OGR Subrecipient Grant Conditions~1.pdf

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Department/Organization Name_______________________________________________

(Print or Type)

General Subrecipient Grant Conditions Office of Grants and Research (OGR)

Executive Office of Public Safety and Security

Instructions and Information for Authorized Signatories

For All Subrecipients o Read and initial all pages where indicated in blue ink.

o Sign and date as applicable, where indicated in blue ink o Read Addendum 5 for special conditions associated with the specific federal grant-stream that is the source of the award.

Sign and date at the end.

If the source of the award is not federal or there are no special conditions, Addendum 5 will indicate N/A and should be signed and dated nonetheless.

o Return the signed and initialed General Subrecipient Grant Conditions with the signed Commonwealth of Massachusetts Standard Contract Form as an indication you have read and are agreeing to comply with all pertinent conditions.

o Your signature on the Standard Contract indicates you have read and are agreeing to comply with all conditions, certifications, and obligations therein.

o Failure to comply with any conditions may result in termination of the contract or other consequences.

Additionally for Law Enforcement Subrecipients o Read and sign Addendum 1: Additional OGR Conditions for Law Enforcement

Agencies

Additionally for Research Subrecipients o Read, complete, and sign Addendum 2: For Research Grants Only (Human

Subjects Protection).

Section: 1 Subrecipients of Federal Grant Funds

When receiving a grant award of federal funds administered by OGR, subrecipients must comply with three sets of general grant conditions: (1) federal conditions; (2) state conditions; and (3) OGR conditions. These three sets of general grant conditions are addressed in this primary document.

Federal conditions are based on laws passed by Congress, regulations issued by the federal department making the funds available and published in the Code of Federal Regulations (CFR), and financial guidance also created by the federal department making the funds available. Additionally, in most cases, there are requirements and conditions associated with specific federal grant-streams, which are not conditions of receipt of federal funds generally. See Addendum 5 for specific conditions associated with a specific federal grant-stream.

State conditions are established in laws passed by the Massachusetts Legislature and in orders and rules established by the governor. They are referenced in the Standard Contract Form itself and in the pages attached to it.

OGR conditions outline the further administrative requirements for each grant award established by the Executive Office of Public Safety and Security (EOPSS) and OGR.

Subrecipients of State Grant Funds

When receiving a grant award from state funds administered by OGR, subrecipients must comply with two sets of general grant conditions: (1) state conditions and (2) OGR conditions as described in the section above.

State conditions are established in laws passed by the Massachusetts Legislature and in orders and rules established by the Governor. They are referenced in the Standard Contract Form itself and in the pages attached to it.

OGR conditions outline the further administrative requirements for each grant award established by the EOPSS and OGR. They are included in this document.

Federal Conditions

Section: 2 Basic Federal Grant Conditions The basic federal grant conditions below apply to all federal grants, regardless of the federal department making the funds available.

Audit Requirements of Federal Funds o 2 CFR 200 Subpart F Audit Requirements apply to each non-profit organization, institution of higher education, and local governments as a whole when they or one of their departments receives federal funds. Any non-profit organization, institution of higher education, or local government spending more than $750,000 in federal funds from all sources within 12 months must have an audit performed on the use of the funds. OGR defines the 12 months as July 1 to June 30. The above webpage provides the full text of this basic federal grant requirement:

Data Universal Number System (DUNS) and System for Award Management (SAM) o All subrecipients of federal funds must have a nine-digit DUNS number in order. For more information: 1-866-705-5711 or http://fedgov.dnb.com/webform.

o All subrecipients of federal funds must maintain annual registration in the SAM database: www.sam.gov/SAM

Transparency Act Reporting for Federal Funds o (The Federal Funding Accountability and Transparency Act (FFATA) requires

EOPSS to report on a federal website specific award and subrecipient identifying information for each award greater than $25,000 OGR makes with federal funds it received after October 1, 2010). Prior to receiving funds, certain affected subrecipients must report certain information to OGR so that EOPSS may fulfill its FFATA reporting requirements. Data reported by EOPSS may be viewed at www.USASpending.gov.

Cost Principles for Federal Grants to non-federal entities, including State and Local Governments, Non-Profit Organizations and Institutions of Higher Education o 2 CFR Part 200 Subpart E – Cost Principles. These regulations list and define general categories of costs that are both allowable and unallowable.

Examples are included below.

https://www.ecfr.gov/cgi-bin/text-idx?SID=4e38ba6e62da09921cb2ef0d8a38a4e9&mc=true&node=sp2.1.200.f&rgn=div6%20%20 http://www.sam.gov/SAM http://www.usaspending.gov/ https://www.ecfr.gov/cgi-bin/text-idx?SID=7201b56a7ff8d394e6348c5d6bb75ce6&mc=true&node=sp2.1.200.e&rgn=div6%23se2.1.200_1423

The cost of alcoholic beverages is unallowable.

Costs incurred by advisory councils are allowable.

Audit costs are allowable.

Compensation costs are allowable so long as they are consistent with that paid for similar work in other activities of the local government.

Entertainment costs are unallowable.

Equipment costs are allowable with prior approval of OGR. Equipment having a useful life of more than one year and a current per-unit fair market value of $5,000 or more must be tracked. When replacing equipment purchased with federal funds, the equipment to be replaced may be used as a trade-in or can be sold with the proceeds used to offset the cost of the replacement equipment. In addition, during the period of the contract with OGR, insurance on the equipment is allowable. Information required to be captured and recorded appears in Addendum 4.

Travel costs are allowable if pre-approved by OGR and if they are consistent with costs normally allowed in like circumstances for non-federally funded activities.

If a subrecipient uses grant funds to pay its employees, the subrecipient must maintain timesheets for work performed with the grant funds.

Timesheets must show the hours worked and must be signed by the employee paid with the grant funds.

The 2 CFR Part 200 Appendices and links referenced below also apply to State and Local Governments, Non-Profit Organizations, and Institutions of Higher Education (IHEs):

o Appendix II to Part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards o Appendix III to Part 200—Indirect (F&A) Costs Identification and Assignment, and Rate Determination for Institutions of Higher Education (IHEs) o Appendix IV to Part 200—Indirect (F&A) Costs Identification and Assignment, and Rate Determination for Nonprofit Organizations o Appendix V to Part 200—State/Local Government wide Central Service Cost Allocation Plans o Appendix VII to Part 200—States and Local Government and Indian Tribe

Indirect Cost Proposals o Appendix VIII to Part 200—Nonprofit Organizations Exempted From Subpart E—Cost Principles of Part 200

Nondiscrimination Requirements o If you receive federal funds, you must comply with and require subcontractors, if any, to comply with all applicable statutorily-imposed nondiscrimination requirements, which may include the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. § 3789d); the Victims of Crime Act (42 U.S.C. § 10604(e)); the Juvenile Justice and Delinquency Prevention Act of 2002 (42 U.S.C. § 5672(b)); the Civil Rights Act of 1964 (42 U.S.C. § 2000d); the Rehabilitation Act of 1973 (29 U.S.C. § 794); the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12131-34); the Education Amendments of 1972 (20 https://www.ecfr.gov/cgi-bin/text-idx?SID=86e0ea24e516ec83ae02f76d8e741394&mc=true&node=ap2.1.200_1521.ii&rgn=div9 https://www.ecfr.gov/cgi-bin/text-idx?SID=86e0ea24e516ec83ae02f76d8e741394&mc=true&node=ap2.1.200_1521.iii&rgn=div9 https://www.ecfr.gov/cgi-bin/text-idx?SID=86e0ea24e516ec83ae02f76d8e741394&mc=true&node=ap2.1.200_1521.iv&rgn=div9 https://www.ecfr.gov/cgi-bin/text-idx?SID=86e0ea24e516ec83ae02f76d8e741394&mc=true&node=ap2.1.200_1521.v&rgn=div9 https://www.ecfr.gov/cgi-bin/text-idx?SID=a7f002fba259e5d1bb85345b5ab7de98&mc=true&node=ap2.1.200_1521.vii&rgn=div9 https://www.ecfr.gov/cgi-bin/text-idx?SID=86e0ea24e516ec83ae02f76d8e741394&mc=true&node=ap2.1.200_1521.viii&rgn=div9

U.S.C. §§ 1681, 1683, 1685-86); the Age Discrimination Act of 1975 (42 U.S.C. §§ 6101-07); Ex. Order 13279 (equal protection of the laws for faith-based and community organizations); and 28 C.F.R. pt. 38 (U.S. Department of Justice Equal Treatment for Faith-Based Organizations).

o Per Title VI of the Civil Rights Act of 1964 and the Omnibus Crime Control and

Safe Streets Act of 1968, you must take reasonable steps to provide meaningful access for persons with limited English proficiency.

o In the event a federal or state court or federal or state administrative agency makes a finding of discrimination after a due process hearing on the grounds of race, color, religion, national origin, sex, or disability against a recipient of funds, you must forward a copy of the finding to the Office for Civil Rights, Office of Justice Programs and to OGR.

o In accordance with federal civil rights laws, you shall not retaliate against individuals for taking action or participating in action to secure rights protected by these laws.

Human Subjects Protection (For Research Subrecipients only. See Addendum 2.)

Section 3: Additional Federal Department-Specific Grant Conditions

Each federal department typically imposes additional conditions. If your grant award originates from any of the federal departments below, you should be familiar with the text from each of the applicable links.

U.S. Department of Justice Funds The U.S. Department of Justice (DOJ) offers a Financial Guide that presents grant requirements as defined by this federal agency. All subrecipients of these funds must adhere to these requirements.

DOJ Financial Guide: https://ojp.gov/about/ocr/eeop.htm.

Pay particular attention to the sections on (1) matching or cost-sharing, (2) allowable costs, (3) unallowable costs, (4) procurement under awards of federal assistance, (5) costs requiring prior approval, (6) equipment, and (7) retention and access requirements for records.

If you receive DOJ grant funds, you may be required to comply with the regulatory requirement to develop, maintain on file, and submit for review to the Office for Civil Rights, Office of Justice Programs and to OGR an Equal Employment Opportunity Plan (EEOP). DOJ’s instructions on complying with the EEOP requirement:

http://www.ojp.usdoj.gov/about/ocr/eeop comply.htm

U.S. Department of Transportation Funds The National Highway Traffic Safety Administration (NHTSA) of the U.S. Department of Transportation offers documents that present requirements for the use of the funds and outline the purpose of each category of grants provided. Programmatic and financial guide documents from NHTSA can be found in the Resources Guide page here:

https://www.nhtsa.gov/highway-safety-grants-program/resources-guide#13676

U.S. Department of Homeland Security Funds The U.S. Department of Homeland Security adheres to 2 CFR Part 200 grant requirements.

If you receive these funds, you must adhere to these requirements.

https://ojp.gov/about/ocr/eeop.htm http://www.ojp.usdoj.gov/about/ocr/eeop%20comply.htm https://www.nhtsa.gov/highway-safety-grants-program/resources-guide#13676

The link to the Code of Federal Regulations: 2 CFR Part 200

Additional grant information may be found in the DHS/FEMA Preparedness Grants Manual: https://www.fema.gov/media-library-data/1555010612902- 389f8b3351d06d759b01df2a8a851284/FEMA_PreparednessGrantsManual_Final_508.p df

Because of the importance of equipment purchases for the program, specific information and guidance on allowable equipment purchases may be found at:

https://www.fema.gov/authorized-equipment-list .

State Conditions

For cities, towns, other public entities, non-profit organizations receiving state grant funds, the primary state conditions are included in the Contractor Certifications and Legal References document attached as Addendum 3 (which is excerpted from the Instructions for the Standard Contract Form). Please pay attention to the specific certifications, legal references, and links in Addendum 3. The Authorized Signatory’s signature on the Standard Contract indicates that all materials have been read and the Signatory is agreeing to comply with all certifications and obligations.

Section 4: Office of Grants and Research Conditions

In addition to the federal and state general grant conditions outlined above, EOPSS and OGR have certain grant conditions that are essential to the administration of grant awards.

Whether subrecipients are receiving funds from a federal or state grant, they must adhere to these conditions. Federal and State Conditions must be adhered to by subrecipients of federal grant funds.

Drug-Free Workplace Certification The Drug-Free Workplace Act of 1988 (41 USC

702) requires all recipients of federal grants to provide an annual certification that the grant recipient will take certain steps to ensure a drug-free workplace.

Time extensions of contracts, while uncommon, may be granted at the option of OGR. They are not encouraged or guaranteed.

o If a subrecipient needs additional time to complete the scope of work for the grant award, OGR may approve a time-only extension as long as the contract with the revised end date is executed by both the subrecipient and OGR before the end date of the current contract. No time extension will be permitted if the amended contract form is executed after the current contract end date.

o Requests for time extensions must be made at least 30 days before the end date of the current contract.

Per CTR policy, the Legal Address of the Contractor must be entered as it appears on the Contractor’s W-9.

Award amounts remaining at the end of the contract/ISA will be reverted to OGR.

Interdepartmental Service Agreement (ISA) spending must adhere to the dates specified in the ISA, and follow CTR policy on the ISAs.

Per CTR policy, the child department’s official start date is the date the funds are loaded into MMARS and available to the child department.

Each ISA has a defined accounts payable period. All payments must be completed and disbursed by the end date of the specified accounts payable period.

https://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title02/2cfr200_main_02.tpl https://www.fema.gov/media-library-data/1555010612902-389f8b3351d06d759b01df2a8a851284/FEMA_PreparednessGrantsManual_Final_508.pdf https://www.fema.gov/media-library-data/1555010612902-389f8b3351d06d759b01df2a8a851284/FEMA_PreparednessGrantsManual_Final_508.pdf https://www.fema.gov/media-library-data/1555010612902-389f8b3351d06d759b01df2a8a851284/FEMA_PreparednessGrantsManual_Final_508.pdf https://www.fema.gov/authorized-equipment-list

Spending occurring after the specified ISA end date may result in denial of those costs. The “child” department will be responsible for covering those costs with an account other than that funding the ISA.

Subrecipients may not ask the Office of the Comptroller to extend an end date of the program code associated with the ISA without prior agreement by OGR.

Should this occur, OGR will deny costs against the ISA. If the costs have already been accepted in MMARS, OGR will ask the “child” department to execute an expenditure correction transaction in MMARS to move those costs to another account belonging to the department.

All goods must be received and all services rendered by the end date of the ISA/contract.

An ISA that crosses a state fiscal year (June 30) into the next fiscal year, must observe the Commonwealth’s policies on payment corrections or overpayments. That is, any mistakes in coding must be corrected with an EX transaction before August 31. All payroll corrections must be made by the date in July specified in the Fiscal Year Close/Open guidance issued each year by the Office of the State Comptroller. Any overpayments must be corrected with an ER transaction before August 31.

OGR requires all financial reports to be submitted along with a Warehouse Query (for ISAs only) detailing the expenditures made for that period by the child department.

At the option of OGR, reimbursement will be held until all reporting requirements are met.

Requests for reimbursement must be received by OGR within 30 days of the end date of the contract. Those received after 30 days may result in non-payment at the option of OGR. Should this occur, OGR will notify the subrecipient of the non-payment for this reason. Reimbursement under a subsequent contract may also be withheld pending resolution of any outstanding documentation or other requirements not fulfilled to the satisfaction of OGR. Furthermore, OGR may withhold execution of any subsequent contract.

o If the request for reimbursement is returned because of incomplete documentation, the request and documentation must be resubmitted within the timeframe dictated by OGR.

Programmatic and financial reports must be received in accordance with the requirements of the specific award. At the option of OGR, reimbursement will be held until all reporting requirements are met.

Allowable grant-related travel costs will be paid at the lesser rate of $.45 per mile or the subrecipient’s normal reimbursement rate. This rate is subject to change. Tolls and parking for grant-related local travel may also be paid. Receipts are required.

Indirect cost rates will not be reimbursed based on a percentage rate without documentation of the rate having been approved by a federal agency. When a percentage rate has not been approved by a federal agency, a subrecipient may request of OGR allowable direct costs that will be incurred and can be specifically allocated to the project being funded.

2 CFR 200.414 Indirect Cost includes provisions: That a de minimis indirect rate of 10% of modified total direct costs (MTDC). Non-federal entities which have never held a negotiated rate are eligible to elect the de minimis rate of 10% of modified total direct costs (MTDC).

Procurement practices of subrecipient agencies must be followed. The subrecipient should ensure that its procurement practices conform to any specific federal guidelines found in the references in the federal conditions section above. Where there is a difference between the practices of the subrecipient agency/organization and a federal guideline, the more restrictive procedure applies.

Timesheets must be maintained by subrecipients for work performed by its employee(s) paid for with grant funds. Timesheets must show the hours worked and paid for with grant funds and must be signed by the employee(s). Comingling of grant funds is strictly prohibited.

Submission of Federal OMB Circular 2 CFR 200 Audit Requirements is required for subrecipients that expend more than $750,000 in federal funds from all sources during their fiscal year. Subrecipients will submit the form to OGR at the end of the fiscal year after the completion of a single or program-specific audit of their federal funds. Subrecipients must indicate if they were required to have an audit and if so, to identify any findings related to the federal funds awarded by OGR.

Site visits and other monitoring of subrecipients will be conducted by OGR periodically. All records, papers, and other documents of any kind related to the funded activity must be made available promptly upon request for inspection and copying to any person authorized by OGR.

Grant-related documents for federal awards must be retained for a period of six years from the close of the contract. Grant related documents funded with state funding must be retained for three years after the close of the contract.

Evaluations of a subrecipient’s funded program by an outside evaluator during or at the conclusion of the project period, should be reported to OGR in writing and a copy of the evaluation should be provided.

Reporting alleged fraud, waste, or abuse to the Office of the State Auditor or Inspector General and/or to an applicable federal agency is the responsibility of the subrecipient. This includes any alleged violations, serious irregularities, sensitive issues or overt or covert acts involving the use of public funds in a manner not consistent with federal statutes, related laws, regulations, appropriate guidelines, or purposes of the grant.

Use of funds should begin within 60 days of the start of the contract, and if they are not, the subrecipient must report to OGR the steps taken to initiate the grant activities, the reasons for the delay, and the expected start of the use of the funds. If meaningful implementation steps have not begun after 60 days of the grant start date, OGR reserves the right to cancel the contract.

Subcontractors implementing activities with grant funds must adhere to the grant provisions in this document and should be approved by OGR prior to subrecipients executing subcontracts.

Instructional materials created or produced with grant funds will be “work made for hire”, as defined in United States copyright law, and EOPSS/OGR shall be considered the author. EOPSS/OGR shall be the sole owner of all rights pertaining to these materials, including copyrights and all rights to use, reproduce, or publish the materials, and subrecipients may not use, reproduce, or distribute such materials without prior written the approval of OGR. If a project results in the production of other original books, manuals, or copyrightable material, unless otherwise provided in the contract documents, EOPSS/OGR reserves a royalty-free, non-exclusive and irrevocable license to reproduce, publish, translate or otherwise use, and authorize others to publish and use, such material. If paid with federal funds, the grant number must appear on the materials. Any materials produced as a result of a grant award from this agency should name the grant program, award number, and state “Funding provided by EOPSS Office of Grants and Research”. Please contact your OGR point of contact if you need assistance with this disclosure.

Audiovisual or written materials developed as part of the grant may be required to incorporate specific language or disclaimers (e.g., regarding the federal source of funding) and in some instances pre-approval from the federal funding agency as instructed by the OGR grant manager.

Initials: ________

OVERTIME POLICY

FOR SUBRECIPIENTS RECEIVING FEDERAL FUNDS

This policy applies to all subrecipients and contractors that receive a Federal grant award from the Executive Office of Public Safety and Security’s Office of Grants and Research (OGR) and are requesting to use grant funds for overtime costs.

Overtime hours being charged against a federal grant award provided by OGR may only seek reimbursement for actual hours worked regardless of department policy or union contract rules. For example, an officer working one hour of overtime on a federally funded project awarded by OGR is prohibited from charging the grant award for 4 hours of overtime due to a union contract. A department that must allow for this, will need to cover the remaining 3 hours of overtime from their own state or local budget. Departments found violating this policy will be subject to immediate termination of a grant award and must return all misspent funds back to OGR.

Definitions For this policy, the definitions for the key terms referenced within are listed below:

Overtime- Expenses limited to the additional costs that result from state and local first responders such as sworn law enforcement personnel working over and above their weekly full-time/part-time schedule as a direct result of their performance of approved activities related to the project receiving federal funding.

Backfill Related Overtime- Expenses limited to overtime costs that result from personnel who are working overtime (as identified above) to perform the duties of other personnel who are temporarily assigned to an approved grant activity outside of their core responsibilities.

Subrecipient- An entity receiving a grant award from OGR.

First Responder- State or local law enforcement, fire services, emergency medical services, emergency management, health care, hazardous materials, public safety communications, public health, public works, and government administrative type employees. Note, each federal award has different criteria as to the type of individual allowed to be reimbursed for overtime costs. Please reference your specific grant application or OGR point of contact to determine qualifying personnel for overtime.

State and local first responders that are eligible through their department for backfill and/or overtime (and preapproved by OGR) may be reimbursed for backfill and/or overtime related to grant-funded activities ONLY.

By signing below, I am acknowledging that I have read and understand the federal rules associated with the use of grant funding for Overtime Costs.

Signature of Authorized Signatory Date

Printed Name Title

Addendum 1: Additional OGR Conditions for Law Enforcement Agencies

Law enforcement agencies are subject to mandatory reporting requirements of various information, including but not limited to the reporting requirements listed below. EOPSS and OGR may withhold reimbursements, cancel a contract, or withhold execution of any future grants for law enforcement agencies that do not comply with reporting requirements.

Crime Data Reporting. Law enforcement organizations must submit timely and satisfactory monthly Uniform Crime Reporting (UCR) or National Incident Based Reporting System (NIBRS) reports to the Commonwealth’s Crime Reporting Unit at the Commonwealth Fusion Center. If your organization has hardware and software that support the creation of NIBRS data, crime data must be submitted to the Crime Reporting Unit in that format.

Motor Vehicle Accident Reporting. Police departments are required to report to the Registry of Motor Vehicles, within 15 days, accidents in which death, injury, or property damage in excess of $1,000 occurs (M.G.L. c. 90, § 29). The crash reports can be delivered to the Registry of Motor Vehicles (RMV) main office through post office mail or through electronic submission. You may contact the RMV headquarters for any additional information.

Juvenile Lockup Data. Law enforcement agencies that maintain a juvenile lockup must submit monthly juvenile lockup data to the Department of Criminal Justice Information Services via CJIS/LEAPS. Contact OGR's Juvenile Justice Program Coordinator for additional information.

Fingerprint Cards. Law enforcement agencies must regularly submit fingerprint cards for all felony arrests to the Identification Section at the Massachusetts State Police Crime Lab as required by state law (M.G.L. c. 263, § 1A; G.L. c. 94C, § 45).

Administration of Narcan/Naloxone. Law enforcement agencies may be required to submit case-specific information on officer-administration of Narcan/Naloxone using a reporting tool to be determined by EOPSS/OGR.

[ ] N/A

Addendum 2: For Research Grants Only

Human Subjects Protection

Research subrecipients must check one of the statements below.

[ ] a. The research activities covered under this Contract/ISA do not involve human subjects.

[ ] b. The research activities covered under this Contract/ISA do involve human subjects.

[ ] c. N/A

If the research activities involve human subjects (option b), then the subrecipient agrees to certify compliance with 28 C.F.R. Part 46 regulations by completing, “Protection of Human Subjects, IRB Certification, Declaration of Exemption (Common Rule).” This form is available at the National Institute of Justice webpage at http://www.ojp.usdoj.gov/nij/funding/humansubjects/human-subjects.htm

The regulation for The Protection of Human Subjects 28 C.F.R Part 46 section 46.101(b) (1-6) defines categories of research involving human subjects that are exempt from its provisions. Details on exemptions can be found at the same National Institute of Justice webpage listed above.

Sign and submit this form, with an original signature (only if your award is funding research).

http://www.ojp.usdoj.gov/nij/funding/humansubjects/human-subjects.htm

Addendum 3: Excerpts from Commonwealth’s Standard Contract

CONTRACTOR CERTIFICATIONS AND LEGAL REFERENCES

Notwithstanding verbal or other representations by the parties, the “Effective Date” of this Contract or Amendment shall be the latest date that this Contract or Amendment has been executed by an authorized signatory of the Contractor, the

Department, or a later Contract or Amendment Start Date specified, subject to any required approvals. The Contractor makes all certifications required under this Contract under the pains and penalties of perjury, and agrees to provide any required documentation upon request to support compliance, and agrees that all terms governing performance of this

Contract and doing business in Massachusetts are attached or incorporated by reference herein.

Commonwealth and Contractor Ownership Rights. The Contractor certifies and agrees that the Commonwealth is entitled to ownership and possession of all “deliverables” purchased or developed with Contract funds. A Department may not relinquish Commonwealth rights to deliverables nor may Contractors sell products developed with Commonwealth resources without just compensation. The Contract should detail all Commonwealth deliverables and ownership rights and any Contractor proprietary rights.

Qualifications. The Contractor certifies that it is qualified and shall at all times remain qualified to perform this Contract, and that performance shall be timely and meet or exceed industry standards for the performance required, which includes obtaining requisite licenses, registrations, permits, resources for performance, and sufficient professional, liability, and other appropriate insurance to cover the performance. If the Contractor is a business, the Contractor certifies that it is listed under the Secretary of State’s website as licensed to do business in Massachusetts, as required by law.

Laws and Regulations Prohibiting Discrimination and Human Trafficking. Contractors acknowledge and certify as a condition of this Contract that they are responsible for complying fully with all state and federal laws prohibiting discrimination, human trafficking, and forced labor, including but not limited to Chapter 178 of the Acts of 2011.

Business Ethics and Fraud, Waste and Abuse Prevention. The Contractor certifies that performance under this Contract, in addition to meeting the terms of the Contract, will be made using ethical business standards and good stewardship of taxpayer and other public funding and resources to prevent fraud, waste and abuse.

Collusion. The Contractor certifies that this Contract has been offered in good faith and without collusion, fraud, or unfair trade practices with any other person, and that any actions to avoid or frustrate fair and open competition are prohibited by law and shall be grounds for rejection or disqualification of a Response or termination of this Contract.

Public Records and Access. The Contractor shall provide full access to records related to performance and compliance to the

Department and officials listed under Executive Order 195 and M.G.L. c. 11, §12 for six (6) years beginning on the first day after the final payment under this Contract or such longer period as necessary for the resolution of any litigation, claim, negotiation, audit or other inquiry involving this Contract. Access to view Contractor records related to any breach or allegation of fraud, waste and/or abuse may not be denied and Contractor can not claim confidentiality or trade secret protections solely for viewing but not retaining documents. Routine Contract performance compliance reports or documents related to any alleged breach or allegation of non- compliance, fraud, waste, abuse or collusion may be provided electronically and shall be provided at

Contractor’s own expense. Reasonable costs for copies of non-routine Contract related records shall not exceed the rates for public records under 950 CMR 32.00.

Debarment. The Contractor certifies that neither it nor any of its subcontractors are currently debarred or suspended by the federal or state government under any law or regulation including Executive Order 147; M.G.L. c. 29, § 29F; M.G.L. c. 30, § 39R;

M.G.L. c. 149 §§ 27C, 44C and 148B; and M.G.L. c. 152, § 25C.

Applicable Laws. The Contractor shall comply with all applicable state laws and regulations including, but not limited to, the

Massachusetts General Laws; the Official Code of Massachusetts Regulations; Code of Massachusetts Regulations

(unofficial); 801 CMR 21.00 (Procurement of Commodity and Service Procurements, Including Human and Social Services);

815 CMR 2.00 (Grants and Subsidies); 808 CMR 1.00 (Compliance, Reporting and Auditing for Human And Social Services);

AICPA Standards; confidentiality of Department records under M.G.L. c. 66A; and the Massachusetts Constitution Article XVIII, if applicable.

Invoices. The Contractor must submit invoices in accordance with the terms of the Contract and the Commonwealth Bill

Paying Policy. Contractors must be able to reconcile and properly attribute concurrent payments from multiple

Departments. Final invoices in any fiscal year must be submitted no later than August 15 for performance made and received

(goods delivered, services completed) prior to June 30, in order to make payment for that performance prior to the close of the fiscal year to prevent reversion of appropriated funds. Failure to submit timely invoices by August 15 or other date listed in the

Contract shall authorize the Department to issue an estimated payment based upon the Department’s determination of performance delivered and accepted. The Contractor’s acceptance of an estimated payment releases the Commonwealth from further claims for these invoices. If budgetary funds revert due to the Contractor’s failure to submit timely final invoices, or for disputing an estimated payment, the Department may deduct a penalty of up to 10% from any final payment in the next fiscal year for failure to submit timely invoices.

Payments Subject To Appropriation. Pursuant to M.G.L. c. 29 §§ 26, 27 and 29, Departments are required to expend funds only for the purposes set forth by the Legislature and within the funding limits established through appropriation, allotment and subsidiary, including mandated allotment reductions triggered by M.G.L. c. 29, § 9C. A Department cannot authorize or accept performance in excess of an existing appropriation and allotment, or sufficient non-appropriated available funds. Any oral or written representations, commitments, or assurances made by the Department or any other Commonwealth representative are not binding. The Commonwealth has no legal obligation to compensate a Contractor for performance that is not requested and is https://www.mass.gov/executive-orders/no-195-vendor-contracts https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter11/Section12 https://www.mass.gov/regulations/950-CMR-3200-public-records-access https://www.mass.gov/executive-orders/no-147-governors-code-suspension-and-debarment-of-public-contracts https://www.mass.gov/executive-orders/no-147-governors-code-suspension-and-debarment-of-public-contracts https://malegislature.gov/Laws/GeneralLaws/PartI/TitleIII/Chapter30/Section39R https://malegislature.gov/Laws/GeneralLaws/PartI/TitleIII/Chapter30/Section39R https://malegislature.gov/Laws/GeneralLaws/PartI/TitleIII/Chapter30/Section39R https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter149/Section27C https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter149/Section148B https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter152/Section25C https://www.mass.gov/regulations/801-CMR-21-procurement-of-commodities-or-services-including-human-and-social-services https://www.mass.gov/regulations/815-CMR-2-state-grants-federal-grant-awards-federal-subgrants-and-subsidies https://www.mass.gov/regulations/808-CMR-100-compliance-reporting-and-auditing-for-human-and-social-services https://malegislature.gov/Laws/GeneralLaws/PartI/TitleX/Chapter66A https://malegislature.gov/laws/constitution#articlesOfAmendment https://malegislature.gov/Laws/GeneralLaws/PartI/TitleIII/Chapter29/Section26 https://malegislature.gov/Laws/GeneralLaws/PartI/TitleIII/Chapter29/Section26 https://malegislature.gov/Laws/GeneralLaws/PartI/TitleIII/Chapter29/Section9C intentionally delivered by a Contractor outside the scope of a Contract. Contractors should verify funding prior to beginning performance.

Intercept. Contractors may be registered as Customers in the Vendor file if the Contractor owes a Commonwealth debt.

Unresolved and undisputed debts, and overpayments of Contract payments that are not reimbursed timely shall be subject to intercept pursuant to M.G.L. c. 7A, § 3 and 815 CMR 9.00. Contract overpayments will be subject to immediate intercept or payment offset. The Contractor may not penalize any state Department or assess late fees, cancel a Contract or other services if amounts are intercepted or offset due to recoupment of an overpayment, outstanding taxes, child support, other overdue debts or Contract overpayments.

Tax Law Compliance. The Contractor certifies under the pains and penalties of perjury: (1) tax compliance with federal tax laws; (2) tax compliance with state tax laws including, but not limited to, M.G.L. c. 62C, § 49A, reporting of employees and contractors, withholding and remitting of tax withholdings and child support; and (3) Contractor is in good standing with respect to all state taxes and returns due, reporting of employees and contractors under M.G.L. c. 62E, withholding and remitting child support including M.G.L. c. 119A, § 12, TIR 05-11, New Independent Contractor Provisions and applicable TIRs.

Bankruptcy, Judgments, Potential Structural Changes, Pending Legal Matters and Conflicts. The Contractor certifies it has not been in bankruptcy or receivership within the last three calendar years, and the Contractor certifies that it will immediately notify the Department in writing at least 45 days prior to filing for bankruptcy and/or receivership, any potential structural change in its organization, or if there is any risk to the solvency of the Contractor that may impact the Contractor’s ability to timely fulfill the terms of this Contract or Amendment. The Contractor certifies that at any time during the period of the Contract the Contractor is required to affirmatively disclose in writing to the Department Contract Manager the details of any judgment, criminal conviction, investigation or litigation pending against the Contractor or any of its officers, directors, employees, agents, or subcontractors, including any potential conflicts of interest of which the Contractor has knowledge, or learns of during the Contract term. Law firms or Attorneys providing legal services are required to identify any potential conflict with representation of any Department client in accordance with Massachusetts Board of Bar Overseers (BBO) rules.

Federal Anti-Lobbying and Other Federal Requirements. If receiving federal funds, the Contractor certifies compliance with federal anti-lobbying requirements including 31 USC § 1352; other federal requirements; Federal Executive Order

11246; Air Pollution Act; Federal Water Pollution Control Act and Federal Employment Laws.

Protection of Commonwealth Data, Personal Data and Information. The Contractor certifies that all steps will be taken to ensure the security and confidentiality of all Commonwealth data for which the Contractor becomes a holder, either as part of performance or inadvertently during performance, with special attention to restricting access, use and disbursement of personal data and information under M.G.L. c. 93H and c. 66A and other applicable state and federal privacy requirements.

The Contractor shall comply with M.G.L. c. 93I for the proper disposal of all paper and electronic media, backups or systems containing personal data and information. The Contractor shall also ensure that any personal data or information transmitted electronically or through a portable device is properly encrypted using (at a minimum) the Commonwealth’s “Cryptographic

Management Standard” set forth in the Enterprise Information Security Policies and Standards published by the Executive

Office for Technology, Services and Security (TSS), or a comparable Standard prescribed by the Department. Contractors with access to credit card or banking information of Commonwealth customers certify that the Contractor is PCI compliant in accordance with the Payment Card Industry Council Standards, and shall provide confirmation of compliance during the

Contract. The Contractor shall immediately notify the Department in the event of any security breach, including the unauthorized access, disbursement, use or disposal of personal data or information and, in the event of a security breach, the Contractor shall cooperate fully with the Commonwealth and provide access to any information necessary for the Commonwealth to respond to the security breach and shall be fully responsible for any damages associated with the Contractor’s breach including, but not limited to, damages under M.G.L. c. 214, § 3B.

For all Contracts involving the Contractor’s access to personal information, as defined in M.G.L. c. 93H, and personal data, as defined in M.G.L. c. 66A, or access to Department systems containing such information or data, Contractor certifies under the pains and penalties of perjury that the Contractor: (1) has read M.G.L. c. 93H and c. 66A and agrees to protect any and all personal information and personal data; and (2) has reviewed all of the Enterprise Information Security Policies and Standards published by the Executive Office for Technology, Services and Security (TSS), or stricter standards prescribed by the

Department. Notwithstanding any contractual provision to the contrary, in connection with the Contractor’s performance under this Contract, for all Departments, including all offices, boards, commissions, agencies, departments, divisions, councils, bureaus, and offices, now existing and hereafter established, the Contractor shall:

(1) obtain a copy, review, and comply with any pertinent security guidelines, standards, and policies; (2) comply with the

Enterprise Information Security Policies and Standards published by the Executive Office for Technology, Services and

Security (TSS), or a comparable set of policies and standards (“Information Security Policy”) as prescribed by the

Department; (3) communicate and enforce such security guidelines, standards, policies and the applicable Information

Security Policy among all employees (whether such employees are direct or contracted) and subcontractors; (4) implement and maintain any other reasonable appropriate security procedures and practices necessary to protect personal information and data to which the Contractor is given access by the contracting Department from the unauthorized access, destruction, use, modification, disclosure or loss; (5) be responsible for the full or partial breach of any of these terms by its employees (whether such employees are direct or contracted) or subcontractors during or after the term of this Contract, and any breach of these terms may be regarded as a material breach of this Contract; (6) in the event of any unauthorized access, destruction, use, modification, disclosure or loss of the personal information or personal data (collectively referred to as the “unauthorized use”): (a) immediately notify the contracting Department if the Contractor becomes aware of the unauthorized use; (b) provide full cooperation and access to information necessary for the contracting Department to https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter7A/Section3 https://www.mass.gov/regulations/815-CMR-9-debt-collection-and-intercept https://malegislature.gov/Laws/GeneralLaws/PartI/TitleIX/Chapter62C/Section49A https://malegislature.gov/Laws/GeneralLaws/PartI/TitleIX/Chapter62E https://malegislature.gov/Laws/GeneralLaws/PartI/TitleIX/Chapter62E https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXVII/Chapter119A/Section12 https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter93H https://malegislature.gov/Laws/GeneralLaws/PartI/TitleX/Chapter66A https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter93I https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleI/Chapter214/Section3B https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter93h https://malegislature.gov/Laws/GeneralLaws/PartI/TitleX/Chapter66A https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter93H https://malegislature.gov/Laws/GeneralLaws/PartI/TitleX/Chapter66A determine the scope of the unauthorized use; and (c) provide full cooperation and access to information necessary for the contracting Department and the Contractor to fulfill any notification requirements. Breach of these terms may be regarded as a material breach of this Contract, such that the Commonwealth may exercise any and all contractual rights and remedies, including, without limitation, indemnification under Section 11 of the Commonwealth’s Terms and Conditions, withholding of payments, Contract suspension, or termination. In addition, the Contractor may be subject to applicable statutory or regulatory penalties, including, and without limitation, those imposed pursuant to M.G.L. c. 93H and under M.G.L. c. 214, §

3B for violations under M.G.L c. 66A.

Corporate and Business Filings and Reports. The Contractor certifies compliance with all certification, filing, reporting and service of process requirements of the Secretary of the Commonwealth, the Office of the Attorney General or other

Departments related to its conduct of business in the Commonwealth, and with relevant requirements of its incorporating state (or foreign entity).

Employer Requirements. Contractors that are employers certify compliance with applicable state and federal employment laws or regulations, including but not limited to M.G.L. c. 7, § 22 (Prevailing Wages for Contracts for Meat Products and

Clothing and Apparel); minimum wages and prevailing wage programs and payments; unemployment insurance and contributions; workers’ compensation and insurance, child labor laws, AGO fair labor practices; M.G.L. c. 149 (Labor and

Industries); M.G.L. c. 150A (Labor Relations); M.G.L. c. 151 and 454 CMR 27.00 (Minimum Wage); M.G.L. c. 151A

(Employment and Training); M. G. L. c. 151B (Unlawful Discrimination); M.G.L. c. 151E (Business Discrimination); M.G.L. c.

152 (Workers’ Compensation); M.G.L.

c.153 (Liability for Injuries); 29 USC c. 8 (Federal Fair Labor Standards); 29 USC c. 28 , the Federal Family and Medical

Leave Act and M.G.L. c. 175M (Family and Medical Leave).

Federal And State Laws And Regulations Prohibiting Discrimination. Contractors certify compliance with applicable state and federal anti- discrimination laws, including but not limited to the Federal Equal Employment (EEO) Laws; the Americans with

Disabilities Act; 42 U.S.C § 12101, et seq., the Rehabilitation Act, 29 USC § 794; 29 USC § 701; 29 USC § 623; the 42 USC

c. 45; (Federal Fair Housing Act); M.G. L. c. 151B (Unlawful Discrimination);

M.G.L. c. 151E (Business Discrimination); the Public Accommodations Law

M.G.L. c. 272, § 92A; M.G.L. c. 272, §§ 98 and 98A, Massachusetts Constitution Article CXIV and M.G.L. c. 93, § 103; 47 USC §

255 (Telecommunication Act; M.G.L. c. 149, § 105D, M.G.L. c. 151C, M.G.L. c. 272 §§ 92A, 98 and 98A, and

M.G.L. c. 111, § 199A, and Massachusetts Disability-Based Non-Discrimination Standards For Executive Branch Entities, and related Standards and Guidance, authorized under Massachusetts Executive Order or any disability-based protection arising from state or federal law or precedent. See also MCAD and MCAD links and resources.

Small Business Purchasing Program (SBPP). A Contractor may be eligible to participate in the SBPP, created pursuant to

Executive Order 523, if qualified through the SBPP COMMBUYS subscription process at: www.commbuys.com and with acceptance of the terms of the SBPP participation agreement.

Limitation of Liability. Contracts may not use the following limitation of liability language unless approved by legal staff at the Office of the Comptroller or Operational Services Division. The term “other damages” in Section 11 of the Commonwealth

Terms and Conditions, “Indemnification,” shall include, but shall not be limited to, the reasonable costs the Commonwealth incurs to repair, return, replace or seek cover (purchase comparable substitute commodities and services) under a Contract. “Other damages” shall not include damages to the Commonwealth as a result of third party claims, provided, that this in no way limits the Commonwealth’s right of recovery for personal injury or property damages or patent and copyright infringement under Section 11 or the Commonwealth’s ability to join the contractor as a third party defendant. Further, the term

“other damages”…