EDA_Construction_STCs_Mar_22_2021_w_Part_III_DOC_STCs.pdf

U.S. DEPARTMENT OF COMMERCE

ECONOMIC DEVELOPMENT ADMINISTRATION

STANDARD TERMS AND CONDITIONS FOR CONSTRUCTION PROJECTS

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

Public Works and Economic Development Facilities and Economic Adjustment Assistance Construction Components

March 22, 2021

Table of Contents

PART I: GENERAL PROVISIONS

A. Construction Award Purpose

B. Authorities

1. In General

2. PWEDA

3. EDA Regulations

4. Conflicts Among Authorities

C. Updates to Authorities

1. Updates to Regulations and Requirements

2. Applicability to the Award

D. Variances

E. Recipient as Trustee

F. Additional Funding

G. Definitions

H. Reaffirmation of Application and Award Acceptance

PART II: SPECIAL REQUIREMENTS FOR EDA CONSTRUCTION PROJECTS

A. Financial Requirements

1. Financial Reports

2. Disbursements

3. Federal and Non-Federal Cost Sharing

4. Budget Revisions and Transfer of Funds

5. Indirect Costs and Facilities and Administrative Costs

6. Incurring Costs Prior to Award

7. Program Income

B. Programmatic Requirements

1. Project Progress and Performance Reporting

2. Time Extensions

3. Interim Reporting of Significant Project Developments

4. Programmatic Changes

5. Government Performance and Results Act

6. Beneficiary Compliance

7. Hold Harmless

8. Prohibition on Use of Third Parties to Secure Award

9. Payment of Attorneys’ or Consultants’ Fees

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

11. Commencement of Construction

12. Project Sign and Use of EDA Logo

13. Efficient Administration of Project

14. Conflicts-of-Interest Rules

15. Records-Keeping Requirements

16. Termination Actions

17. Project Closeout Procedures

18. Freedom of Information Act

C. Additional Requirements Related to Construction Projects

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

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

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

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

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

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

6. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (42 U.S.C. § 4601 et seq.)

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

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

Building Construction

9. Compliance with Local Construction Requirements

D. Non-Discrimination Requirements

E. Audits

1. General

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

F. Tribal Employment Rights Ordinances

G. EDA Contracting Provisions for Construction Projects

H. Property

1. Standards

2. Title

3. EDA’s Interest in Award Property

4. Insurance and Bonding

5. Leasing Restrictions

6. Eminent Domain

7. Disposal of Real Property

8. Reporting on Property

I. Environmental Requirements

1. General

2. Compliance with Other Applicable Environmental Requirements

J. American-Made Equipment and Products

PART III: DEPARTMENT OF COMMERCE STANDARD TERMS AND CONDITIONS

PART I:

GENERAL PROVISIONS

A. Construction Award Purpose

This financial assistance award (the Award), executed by the Economic Development Administration (EDA) and the recipient (Recipient or non-Federal entity), is awarded for the purpose of carrying out the design, engineering, or construction of certain physical infrastructure as specifically set forth in the Award’s scope of work.

B. Authorities

1. In General

Recipient must administer this Award in conformance with the terms of the Award, including any properly executed amendment thereto, the EDA-approved budget and scope of work, these EDA Standard Terms and Conditions for Construction Projects (EDA Construction STCs) and the Department of Commerce (DOC) Financial Assistance Standard Terms and Conditions (DOC Standard Terms and Conditions), as well as any specific award conditions; relevant policies issued by EDA; applicable Federal statutes, regulations, and Executive Orders; and the provisions of the Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards codified at 2 CFR part 200 (OMB Uniform Guidance).

2. PWEDA

The Public Works and Economic Development program is authorized under section 201 and the Economic Adjustment Assistance program is authorized under section 209 of PWEDA (42 U.S.C. §§ 3141 and 3149, respectively).

3. EDA Regulations

The regulations implementing PWEDA are contained in chapter III of title 13 of the Code of Federal Regulations (CFR), and apply in full to this Award. The regulations specific to EDA construction projects can be found at 13 CFR parts 305 and 314, and subpart A to part 307.

4. Conflicts Among Authorities

Any inconsistency or conflict among the authorities governing the Recipient’s administration of this Award will be resolved in the following order of precedence: Federal laws and regulations (including the OMB Uniform Guidance), applicable notices published in the Federal Register, Executive Orders, OMB circulars, these EDA Construction STCs, specific award conditions, and any written policy guidance issued by EDA. However, a specific award condition may amend or take precedence over a provision of these EDA Construction STCs on a case-by-case basis, when warranted by the specific circumstances of the Award. In the event of a conflict between Parts I or II of these EDA Construction STCs and Part III, which incorporates the DOC Standard Terms and Conditions, Parts I and II will control.

C. Updates to Authorities

1. Updates to Regulations and Requirements

The DOC, EDA, or OMB may issue changes from time to time to the regulations and other policies and requirements that apply to this Award. Such changes may upon occasion increase rosemary.aldridge Highlight administrative or programmatic flexibility in administering this Award in a manner that is mutually beneficial to EDA and the Recipient. In addition, if required by law, these changes may impose new requirements. The implementation of any such regulatory, administrative, or programmatic change in administering this Award requires EDA’s prior written approval.

2. Applicability to the Award

These EDA Construction STCs apply to the Award as of the Federal award date, as defined at 2 CFR § 200.1, or, if attached to the Award by amendment, as of the effective date of such amendment.

D. Variances

EDA’s policy is to administer all awards uniformly; however, there may be special circumstances that warrant a variance. To accommodate these circumstances and to encourage innovative and creative ways to address economic development problems, EDA will consider requests for variances to the procedures set out in these EDA Construction STCs if they do not conflict with applicable Federal statutory and regulatory requirements, are consistent with the goals of EDA’s programs, and make sound economic and financial sense. Any approved variance will be implemented through a specific award condition incorporated under the Award.

E. Recipient as Trustee

The Recipient holds grant funds and any property acquired or improved with EDA assistance in trust for the public purposes of an Award. The Recipient’s obligation to the Federal Government continues for the estimated useful life of the Project, as determined by EDA, during which EDA retains an undivided equitable reversionary interest (the Federal Interest) in property acquired or improved, in whole or in part, with EDA investment assistance. See 13 CFR § 314.2 (“Federal Interest”).

If EDA determines that the Recipient fails or has failed to meet this obligation, EDA may exercise any rights or remedies with respect to its Federal Interest in the Project. However, EDA’s forbearance in exercising any right or remedy in connection with the Federal Interest does not constitute a waiver thereof.

F. Additional Funding EDA has no obligation to provide any additional funding in connection with the Award. Any change to the Award to increase funding or to extend the period of performance is at the discretion of EDA, subject to the availability of funds, via an amendment executed by the Grants Officer.

G. Definitions

Capitalized terms and acronyms used but not otherwise defined in these EDA Construction STCs have the meaning ascribed to them at 13 CFR §§ 300.3, 302.20, 307.8, and 314.1, and subpart A to 2 CFR part 200.

H. Reaffirmation of Application and Award Acceptance

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

1. All data in the Application were true and correct when the Application was submitted and remain true and correct as of the date of this Award;

2. The Application was, as of the date of submission and the date of this Award, duly authorized as required by local law by the governing body of the Recipient; and

3. The Recipient has read, understood, and will comply with all terms of this Award, including the assurances and certifications submitted as part of the Application (including assurances submitted through the System for Award Management (SAM.gov)).

Acceptance of the Award is established by any action on the part of the Recipient indicating an intent to accept the Award, including by signing the Financial Assistance Award (Form CD-450) (either via a “wet” signature or electronically) or by requesting any disbursement of Award funds.

“Application” means all forms, documentation, and any information submitted to EDA as part and in furtherance of a request for an Award and includes submissions made in response to any request by EDA after submission of the initial Application.

PART II:

SPECIAL REQUIREMENTS FOR EDA CONSTRUCTION PROJECTS

A. Financial Requirements

1. Financial Reports

a. During the period of performance, the Recipient must submit financial reports as follows, unless otherwise specified in a specific award condition.

i. Reports on Award reimbursements. In accordance with 2 CFR § 200.328 (“Financial reporting”), the Recipient must submit a “Federal Financial Report” (Form SF-425 or any successor form) on a semi-annual basis for the periods ending March 31 and September 30, or any portion thereof, unless otherwise specified in a specific award condition.

Reports are due no later than 30 calendar days following the end of each reporting period, and instructions for completing and submitting Form SF-425 will be discussed during the Project kick-off meeting. Recipients may contact their EDA Project Officer with questions on how to complete or submit the report, if necessary, but they must submit reports on time and are encouraged to pose such questions sufficiently before the deadline to allow for complete, accurate, and timely submission of required reports.

ii. Reports on Award advances. While EDA generally does not advance funds, when the agency does so, the Recipient must submit Form SF-425 within 15 business days following the end of each quarter for an award where the Federal share of costs is under $1 million. In accordance with 2 CFR § 200.328, because of increased risk and the need to ensure the appropriate use of Federal funds, where EDA advances funds under an award where the Federal share of costs is $1 million or more the Recipient must submit Form SF-425 within 15 business days following the end of each month, or as otherwise specified in a specific award condition.

b. The Recipient must submit a final Form SF-425 no later than 120 calendar days after the end date of the period of performance. See also Part II, section B.16.c “Final reporting deadline” of these EDA Construction STCs.

c. Noncompliance with the financial reporting requirements may result in appropriate enforcement action under this Award, including but not limited to suspension of Award payments, disallowance of costs or termination of an award. A Recipient’s non-compliance with financial reporting requirements will also be taken into account in EDA’s consideration of any future applications for EDA financial assistance (see 2 CFR § 200.206(b)(2)(iii) and section A.06 (Unsatisfactory Performance or Non-Compliance with Award Provisions) of the DOC Standard Terms and Conditions, which are incorporated in Part III of these EDA Construction STCs).

d. Financial reports should be submitted to the Project Officer in electronic format, unless otherwise specified in the specific award conditions.

2. Disbursements

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

Unless otherwise specified in a specific award condition, the method of payment under this Award will be reimbursement. Payments will be made through electronic funds transfers directly to the Recipient’s bank account and in accordance with the requirements of the Debt Collection Improvement Act of 1996 (31 U.S.C. § 3720B et seq.). The Award number must be included on all payment-related correspondence, information, and forms.

b. Disbursement requests. The Recipient must use Form SF-271, “Outlay Report and Request for Reimbursement for Construction Programs,” to request reimbursement under the Award.

Substantiating invoices and/or vouchers also must be provided. Each request for the disbursement of funds must be made to the Project Officer. Form SF-271 can be downloaded from the Grants.gov post-award reporting forms website at https://www.grants.gov/web/grants/forms/post-award-reporting-forms.html.

i. Initial disbursement request. For the initial disbursement only, the Recipient must complete and submit Form SF-3881, “ACH Vendor/Miscellaneous Payment Enrollment Form,” along with Form SF-271, to the Project Officer.

ii. Interim disbursement requests. All requests for interim disbursement must be submitted using Form SF-271 and include substantiating invoices and/or vouchers.

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

3. Federal and Non-Federal Cost Sharing

a. For purposes of this Award, the Federal share is the amount of EDA funds invested under the Award, while the non-Federal share, or “Matching Share,” means non-EDA funds and any in-kind contributions that are approved by EDA and provided by the Recipient or by third parties as a condition of the Award.

b. By accepting the Award, the Recipient certifies that the Matching Share of Project costs is committed to the Project, available as needed, and not conditioned or encumbered in any way that precludes its use consistent with the requirements of the Award. See 13 CFR § 301.5 (“Matching share requirements”).

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

Matching Share by an amount sufficient to cover the excess cost. The Recipient must furnish a letter to EDA identifying the source of the additional funds and confirming that all Matching Share meets the requirements of 13 CFR § 301.5. See 13 CFR § 305.10 (“Bid underrun and overrun”).

4. Budget Revisions and Transfer of Funds

a. Approved budget plan; notification of deviations. The EDA-approved budget set forth in the specific award conditions or otherwise incorporated under the Award is the budget plan for the Project. The Recipient must notify EDA of deviations from the budget in accordance with 2 CFR § 200.308 (“Revision of budget and program plans”). If prior written approval is not required under 2 CFR § 200.308, the Recipient may request the Grants Officer’s review of https://www.grants.gov/web/grants/forms/post-award-reporting-forms.html and guidance on proposed revisions to the budget.

b. Requesting budget revisions. Requests for budget revisions to the EDA-approved budget must be submitted through the Project Officer to the Grants Officer, who will make the final determination on such requests and notify the Recipient in writing.

c. Budget revisions that require an amendment. In accordance with 2 CFR § 200.308(f) and (h), an amendment executed by the Grants Officer are required for budget revisions when:

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

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

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

$250,000) and the cumulative amount of transfers among direct cost categories exceeds or is expected to exceed 10 percent of the total budget as last approved by EDA; and

iv. A revision is desired that involves specific costs for which prior written approval requirements may be imposed consistent with applicable cost principles listed in subpart E of 2 CFR part 200 (“Cost Principles”).

d. Prior approval for transfers between construction and non-construction items. When an Award supports both construction and non-construction work, the Recipient must obtain prior written approval from the Grants Officer before making any fund or budget transfer from non-construction to construction or vice versa. See 2 CFR § 200.308(h)(5).

e. Project underrun amounts. Underrun amounts will be transferred to the contingencies line item. Contingency funds are to be used to address situations resulting from unknown conditions and changes required for the fulfillment of authorized activities under this Award.

EDA may approve the use of underrun funds to increase the Federal share of the Project or further improve the Project, as long as EDA determines that the use is consistent with the original purpose of the Award. See 13 CFR § 308.1 (“Use of funds in projects constructed under projected cost”).

f. Additional EDA funding in case of Project overrun amounts. In accepting this Award, the Recipient agrees to fund any overrun amounts from non-Federal sources, or if the Recipient is unable or unwilling to do so, to request termination of the Award. Additional EDA assistance for the Project is at the discretion of EDA and may not be approved.

5. Indirect Costs and Facilities and Administrative Costs

a. Indirect costs, or facilities and administrative (F&A) costs for educational institutions, are generally not applicable under this Award. See the definition of “indirect (facilities and administrative) (F&A)) costs” at 2 CFR § 200.1.

b. When indirect costs are applicable, they will not be allowable charges against the Award unless approved under the Award and specifically included as a line item in the Award’s approved budget. See section B.06 of the DOC Standard Terms and Conditions (“Indirect or Facilities and Administrative Costs”), which are incorporated into these EDA Construction STCs in Part III.

6. Incurring Costs Prior to Award Project activities, including the procurement of good and services, which may include construction activities, carried out prior to EDA’s approval of this Award are done at the sole risk of the Recipient and at the risk of not being reimbursed by EDA. Such activity may result in the rejection of the Application, the disallowance of costs, or other adverse consequences as a result of noncompliance with EDA or Federal requirements, including but not limited to procurement requirements, civil rights requirements, Federal labor standards, or environmental and historic preservation requirements. The Grants Officer must authorize pre-award costs and activities in writing, and such costs must also be allowable under relevant Federal cost principles and the specific Award terms and be included in the EDA-approved budget. Pre-award costs not included in the authorized budget are not allowable and will not be reimbursed. See 13 CFR § 302.8 (“Pre-approval Investment Assistance costs”).

7. Program Income

For Projects that generate revenue (e.g., rent for buildings or real property constructed or improved with EDA funds, rent or fees charged for use of equipment purchased with EDA funds, fees charged by the Recipient or a third party in connection with Project operations, etc.), the Recipient agrees, for the estimated useful life of the EDA-assisted facility or equipment, to use income generated from the facility or equipment, in the following order of priority unless modified by a specific award condition:

a. Administration, operation, maintenance, and repair of Project facilities in a manner consistent with good property management practice and in accordance with established building codes.

This includes, where applicable, repayment of indebtedness resulting from any EDA-approved encumbrance (e.g., approved mortgage) on the EDA-assisted facility. In the case of equipment, administration, operation, maintenance, and repair of the equipment, or the facility in which the equipment is located as required to maintain and operate the equipment, for the equipment’s estimated useful life.

b. Economic development activities that are authorized for support by EDA, provided such activities meet the economic development purposes of PWEDA and are located within the designated Project region.

c. Any program income in excess of paragraphs a. and b. of this section that is generated during the period of performance must be deducted from total allowable Project costs in accordance with 2 CFR § 200.307(e)(1). See also 2 CFR § 200.307 (“Program income”).

8. Information on Recipient integrity. The Recipient agrees to provide EDA with information and documentation necessary for EDA to conduct due diligence to ensure the financial integrity and responsibility of the Recipient and key individuals associated with the Recipient in the management or administration of this Award.

B. Programmatic Requirements

1. Project Progress and Performance Reporting

a. Project progress reports must be submitted in accordance with the procedures set out in 2 CFR § 200.329 (“Monitoring and reporting program performance”), as applicable, and as indicated below. Failure to submit required reports in a complete, accurate, and timely manner may result in the withholding of payments under this Award; deferral of processing of new awards, amendments, or supplemental funding; or other appropriate enforcement action.

See 13 CFR § 302.18 (“Post-approval requirements”) and section A.06 (Unsatisfactory Performance or Non-Compliance with Award Provisions) of the DOC Standard Terms and Conditions, which are incorporated in Part III of these EDA Construction STCs.

b. Unless otherwise specified in a specific award condition, the Project progress report must contain the following information for each Project program, function, or activity:

i. A comparison of planned and actual accomplishments according to the timetable or list of Project objectives in this Award;

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

iii. Any other pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs.

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

Each Project progress report must be submitted in accordance with the deadlines outlined in the specific award conditions, or, when not otherwise specified, Project progress reports will be due on a quarterly basis not later than January 31, April 30, July 31, and October 31 for the immediately previous quarter. The final Project progress report must be submitted to EDA no later than 120 calendar days after the end date of the period of performance. See Part II, section B.16.c “Project Closeout Procedures” of these EDA Construction STCs for more information on Project Closeout.

c. The Recipient must submit quarterly Project progress reports to the EDA Project Officer electronically unless otherwise specified in the specific award conditions.

2. Time Extensions

a. Unless otherwise authorized by a specific award condition, any extension of the period of performance can only be authorized by the Grants Officer in writing.

b. The Recipient is responsible for implementing the Project in accordance with the development time schedule contained in this Award. As soon as the Recipient becomes aware that it may not be possible to meet the development time schedule, the Recipient must notify the Grants Officer. The Recipient’s notice to EDA must contain the following:

i. An explanation of the Recipient’s inability to complete work by the specified date (e.g., a lengthy period of unusual weather delayed the contractor’s ability to excavate the site, major re-engineering required in order to obtain State or Federal approvals, unplanned environmental mitigation required);

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

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

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

EDA reserves the right to withhold disbursements while the Recipient is not in compliance with the time schedule and to suspend or terminate this Award if the Recipient fails to proceed with reasonable diligence to accomplish the Project as intended.

3. Interim Reporting of Significant Project Developments The Recipient must promptly report any event that may have a significant impact upon the Project, including delays or adverse conditions that may materially affect the ability of the Recipient to attain Project objectives within established time periods or meet the development time schedule without waiting for the next quarterly progress report. The Recipient should report such events to the Project Officer in the most time-expedient way possible and then, if the initial report was not in writing, report the event to the Project Officer in writing. Such a report must include a statement of the event or issue, a statement of the course of action taken or contemplated to resolve the matter, and any Federal assistance needed to resolve the situation. If budget changes are required, the Recipient must submit a written budget revision request.

See 2 CFR § 200.329(e) (“Monitoring and reporting program performance”) and Part II, section A.4. “Budget Revisions and Transfers of Funds” of these EDA Construction STCs.

4. Programmatic Changes

a. In accordance with 2 CFR § 200.308 (“Revision of budget and program plans”), the Recipient must submit a written request for any proposed programmatic changes, including all changes to the scope of the Award, to the Project Officer. See Part II, section A.4 “Budget Revisions and Transfers of Funds” of these EDA Construction STCs for budget revisions that may require the prior written approval of EDA. In these cases, the Project Officer will forward the request to the Grants Officer, who makes the final decision on approving the request. In addition, the Recipient must request prior written approvals for certain items of cost in accordance with 2 CFR § 200.407 (“Prior written approval (prior approval)”).

b. Any changes made to the Project without EDA’s approval are made at the Recipient’s own risk, and may result in disallowance of costs, suspension, termination, or other EDA action with respect to the Award. See 13 CFR § 302.7(b) (“Amendments and changes”).

c. Contract Change Orders. After construction contracts for the Project have been executed, it may become necessary to alter them through a formal contract change order that must be issued by the Recipient and accepted by the contractor. All contract change orders must be reviewed by EDA, even if EDA is not participating in the cost of the change order or the contract price is to be reduced. Work on the Project may continue pending EDA review and approval of the change order, but all such work will be at the Recipient’s risk as to whether the cost of the work is eligible for EDA reimbursement. See 13 CFR § 305.13 (“Contract change orders”).

5. Government Performance and Results Act

In addition to quarterly Project progress reports, EDA may require the Recipient to report on Project performance beyond the end date of the period of performance for Government Performance and Results Act (GPRA) or other purposes. In no case will the Recipient be required to submit any GPRA report more than ten years after the date of Award closeout. Data used by the Recipient in preparing reports must be accurate and, whenever possible, from independent sources. See 13 CFR § 302.16 (“Accountability”).

6. Beneficiary Compliance

In the event a beneficiary of the Project fails to comply in any manner with certifications, assurances, or agreements that such beneficiary has entered into in accordance with EDA’s requirements, the Recipient will reimburse EDA the Award amount or an amount to be determined by the EDA pursuant to 13 CFR §§ 314.4 (“Unauthorized use of property”) and

314.5 (“Federal share”). When EDA determines that the failure of a beneficiary to comply with EDA requirements affects a portion of the property benefited by the Award, the Recipient will reimburse EDA proportionately.

7. Hold Harmless

To the maximum extent permitted by law, the Recipient agrees to indemnify and hold the United States harmless from and against all liabilities that the United States may incur due to the actions or omissions of the Recipient, including to the extent that such liabilities are incurred because of toxic or hazardous contamination or groundwater, surface water, soil, or other conditions caused by actions of the Recipient or any of its predecessors (other than the United States or its agents) on the property. See 13 CFR § 302.19 (“Indemnification”).

8. Prohibition on Use of Third Parties to Secure Award

Unless otherwise specified in the application materials supporting this Award, the Recipient warrants that no person or selling agency has been employed or retained to solicit or secure this Award upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by the Recipient for the purpose of securing business. For breach or violation of this warranty, EDA has the right to terminate this Award for material noncompliance, or at its discretion, to deduct from the Award amount, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee.

9. Payment of Attorneys’ or Consultants’ Fees

No Award funds may be used, directly or indirectly, to reimburse attorneys’ or consultants’ fees incurred in connection with obtaining an award under PWEDA, such as, for example, preparing an application for EDA assistance. However, ordinary and reasonable attorneys’ and consultants’ fees incurred for meeting Award requirements (e.g., conducting a title search or preparing plans and specifications) may be eligible Project costs and may be paid out of Award funds, provided such costs are otherwise eligible. See 13 CFR § 302.10 (“Attorneys’ and consultants’ fees, employment of expediters, and post-employment restriction”).

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

a. Pursuant to section 606(2) of PWEDA (42 U.S.C. § 3216), for the two-year period beginning on the date EDA executes this Award, any Recipient that is a nonprofit organization, District Organization, or for-profit entity agrees that it will not employ, offer any office or employment to, or retain for professional services any person who:

i. On the date EDA executes this Award or within the one-year period ending on that date, served as an officer, attorney, agent, or employee of the Department, and

ii. Occupied a position or engaged in activities that the Assistant Secretary determines involved discretion with respect to the funding of an Award.

b. In addition to the types of Recipients noted in paragraph a. above, EDA may require another Eligible Applicant to execute an agreement to abide by the above-described post-employment restriction on a case-by-case basis—for example, when an institution of higher education implements activities under or related to the Award through a separate nonprofit organization or association.

c. The two-year period and associated restrictions referenced above also will apply beginning on the date that EDA executes any cost amendment to this Award that provides additional funds to the Recipient.

See also 13 CFR § 302.10 (“Attorneys’ and consultants’ fees, employment of expediters, and post-employment restriction”).

11. Commencement of Construction

a. Delayed construction starts. If significant construction (as determined by EDA) is not commenced within two years of the Award date or by the date estimated for start of construction in this Award (or the expiration of any extension granted in writing by EDA), whichever is later, this Award will be automatically suspended by a written notification issued by the Grants Officer and may be terminated if EDA determines, after consultation with the Recipient, that construction to completion cannot reasonably be expected to proceed promptly and expeditiously.

b. Early construction starts. The Recipient must make a written request to EDA for early construction start permission (that is, after the date of Award, but before EDA gives formal approval for construction to commence). Costs incurred under a contract are only allowable after EDA determines that the award of the contract is in compliance with all terms and conditions of the Award. If construction commences prior to EDA’s determination, the Recipient proceeds at its own risk until EDA’s review and concurrence. See 13 CFR § 305.11 (“Contract awards; early construction start”).

12. Project Sign and Use of EDA Logo

a. Project sign. The Recipient is responsible for constructing, erecting, and maintaining in good condition throughout the construction period a sign (or signs) in a conspicuous place at the Project site indicating that the Federal Government is participating in the Project. EDA will provide specifications for the sign and may require more than one sign if site conditions so warrant. If the EDA-recommended sign specifications conflict with State or local law, the Recipient may modify such recommended specifications so as to comply with State or local law. See 13 CFR § 305.12 (“Project sign”).

b. Use of EDA logo. With EDA’s prior written permission, the Recipient may use the EDA logo to publicize the Award as well as to amplify the impact of the Award. In such cases, the EDA logo may be displayed on Award-related materials that discuss or advertise the purpose or use of the Project (e.g. websites, social media, fliers, pamphlets, brochures). To seek permission to use the EDA logo, the Recipient must contact the EDA Project Officer and provide a written description of how the Recipient proposes to use the EDA logo. In general, the EDA logo may be used either alone or next to Recipient’s logo. The EDA logo may not be used to endorse a third party as interpreted at EDA’s sole discretion. The Recipient must not use the EDA logo in a negative or defamatory manner, and the Recipient must not use the U.S. Department of Commerce (DOC) logo. EDA may rescind such permission at any time.

13. Efficient Administration of Project The Recipient agrees to properly and efficiently administer, operate, and maintain the Project for its estimated useful life, as required by section 504 of PWEDA (42 U.S.C. § 3194). If EDA determines at any time during the estimated useful life of the facility that the Project is not being properly and efficiently administered, operated, and maintained, EDA may terminate this Award (if it is still active) and/or may take appropriate enforcement action to protect the Federal Interest in the Project, including requiring the Recipient to repay the Federal Share. See 13 CFR §§ 302.12 (“Project administration, operation and maintenance”), 302.18 (“Post-approval requirements”), and 314.2 (“Federal Interest”) through 314.5 (“Federal Share”).

14. Conflicts-of-Interest Rules

a. An “Interested Party” is defined in 13 CFR § 300.3 (“Definitions”) as “any officer, employee, or member of the board of directors or other governing board of the Recipient, including any other parties that advise, approve, recommend, or otherwise participate in the business decisions of the Recipient, such as agents, advisors, consultants, attorneys, accountants, or shareholders.” An Interested Party includes the Interested Party’s Immediate Family and other persons directly connected to the Interested Party by law or through a business organization.

“Immediate Family” is defined in 13 CFR § 300.3 as “a person’s spouse (or domestic partner or significant other), parents, grandparents, siblings, children and grandchildren, but does not include distant relatives, such as cousins, unless the distant relative lives in the same household as the person.”

b. The Recipient must disclose in writing any potential conflicts of interest to EDA or the pass-through entity as soon as practicable after the identification of such potential conflict. In addition, the Recipient must maintain written standards of conduct to establish safeguards to prohibit an Interested Party from using its position for a purpose that constitutes or presents the appearance of personal or organizational conflicts-of-interest or of personal gain in the administration of an award. See 13 CFR § 302.17(a) and (b) (“Conflicts of interest”), 2 CFR § 200.112 (“Conflict of interest”), as applicable, and assurances submitted as part of the Application, including assurances submitted through SAM.gov or via Form SF-424D (“Assurances – Construction Projects”).

c. An Interested Party must not receive any direct or indirect financial or personal benefit in connection with this Award or its use for payment or reimbursement of costs by or to the Recipient. A conflict of interest generally exists when an Interested Party participates in a matter that has a direct and predictable effect on the Interested Party's personal or financial interests. A conflict also may exist where there is an appearance that an Interested Party's objectivity in performing his or her responsibilities under the Project is impaired. For example, an appearance of impairment of objectivity may result from an organizational conflict where, because of other activities or relationships with other persons or entities, an Interested Party is unable to render impartial assistance, services or advice to the Recipient, a participant in the Project or to the Federal government. Additionally, a conflict of interest may result from non-financial gain to an Interested Party, such as benefit to reputation or prestige in a professional field. See 13 CFR § 302.17(a) and (b).

d. Section F.01.c of the DOC Standard Terms and Conditions, which are incorporated as Part III of these EDA Construction STCs, specifies procurement-related conflicts of interest requirements. See also 2 CFR §§ 200.317-200.327 (“Procurement Standards”).

15. Records-Keeping Requirements

a. Records. The Recipient must maintain records that document compliance with the terms and conditions of this Award. At a minimum, the Recipient’s records must fully disclose:

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

ii. All Project expenditures and procurement actions;

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

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

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

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

vii. Contractor compliance with applicable Federal requirements; and viii.Such other records as EDA requires the Recipient to maintain, including such records as will facilitate an effective audit.

b. Records retention. In general, and in accordance with 2 CFR § 200.334 (“Retention requirements for records”), all records pertinent to this Award must be retained for a period of three years from the date of submission of the final Project expenditure report (the final Form SF-271 for disbursement). The only exceptions are the following:

i. If any litigation, claim, or audit is started before the expiration of the three-year period, the records must be retained until all litigation, claims, or audit findings involving the records have been resolved and final actions taken.

ii. When the Recipient is notified in writing by EDA, its cognizant agency for either audit or indirect costs, its oversight agency for audit, or the relevant pass-through entity to extend the retention period, it must retain the records as directed.

iii. Records for real property and equipment acquired with Federal funds must be retained for three years after final disposition of the relevant real property or equipment.

iv. When records are transferred to or maintained by EDA or pass-through entity, the three-year retention requirement is not applicable to the Recipient.

v. Records for program income transactions after the period of performance. In some cases, Recipients must report program income after the period of performance. Where there is such a requirement, the retention period for the records pertaining to the earning of the program income starts from the end of the Recipient’s fiscal year in which the program income is earned. See also Part II, section A.7 “Program Income” of these EDA Construction STCs.

vi. Indirect cost rate proposals and cost allocation plans. This paragraph applies to the following types of documents and their supporting records: indirect cost rate computations or proposals, cost allocation plans, and any similar accounting computations of the rate at which a particular group of costs is chargeable (such as computer usage chargeback rates or composite fringe benefit rates).

(1) If submitted for negotiation. If the proposal, plan, or other computation is required to be submitted to the Federal Government (or to the pass-through entity) to form the basis for negotiation of the rate, then the three-year retention period for its supporting records starts from the date of such submission.

(2) If not submitted for negotiation. If the proposal, plan, or other computation is not required to be submitted to the Federal Government (or to the pass-through entity) for negotiation purposes, then the three-year retention period for the proposal, plan, or computation and its supporting records starts from the end of the fiscal year (or other accounting period) covered by the proposal, plan, or other computation.

c. Monitoring and reporting obligations. The Recipient is responsible for monitoring any subrecipients and contractors to ensure their compliance with the records retention requirements. The Recipient must immediately notify the Project Officer if records are lost.

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

16. Termination Actions

a. In accordance with 2 CFR § 200.340 (“Termination”), this Award may be terminated in whole or in part as follows:

i. Termination by EDA for the Recipient’s failure to comply with the terms and conditions of the Award. EDA may terminate this Award, in whole or in part, if the Recipient fails to comply with the Terms and Conditions of the Award, including but not limited to:

(1) Any representation made by the Recipient to the Federal awarding agency in connection with the Application for Federal assistance is incorrect or incomplete in any material respect;

(2) The Project has changed substantially, without EDA prior approval, so as to affect significantly the accomplishment of the Project as intended (including an unauthorized use of property as provided in 13 CFR § 314.4 (“Unauthorized use of property”);

(3) The Recipient has violated commitments it made in its Application and supporting documents or has violated any of the Terms and Conditions of the Award;

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

(5) The Recipient fails to report immediately to EDA any change of authorized representative acting in lieu of or on behalf of the Recipient.

See also section A.06 (Unsatisfactory Performance or Non-Compliance with Award Provisions) of the DOC Standard Terms and Conditions, which are incorporated in Part III of these EDA Construction STCs.

ii. Termination by EDA when the Award no longer effectuates program goals or agency priorities. To the greatest extent authorized by law, EDA may terminate this Award if it no longer effectuates program goals or agency priorities.

iii. Termination by the Recipient. The Recipient may terminate this Award in whole or in part upon by sending the EDA Grants Officer written notification setting forth the reasons for such termination, the effective date, and, in the case of partial termination, the portion to be terminated. However, if EDA determines in the case of partial termination that the reduced or modified portion of the EDA Award will not accomplish the purposes for which the EDA Award was made, EDA may terminate the Award in its entirety.

iv. Termination pursuant to Award termination provisions. EDA or the pass-through entity may terminate this Award pursuant to termination provisions included in the Award. Any Award-specific termination provision will be included as a specific award condition.

v. Termination upon mutual agreement. EDA and the Recipient may mutually agree to terminate this Award in whole or in part. In such cases, EDA and the Recipient must agree upon the termination conditions, including the effective date and, in the case of partial termination, the portion to be terminated.

b. If the Award is wholly or partially terminated, the Recipient remains responsible for compliance with the requirements in 2 CFR §§ 200.344 (“Closeout”) and 200.345 (“Post-closeout adjustments and continuing responsibilities”).

17. Project Closeout Procedures

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

EDA determines that all applicable administrative actions and all required work of the Award have been completed and takes actions as described at 2 CFR § 200.344 (“Closeout”). In the context of an EDA construction award, Project Closeout generally begins with the Recipient’s acceptance of the Project from the contractor(s).

b. Final disbursement. When Project construction and final inspection have been completed, or substantially completed as determined by EDA, and the Recipient has accepted the Project from the contractor(s), the Recipient can begin the Closeout process by submitting the following documentation to EDA:

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

ii. A written certification that all costs charged against this Award (Federal and non-Federal shares) are for eligible activities and represent allowable costs, for which there is documentation in the Recipient’s records;

iii. An executed certificate of final acceptance signed by the Recipient and the Recipient’s architect/engineer;

iv. The Recipient’s certification that its current audit (in accordance with subpart F of 2 CFR part 200), if applicable, has been submitted to the Federal Audit Clearinghouse;

v. The Recipient’s certification that its currently valid single or program-specific audit in accordance with subpart F of 2 CFR part 200 (“Audit Requirements”), if applicable, does not contain any material findings (if the Recipient’s currently valid audit does contain material findings, the Recipient must submit the applicable audit preferably via e-mail to the Project Officer, who will review with the Grants Officer); and

vi. Other documentation as may be required by EDA.

EDA will advise the Recipient of costs determined to be allowable and unallowable. If a balance of this Award is due to the Recipient, the balance will be paid by EDA. If the Recipient has received an amount in excess of the amount due the Recipient, the Recipient must refund the excess to EDA. The Recipient must contact the Project Officer for refund instructions.

As noted above, if the Recipient’s most recent audit completed pursuant to subpart F of 2 CFR part 200 contains material findings, the Recipient must submit the audit, preferably via e-mail, to the Project Officer, who will review with the Grants Officer before final disbursement. If e-mail is unavailable, the Recipient may submit a hardcopy version of the audit to the Project Officer.

c. Final reporting deadline. The Recipient must submit, no later than 120 calendar days after the end date of the period of performance, all financial, performance, and other reports as required by the Terms and Conditions of this Award. The Grants Officer may extend the 120 calendar day submission period upon a written request from the Recipient.

d. Deadline to liquidate obligations. Unless EDA authorizes an extension, the Recipient must liquidate all financial obligations incurred under this Award no later than 120 calendar days after the end date of the period of performance.

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

Project” of these EDA Construction STCs, after construction is completed and the Project is closed out financially, the Recipient has an ongoing responsibility to properly administer, operate, and maintain the Project for its estimated useful life (as determined by EDA) in accordance with Award purposes. See 13 CFR § 302.12 (“Project administration, operation and maintenance”). The Recipient must comply with all Award requirements and maintain records to document such compliance, which must be made available for inspection by EDA or other Government officials as required.

In addition, in accordance with 2 CFR § 200.345 “Post-closeout adjustments and continuing responsibilities,” the Closeout of this Award does not affect any of the following:

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

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

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

iv. Requirements for…