employees may not—

i. Engage in severe forms of trafficking in persons during the period of time that the

award is in effect;

ii. Procure a commercial sex act during the period of time that the award is in effect; or

iii. Use forced labor in the performance of the award or subawards under the award.

41 | 12 November 2020

2. We as the Federal awarding agency may unilaterally terminate this award, without

penalty, if you or a subrecipient that is a private entity —

i. Is determined to have violated a prohibition in paragraph a.1 of this award term; or

ii. Has an employee who is determined by the agency official authorized to terminate the

award to have violated a prohibition in paragraph a.1 of this award term through conduct

that is either— (A) Associated with performance under this award; or (B) Imputed to you

or the subrecipient using the standards and due process for imputing the conduct of an

individual to an organization that are provided in 2 C.F.R. Part 180 (OMB Guidelines to

Agencies on Governmentwide Debarment and Suspension – Nonprocurement), as

implemented by DOC at 2 C.F.R. Part 1326 (Nonprocurement Debarment and

Suspension).

b. Provision applicable to a recipient other than a private entity. We as the Federal

awarding agency may unilaterally terminate this award, without penalty, if a subrecipient that is

a private entity—

1. Is determined to have violated an applicable prohibition in paragraph a.1 of this award

term; or

2. Has an employee who is determined by the agency official authorized to terminate the

award to have violated an applicable prohibition in paragraph a.1 of this award term

through conduct that is either—

i. Associated with performance under this award; or

ii. Imputed to the subrecipient using the standards and due process for imputing the

conduct of an individual to an organization that are provided in 2 C.F.R. Part 180 (OMB

Guidelines to Agencies on Governmentwide Debarment and Suspension –

Nonprocurement), as implemented by DOC at 2 C.F.R. Part 1326, (Nonprocurement

Debarment and Suspension).

c. Provisions applicable to any recipient.

1. You must inform us immediately of any information you receive from any source

alleging a violation of a prohibition in paragraph a.1 of this award term.

2. Our right to terminate unilaterally that is described in paragraph a.2 or b of this

section:

i. Implements section 106(g) of the Trafficking Victims Protection Act of 2000 (TVPA),

as amended (22 U.S.C. 7104(g)), and

ii. Is in addition to all other remedies for noncompliance that are available to us under

this award.

42 | 12 November 2020

3. You must include the requirements of paragraph a.1 of this award term in any subaward

you make to a private entity.

d. Definitions. For purposes of this award term:

1. “Employee” means either:

i. An individual employed by you or a subrecipient who is engaged in the performance of

the project or program under this award; or

ii. Another person engaged in the performance of the project or program under this

award and not compensated by you including, but not limited to, a volunteer or individual

whose services are contributed by a third party as an in-kind contribution toward cost

sharing or matching requirements.

2. “Forced labor” means labor obtained by any of the following methods: the recruitment,

harboring, transportation, provision, or obtaining of a person for labor or services, through

the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude,

peonage, debt bondage, or slavery.

3. “Private entity”:

i. Means any entity other than a State, local government, Indian tribe, or foreign public

entity, as those terms are defined in 2 C.F.R. § 175.25;

ii. Includes: (A) A nonprofit organization, including any nonprofit institution of higher

education, hospital, or tribal organization other than one included in the definition of

Indian tribe at 2 C.F.R. § 175.25(b); and (B) A for-profit organization.

4. “Severe forms of trafficking in persons,” “commercial sex act,” and “coercion” have the

meanings given at section 103 of the TVPA, as amended (22 U.S.C. § 7102).

o. The Federal Funding Accountability and Transparency Act (FFATA) (31 U.S.C.

§ 6101 note)

1. Reporting Subawards and Executive Compensation. Under FFATA, recipients of

financial assistance awards of $30,000 or more are required to report periodically on executive

compensation and subawards, as described in the following term from 2 C.F.R. Part 170,

Appendix A, which is incorporated into this award:

Reporting Subawards and Executive Compensation

a. Reporting of first-tier subawards.

1. Applicability. Unless you are exempt as provided in paragraph d. of this award term,

you must report each action that equals or exceeds $30,000 in Federal funds for a subaward

43 | 12 November 2020

to a non-Federal entity or Federal agency (see definitions in paragraph e. of this award

term).

2. Where and when to report.

i. You must report each obligating action described in paragraph a.1. of this award term

to http://www.fsrs.gov.

ii. For subaward information, report no later than the end of the month following the

month in which the obligation was made. (For example, if the obligation was made on

November 7, 2010, the obligation must be reported by no later than December 31, 2010.)

3. What to report. You must report the information about each obligating action that the

submission instructions posted at http://www.fsrs.gov specify.

b. Reporting Total Compensation of Recipient Executives for non-Federal entities.

1. Applicability and what to report. You must report total compensation for each of your

five most highly compensated executives for the preceding completed fiscal year, if—

i. the total Federal funding authorized to date under this Federal award equals or

exceeds $30,000 as defined in 2 C.F.R § 170.320;

ii. in the preceding fiscal year, you received—

(A) 80 percent or more of your annual gross revenues from Federal procurement

contracts (and subcontracts) and Federal financial assistance subject to the

Transparency Act, as defined at 2 C.F.R. § 170.320 (and subawards), and

(B) $25,000,000 or more in annual gross revenues from Federal procurement contracts

(and subcontracts) and Federal financial assistance subject to the Transparency

Act, as defined at 2 C.F.R. § 170.320 (and subawards); and,

iii. The public does not have access to information about the compensation of the

executives through periodic reports filed under section 13(a) or 15(d) of the Securities

Exchange Act of 1934 (15 U.S.C. § 78m(a), 78o(d)) or section 6104 of the Internal Revenue

Code of 1986. (To determine if the public has access to the compensation information, see

the U.S. Security and Exchange Commission total compensation filings at

http://www.sec.gov/answers/execomp.htm.)

2. Where and when to report. You must report executive total compensation described in

paragraph b.1. of this award term:

i. As part of your registration profile found at the System for Award Management (SAM)

website located at https://www.sam.gov.

44 | 12 November 2020

ii. By the end of the month following the month in which this award is made, and

annually thereafter.

c. Reporting of Total Compensation of Subrecipient Executives.

1. Applicability and what to report. Unless you are exempt as provided in paragraph d. of

this award term, for each first-tier non-Federal entity subrecipient under this award, you

shall report the names and total compensation of each of the subrecipient’s five most highly

compensated executives for the subrecipient’s preceding completed fiscal year, if—

i. in the subrecipient’s preceding fiscal year, the subrecipient received—

(A) 80 percent or more of its annual gross revenues from Federal procurement

contracts (and subcontracts) and Federal financial assistance subject to the

Transparency Act, as defined at 2 C.F.R. § 170.320 (and subawards) and,

(B) $25,000,000 or more in annual gross revenues from Federal procurement contracts

(and subcontracts), and Federal financial assistance subject to the Transparency

Act (and subawards); and

ii. The public does not have access to information about the compensation of the

executives through periodic reports filed under section 13(a) or 15(d) of the Securities

Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue

Code of 1986. (To determine if the public has access to the compensation information, see

the U.S. Security and Exchange Commission total compensation filings at

http://www.sec.gov/answers/execomp.htm.).