1-ASD Federal Requirements 2CFR.pdf

Federal Requirements:

The interested Offeror complies with the following:

a. Federal Code Title 2 CFR 200.318-326 General Procurement Requirements:

b. Federal Code Title 2 CFR Appendix II to Part 200 contract provisions as required

c. Federal Code Title 2 CFR 200.321 contracting with small and minority businesses, women’s business enterprises, and labor surplus firms.

2 CFR Ch. II (1–1–14 Edition) Pt. 200, App. II early notification about the requirements al-lows the potential applicant to decide not to apply or to take needed actions before re-ceiving the Federal award. The announce-ment need not include all of the terms and conditions of the Federal award, but may refer to a document (with information about how to obtain it) or Internet site where ap-plicants can see the terms and conditions. If this funding opportunity will lead to Federal awards with some special terms and condi-tions that differ from the Federal awarding agency’s usual (sometimes called ‘‘general’’) terms and conditions, this section should highlight those special terms and conditions.

Doing so will alert applicants that have re-ceived Federal awards from the Federal awarding agency previously and might not otherwise expect different terms and condi-tions. For the same reason, the announce-ment should inform potential applicants about special requirements that could apply to particular Federal awards after the review of applications and other information, based on the particular circumstances of the effort to be supported (e.g., if human subjects were to be involved or if some situations may jus-tify special terms on intellectual property, data sharing or security requirements).

3. Reporting—Required. This section must include general information about the type (e.g., financial or performance), frequency, and means of submission (paper or elec-tronic) of post-Federal award reporting re-quirements. Highlight any special reporting requirements for Federal awards under this funding opportunity that differ (e.g., by re-port type, frequency, form/format, or cir-cumstances for use) from what the Federal awarding agency’s Federal awards usually require.

G. FEDERAL AWARDING AGENCY CONTACT(S)—

REQUIRED

The announcement must give potential ap-plicants a point(s) of contact for answering questions or helping with problems while the funding opportunity is open. The intent of this requirement is to be as helpful as pos-sible to potential applicants, so the Federal awarding agency should consider approaches such as giving:

i. Points of contact who may be reached in multiple ways (e.g., by telephone, FAX, and/ or email, as well as regular mail).

ii. A fax or email address that multiple people access, so that someone will respond even if others are unexpectedly absent dur-ing critical periods.

iii. Different contacts for distinct kinds of help (e.g., one for questions of programmatic content and a second for administrative questions).

H. OTHER INFORMATION—OPTIONAL

This section may include any additional information that will assist a potential ap-plicant. For example, the section might:

i. Indicate whether this is a new program or a one-time initiative.

ii. Mention related programs or other up-coming or ongoing Federal awarding agency funding opportunities for similar activities.

iii. Include current Internet addresses for Federal awarding agency Web sites that may be useful to an applicant in understanding the program.

iv. Alert applicants to the need to identify proprietary information and inform them about the way the Federal awarding agency will handle it.

v. Include certain routine notices to appli-cants (e.g., that the Federal government is not obligated to make any Federal award as a result of the announcement or that only grants officers can bind the Federal govern-ment to the expenditure of funds).

APPENDIX II TO PART 200—CONTRACT

PROVISIONS FOR NON-FEDERAL ENTI-

TY CONTRACTS UNDER FEDERAL

AWARDS

In addition to other provisions required by the Federal agency or non-Federal entity, all contracts made by the non-Federal entity under the Federal award must contain provi-sions covering the following, as applicable.

(A) Contracts for more than the simplified acquisition threshold currently set at $150,000, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisi-tion Regulations Council (Councils) as au-thorized by 41 U.S.C. 1908, must address ad-ministrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate.

(B) All contracts in excess of $10,000 must address termination for cause and for con-venience by the non-Federal entity including the manner by which it will be effected and the basis for settlement.

(C) Equal Employment Opportunity. Ex-cept as otherwise provided under 41 CFR Part 60, all contracts that meet the defini-tion of ‘‘federally assisted construction con-tract’’ in 41 CFR Part 60–1.3 must include the equal opportunity clause provided under 41 CFR 60–1.4(b), in accordance with Executive Order 11246, ‘‘Equal Employment Oppor-tunity’’ (30 FR 12319, 12935, 3 CFR Part, 1964– 1965 Comp., p. 339), as amended by Executive Order 11375, ‘‘Amending Executive Order 11246 Relating to Equal Employment Oppor-tunity,’’ and implementing regulations at 41 CFR part 60, ‘‘Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.’’

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2 CFR Ch. II (1–1–14 Edition) § 200.321 offer, and either a fixed price or cost-reimbursement type contract is award-

ed. It is generally used when conditions are not appropriate for the use of sealed bids. If this method is used, the following requirements apply:

(1) Requests for proposals must be publicized and identify all evaluation factors and their relative importance.

Any response to publicized requests for proposals must be considered to the maximum extent practical;

(2) Proposals must be solicited from an adequate number of qualified sources;

(3) The non-Federal entity must have a written method for conducting tech-nical evaluations of the proposals re-ceived and for selecting recipients;

(4) Contracts must be awarded to the responsible firm whose proposal is most advantageous to the program, with price and other factors consid-ered; and

(5) The non-Federal entity may use competitive proposal procedures for qualifications-based procurement of ar-chitectural/engineering (A/E) profes-sional services whereby competitors’ qualifications are evaluated and the most qualified competitor is selected, subject to negotiation of fair and rea-sonable compensation. The method, where price is not used as a selection factor, can only be used in procure-ment of A/E professional services. It cannot be used to purchase other types of services though A/E firms are a po-tential source to perform the proposed effort.

(e) [Reserved]

(f) Procurement by noncompetitive proposals. Procurement by non-competitive proposals is procurement through solicitation of a proposal from only one source and may be used only when one or more of the following cir-cumstances apply:

(1) The item is available only from a single source;

(2) The public exigency or emergency for the requirement will not permit a delay resulting from competitive solic-itation;

(3) The Federal awarding agency or pass-through entity expressly author-izes noncompetitive proposals in re-sponse to a written request from the non-Federal entity; or

(4) After solicitation of a number of sources, competition is determined in-adequate.

§ 200.321 Contracting with small and minority businesses, women’s busi-ness enterprises, and labor surplus area firms.

(a) The non-Federal entity must take all necessary affirmative steps to as-sure that minority businesses, women’s business enterprises, and labor surplus area firms are used when possible.

(b) Affirmative steps must include:

(1) Placing qualified small and mi-nority businesses and women’s business enterprises on solicitation lists;

(2) Assuring that small and minority businesses, and women’s business en-terprises are solicited whenever they are potential sources;

(3) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit max-imum participation by small and mi-nority businesses, and women’s busi-ness enterprises;

(4) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women’s busi-ness enterprises;

(5) Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Com-merce; and

(6) Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs

(1) through (5) of this section.

§ 200.322 Procurement of recovered materials.

A non-Federal entity that is a state agency or agency of a political subdivi-sion of a state and its contractors 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 des-ignated in guidelines of the Environ-mental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials prac-ticable, consistent with maintaining a satisfactory level of competition, VerDate Mar<15>2010 14:08 Mar 14, 2014 Jkt 232005 PO 00000 Frm 00130 Fmt 8010 Sfmt 8010 Y:\SGML\232005.XXX 232005w re ie r-av ile s on

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OMB Guidance Pt. 200, App. II

(D) Davis-Bacon Act, as amended (40 U.S.C.

3141–3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non-Federal entities must include a provision for compli-ance with the Davis-Bacon Act (40 U.S.C.

3141–3144, and 3146–3148) as supplemented by Department of Labor regulations (29 CFR Part 5, ‘‘Labor Standards Provisions Appli-cable to Contracts Covering Federally Fi-nanced and Assisted Construction’’). In ac-cordance with the statute, contractors must be required to pay wages to laborers and me-chanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-Federal entity must place a copy of the current pre-vailing wage determination issued by the De-partment of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-Federal en-tity must report all suspected or reported violations to the Federal awarding agency.

The contracts must also include a provision for compliance with the Copeland ‘‘Anti- Kickback’’ Act (40 U.S.C. 3145), as supple-mented by Department of Labor regulations (29 CFR Part 3, ‘‘Contractors and Sub-contractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States’’). The Act provides that each contractor or sub-recipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensa-tion to which he or she is otherwise entitled.

The non-Federal entity must report all sus-pected or reported violations to the Federal awarding agency.

(E) Contract Work Hours and Safety Standards Act (40 U.S.C. 3701–3708). Where applicable, all contracts awarded by the non- Federal entity in excess of $100,000 that in-volve the employment of mechanics or labor-ers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours.

Work in excess of the standard work week is permissible provided that the worker is com-pensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be re-quired to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transpor-tation or transmission of intelligence.

(F) Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of ‘‘funding agreement’’ under 37 CFR § 401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit orga-nization regarding the substitution of par-ties, assignment or performance of experi-mental, developmental, or research work under that ‘‘funding agreement,’’ the recipi-ent or subrecipient must comply with the re-quirements of 37 CFR Part 401, ‘‘Rights to In-ventions Made by Nonprofit Organizations and Small Business Firms Under Govern-ment Grants, Contracts and Cooperative Agreements,’’ and any implementing regula-tions issued by the awarding agency.

(G) Clean Air Act (42 U.S.C. 7401–7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251–1387), as amended—Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regula-tions issued pursuant to the Clean Air Act (42 U.S.C. 7401–7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C.

1251–1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).

(H) Mandatory standards and policies re-lating to energy efficiency which are con-tained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (42 U.S.C. 6201).

(I) Debarment and Suspension (Executive Orders 12549 and 12689)—A contract award (see 2 CFR 180.220) must not be made to par-ties listed on the governmentwide Excluded Parties List System in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR Part 1986 Comp., p. 189) and 12689 (3 CFR Part 1989 Comp., p. 235), ‘‘Debarment and Suspension.’’ The Excluded Parties List System in SAM contains the names of parties debarred, sus-pended, or otherwise excluded by agencies, as well as parties declared ineligible under stat-utory or regulatory authority other than Ex-ecutive Order 12549.

(J) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)—Contractors that apply or bid for an award of $100,000 or more must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or at-tempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with ob-taining any Federal contract, grant or any

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2 CFR Ch. II (1–1–14 Edition) Pt. 200, App. III other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in con-nection with obtaining any Federal award.

Such disclosures are forwarded from tier to tier up to the non-Federal award.

(K) See § 200.322 Procurement of recovered materials.

APPENDIX III TO PART 200—INDIRECT

(F&A) COSTS IDENTIFICATION AND

ASSIGNMENT, AND RATE DETERMINA-

TION FOR INSTITUTIONS OF HIGHER

EDUCATION (IHES)

A. GENERAL

This appendix provides criteria for identi-fying and computing indirect (or indirect (F&A)) rates at IHEs (institutions). Indirect (F&A) costs are those that are incurred for common or joint objectives and therefore cannot be identified readily and specifically with a particular sponsored project, an in-structional activity, or any other institu-tional activity. See subsection B.1, Defini-tion of Facilities and Administration, for a discussion of the components of indirect (F&A) costs.

1. Major Functions of an Institution

Refers to instruction, organized research, other sponsored activities and other institu-tional activities as defined in this section:

a. Instruction means the teaching and training activities of an institution. Except for research training as provided in sub-section b, this term includes all teaching and training activities, whether they are offered for credits toward a degree or certificate or on a non-credit basis, and whether they are offered through regular academic depart-ments or separate divisions, such as a sum-mer school division or an extension division.

Also considered part of this major function are departmental research, and, where agreed to, university research.

(1) Sponsored instruction and training means specific instructional or training activity es-tablished by grant, contract, or cooperative agreement. For purposes of the cost prin-ciples, this activity may be considered a major function even though an institution’s accounting treatment may include it in the instruction function.

(2) Departmental research means research, development and scholarly activities that are not organized research and, con-sequently, are not separately budgeted and accounted for. Departmental research, for purposes of this document, is not considered as a major function, but as a part of the in-struction function of the institution.

b. Organized research means all research and development activities of an institution that are separately budgeted and accounted for. It includes:

(1) Sponsored research means all research and development activities that are spon-sored by Federal and non-Federal agencies and organizations. This term includes activi-ties involving the training of individuals in research techniques (commonly called re-search training) where such activities utilize the same facilities as other research and de-velopment activities and where such activi-ties are not included in the instruction func-tion.

(2) University research means all research and development activities that are sepa-rately budgeted and accounted for by the in-stitution under an internal application of in-stitutional funds. University research, for purposes of this document, must be com-bined with sponsored research under the function of organized research.

c. Other sponsored activities means programs and projects financed by Federal and non- Federal agencies and organizations which in-volve the performance of work other than in-struction and organized research. Examples of such programs and projects are health service projects and community service pro-grams. However, when any of these activities are undertaken by the institution without outside support, they may be classified as other institutional activities.

d. Other institutional activities means all ac-tivities of an institution except for instruc-tion, departmental research, organized re-search, and other sponsored activities, as de-fined in this section; indirect (F&A) cost ac-tivities identified in this Appendix para-graph B, Identification and assignment of in-direct (F&A) costs; and specialized services facilities described in § 200.468 Specialized service facilities of this Part.

Examples of other institutional activities include operation of residence halls, dining halls, hospitals and clinics, student unions, intercollegiate athletics, bookstores, faculty housing, student apartments, guest houses, chapels, theaters, public museums, and other similar auxiliary enterprises. This definition also includes any other categories of activi-ties, costs of which are ‘‘unallowable’’ to Federal awards, unless otherwise indicated in an award.

2. Criteria for Distribution

a. Base period. A base period for distribu-tion of indirect (F&A) costs is the period during which the costs are incurred. The base period normally should coincide with the fiscal year established by the institution, but in any event the base period should be so selected as to avoid inequities in the dis-tribution of costs.

b. Need for cost groupings. The overall ob-jective of the indirect (F&A) cost allocation process is to distribute the indirect (F&A) costs described in Section B, Identification and assignment of indirect (F&A) costs, to

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OMB Guidance § 200.318

§ 200.318 General procurement stand-ards.

(a) The non-Federal entity must use its own documented procurement pro-cedures which reflect applicable State and local laws and regulations, pro-vided that the procurements conform to applicable Federal law and the standards identified in this section.

(b) Non-Federal entities must main-tain oversight to ensure that contrac-tors perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders.

(c)(1) The non-Federal entity must maintain written standards of conduct covering conflicts of interest and gov-erning the performance of its employ-ees engaged in the selection, award and administration of contracts. No em-ployee, officer, or agent must partici-pate in the selection, award, or admin-istration of a contract supported by a Federal award if he or she has a real or apparent conflict of interest. Such a conflict of interest would arise when the employee, officer, or agent, any member of his or her immediate fam-ily, his or her partner, or an organiza-tion which employs or is about to em-ploy any of the parties indicated here-in, has a financial or other interest in or a tangible personal benefit from a firm considered for a contract. The of-ficers, employees, and agents of the non-Federal entity must neither solicit nor accept gratuities, favors, or any-thing of monetary value from contrac-tors or parties to subcontracts. How-ever, non-Federal entities may set standards for situations in which the financial interest is not substantial or the gift is an unsolicited item of nomi-nal value. The standards of conduct must provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the non-Federal entity.

(2) If the non-Federal entity has a parent, affiliate, or subsidiary organi-zation that is not a state, local govern-ment, or Indian tribe, the non-Federal entity must also maintain written standards of conduct covering organi-zational conflicts of interest. Organiza-tional conflicts of interest means that because of relationships with a parent company, affiliate, or subsidiary orga-nization, the non-Federal entity is un-able or appears to be unable to be im-partial in conducting a procurement action involving a related organiza-tion.

(d) The non-Federal entity’s proce-dures must avoid acquisition of unnec-essary or duplicative items. Consider-ation should be given to consolidating or breaking out procurements to ob-tain a more economical purchase.

Where appropriate, an analysis will be made of lease versus purchase alter-natives, and any other appropriate analysis to determine the most eco-nomical approach.

(e) To foster greater economy and ef-ficiency, and in accordance with efforts to promote cost-effective use of shared services across the Federal govern-ment, the non-Federal entity is encour-aged to enter into state and local inter-governmental agreements or inter-en-tity agreements where appropriate for procurement or use of common or shared goods and services.

(f) The non-Federal entity is encour-aged to use Federal excess and surplus property in lieu of purchasing new equipment and property whenever such use is feasible and reduces project costs.

(g) The non-Federal entity is encour-aged to use value engineering clauses in contracts for construction projects of sufficient size to offer reasonable op-portunities for cost reductions. Value engineering is a systematic and cre-ative analysis of each contract item or task to ensure that its essential func-tion is provided at the overall lower cost.

(h) The non-Federal entity must award contracts only to responsible contractors possessing the ability to perform successfully under the terms and conditions of a proposed procure-ment. Consideration will be given to such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources.

(i) The non-Federal entity must maintain records sufficient to detail the history of procurement. These records will include, but are not nec-essarily limited to the following: ra-tionale for the method of procurement, selection of contract type, contractor

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2 CFR Ch. II (1–1–14 Edition) § 200.319 selection or rejection, and the basis for the contract price.

(j)(1) The non-Federal entity may use time and material type contracts only after a determination that no other contract is suitable and if the contract includes a ceiling price that the con-tractor exceeds at its own risk. Time and material type contract means a contract whose cost to a non-Federal entity is the sum of:

(i) The actual cost of materials; and

(ii) Direct labor hours charged at fixed hourly rates that reflect wages, general and administrative expenses, and profit.

(2) Since this formula generates an open-ended contract price, a time-and-materials contract provides no positive profit incentive to the contractor for cost control or labor efficiency. There-fore, each contract must set a ceiling price that the contractor exceeds at its own risk. Further, the non-Federal en-tity awarding such a contract must as-sert a high degree of oversight in order to obtain reasonable assurance that the contractor is using efficient meth-ods and effective cost controls.

(k) The non-Federal entity alone must be responsible, in accordance with good administrative practice and sound business judgment, for the set-tlement of all contractual and adminis-trative issues arising out of procure-ments. These issues include, but are not limited to, source evaluation, pro-tests, disputes, and claims. These standards do not relieve the non-Fed-eral entity of any contractual respon-sibilities under its contracts. The Fed-eral awarding agency will not sub-stitute its judgment for that of the non-Federal entity unless the matter is primarily a Federal concern. Viola-tions of law will be referred to the local, state, or Federal authority hav-ing proper jurisdiction.

§ 200.319 Competition.

(a) All procurement transactions must be conducted in a manner pro-viding full and open competition con-sistent with the standards of this sec-tion. In order to ensure objective con-tractor performance and eliminate un-fair competitive advantage, contrac-tors that develop or draft specifica-tions, requirements, statements of work, and invitations for bids or re-quests for proposals must be excluded from competing for such procurements.

Some of the situations considered to be restrictive of competition include but are not limited to:

(1) Placing unreasonable require-ments on firms in order for them to qualify to do business;

(2) Requiring unnecessary experience and excessive bonding;

(3) Noncompetitive pricing practices between firms or between affiliated companies;

(4) Noncompetitive contracts to con-sultants that are on retainer contracts;

(5) Organizational conflicts of inter-est;

(6) Specifying only a ‘‘brand name’’ product instead of allowing ‘‘an equal’’ product to be offered and describing the performance or other relevant re-quirements of the procurement; and

(7) Any arbitrary action in the pro-curement process.

(b) The non-Federal entity must con-duct procurements in a manner that prohibits the use of statutorily or ad-ministratively imposed state or local geographical preferences in the evalua-tion of bids or proposals, except in those cases where applicable Federal statutes expressly mandate or encour-age geographic preference. Nothing in this section preempts state licensing laws. When contracting for architec-tural and engineering (A/E) services, geographic location may be a selection criterion provided its application leaves an appropriate number of quali-fied firms, given the nature and size of the project, to compete for the con-tract.

(c) The non-Federal entity must have written procedures for procurement transactions. These procedures must ensure that all solicitations:

(1) Incorporate a clear and accurate description of the technical require-ments for the material, product, or service to be procured. Such descrip-tion must not, in competitive procure-ments, contain features which unduly restrict competition. The description may include a statement of the quali-tative nature of the material, product or service to be procured and, when necessary, must set forth those min-imum essential characteristics and

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