Contract_Provisions_Guide.pdf

Contract Provisions Guide Navigating Appendix II to Part 200 – Contract Provisions for Non-Federal Entity Contract Under Federal Awards

Procurement Under Grants Division Version 2, Effective October 1, 2024

(FI-207-21-0001)

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Introduction Recipients and subrecipients of grant funding from the Federal Emergency Management Agency (FEMA) will often use contractors to help them carry out work under their awards. These contracts are only between the recipients and subrecipients and their contractor. FEMA has no contractual relationship with the recipient’s or subrecipient’s contractors.

Although FEMA is not a party to those contracts, if a recipient or subrecipient is using federal funding to pay for the contract, the recipient or subrecipient must comply with applicable federal laws, including the federal procurement standards. Title 2 of the Code of Federal Regulations (C.F.R.), Part 200, sections 200.317 – 200.327. 2 C.F.R. § 200.327 describes the federal procurement standards that recipients and subrecipients must follow. Most important for this guide, 2 C.F.R.

200.327 states that “recipient’s or subrecipient’s contracts must contain the applicable provisions described in Appendix II of this part” (emphasis added).

Prior to purchasing goods and services under a FEMA award, recipients and subrecipients must first determine the applicable federal procurement standards. The federal award or the disaster declaration date determines the applicable federal procurement standards including the required contract provisions in 2 C.F.R. Part 200 because the Office of Management and Budget (OMB) revises the standards periodically. This document applies to all FEMA awards made or disasters declared on or after October 1, 2024, and includes OMB Revisions to the federal procurement standards effective on October 1, 2024.

Additionally, recipient and subrecipient must consider if their contracts are subject the Build America, Buy America Act (BABAA). For certain FEMA award recipients’ and subrecipients’ infrastructure projects made on or after October 23, 2023, that are subject to BABAA, those contracts must include a BABAA contract provision.

For FEMA awards made or disasters declared between November 12, 2020, through September 30, 2024, please refer to the Contract Provisions Guide dated June 2021 for the required federal contract provisions. For FEMA awards made or disasters declared before November 12, 2020, please refer to the Contract Provisions Template for required federal contract provisions. For questions regarding applicable federal procurement standards including the required contract provisions, please contact the FEMA Procurement Under Grants Division.

FEMA designed this document to help FEMA recipients and subrecipients navigate Appendix II to Part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards. This document:

Describes contract clauses where 2 C.F.R. Part 200 requires clauses to be included.

Provides suggested language or references to find suggested language for some of the federally required clauses.

https://www.ecfr.gov/on/2024-10-01/title-2/section-200.327 https://www.fema.gov/sites/default/files/documents/fema_contract-provisions-guide_6-14-2021.pdf https://www.fema.gov/sites/default/files/2020-07/fema_pdat_contract-provisions-template.pdf

Provides required language for clauses that require recipient and subrecipient contracts to include specific language.

Provides recommended contract clauses that are pursuant to FEMA’s authorities.

Provides sample language for some of the federally recommended clauses.

This document does not:

Mandate specific language.

Provide sample language for certain federally required or recommended clauses that must be drafted in accordance with the recipient’s or subrecipient’s applicable laws, rules, and procedures.

Provide contract provisions required by applicable state, tribal, or local laws or rules separate from the federal procurement standards.

Many of the provisions described in this document only apply when certain circumstances are present, such as the type of work being procured, the dollar amount, or the date when it is procured.

Each section will describe the applicable requirements. See Table A for applicability of required contract provisions and Table B for recommended contract provisions by FEMA.

Finally, FEMA does not recommend incorporating the contract provisions by reference in your contracts. FEMA recommends including the name of the recipient or subrecipient conducting the purchase under a FEMA award in the blank sections when using sample language from this Guide.

NOTE: The recipient or subrecipient is solely responsible for ensuring that all language included in its contracts meets the requirements of 2 C.F.R. Part 200, including 2 C.F.R. § 200.327 and Appendix II. Additionally, the required language noted below is current as of the date of the publication of this document and it is the recipient’s and subrecipient’s responsibility to ensure the required language used in the contract is consistent with applicable statutes. While the Contract Provisions Guide provides general guidance, recipients or subrecipients should reach out to their applicable FEMA grant program representative(s) if they have specific questions on the applicability of the contract provisions to a particular FEMA grant program.

Contract Provisions Quick Reference Guide Table A and Table B help FEMA recipients and subrecipients quickly check the applicability of a specific contract provision and if sample contract language is in this Guide.

The Tables are divided between the required contract provisions in 2 C.F.R. Part 200 and Appendix II and those provisions that FEMA recommends .

Table A: Required Contract Provisions Provision

(Appendix II Section)

Applicability Sample Contract

Language Included

Grant Program Applicability

1 Legal/contractual /administrative remedies for breach of contract (A)

Contract is greater than the Federal simplified acquisition threshold (SAT), currently $250,000.

No. Based on the recipient’s or subrecipient’s procedures.

All. NOTE: AFG must include a penalty clause in all contracts for any AFG-funded vehicle.

2 Termination for cause and convenience (B)

Contract is greater than $10,000.

No. Based on the recipient’s or subrecipient’s procedures.

All

3 Davis-Bacon Act (D) Contracts and subcontracts for construction work over $2,000; required language at 29 C.F.R. § 5.5(a).

Yes, via reference to required language at 29 C.F.R. § 5.5(a).

Required for EMPG, HSGP, NSGP, THSGP, PSGP, TSGP, IPR, and HHPD.

4 Copeland “Anti- Kickback” Act (D)

Contracts and subcontracts for construction work over $2,000.

Yes Required for EMPG, HSGP, NSGP, THSGP, PSGP, TSGP, IPR, and HHPD.

5 Contract Work Hours and Safety Standards Act (E)

Contracts and subcontracts over $100,000 and if for mechanics or laborers;

exact language required from 29 C.F.R. § 5.5(b).

Yes. Exact language required from 29 C.F.R. § 5.5(b).

All bookmark://Recommended_Contract_Provisions/ https://www.fema.gov/grants/preparedness/firefighters https://www.fema.gov/grants/preparedness/emergency-management-performance https://www.fema.gov/grants/preparedness/homeland-security https://www.fema.gov/grants/preparedness/nonprofit-security https://www.fema.gov/grants/preparedness/tribal-homeland-security https://www.fema.gov/grants/preparedness/port-security https://www.fema.gov/grants/preparedness/transit-security https://www.fema.gov/grants/preparedness/intercity-passenger-rail-amtrak https://www.fema.gov/emergency-managers/risk-management/dam-safety/rehabilitation-high-hazard-potential-dams https://www.fema.gov/grants/preparedness/emergency-management-performance https://www.fema.gov/grants/preparedness/homeland-security https://www.fema.gov/grants/preparedness/nonprofit-security https://www.fema.gov/grants/preparedness/tribal-homeland-security https://www.fema.gov/grants/preparedness/port-security https://www.fema.gov/grants/preparedness/transit-security https://www.fema.gov/grants/preparedness/intercity-passenger-rail-amtrak https://www.fema.gov/emergency-managers/risk-management/dam-safety/rehabilitation-high-hazard-potential-dams

Provision (Appendix II Section)

Applicability Sample Contract Language Included

Grant Program Applicability

6 Rights to inventions made under a contract or agreement (F)

Funding agreement. Yes This clause is not required under the

PA, HMGP, FMA,

PDM, FMAG, HMGP

Post Fire, CCP, DCM, IHP-ONA, or Safeguarding Tomorrow RLF programs, as FEMA Awards under these programs do not meet the definition of “funding agreement”.

7 Clean Air Act and federal Water Pollution Control Act (G)

Contracts and subcontracts greater than $150,000.

Yes All

8 Debarment and Suspension (H)

Contracts and subcontracts greater than $25,000 or more.

Yes All

9 Byrd Anti-Lobbying Amendment (I)

Contracts and subcontracts greater than $100,000. Clause and certification required.

Yes. Clause and certification.

All

Procurement of Recovered Materials (J)

Only applies if a recipient or subrecipient is a state or political subdivision of a state; work involves the use of materials, and the contract is for more than $10,000. NOTE: Not applicable for Indian Tribes and nonprofits.

Yes All

Prohibition on Contracting for Covered Telecommunications Equipment or Services (K)

Contracts and subcontracts under FEMA declaration or grant award issued on or after November 12, 2020.

Yes All https://www.fema.gov/assistance/public https://www.fema.gov/grants/mitigation/hazard-mitigation https://www.fema.gov/grants/mitigation/learn/flood-mitigation-assistance https://www.fema.gov/grants/mitigation/learn/pre-disaster https://www.fema.gov/assistance/public/fire-management-assistance https://www.fema.gov/grants/mitigation/learn/post-fire https://www.fema.gov/grants/mitigation/learn/post-fire https://www.fema.gov/assistance/individual/disaster-survivors#counseling https://www.fema.gov/assistance/individual/disaster-survivors#case https://www.fema.gov/assistance/individual/housing https://www.fema.gov/fact-sheet/femas-safeguarding-tomorrow-revolving-loan-fund-program https://www.fema.gov/fact-sheet/femas-safeguarding-tomorrow-revolving-loan-fund-program https://www.ecfr.gov/current/title-37/chapter-IV/part-401/section-401.2#p-401.2(a)

Provision (Appendix II Section)

Applicability Sample Contract Language Included

Grant Program Applicability

Domestic Preferences for Procurements (L)

Contracts under FEMA declaration or grant award issued on or after November 12, 2020.

Yes All

Build America, Buy America Act

(BABAA) (M)

Infrastructure projects under applicable grant awards issued on or after January 2, 2023.

Yes FEMA financial assistance programs subject to BABBA.

Table B: Recommended Contract Provisions Provision Applicability Sample Contract

Language Included 1 Access to Records All Yes 2 Contract Changes or Modifications All No. It depends on nature of contract and end-item procured.

3 DHS Seal, Logo, and Flags All Yes 4 Compliance with Federal Law, Regulations, and Executive Orders All Yes

5 No Obligation by Federal Government All Yes 6 Program Fraud and False or

Fraudulent Statements or Related Acts

All Yes

7 Copyright All procurements that may involve creation of copyrightable material.

Yes

8 Build America, Buy America Act (BABAA) for Architectural and/or Engineering Contracts

FEMA financial assistance programs subject to

BABAA.

Yes https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions%22%20/l%20%22subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions%22%20/l%20%22subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions%22%20/l%20%22subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions%22%20/l%20%22subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions#subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions#subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions#subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions#subject https://www.fema.gov/grants/policy-guidance/buy-america/programs-definitions#subject

Required Contract Provisions

1. Remedies Contracts must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms and must provide for sanctions and penalties as appropriate.1

1.1 Applicability

This contract provision is required for contracts over the SAT,2 currently set at $250,000 for procurements made on or after June 20, 2018.3 For all other contracts at or below the SAT under FEMA programs, FEMA suggests including a remedies provision, but this is not required.

1.2 Additional Considerations

For FEMA’s Assistance to Firefighters Grant Program (AFG), recipients must include a penalty clause in all contracts for any AFG-funded vehicle, regardless of dollar amount.4 This clause must state that if a vendor fails to deliver the vehicle by the contract date or otherwise fails to perform, a penalty of at least $100 per day applies. This penalty continues until the recipient accepts the vehicle, compliant with the terms of the contract.5 The penalty clause should excuse delays caused by force majeure or acts of God. AFG recipients should refer to the applicable year’s Notice of Funding Opportunity (NOFO) for additional information.

2. Termination for Cause and Convenience Contracts must address termination for cause and for convenience by the recipient or subrecipient, including the manner by which termination will occur and the basis for settlement.6

1 2 C.F.R. Part 200, Appendix II, § A.

2 FEMA Grant Programs Directorate Information Bulletin No. 434, Increases and Changes to the Micro- Purchase and Simplified Acquisition Thresholds (Aug. 28, 2018), https://www.fema.gov/sites/default/files/2020- 08/ib_434_changes_micro_purch_simp_acquisition_thresholds.pdf. For procurements subject to 2 C.F.R. Part 200 that were made before June 20, 2018, the SAT was $150,000.

3 2 C.F.R. Part 200, Appendix II, § A.

4 E.g., Fiscal Year 2023 Assistance to Firefighters Grant Program Notice of Funding Opportunity, available at https://www.grants.gov/search-results-detail/351954.

5 Id.

6 2 C.F.R. Part 200, Appendix II, § B.

https://www.fema.gov/sites/default/files/2020-08/ib_434_changes_micro_purch_simp_acquisition_thresholds.pdf https://www.fema.gov/sites/default/files/2020-08/ib_434_changes_micro_purch_simp_acquisition_thresholds.pdf https://www.grants.gov/search-results-detail/351954

2.1 Applicability

This contract provision is required for contracts and purchase orders exceeding $10,000.7 For contracts at or below $10,000, FEMA suggests including a termination for cause provision, but this is not required.

2.2 Additional Considerations

FEMA recommends that termination clauses be actionable and specific. For example, a termination clause that allows for 60-day notice of termination for a contract with a 30-day duration may not be actionable. Additionally, if a contract allows for due oral or written notice of termination, it should specify what is considered due oral or written notice.

3. Davis-Bacon Act The Davis-Bacon Act requires that contractors must pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in the Secretary of Labor’s wage determination.8 Further, contractors are required to pay wages at least once per week.9 Additional requirements are listed below, and relevant definitions are found at 29 C.F.R. § 5.2. Recipients and subrecipients should refer to the applicable NOFO or other program guidance or contact their applicable FEMA grant representative for additional information on how to implement this requirement.10

3.1 Applicability

When required by the federal program legislation, all prime construction contracts over $2,000 awarded by recipients or subrecipients must include a provision for compliance with the Davis-Bacon Act.11

The Davis-Bacon Act does not apply to all FEMA financial assistance programs. Recipients and subrecipients should refer to applicable NOFO or other program guidance or contact their applicable FEMA grant representative to determine if this provision is required for the procurement. However, the Davis-Bacon Act clause is not required for procurements under FEMA’s Public Assistance (PA) or Hazard Mitigation Assistance (HMA) Programs.

3.2 Additional Requirements

If applicable, the recipient or subrecipient must also do the following:

7 Id.

8 40 U.S.C. § 3141-3144 and 3146-3148.

9 40 U.S.C. § 3142.

10 The Davis-Bacon Act is supplemented by Department of Labor regulations at 29 C.F.R. Part 5 (Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction).

11 2 C.F.R. Part 200, Appendix II, § D.

The recipient or subrecipient must place a copy of the Department of Labor’s current prevailing wage determination in each solicitation. Contracts or subcontracts must be awarded on the condition that the prevailing wage determination is accepted. The recipient or subrecipient must report all suspected or reported violations to the federal agency.12

Contracts subject to the Davis-Bacon Act, must also include a provision for compliance with the Copeland “Anti-Kickback” Act.13 See Required Contract Provisions, Section 5. Copeland Anti- Kickback Act in this document for additional information. According to 29 C.F.R. § 5.5(a)(5), the regulatory requirements for the Copeland “Anti-Kickback” Act are incorporated by reference into the required contract provision, so a separate contract provision is not necessary. However, the recipient or subrecipient may include a separate contract provision specific to the Copeland “Anti- Kickback” Act.

Per Department of Labor’s implementing regulations for the Davis-Bacon Act, the recipient’s or subrecipient’s contractor and any subcontractors are required to insert, or incorporate by reference, the clauses contained at 29 C.F.R. § 5.5(a)(1)-(11)14 into any subcontracts.

Follow the other requirements of the Davis-Bacon Act and implementing regulations.15

3.3 Required Language16

If applicable per the standard described above, the recipient or subrecipient must include the entire provisions at 29 C.F.R. § 5.5(a)(1)-(11) into all applicable contracts, and all applicable contractors must include these provisions in full in any subcontracts.17

4. Copeland “Anti-Kickback” Act The Copeland "Anti-Kickback" Act prohibits workers on construction contracts from giving up wages that they are owed.18 Additional requirements are listed below, and relevant definitions are found at 29 C.F.R. § 3.2. The regulations help enforce the Davis-Bacon Act’s minimum wage provisions and similar statutes with minimum wage provisions for federally assisted construction.19

12 2 C.F.R. Part 200, Appendix II, § D.

13 Id.

14 29 C.F.R. § 5.5(a)(6).

15 40 U.S.C. §§ 3141-3144, 3146-3148; 29 C.F.R. § Part 5.

16 29 C.F.R. § 5.5(a).

17 29 C.F.R. § 5.5(a)(6).

18 40 U.S.C. § 3145. The Copeland “Anti-Kickback” Act is supplemented by Department of Labor regulations at 29 C.F.R. Part 3 (Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States).

19 29 C.F.R. § 3.1.

4.1 Applicability

For all prime construction contracts above $2,000 and when the Davis-Bacon Act also applies,20 recipients or subrecipients must include a provision in contracts and subcontracts for compliance with the Copeland “Anti-Kickback” Act.21 The Copeland “Anti-Kickback” Act does not apply to all FEMA financial assistance programs. Recipients or subrecipients should refer to applicable NOFO or other program guidance or contact their applicable FEMA grant representative to determine if this provision is required for the procurement. However, the Copeland “Anti-Kickback” Act clause is not federally required for procurements under FEMA’s PA or HMA Programs.

4.2 Additional Requirements

If applicable, the recipient or subrecipient must do the following:

Include a provision for compliance with the Copeland “Anti-Kickback” Act.22 According to the implementing regulations for the Davis-Bacon Act, the regulatory requirements for the Copeland “Anti-Kickback” Act are incorporated by reference into the required contract provision for the Davis-Bacon Act. Therefore, a separate contract provision is not necessary. However, the recipient or subrecipient may include a separate contract provision specific to the Copeland “Anti-Kickback” Act with language suggested below.

The Copeland “Anti-Kickback Act” prohibits each contractor or subcontractor from any form of persuading a person employed in construction, completion, or repair of public work to give up any part of their rightful compensation. The recipient or subrecipient must report all suspected or reported violations of the Copeland “Anti-Kickback Act” to FEMA.23

Each contractor and subcontractor must provide weekly reports of the wages paid during the prior week’s payroll period to each employee covered by the “Copeland Anti-Kickback” Act and the Davis-Bacon Act.24 The reports must be delivered to a representative of a federal or state agency in charge at the building or work site by the contractor or subcontractor within seven days of the payroll period’s payment date.25

Follow the other requirements of the Copeland “Anti-Kickback” Act and implementing regulations.26

4.3 Suggested Language

The following provides a sample contract clause:

20 2 C.F.R. Part 200, Appendix II, § D; 29 C.F.R. §§ 3.1, 3.3(c).

21 2 C.F.R. Part 200, Appendix II, § D.

22 Id.

23 Id.

24 29 C.F.R. § 3.3(b).

25 29 C.F.R. § 3.4(a).

26 40 U.S.C. § 3145; 29 C.F.R. Part 3.

“Compliance with the Copeland “Anti-Kickback” Act.

Contractor. The Contractor shall comply with 18 U.S.C. § 874, 40 U.S.C. § 3145, and the requirements of 29 C.F.R. Part 3 as may be applicable, which are incorporated by reference into this contract.

Subcontracts. The Contractor or Subcontractor shall insert in any subcontracts the clause above and such other clauses as FEMA may by appropriate instructions require, and a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Prime Contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all these contract clauses.

Breach. A breach of the contract clauses above may be grounds for termination of the contract, and for debarment as a contractor and subcontractor as provided in 29 C.F.R. § 5.12.”

5. Contract Work Hours and Safety Standards Act Where applicable,27 contracts must include a provision for compliance with statutory requirements on work hours and safety standards.28 Under 40 U.S.C. § 3702, each contractor must base wages for every mechanic and laborer on a standard 40-hour work week. Work over 40 hours is allowed, so long as the worker is paid at least one and a half times the base pay rate for all hours worked over 40 in the work week. Additionally, for construction work, under 40 U.S.C. § 3704, work surroundings and conditions for laborers and mechanics must not be unsanitary or unsafe. Relevant definitions are at 40 U.S.C. § 3701 and 29 C.F.R. § 5.2.

5.1 Applicability

This required contract provision applies to all procurements over $100,000 that involve the employment of mechanics, laborers, and construction work.29 These requirements do not apply to the purchase of supplies, materials, or articles ordinarily available on the open market. These requirements also do not apply to contracts for transportation or transmission of intelligence.30

5.2 Additional Requirements

If applicable per the standard described above, the recipient or subrecipient must include the provisions at 29 C.F.R. § 5.5(b)(1)-(5), verbatim, into all applicable contracts. All applicable contractors must include these provisions, in full, into any subcontracts.31

27 40 U.S.C. §§ 3701-3708.

28 40 U.S.C. §§ 3702, 3704. The Contract Work Hours and Safety Standards Act is supplemented by Department of Labor regulations at 29 C.F.R. Part 5, 2 C.F.R. Part 200, Appendix II, §E.

29 2 C.F.R. Part 200, Appendix II, § E.

30 Id.

31 29 C.F.R. § 5.5(b)(1), (4).

In addition to the required language from 29 C.F.R. § 5.5(b)(1)-(5), the recipient or subrecipient must also insert a clause meeting the requirements of 29 C.F.R. § 5.5(c) in any contract subject only to the Contract Work Hours and Safety Standards Act and not to any other statutes cited in 29 C.F.R. §

5.1. Specific language is not required, but FEMA has provided suggested language below.

5.3 Required Language

For the required contract provision, the language from 29 C.F.R. § 5.5(b)(1)-(5) is provided below for ease of reference. The language provided is current as of the date of publication of the Contract Provisions Guide. Because 29 C.F.R. § 5 may be updated periodically, recipients and subrecipients are encouraged to reference the regulations for the most current language.

“Compliance with the Contract Work Hours and Safety Standards Act.

(1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (b)(1) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages and interest from the date of the underpayment. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchpersons and guards, employed in violation of the clause set forth in paragraph (b)(1) of this section, in the sum of $32 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (b)(1).

(3) Withholding for unpaid wages and liquidated damages—

(i) Withholding Process. The (insert name of recipient or subrecipient) may, upon its own action, or must, upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor so much of the accrued payments or advances as may be considered necessary to satisfy the liabilities of the prime contractor or any subcontractor for any unpaid wages; monetary relief, including interest; and liquidated damages required by the clauses set forth in this paragraph (b) on this contract, any other federal contract with the same prime contractor, or any other federally assisted contract subject to the Contract Work Hours and Safety Standards Act that is held by the same prime contractor (as defined in § 5.2). The necessary funds may be withheld from the contractor under this contract, any other federal contract with the same prime contractor, or any other federally assisted contract that is subject to the Contract Work Hours and Safety Standards Act and is held by the same prime contractor, regardless of whether the other contract was awarded or assisted by the same agency, and such funds may be used to satisfy the contractor liability for which the funds were withheld.

(ii) Priority to withheld funds. The Department has priority to funds withheld or to be withheld in accordance with paragraph (a)(2)(i) or (b)(3)(i) of this section, or both, over claims to those funds by:

(A) A contractor's surety(ies), including without limitation performance bond sureties and payment bond sureties;

(B) A contracting agency for its reprocurement costs;

(C) A trustee(s) (either a court-appointed trustee or a U.S. trustee, or both) in bankruptcy of a contractor, or a contractor's bankruptcy estate;

(D) A contractor's assignee(s);

(E) A contractor's successor(s); or

(F) A claim asserted under the Prompt Payment Act, 31 U.S.C. 3901-3907.

(4) Subcontracts. The contractor or subcontractor must insert in any subcontracts the clauses set forth in paragraphs (b)(1) through (5) of this section and a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor is responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (b)(1) through (5). In the event of any violations of these clauses, the prime contractor, and any subcontractor(s) responsible will be liable for any unpaid wages and monetary relief, including interest from the date of the underpayment or loss, due to any workers of lower-tier subcontractors, and associated liquidated damages and may be subject to debarment, as appropriate.

(5) Anti-retaliation. It is unlawful for any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, or to cause any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, any worker or job applicant for:

(i) Notifying any contractor of any conduct which the worker reasonably believes constitutes a violation of the Contract Work Hours and Safety Standards Act (CWHSSA) or its implementing regulations in this part;

(ii) Filing any complaint, initiating, or causing to be initiated any proceeding, or otherwise asserting or seeking to assert on behalf of themselves or others any right or protection under CWHSSA or this part;

(iii) Cooperating in any investigation or other compliance action, or testifying in any proceeding under CWHSSA or this part; or

(iv) Informing any other person about their rights under CWHSSA or this part.”

5.4 Suggested Language

For contracts covered only by the Contract Work Hours and Safety Standards Act and not other laws listed in 29 C.F.R. § 5.1 requiring a contract clause, FEMA suggests including the following language:

“Further Compliance with the Contract Work Hours and Safety Standards Act.

(1) The contractor or subcontractor must maintain regular payrolls and other basic records during the course of the work and must preserve them for a period of three years after all the work on the prime contract is completed for all laborers and mechanics, including guards and watchpersons, working on the contract. Such records must contain the name; last known address, telephone number, and email address; and social security number of each such worker;

each worker’s correct classification(s) of work performed; hourly rates of wages paid; daily and weekly number of hours actually worked; deductions made; and actual wages paid.

(2) Records to be maintained under this provision must be made available by the contractor or subcontractor for inspection, copying, or transcription by authorized representatives of the Department of Homeland Security, the Federal Emergency Management Agency, and the Department of Labor, and the contractor or subcontractor will permit such representatives to interview workers during working hours on the job.”

6. Rights to Inventions Made Under a Contract or Agreement

This contract provision outlines the rules governing the ownership of inventions created using federal funds. If the FEMA award meets the definition of funding agreement32 and the recipient or subrecipient enters any contract with a small business firm or nonprofit organization involving substitution of parties, assignment, or performance of experimental, developmental, or research work under that funding agreement, then the recipient or subrecipient must comply with the requirements of 37 C.F.R. Part 401 and any implementing regulations issued by FEMA.

32 Funding agreement definition found under 37 C.F.R. § 401.2(a).

6.1 Applicability

This provision does not apply to all FEMA financial assistance programs. Recipients and subrecipients should refer to applicable NOFO or other program guidance or contact their applicable FEMA grant representative to determine if this provision is required for the procurement. However, the Rights to Inventions Made Under a Contract or Agreement clause is not required for procurements under FEMA’s PA Program.

6.2 Key Definitions

Funding Agreements: The regulation at 37 C.F.R. § 401.2(a) defines funding agreement as “any contract, grant, or cooperative agreement entered into between any federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental, or research work funded in whole or in part by the Federal Government. This term also includes any assignment, substitution of parties, or subcontract of any type entered into for the performance of experimental, developmental, or research work under a funding agreement as defined in the first sentence of this paragraph.”

7. Clean Air Act and Federal Water Pollution Control Act Contracts must contain a provision requiring contractors to comply with the Clean Air Act33 and the Federal Water Pollution Control Act.34 Violations must be reported to FEMA and the Regional Office of the Environmental Protection Agency.35

7.1 Applicability

This contract provision is required for all procurements over $150,000.

7.2 Suggested Language

The following provides a sample contract clause:

“Clean Air Act.

The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq.

The contractor agrees to report each violation to the (name of recipient or subrecipient entering the contract) and understands and agrees that the (name of the recipient or subrecipient entering the contract) will, in turn, report each violation as required to assure notification to the

33 42 U.S.C. §§ 7401-7671q. This also includes all applicable standards, orders, or regulations issued pursuant to the Clean Air Act.

34 33 U.S.C. §§ 1251-1387, as amended.

35 2 C.F.R. Part 200, Appendix II, § G.

Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.

The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA.

Federal Water Pollution Control Act

The contractor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq.

The contractor agrees to report each violation to the (name of the recipient or subrecipient entering the contract) and understands and agrees that the (name of the recipient or subrecipient entering into the contract) will, in turn, report each violation as required to assure notification to the (name of the pass-through entity, if applicable), Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.

The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA.”

8. Suspension and Debarment Recipients, subrecipients, contractors, and subcontractors are subject to suspension and debarment regulations.36 Applicable contracts and subcontracts must include a provision requiring compliance with suspension and debarment regulations.37

8.1 Applicability

All contracts and subcontracts must include the suspension and debarment clause in contracts of $25,000 or more, all contracts that require the consent of an official of a federal agency, and all contracts for federally required audit services.38

Local governments and nonprofits, even for procurements under $25,000, must also comply with the regulation requiring local governments and nonprofits to only award contracts to responsible vendors.39

36 2 C.F.R. Part 180 (implementing Executive Order 12549, Debarment and Suspension (1986) and Executive Order 12689, Debarment and Suspension (1989)); 2 C.F.R. Part 3000 (Department of Homeland Security regulations for Nonprocurement Debarment and Suspension, implementing 2 C.F.R. Part 180).

37 2 C.F.R. § 180; 2 C.F.R. Part 200, Appendix II, § H; 2 C.F.R. § 3000.332.

38 2 C.F.R. § 180.220(b); 2 C.F.R. § 3000.220.

39 2 C.F.R. § 200.318(h). For contracts and subcontracts under $25,000, a contract provision is only required if those contracts or subcontracts are for federally required audit services or require the consent of a federal agency. However, even where a contract provision is not required, local governments and nonprofits must still ensure they are only awarding contracts to responsible vendors.

8.2 Additional Requirements

The suspension and debarment regulations restrict awards, subawards, contracts, and subcontracts with parties that are suspended, debarred, or otherwise excluded, or declared ineligible for participation in federal assistance programs and activities.40

If applicable, a contract or subcontract must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM). SAM Exclusions is the list maintained by the General Services Administration that contains the names of parties that are suspended, debarred, or otherwise excluded, or declared ineligible under statutory or regulatory authority other than Executive Order 12549.41 SAM Exclusions can be accessed at www.SAM.gov.42

In general, an “excluded” party cannot receive a federal grant award or a contract considered to be a “covered transaction,” which includes parties that receive federal funding indirectly such as subawards and subcontracts. The key to the exclusion is whether there is a covered transaction. A covered transaction is a nonprocurement transaction at either a primary or secondary tier.43

Specifically, a covered transaction includes the following contracts for goods or services under FEMA financial assistance programs:

The contract is at least $25,000;

The contract requires the approval of FEMA, regardless of amount;

The contract is for federally required audit services regardless of amount; or, It is a subcontract for $25,000 or more.44

8.3 Suggested Language

The following provides a suspension and debarment clause. It also incorporates an optional method of verifying that contractors are not excluded or disqualified: 45

40 2 C.F.R. Part 200, Appendix II, § H; 2 C.F.R. § 200.213; 2 C.F.R. Parts 180, 3000.

41 2 C.F.R. Part 200, Appendix II, § H.

42 2 C.F.R. § 180.530.

43 The regulations at 2 C.F.R. Parts 180 and 3000 are titled “nonprocurement” because they do not apply to procurements by the Federal Government but rather to federal financial assistance. There are separate debarment and suspension regulations covering procurements by the Federal Government. However, although the term “covered transactions” under 2 C.F.R. Parts 180 and 3000 does not include contracts awarded by the Federal Government, it does include some contracts awarded by recipients and subrecipients.

44 2 C.F.R. §§ 180.220, 3000.220.

45 Per 2 C.F.R. § 180.300, a recipient or subrecipient about to enter an applicable contract, or a contractor about to entire into an applicable subcontract, must verify that the contractor or subcontractor is not excluded or disqualified by doing one of three things: 1) check SAM Exclusions; 2) collect a certification from the contractor or subcontractor; or 3) add a clause or condition to the contract or subcontract. The additional suggested language in this sample clause is for purposes of this requirement.

http://www.sam.gov/

“Suspension and Debarment

This contract is a covered transaction for purposes of 2 C.F.R. Part 180 and 2 C.F.R. Part 3000.

As such, the contractor is required to verify that none of the contractor’s principals (defined at 2 C.F.R. § 180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935).

The contractor must comply with 2 C.F.R. Part 180, subpart C and 2 C.F.R. Part 3000, subpart C, and must include a requirement to comply with these regulations in any lower tier covered transaction it enters.

This certification is a material representation of fact relied upon by (insert name of recipient/subrecipient). If it is later determined that the contractor did not comply with 2 C.F.R.

Part 180, subpart C and 2 C.F.R. Part 3000, subpart C, in addition to remedies available to (insert name of recipient/subrecipient), the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment.

The bidder or proposer agrees to comply with the requirements of 2 C.F.R. Part 180, subpart C and 2 C.F.R. Part 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.”

9. Byrd Anti-Lobbying Amendment Recipients or subrecipients who intend to award contracts of more than $100,000, and their contractors who intend to award subcontracts of more than $100,000, must include a contract provision prohibiting the use of federal appropriated funds to influence officers or employees of the Federal Government.46 Contractors that apply or bid for a contract for more than $100,000 must also file the required certification regarding lobbying.47

Each tier certifies to the tier above that it will not and has not used federal appropriated funds to pay any person or organization for influencing or attempting to influence an employee of a federal agency, a Member of Congress, an employee of Congress, or an employee of a Member of Congress in connection with receiving any federal contract, grant, or other award covered by 31 U.S.C. § 1352.

46 31 U.S.C. §1352(a), (b), (d)(1)(c)(2).

47 2 C.F.R. Part 200, Appendix II, § I (citing 31 U.S.C. § 1352); 44 C.F.R. § 18.110.

The required certification form is found in FEMA regulations.48 Each tier must also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal funding.

These disclosures are forwarded from tier to tier, all the way up to the federal agency.49

9.1 Applicability

The Byrd Anti-Lobbying Amendment clause and certification are required for contracts and subcontracts of more than $100,000.

9.2 Suggested Language

The following provides a sample contract clause:

“Byrd Anti-Lobbying Amendment, as amended, 31 U.S.C. § 1352.

Contractors who apply or bid for an award of more than $100,000 shall file the required certification. Each tier certifies to the tier above that it will not and has not used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, officer or employee of Congress, or an employee of a Member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the federal agency.”

9.3 Required Certification

9.3.1 REQUIRED CERTIFICATION LANGUAGE

Contractors must sign and submit the following certification to the recipient or subrecipient with each bid or offer exceeding $100,000:

“APPENDIX A, 44 C.F.R. PART 18 – CERTIFICATION REGARDING LOBBYING.

Certification for Contracts, Grants, Loans, and Cooperative Agreements

The undersigned certifies, to the best of his or her knowledge and belief, that:

No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a

48 44 C.F.R. §§ 18.100, 18.110; 44 C.F.R. Part 18, Appendix A. FEMA’s regulations at 44 C.F.R. Part 18 implement the requirements of 31 U.S.C. § 1352 and provides, in Appendix A to Part 18, a copy of the certification that is required to be completed by each entity as described in 31 U.S.C. § 1352.

49 44 C.F.R. §§ 18.100, 18.110; 44 C.F.R. Part 18, Appendix B. The specific form for disclosures is referenced in Appendix B to 44 C.F.R. Part 18 and is SF-LLL, also available at https://apply07.grants.gov/apply/forms/readonly/SFLLL_2_0-V2.0.pdf.

https://apply07.grants.gov/apply/forms/readonly/SFLLL_2_0-V2.0.pdf

Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement.

If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.

The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.”

9.4 Recommended Signature Line:

At the end of the certification language, FEMA recommends including the following signature line:

“The Contractor, _______________, certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. Chap. 38, Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any.”

Signature of Contractor’s Authorized Official

Name and Title of Contractor’s Authorized Official

Date

10. Procurement of Recovered Materials Applicable recipients or subrecipients must comply with Section 6002 of the Solid Waste Disposal Act50 and include a contract provision requiring compliance with this requirement.51 Additional requirements are listed below.

10.1 Applicability

This required contract provision applies to all procurements made by a state agency or political subdivision of a state and its contractors for certain items, as designated by the Environmental Protection Agency, with a purchase price greater than $10,000.52 NOTE: Indian Tribes and nonprofits are not subject to these requirements.

10.2 Additional Requirements

The requirements include:

Procuring only items designated in EPA guidelines53 that contain the highest practical percentage of recovered materials consistent with maintaining competition, where the purchase price of the item is greater than $10,000, or the value of the amount of items purchased in the preceding fiscal year was greater than $10,000;

Procuring solid waste management services in a way that maximizes energy and resource recovery; and

Establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.54

10.3 Suggested Language

The following provides a sample contract clause:

“In the performance of this contract, the Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired—

a) Competitively within a timeframe providing for compliance with the contract performance schedule;

50 Pub. L. No. 89-272 (1965) (codified as amended by the Resource Conservation and Recovery Act at 42 U.S.C. § 6962). 2 C.F.R. § 200.323.

51 2 C.F.R. Part 200, Appendix II, § J (citing 2 C.F.R. § 200.323).

52 2 C.F.R. Part 200, Appendix II, § J; 2 C.F.R. § 200.323; 40 C.F.R. Part 147.

53 40 C.F.R. Part 247.

54 42 U.S.C. § 6962; 2 C.F.R. § 200.323.

b) Meeting contract performance requirements; or

c) At a reasonable price.

Information about this requirement, along with the list of EPA-designated items, is available at Comprehensive Procurement Guideline (CPG) Program | US EPA. The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.”

11. Prohibition on Contracting for Covered Telecommunications Equipment or Services

Section 889(b)(1) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (FY 2019 NDAA) and 2 C.F.R. § 200.216, as implemented by FEMA Policy 405-143-1, Prohibitions on Expending FEMA Award Funds for Covered Telecommunications Equipment or Services, prohibit the obligation or expending of federal award funds on certain telecommunication products or from certain entities for national security reasons.