Cost Reimbursable Agreements - National Policy General Terms and Conditions

Provision Title

National Policy GT&C Provisions - Mandatory

CR Instructions

1. Assurance Regarding Felony Conviction or Tax Delinquent Status for Corporate Applicants

This cost-reimbursable agreement is subject to the provisions contained in the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2012, P.L. No. 112-55, Division A, Sections 738 and 739 regarding corporate felony convictions and corporate federal tax delinquencies. Accordingly, by accepting this cost-reimbursable agreement the Cooperator acknowledges that it:
(1) does not have a tax delinquency, meaning that it is not subject to any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, and
(2) has not been convicted (or had an officer or agent acting on its behalf convicted) of a felony criminal violation under any Federal or State law within 24 months preceding the cost-reimbursable agreement, unless a suspending and debarring official of the United States Department of Agriculture has considered suspension or debarment of the Cooperator corporation, or such officer or agent, based on these convictions and/or tax delinquencies and determined that suspension or debarment is not necessary to protect the interests of the Government. If the Cooperator fails to comply with these provisions, [insert agency name] will annul this agreement and may recover any funds the Cooperator has expended in violation of sections 738 and 739.

Applies to all CRs.

2. Best Practices for Collection and Use of Personally Identifiable Information (PII)

Personally identifiable information (PII) means any information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other personal or identifying information that is linked or linkable to a specific individual (for more information see 2 CFR Part 200.79, Personally Identifiable Information (PII)).
All Cooperators and subcooperators who collect PII are required to have a publically-available privacy policy that describes standards on the usage and maintenance of the PII they collect.

3. Age Discrimination Act of 1975

All Cooperators and subcooperators must comply with the requirements of the Age Discrimination Act of 1975 (Title 42 U.S. Code, § 6101 et seq.), which prohibits discrimination on the basis of age in any program or activity receiving Federal financial assistance.

4. American with Disabilities Act of 1990

All Cooperators and subcooperators must comply with the requirements of Titles I, II, and III of the Americans with Disabilities Act, which prohibits Cooperators and subcooperators from discriminating on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities. (42 U.S.C. §§ 12101– 12213).

5. Building and Computer Access by Non-U.S. Foreign Agricultural Service Personnel

The Cooperator may be granted access to U.S. Foreign Agricultural Service facilities and/or computer systems to accomplish work described in the Operating Plan or Statement of Work. All non-government employees with unescorted access to U.S. Foreign Agricultural Service facilities and computer systems must have background checks following the procedures established by USDA Directives 3505 and Departmental Manual 4620-02. Those granted computer access must fulfill all U.S. Foreign Agricultural Service requirements for mandatory security awareness and role-base advanced security training, and sign all applicable U.S. Foreign Agricultural Service statements of responsibilities.

Applies to all CRs when the Cooperator or their subcontractors will have unescorted access to USDA/FAS facilities or computer systems. Prior to granting access to the computer system or facility, contact FAS Information Security & Risk Management Branch.

6. Universal Identifier and System of Award Management (SAM)

All Cooperators and subcooperators are required to comply with the requirements set forth in the government-wide Award Term regarding the System for Award Management and Universal Identifier Requirements located at 2 C.F.R. Part 25, Appendix A, the full text of which is incorporated here by reference in the terms and conditions of your cost-reimbursable agreement.

7. Civil Rights Act of 1968

All Cooperators and subcooperators must comply with Title VIII of the Civil Rights Act of 1968, which prohibits Cooperators and subcooperators from discriminating in the sale, rental, financing, and advertising of dwellings, or in the provision of services in connection therewith, on the basis of race, color, national origin, religion, disability, familial status, and sex (42 U.S.C. § 3601 et seq.), as implemented by the Department of Housing and Urban Development at 24 C.F.R. Part 100. The prohibition on disability discrimination includes the requirement that new multifamily housing with four or more dwelling units—i.e., the public and common use areas and individual apartment units (all units in buildings with elevators and ground-floor units in buildings without elevators)—be designed and constructed with certain accessible features (See 24 C.F.R. § 100.201).

8. Debarment and Suspension

Cooperators must comply with the provisions on government-wide suspension and debarment in Subpart C of 2 CFR Part 180, Responsibilities of Participants Regarding Transactions Doing Business with Other Persons, as supplemented by USDA’s regulations at Subpart C of 2 CFR Part 417, Responsibilities of Participants Regarding Transactions. These provisions restrict Federal awards, subawards and contracts with certain parties that are debarred, suspended or otherwise excluded from or ineligible for participation in Federal programs or activities.

The Cooperator shall immediately inform FAS if they or any of their principals are presently excluded, debarred, or suspended from entering into covered transactions with the Federal Government according to the terms of 2 CFR Part 180 as supplemented by 2 CFR Part 417. A listing of debarred or suspended entities can be found at www.sam.gov. Additionally, should the Cooperator or any of their principals receive a transmittal letter or other official Federal notice of debarment or suspension; they shall notify FAS without undue delay. This applies whether the exclusion, debarment, or suspension is voluntary or involuntary. The Cooperator must include this provision, or a similar one, as term or condition in any lower tier covered transaction.

The Cooperator is responsible for requiring the inclusion of a similar term or condition in any lower tier covered transaction, as described in Subpart B of 2 CFR Part 180, Covered Transactions, as supplemented by USDA’s regulations at Subpart B of 2 CFR Part 417, Covered Transactions.

The Cooperator is also responsible for further requiring the inclusion of a similar term or condition in any subsequent lower tier covered transaction. The Cooperator acknowledges that failing to disclose the information required under 2 CFR 180.335 may result in the termination of the cost-reimbursable agreement, or pursuance of other available remedies, including suspension and debarment.

Applies to all CRs.

9. Drug-Free Workplace

(a) The Cooperator agrees to comply with 7 CFR Part 3021 “Government-wide Requirements for Drug-Free Workplace (Financial Assistance).” The Cooperator will make a good faith effort, on a continuing basis, to maintain a drug-free workplace. As part of that effort, the Cooperator will publish a drug-free workplace statement and provide a copy to each employee who will be engaged in the performance of any project/program that receives Federal funding. The statement must:
(1) Tell the employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in its workplace;
(2) Specify the actions the Cooperator will take against employees for violating that prohibition; and
(3) Let each employee know that, as a condition of employment under any instrument, he or she:
(i) Must abide by the terms of the statement; and
(ii) Must notify the Cooperator in writing if he or she is convicted for a violation of a criminal drug statute occurring in the workplace, and must do so no more than five calendar days after the conviction.
(b) The Cooperator agrees that it will establish an ongoing drug-free awareness program to inform employees about:
(1) The dangers of drug abuse in the workplace;
(2) The Cooperator’s policy of maintaining a drug-free workplace;
(3) Any available drug counseling, rehabilitation and employee assistance programs; and
(4) The penalties that the Cooperator may impose upon them for drug abuse violations occurring in the workplace.
(c) The policy statement and program must be in place as soon as possible, no later than the 30 days after the effective date of this cost-reimbursable agreement, or the completion date of this cost-reimbursable agreement, whichever occurs first, unless the Cooperator obtains FAS’ express written approval.
(d) The Cooperator agrees to immediately notify FAS if an employee is convicted of a drug violation in the workplace. The notification must be in writing, identify the employee’s position title, the Cooperator number of each instrument on which the employee worked. The notification must be sent to FAS within ten calendar days after the Cooperator learns of the conviction.
(e) Within 30 calendar days of learning about an employee’s conviction, the Cooperator must either:
(1) Take appropriate personnel action against the employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973 (29 USC 794), as amended; or
(2) Require the employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for these purposes by a Federal, State or local health, law enforcement, or other appropriate agency.

10. Education Amendments of 1972 (Equal Opportunity in Education Act) – Title IX

All Cooperators must comply with the requirements of Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.), which provide that no person in the United States will, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal assistance.

11. Eligible Workers

As related to workers hired for employment within the United States, the Cooperator shall ensure that all such employees complete the I-9 form to certify that they are eligible for lawful employment under the Immigration and Nationality Act (8 USC 1324a). The Cooperator shall comply with regulations regarding certification and retention of the completed forms. These requirements also apply to any contract or supplemental agreements awarded under this Cost-Reimbursable Agreement.

Applies to all CRs.

12. Energy Policy and Conservation Act

All Cooperators must comply with the requirements of 42 U.S.C. § 6201 which contain policies relating to energy efficiency that are defined in the state energy conservation plan issued in compliance with this Act.

13. False Claims Act and Program Fraud Civil Remedies

All Cooperators must comply with the requirements of 31 U.S.C. § 3729- 3733 which prohibits the submission of false or fraudulent claims for payment to the Federal Government. See 31 U.S.C. § 3801-3812 which details the administrative remedies for false claims and statements made.

14. Federal Funding Accountability and Transparency Act (FFATA) Reporting

In accordance with 2 CFR 200.211 and statutory requirements for Federal spending transparency (e.g., FFATA), except as noted in this section, for applicable Federal awards FAS must announce all Federal awards publicly and publish the required information on a publicly available OMB-designated
government-wide website (at time of publication, www.USAspending.gov).

Nothing in this section may be construed as requiring the publication of information otherwise exempt under the Freedom of Information Act (5 U.S.C 552), or controlled unclassified information pursuant to Executive Order 13556.

15. Freedom of Information Act (FOIA)

Public access to agreement records shall not be limited, except when such records must be kept confidential and would have been exempted from disclosure pursuant to "Freedom of Information" regulations (5 U.S.C. 552).

Applies to all CRs.

16. Hotel and Motel Fire Safety Act of 1990

In accordance with Section 6 of the Hotel and Motel Fire Safety Act of 1990, 15 U.S.C. § 2225a, all Cooperators must ensure that all conferences, meetings, convention, or training space funded in whole or in part with Federal funds complies with the fire prevention and control guidelines of the Federal Fire Prevention and Control Act of 1974, as amended, 15 U.S.C. § 2225.

17. Implementation of E.O. 13224 – Executive Order on Terrorist Financing

Presidentially signed Executive Orders and U.S. law prohibit transactions with, and the provision of resources and support to, individuals and organizations associated with terrorism. Except when the United States Government provides a background investigation during the visa review process for an international participant on the request of USDA, it is the legal responsibility of the Cooperator to ensure compliance with Executive Order 13224 and related laws. This provision must be included in all subawards and contracts issued under this cost-reimbursable agreement.
Key responsibilities include, but are not limited to:
(a) The Cooperator has not provided, and will take all reasonable steps to ensure that they do not, and will not, knowingly provide material support or resources to any individual or entity that commits, attempts to commit, advocates, facilitates, or participates in terrorist acts, or has committed, attempted to commit, facilitated, or participated in terrorist acts.
(b) Specifically, in order to comply with Cooperator obligations under paragraph (a), the Cooperator will take the following steps:
(1) Before providing any material support or resources to an individual or entity, the Cooperator will verify that the individual or entity does not appear:
(i) On the master list of Specially Designated Nationals and Blocked Persons, which list is maintained by the U.S. Treasury’s Office of Foreign Assets Control (OFAC) and is available online at OFAC’s Web site :http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default..., or

(ii) On any supplementary list of prohibited individuals or entities that may be provided by FAS to the Cooperator.
(2) The Cooperator also will verify that the individual or entity has not been designated by the United Nations Security (UNSC) sanctions committee established under UNSC Resolution 1267 (1999) (the “1267 Committee”) [individuals and entities linked to the Taliban, Usama bin Laden, or the Al Qaida Organization]. To determine whether there has been a published designation of an individual or entity by the 1267 Committee, the Cooperator should refer to the consolidated list available online at the Committee’s Web site: https://www.un.org/sc/suborg/en/sanctions/un-sc-consolidated-list.

(3) Before providing any material support or resources to an individual or entity, the Cooperator will consider all information about that individual or entity of which it is aware or that is available to the public.
(4) The Cooperator will implement reasonable monitoring and oversight procedures to safeguard against assistance being diverted to support terrorist activity.
(c) For purposes of this Certification:
(1) “Material support and resources” means currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.
(2) “Terrorist act” means:
(i) An act prohibited pursuant to one of the 12 United Nations Conventions and Protocols related to terrorism (see UN terrorism conventions Internet site: http://www.un.org/en/counterterrorism/legal-instruments.shtml); or

(ii) An act of premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents; or
(iii) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.
(3) “Entity” means a partnership, association, corporation, or other organization, group or subgroup.

Applies to all CRs.

18. Civil Rights Act of 1964 – Title VI

All Cooperators must comply with the requirements of Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.), which provides that no person in the United States will, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. USDA implementing regulations for the Act are found at 7 CFR Part 15, Subpart A and Subpart C.

19. Limited English Proficiency (Civil Rights Act of 1964, Title VI)

All Cooperators must comply with the Title VI of the Civil Rights Act of 1964 (Title VI) prohibition against discrimination on the basis of nation origin, which requires that recipients of federal financial assistance take reasonable steps to provide meaningful access to persons with limited English proficiency (LEP) to their programs and services. For additional assistance and information regarding language access obligations, please refer to http://www.lep.gov .

20. Lobbying Prohibitions

All Cooperators must comply with 31 U.S.C. § 1352, which provides that none of the funds provided under an award may be expended by the Cooperators to pay any person to influence, or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any Federal action concerning the award or renewal.

21. Members of U.S. Congress

Pursuant to 41 U.S.C. 22, no United States member of, or United States delegate to, Congress shall be admitted to any share or part of this Cost-Reimbursable Agreement, or benefits that may arise there from, either directly or indirectly.

Applies to all CRs.

22. Nondiscrimination

The Cooperator assures compliance with the following requirement: No person in the United States shall, on the grounds of race, color, national origin, gender, age, religion, political beliefs, disability, marital status, familial status, sexual orientation, or because all or part of an individual’s income is derived from any public assistance source, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any project or activity under this Cost-Reimbursable Agreement.
Specific institutions and organizations have exemptions from the nondiscrimination requirements regarding religious preference, age limitations, gender focus, and tax exemption under section 501(a) of the Internal Revenue Code of 1954. Even though a basis or protected category is exempt in the operation of the organization, other civil rights provisions and protected bases may still apply.
These exemptions for instructional organizations are:
(a) Educational institutions controlled by religious organizations.
(b) Military and merchant marine educational organizations.
(c) Membership qualifications in organizations, such as social fraternities and sororities, YMCA, YWCA, Girl Scouts, Boy Scouts, Camp Fire Girls, and voluntary youth services organizations.
(d) Additionally, some activities have exemptions: Activities sponsored by the American Legion, such as selection of students relative to Girls State Conferences, Girls Nation Conferences, Boys State Conferences, and Boys Nation Conferences; father-son and mother-daughter activities at educational institutions if such activities are available to both gender groups equally; financial awards and scholarships that result from participation in pageants and contests limited to one gender.
To file a complaint of discrimination write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, S.W., Washington, D.C. 20250-9410 or call (800) 795-3272 (voice) or (202) 720-6382 (TDD). USDA is an equal opportunity provider and employer. The Cooperator should post within a common area of their offices a copy of the “Justice for All” poster, AD-475A.

Applies to all CRs.

23. Positions of Influence

The Cooperator shall establish safeguards to prohibit employees from using their positions for a purpose that is or gives the appearance of being motivated by a desire for private gain for themselves or others, particularly those with whom they have family, business, or other ties.

Applies to all CRs.

24. Questionnaires and Survey Plans

The Cooperator is required to submit to FAS copies of questionnaires and other forms for clearance in accordance with the Paperwork Reduction Act of 1980 and 5 CFR part 1320.

Applies to all CRs, when information collections under the Paper Reduction Act are anticipated.

25. Rehabilitation Act of 1973

All Cooperators must comply with the requirements of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as amended, which provides that no other qualified handicapped individual in the United States will, solely by reason of the handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

26. Rules of the Workplace

Cooperator employees, while engaged in work at FAS’ facilities, will abide by FAS’ standard operating procedures regarding the maintenance of laboratory notebooks, dissemination of information, equipment operation standards, hours of work, conduct, HSPD-12 requirements (access to buildings and computer systems), and other incidental matters stated in the rules and regulations of FAS.

Applies to all CRs when research activities are anticipated.

27. Safeguarding U.S. Funds

The Cooperator shall establish safeguards to ensure that U.S. Federal funds are properly spent. The Cooperator shall ensure that funds are not used for any partisan or political activity purposes (whether domestic or foreign), including, but not limited to:
(a) Supporting election, referendum, initiative, or similar procedure;
(b) Influencing the outcomes of elections;
(c) Introducing legislation;
(d) Influencing government officials to engage in similar lobbying activity;
(e) Preparing, distributing, or using publicity or propaganda, or by urging members of the general public to contribute to or participate in any mass demonstration, march, rally, fund raising drive, lobbying campaign or letter writing or telephone campaign;
(f) Influencing or attempting to influence a member of Congress or a federal agency in connection with the awarding of any federal contract, grant, loan or cooperative agreement; and
(g) Attending legislative sessions or committee hearings, gathering information regarding legislation, and analyzing the effect of legislation, when such activities are carried on in support of or in knowing preparation for an effort to engage in unallowable lobbying.
If FAS funds under this Cost-Reimbursable Agreement have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, and officer or employee of Congress, or an employee of a Member of Congress in connections with this Cost-Reimbursable Agreement, the Cooperator’s signatory official shall complete Standard Form LLL, Disclosure of Lobbying Activities, in accordance with its instructions and submit to the Grants Management Officer. This provision shall be included in the award documents for all subawards at all tiers including subcontracts, sub-grants, and contracts under this Cost-Reimbursable Agreement. Any person who fails to file the SF-LLL shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

28. Text Messaging While Driving

In accordance with Executive Order (EO) 13513, “Federal Leadership on Reducing Text Messaging While Driving,” any and all text messaging by Federal employees is banned:
a) while driving a Government owned vehicle (GOV) or driving a privately owned vehicle (POV) while on official Government business; or
b) using any electronic equipment supplied by the Government when driving any vehicle at any time. All Cooperators, their employees, volunteers, and contractors are encouraged to adopt and enforce policies that ban text messaging when driving company owned, leased or rented vehicles, POVs or GOVs when driving while on official Government business or when performing any work for or on behalf of the Government.

Applies to all CRs.

29. Trafficking In Persons

(a) Provisions applicable to a Cooperator that is a private entity.
(1) The Cooperator, its employees, the subcooperator under this cost-reimbursable agreement, and subcooperators’ employees may not—
(i) Engage in severe forms of trafficking in persons during the period of time that the cost-reimbursable agreement is in effect;
(ii) Procure a commercial sex act during the period of time that the cost-reimbursable agreement is in effect; or
(iii) Use forced labor in the performance of the cost-reimbursable agreement or subawards under the cost-reimbursable agreement.
(2) FAS may unilaterally terminate this cost-reimbursable agreement, without penalty, if the Cooperator that is a private entity —
(i) Is determined to have violated a prohibition in paragraph (a)(1) of this cost-reimbursable agreement term; or
(ii) Has an employee who is determined by the agency official authorized to terminate the cost-reimbursable agreement to have violated a prohibition in paragraph (a)(1) of this cost-reimbursable agreement term through conduct that is either—
(A) Associated with performance under this cost-reimbursable agreement; or
(B) Imputed to the Cooperator using the standards and due process for imputing the conduct of an individual to an organization that are provided in 2 CFR part 180, ‘‘OMB Guidelines to Agencies on Government-wide Debarment and Suspension (Nonprocurement),’’ as implemented by our agency at 7 CFR 3017.
(b) Provision applicable to a Cooperator other than a private entity. FAS may unilaterally terminate this Cost-Reimbursable Agreement, without penalty, if a subcooperator that is a private entity—
(1) Is determined to have violated an applicable prohibition in paragraph (a)(1) of this Cost-Reimbursable Agreement term; or
(2) Has an employee who is determined by the agency official authorized to terminate the Cost-Reimbursable Agreement to have violated an applicable prohibition in paragraph (a)(1) of this Cost-Reimbursable Agreement term through conduct that is either—
(i) Associated with performance under this Cost-Reimbursable Agreement; or
(ii) Imputed to the subcooperator using the standards and due process for imputing the conduct of an individual to an organization that are provided in 2 CFR part 180, ‘‘OMB Guidelines to Agencies on Government-wide Debarment and Suspension (Nonprocurement),’’ as implemented by our agency at 7 CFR 3017.
(c) Provisions applicable to any Cooperator.
(1) The Cooperator must inform FAS immediately of any information the Cooperator receives from any source alleging a violation of a prohibition in paragraph (a)(1) of this Cost-Reimbursable Agreement term.
(2) FAS 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 FAS under this Cost-Reimbursable Agreement.
(3) The Cooperator must include the requirements of paragraph (a)(1) of this Cost-Reimbursable Agreement term in any subaward made to a private entity.
(d) Definitions. For purposes of this Cost-Reimbursable Agreement term:
(1) ‘‘Employee’’ means either:
(i) An individual employed by the Cooperator or a subcooperator who is engaged in the performance of the project or program under this Cost-Reimbursable Agreement; or
(ii) Another person engaged in the performance of the project or program under this Cost-Reimbursable Agreement and not compensated by the Cooperator 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 CFR 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 CFR 175.25(b).
(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).

30. U.S. Government Employment Status

In no event shall the Cooperator or its subcooperators be considered as employees of the United States government, unless authorized by Federal Statute.

Applies to all CRs.

31. USA Patriot Act of 2001

All Cooperators must comply with requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), which amends 18 U.S. C. §§ 175-175c.

32. Whistleblower Protection Act

All Cooperators must comply with the statutory requirements for whistleblower protections (if applicable) at 41 U.S.C. 4712, and 41 U.S.C. §§ 4304 and 4310.

Provision Title

National Policy GT&C Provisions – Conditional
Procurement

CR Instructions

33. Competition

(a) All procurement transactions shall be conducted in a manner to provide, to the maximum extent practical, open and free competition. The Cooperator shall be alert to organizational conflicts of interest as well as noncompetitive practices among contractors that may restrict or eliminate competition or otherwise restrain trade. In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, and invitations for bids and/or requests for proposals shall be excluded from competing for such procurements. Awards shall be made to the bidder or offeror whose bid or offer is responsive to the solicitation and is most advantageous to the Cooperator, price, quality and other factors considered. Solicitations shall clearly set forth all requirements that the bidder or offer shall fulfill in order for the bid or offer to be evaluated by the Cooperator. Any and all bids or offers may be rejected when it is in the Cooperator’s interest to do so.
(b) Contracts shall be made only with responsible contractors who possess the potential ability to perform successfully under the terms and conditions of the proposed procurement. Consideration shall be given to such matters as contractor integrity, record of past performance, financial and technical resources or accessibility to other necessary resources. In certain circumstances, contracts with certain parties are restricted 2 CFR part 180 and part 417.
(c) Cooperators shall, on request, make available for FAS, pre-award review and procurement documents, such as request for proposals or invitations for bids, independent cost estimates, etc.
(d) The Cooperator is encouraged to utilize small businesses, minority-owned firms, and women’s business enterprises.

Applies to all CRs when procurement of goods and/or services are anticipated.

34. Contract Administration

A system for contract administration shall be maintained to ensure contractor conformance with the terms, conditions and specifications of the contract and to ensure adequate and timely follow up of all purchases. Cooperators shall evaluate contractor performance and document, as appropriate, whether contractors have met the terms, conditions and specifications of the contract.

Applies to all CRs when procurement of goods and/or services are anticipated.

35. Contract Provision

The Cooperator shall include, in addition to provisions to define a sound and complete agreement, the following provisions in all contracts. The following provisions shall also be applied to subcontracts.
(a) Contracts in excess of the simplified acquisition threshold shall contain contractual provisions or conditions that allow for administrative, contractual, or legal remedies in instances in which a contractor violates or breaches the contract terms, and provide for such remedial actions as may be appropriate.
(b) All contracts in excess of the simplified acquisition threshold shall contain suitable provisions for termination by the Cooperator, including the manner by which termination shall be effected and the basis for settlement. In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor.
(c) All negotiated contracts (except those for less than the simplified acquisition threshold) awarded by Cooperators shall include a provision to the effect that the Cooperator, FAS, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers and records of the contractor which are directly pertinent to a specific program for the purpose of making audits, examinations, excerpts and transcriptions.
(d) All contracts of a cooperator, or subcooperator, must contain the applicable provisions described in Appendix II to 2 CFR Part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards.

Applies to all CRs when procurement of goods and/or services are anticipated.

36. Cooperator Responsibilities

The standards contained in this provision do not relieve the Cooperator of the contractual responsibilities arising under its contract(s). The Cooperator is the responsible authority, without recourse to FAS, regarding the settlement and satisfaction of all contractual and administrative issues arising out of procurements entered into in support of this Cost-Reimbursable Agreement. This includes disputes, claims, award protests, source evaluation or other matters of a contractual nature. Matters concerning violation of statute are to be referred to such Federal, State or local authority, as may have proper jurisdiction.

Applies to all CRs when procurement of goods and/or services are anticipated.

37. Cost and Price Analysis

Some form of cost or price analysis shall be made and documented in the procurement files in connection with every procurement action exceeding $500. Price analysis may be accomplished in various ways, including the comparison of price quotations submitted, market prices and similar indicia, together with discounts. Cost analysis is the review and evaluation of each element of cost to determine reasonableness, allocability and allowability.

Applies to all CRs when procurement of goods and/or services are anticipated.

38. Davis-Bacon and Service Contract Act

Additionally, federal wage provisions (Davis-Bacon or Service Contract Act) are applicable to any contract developed and awarded under this Cost-Reimbursable Agreement where all or part of the funding is provided with FAS funds. Davis-Bacon wage rates apply on all public works contracts in excess of $2,000 and Service Contract Act wage provisions apply to service contracts in excess of $2,500.

Applies to all CRs when procurement of goods and/or services are anticipated.

39. Funding Supplies

Federal funding under this Cost-Reimbursable Agreement is available for reimbursement of the Cooperator’s purchase of supplies. Equipment is defined as having a fair market value of $5,000 or more per unit and a useful life of over one year. Supplies are those items that are not equipment.

Applies to all CRs when FAS is funding supplies.

40. Procurement Records

Procurement records and files for purchases in excess of the small purchase threshold shall include the following at a minimum:
(a) Basis for contractor selection;
(b) Justification for lack of competition when competitive bids or offers are not obtained; and
(c) Basis for award cost or price.

Applies to all CRs when procurement of goods and/or services are anticipated.

41. Procurement of Recovered Materials

All Cooperators and subcooperators must comply with Section 6002 of the solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition.

42. Property Management

The Cooperator shall prepare and establish a program, for the receipt, use, maintenance, protection, custody, and care of equipment, materials, and supplies for which it has custodial responsibility, including the establishment of reasonable controls to enforce such program.

Applies to all CRs when procurement of equipment and/or supplies is anticipated.

43. Standards of Conduct

The Cooperator shall maintain written standards of conduct governing the performance of its employees engaged in the award and administration of contracts. No employee, officer, or agent shall participate in the selection, award, or administration of a contract supported by Federal funds if a real or apparent conflict of interest would be involved. Such a conflict would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in the firm selected for an award. The officers, employees, and agents of the Cooperator shall neither solicit nor accept gratuities, favors, or anything of monetary value from contractors, or parties to subagreements. However, Cooperators may set standards for situations in which the financial interest is not substantial or the gift is an unsolicited item of nominal value. The standards of conduct shall provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the Cooperator.

Applies to all CRs when procurement of goods and/or services are anticipated.

44. Supplies and Other Expendable Property

(a) Title to supplies and other expendable property shall vest in the Cooperator upon acquisition. If there is a residual inventory of unused supplies exceeding $5,000 in total aggregate value upon termination or completion of the project or program and the supplies are not needed for any other federally-sponsored project or program, the Cooperator shall retain the supplies for use on non-Federal sponsored activities or sell them, but shall, in either case, compensate the Federal Government for its share. The amount of compensation shall be computed in the same manner as for equipment.
(b) The Cooperator shall not use supplies acquired with Federal funds to provide services to non-Federal outside organizations for a fee that is less than private companies charge for equivalent services, unless specifically authorized by Federal statute as long as the Federal Government retains an interest in the supplies.

Applies to all CRs.

45. Tangible Personal Property

The Cooperator is required to provide annual, award closeout, and disposition request reports related to their inventories of FAS furnished tangible personal property or those tangible personal property items acquired with funds under this award using the SF-428 cover sheet and either: Annual Report, SF428-A; Final (Award Closeout) Report, SF-428-B; and a Disposition Request/Report, SF-428-C. A Supplemental Sheet, SF-428S, may be used to provide detailed individual item information.

Tangible personal property means property of any kind, except real property, that has physical existence. It includes equipment and supplies. It does not include copyrights, patents or securities.

Applies to all CRs when procurement of supplies is anticipated.