HomeMy WebLinkAbout06/07/2022 06.H. Resolution to accept agreement with the Bureau of Reclamation to remove the existing fish ladder at Nelson Dam Y�'1114'+
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 6.H.
For Meeting of: June 7, 2022
ITEM TITLE: Resolution to accept agreement with the Bureau of Reclamation to
remove the existing fish ladder at Nelson Dam
SUBMITTED BY: Scott Schafer, Director of Pubic Works
David Brown,Assistant Director of Public Works, 509-575-6204
SUMMARY EXPLANATION:
Part of the Nelson Dam Removal: Water Supply, Riverine Process and Fish Passage
Improvements is for the existing fish passage ladder to be removed. In 1985 the Bureau of
Reclamation (BOR)originally installed this ladder. A roughened channel is being constructed and
will provide improved fish passage.
BOR has awarded the City$490,000 in Agreement R22AP00282 to cover the cost of removing
the existing fish passage ladder that has become unnecessary due to the proposed
improvements to Nelson Dam.
ITEM BUDGETED: Yes
STRATEGIC PRIORITY: Partnership Development
APPROVED FOR SUBMITTAL BY THE CITY MANAGER
RECOMMENDATION:
Adopt Resolution
ATTACHMENTS:
Description Upload Date Type
D rcesolution 6/16/2022 Resolution
0 Agreement 5/16/2022 Contract
2
RESOLUTION NO. R-2022-
A RESOLUTION authorizing acceptance of an Agreement with the Bureau of Reclamation
for $490,000 pay expenses related to the fish ladder removal as part of
the Nelson Dam Removal: Water Supply, Riverine Process and Fish
Passage Improvements, Project IC2010.
WHEREAS, funding has been provided the Bureau of Reclamation to remove the fish
ladder at Nelson Dam, and
WHEREAS, the City of Yakima owns the Nelson Dam at West Powerhouse Road and
South Naches Road in accord with applicable Federal, State and Local regulations, and
WHEREAS, the City of Yakima operates and maintains the Nelson Dam and the
irrigation delivery system in accord with applicable Federal, State and Local regulations;
and
WHEREAS, the City is interested in an environmentally beneficial project for improving
the efficiency of water use for irrigation and improve fish passage, and
WHEREAS, Bureau of Reclamation provided the City of Yakima $490,000 to remove the
Fish Ladder at Nelson dam and replace it with a roughened channel for improved fish passage,
a copy of the Agreement R22AP00282 is attached hereto and incorporated herein by this
reference; and
WHEREAS, the City Council finds and determines that acceptance such
Agreement is in the best interests of residents of the City of Yakima and will promote the
general health, safety and welfare; now, therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Council Accepts the Agreement and authorizes the City Manager to
administer such Agreement with Bureau of Reclamation, to execute and administer all
applicable documents and agreements pursuant to such the agreement with the Bureau of
Reclamation.
ADOPTED BY THE CITY COUNCIL this 7'h day of June, 2022.
ATTEST: Janice Deccio, Mayor
Sonya Claar Tee, City Clerk
1.DATE ISSUED MMIDDIYYYY Ia.SUPERSEDES AWARD NOTICE dated 3
except that any additions or restrictions previously imposed NOTICE OF AWARD
05/11/2022 remain in effect unless specifically rescinded
2.CFDANO. tT
Op
ik,
15.517-Fish and Wildlife Coordination Act 010
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......._-_,77/7_____......._
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3.ASSISTANCE TYPE Project Grant (I) :,:/,'11";;S;,:''',',',,,,',„/',,,,, /ifr �N'4c;',.\\,,,. �5
'';',,,,,,,.,:,, x
4.GRANT NO.R22AP00282-00 5. TYPE OF AWARD i`!
Originating MCA# Other �,iiii,„,
0
4a.FAIN R22AP00282 5a.ACTION TYPE New4$4 ' �`�
6. PROJECT PERIOD MMIDDIYYYY MMIDDIYYYY R �A$�
From 04/15/2022 Through 04/30/2023 AUTHORIZATION(Legislation/Regulations)
7. BUDGET PERIOD MMIDDIYYYY MMIDDIYYYY Fish and Wildlife Coordination Act of 1934, Public Law 85-624,as
From 04/15/2022 Through 04/30/2023 amended;as limited and delegated by the Secretary of the Interior
8.TITLE OF PROJECT(OR PROGRAM)
Nelson Dam Fish Ladder Removal
9a.GRANTEE NAME AND ADDRESS 9b.GRANTEE PROJECT DIRECTOR
David Brown
YAKIMA,CITY OF
129 N.2nd Street
129 N 2nd St
Yakima,WA,98901-2613 Yakima,WA,98901-2613
Phone:(509)575-6204
10a.GRANTEE AUTHORIZING OFFICIAL 10b.FEDERAL PROJECT OFFICER
David Brown Ms.Michele J Mcginnis
129 N.2nd Street 1150 N Curtis RD
Yakima,WA,98901-2613 Boise,ID,83704-1234
Phone:(509)575-6204 Phone:208-378-5038
ALL AMOUNTS ARE SHOWN IN USD
11.APPROVED BUDGET(Excludes Direct Assistance) 12.AWARD COMPUTATION
I Financial Assistance from the Federal Awarding Agency Only a.Amount of Federal Financial Assistance(from item 11m) $ 490,000.00
II Total project costs including grant funds and all other financial participation ii b.Less Unobligated Balance From Prior Budget Periods $ 0.00
a. Salaries and c.Less Cumulative Prior Award(s)This Budget Period $ 0.00
d.AMOUNT OF FINANCIAL ASSISTANCE THIS ACTION $ 490,000.00
b. Fringe Benefits..... ....................................$ 0.00
13.Total Federal Funds Awarded to Date for Project Period $ 490,000.00
c. Total P $ 0.00 14.RECOMMENDED FUTURE SUPPORT
d. Equipment...................................................$
0.00 (Subject to the availability of funds and satisfactory progress of the project):
e. Supplies... .................................$ 0.00 YEAR TOTAL DIRECT COSTS YEAR TOTAL DIRECT COSTS
a. 2 $ d. 5 $
f. Travel.. .................................$................................. 0.00 b. 3 $ e. 6 $
g. Construction .................................$ 0.00 c. 4 $ f. 7 $
h. Other .................................$ 21,634,907.0O 15.PROGRAM INCOME SHALL BE USED IN ACCORD WITH ONE OF THE FOLLOWING
ALTERNATIVES:
i. Contractual •••••••••••••••••••••••••••••••••$ 0.00 a. DEDUCTION
b. ADDITIONAL COSTS
c. MATCHING
j. TOTAL DIRECT COSTS 21,634,907.00 d. OTHER RESEARCH(Add/Deduct Option)
e. OTHER(See REMARKS)
k. INDIRECT COSTS $ 0.00
16.THIS AWARD IS BASED ON AN APPLICATION SUBMITTED TO,AND AS APPROVED BY,THE FEDERAL AWARDING AGENCY
ON THE ABOVE TITLED PROJECT AND IS SUBJECT TO THE TERMS AND CONDITIONS INCORPORATED EITHER DIRECTLY
I. TOTAL APPROVED BUDGET $ 21,634,907.00 OR BY REFERENCE IN THE FOLLOWING:
a. The grant program legislation
b. The grant program regulations.
c. This award notice including terms and conditions,if any,noted below under REMARKS.
m• Federal Share $ 490,000.00 d. Federal administrative requirements,cost principles and audit requirements applicable to this grant.
In the event there are conflicting or otherwise inconsistent policies applicable to the grant,the above order of precedence shall
n. Non-Federal Share $ 21,144,907.00 prevail.Acceptance of the grant terms and conditions is acknowledged by the grantee when funds are drawn or otherwise
obtained from the grant payment system.
REMARKS (Other Terms and Conditions Attached- • Yes O No)
See next page
GRANTS MANAGEMENT OFFICIAL:
Michele J Mcginnis,Grants Management Specialist
1150 N Curtis RD
Boise,ID,83704-1234
Phone:208-378-5038
17. VENDOR CODE 0071340010 18a.UEI FJNNXIXFJ9K3 18b.DUNS 19. CONG.DIST. 04
LINE# FINANCIAL ACCT AMT OF FIN ASST START DATE END DATE TAS ACCT PO LINE DESCRIPTION
1 0051019296-00010 $490,000.00 04/15/2022 04/30/2023 0680 FA Nelson Dam
4
PAGE 2of2 DATE ISSUED
NOTICE OF AWARD (Continuation Sheet) 05/11/2022
GRANT NO. R22AP00282-00
REMARKS:
Recipients are NOT required to sign the Notice of Award or any other award document or amendment.Recipients indicate their acceptance of an award or
amendment to an existing award,including award terms and conditions,by starting work,drawing down funds,or accepting the award or amendment via electronic
means.Recipient acceptance of an award/amendment carries with it the responsibility to be aware of and comply with all terms and conditions applicable to the
award.Recipients are responsible for ensuring that their subrecipients and contractors are aware of and comply with applicable award statutes,regulations,and
terms and conditions.Recipient failure to comply with award terms and conditions can result in Reclamation taking one or more of the remedies and actions
described in 2 CFR 200.339343.
2
5
AWARD ATTACHMENTS
YAKIMA, CITY OF R22AP00282-00
1. Award
6
Page 1 of 48
UNITED STATES DEPARTMENT OF THE INTERIOR
ASSISTANCE AGREEMENT
R22AP00282
Between
Bureau of Reclamation
And
City of Yakima
For
Nelson Dam Fish Ladder Removal
ward of this Assistance Agreement in accordance with the terms and conditions contained herein is hereby made
on behalf of the United States of America,Department of the Interior,Bureau of Reclamation.
ICY: Digitally signed by JENNIFER
CARRINGTON
Date:2022.05.11 09:45:40-06'00'
MATE:
Jennifer Carrington
Regional Director
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TABLE OF CONTENTS
I. OVERVIEW AND SCHEDULE 4
1. AUTHORITY 4
2. PUBLIC PURPOSE OF SUPPORT OR STIMULATION 5
3. BACKGROUND AND OBJECTIVES 5
4. PERIOD OF PERFORMANCE AND FUNDS AVAILABILITY 6
5. SCOPE OF WORK AND MILESTONES 6
6. RESPONSIBILITY OF THE PARTIES 6
7. BUDGET 7
8. KEY PERSONNEL 9
9. LIMITATION OF AUTHORITIES 9
10. REPORTING REQUIREMENTS AND DISTRIBUTION 10
11. REGULATORY COMPLIANCE 13
II. RECLAMATION STANDARD TERMS AND CONDITIONS 14
1. REGULATIONS 14
2. PAYMENT 14
3. PROCUREMENT STANDARDS (2 CFR 200.317 through 200.327) 18
4. EQUIPMENT (2 CFR 200.313) 29
5. SUPPLIES (2 CFR 200.314) 31
6. INSPECTION 31
7. AUDIT REQUIREMENTS (2 CFR 200.501) 31
8. REMEDIES FOR NONCOMPLIANCE (2 CFR 200.339) 33
9. TERMINATION (2 CFR 200.340) 33
10. DEBARMENT AND SUSPENSION (2 CFR 1400) 34
11. DRUG-FREE WORKPLACE (2 CFR 182 and 1401) 34
12. ASSURANCES AND CERTIFICATIONS INCORPORATED BY REFERENCE 34
13. COVENANT AGAINST CONTINGENT FEES 35
14. TRAFFICKING VICTIMS PROTECTION ACT OF 2000 (2 CFR 175.15) 35
15. NEW RESTRICTIONS ON LOBBYING(43 CFR 18) 37
16. UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION
POLICIES ACT OF 1970 (URA) (42 USC 4601 et seq.) 37
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17. SYSTEM FOR AWARD MANAGEMENT and Universal Identifier Requirements (2
CFR 25, Appendix A) 38
18. PROHIBITION ON TEXT MESSAGING AND USING ELECTRONIC EQUIPMENT
SUPPLIED BY THE GOVERNMENT WHILE DRIVING 39
19. REPORTING SUBAWARDS AND EXECUTIVE COMPENSATION (2 CFR 170
APPENDIX A) 40
20. RECIPIENT EMPLOYEE WHISTLEBLOWER RIGHTS AND REQUIREMENT TO
INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS (SEP 2013) 42
21. REPORTING OF MATTERS RELATED TO RECIPIENT INTEGRITY AND
PERFORMANCE (APPENDIX XII to 2 CFR Part 200) 43
22. CONFLICTS OF INTEREST 45
23. DATA AVAILABILITY 46
24. PROHIBITION ON PROVIDING FUNDS TO THE ENEMY 46
25. ADDITIONAL ACCESS TO RECIPIENT RECORDS 47
26. PROHIBITION ON CERTAIN TELECOMMUNICATION AND VIDEO
SURVEILLANCE SERVICES OR EQUIPMENT 47
III. DEPARTMENT OF THE INTERIOR STANDARD AWARD TERMS AND
CONDITIONS 48
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Financial Assistance Agreement
Between
Bureau of Reclamation
And
City of Yakima
For
Nelson Dam Fish Ladder Removal
I. OVERVIEW AND SCHEDULE
1. AUTHORITY
This Financial Assistance Agreement(Agreement) is entered into between the United States of
America, acting through the Department of the Interior, Bureau of Reclamation (Reclamation)
and City of Yakima(Recipient), pursuant to Pub. L. 85-624 Fish and Wildlife Coordination Act
Section 7(a) (16 U.S.C. 742f(a)). The following section, provided in full text, authorizes
Reclamation to award this Agreement:
Pub. L. 85-624 Fish and Wildlife Coordination Act
FWCA Section 7(a) (16 U.S.C. 742f(a))provides broad authority to the Secretary of the Interior
to manage and protect fish and wildlife. It states:
(a)Policies, procedures, and recommendations: The Secretary of the Interior, with such advice
and assistance as he may require from the Assistant Secretary for Fish and Wildlife, shall
consider and determine the policies and procedures that are necessary and desirable in carrying
out efficiently and in the public interest the laws relating to fish and wildlife. The Secretary, with
the assistance of the departmental staff herein authorized, shall
(1) develop and recommend measures which are appropriate to assure the maximum sustainable
production of fish and fishery products and to prevent unnecessary and excessive fluctuations in
such production;
(4)take such steps as may be required for the development, advancement, management,
conservation, and protection of fish and wildlife resources including, but not limited to, research,
development of existing facilities, and acquisition by purchase or exchange of land and water, or
interests therein.
Delegations of Authority: The Bureau of Reclamation (Reclamation) likewise has a broad
delegation of authority pursuant to the Departmental Manual (255 DM 1)for FWCA. The DM
delegates to the Commissioner the authority to:
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A. Manage, develop, and protect water and related resources, and to design, construct, operate,
maintain, and replace water resources development projects and manage the associated lands, as
authorized by the Reclamation Act of 1902, June 17, 1902 (ch. 1093; 32 Stat. 388), and all acts
amendatory thereof and supplementary thereto; by the Small Reclamation Projects Act of August
6, 1956 (Pub. L. 84-984; 70 Stat. 1044); by the Water Conservation and Utilization Act of
August 11, 1939 (Pub. L. 76-398; 53 Stat. 1418); and by any acts which direct the Secretary to
act by and through the Commissioner or the Bureau of Reclamation(255 DM 1.1 A.).
B. Take the following actions, either directly or by providing financial assistance to non-Federal
parties, pursuant to the Conservation of Wild Life, Fish and Game Act of March 10, 1934 (Pub.
L. 73-121; 48 Stat. 401) as amended by the Fish and Wildlife Coordination Act of August 14,
1946 (Pub. L. 85-624; 72 Stat. 563; 16 U.S.C. 661-666c); Section 5 of the Endangered Species
Act of 1973, December 28, 1973 (Pub. L. 93-205; 87 Stat. 884; 16 U.S.C. 1534); and Section
7(a) of the Fish and Wildlife Coordination Act of 1956, August 8, 1956 (70 Stat. 1122; 16 U.S.C.
742f(a)), regarding the construction and/or continued operation and maintenance of any Federal
reclamation project:
(1)plan, design, and construct, including acquiring lands or interest therein as needed for:
(a)fish passage and screening facilities at any non-Federal water diversion or storage project; or
(b)projects to create or improve instream habitat.
(2) acquire or lease water or water rights from willing sellers or lessors; or
(3)monitor and evaluate the effect of Reclamation actions on Endangered Species Act-listed
species.
2. PUBLIC PURPOSE OF SUPPORT OR STIMULATION
The project is a multi-stakeholder project that will support the City of Yakima Nelson Dam
Removal Project to naturalize the river morphology, improve flood plains, secure water
deliveries, improve efficiency, and improve fish passage on the Naches River in the Yakima
River Basin.
3. BACKGROUND AND OBJECTIVES
The City of Yakima(City) has developed final designs and construction documents for the
Nelson Dam Removal Project(Project) located on the Naches River approximately 4 miles
upstream of its confluence with the Yakima River in Yakima, Washington. The Project has
started construction in the fall of 2021. The Project includes removal of Nelson Dam (a low-
head concrete weir known as an impediment to fish passage) and construction of several new
Project elements intended to provide a more effective natural fish passage route, improve
conveyance of low-frequency flood flow events through the Project reach, improve sediment
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continuity, and provide more reliable surface water delivery systems for four existing water
purveyors: Naches-Cowiche Canal Association, the City, Fruitvale, and Old Union.
4. PERIOD OF PERFORMANCE AND FUNDS AVAILABILITY
This Agreement becomes effective on the date shown in block 1 of the United States of America,
Department of the Interior, Notice of Award (NOA). The Agreement shall remain in effect
through the date shown in block 6 of the NOA. The project period for this Agreement may only
be changed through written amendment of the Agreement by a Reclamation Grants Officer
(GO).
No legal liability on the part of the Government for any payment may arise until funds are made
available, in writing, to the Recipient by a Reclamation GO. The total estimated project cost for
this Agreement is $21,634,907.00 and the total estimated amount of federal funding is
$490,000.00. The initial amount of federal funds available is limited to $490,000.00 as indicated
by "Amount of Financial Assistance This Action"within block 12 of the NOA. Subject to the
availability of Congressional appropriations, subsequent funds will be made available for
payment through written amendments to this Agreement by a Reclamation GO.
5. SCOPE OF WORK AND MILESTONES
Under this Agreement, the Recipient shall remove Nelson Dam (a low-head concrete weir known
as an impediment to fish passage) and construction of several new project elements intended to
provide a more effective natural fish passage route, improve conveyance of low-frequency flood
flow events through the project reach, improve sediment continuity, and provide more reliable
surface water delivery systems for four existing water purveyors: Naches-Cowiche Canal
Association, the City, Fruitvale, and Old Union.
The milestones* for completing the Project are:
Milestone/Task/Activity Planned Start Date Planned Completion Date
Demolition-Fish Return Pipe 4/15/2022 5/15/2022
Demolition-Fish Ladder 7/1/2022 7/31/2022
Demolition-North Abutment 4/30/2022 8/30/2022
Soil Work 9/1/2022 9/30/2022
6. RESPONSIBILITY OF THE PARTIES
6.1 Recipient Responsibilities
6.1.1 The Recipient shall carry out the Scope of Work(SOW) in accordance with the terms and
conditions stated herein. The Recipient shall adhere to Federal, state, and local laws, regulations,
and codes, as applicable, and shall obtain all required approvals and permits. If the SOW
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contains construction activities,the Recipient is responsible for construction inspection,
oversight, and acceptance. If applicable,the Recipient shall also coordinate and obtain approvals
from site owners and operators.
6.2 Reclamation Responsibilities
6.2.1 Reclamation will monitor and provide Federal oversight of activities performed under this
Agreement. Monitoring and oversight includes review and approval of financial status and
performance reports, payment requests, and any other deliverables identified as part of the SOW.
Additional monitoring activities may include site visits, conference calls, and other on-site and
off-site monitoring activities. At the Recipient's request, Reclamation may also provide
technical assistance to the Recipient in support of the SOW and objectives of this Agreement.
7. BUDGET
7.1 Budget Estimate. The following is the estimated budget for this Agreement. As Federal
financial assistance agreements are cost-reimbursable, the budget provided is for estimation
purposes only. Final costs incurred under the budget categories listed may be either higher or
lower than the estimated costs. All costs incurred by the Recipient under this Agreement must
be in accordance with any pre-award clarifications conducted between the Recipient and
Reclamation, as well as with the terms and conditions of this Agreement. Final determination of
the allowability, allocability, or reasonableness of costs incurred under this Agreement is the
responsibility of the GO. Recipients are encouraged to direct any questions regarding
allowability, allocability or reasonableness of costs to the GO for review prior to incurrence of
the costs in question.
Budget Item Description Total Cost
Salaries and Wages $0.00
Fringe Benefits $0.00
Travel $0.00
Equipment $0.00
Supplies and Materials $0.00
Contractual/Consultant/Construction $21,634,907.00
Other $0.00
TOTAL DIRECT COSTS $21,634,907.00
Indirect Costs $0.00
TOTAL ESTIMATED PROJECT COSTS $21,634,907.00
RECLAMATION SHARE $490,000.00
RECIPIENT SHARE $21,144,907.00
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7.2 Cost Sharing Requirement
Non-Federal cost-share is not required for this Agreement.
7.3 Pre-Award Incurrence of Costs
The Recipient is not authorized to incur costs prior to the award of this Agreement. Costs
incurred prior to the award of this Agreement are not allowable.
7.4 Allowable Costs
Costs incurred for the performance of this Agreement must be allowable, allocable to the project,
and reasonable. The following regulations, codified within the Code of Federal Regulations
(CFR), governs the allowability of costs for Federal financial assistance:
2 CFR 200 Subpart E, "Cost Principles"
Expenditures for the performance of this Agreement must conform to the requirements within
this CFR. The Recipient must maintain sufficient documentation to support these expenditures.
Questions on the allowability of costs should be directed to the GO responsible for this
Agreement.
The Recipient shall not incur costs or obligate funds for any purpose pertaining to operation of
the program or activities beyond the expiration date stated in the Agreement. The only costs
which are authorized for a period of up to 120 days following the project period are those strictly
associated with closeout activities for preparation of the final reports.
7.5 Revision of Budget and Program Plans
In accordance with 2 CFR 200.308(h)the recipient must request prior written approval for any of
the following changes:
(a) A change in the approved scope of work or associated tasks, even if there is no associated
budget revisions.
(b) Revisions which require additional Federal funds to complete the project.
(c) Revisions which involve specific costs for which prior written approval requirements
may be imposed consistent with OMB cost principles listed in 2 CFR 200 Subpart E
"Cost Principles".
7.6 Amendments
Any changes to this Agreement shall be made by means of a written amendment. Reclamation
may make changes to the Agreement by means of a unilateral amendment to address changes in
address, no-cost time extensions, changes to Key Personnel, the addition of previously agreed
upon funding, or administrative corrections which do not impact the terms and conditions of this
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agreement. Additionally, a unilateral amendment may be utilized by Reclamation if it should
become necessary to suspend or terminate the Agreement in accordance with 2 CFR 200.340.
All other changes shall be made by means of a bilateral amendment to the Agreement. No oral
statement made by any person, or written statement by any person other than the GO, shall be
allowed in any manner or degree to amend, modify or otherwise effect the terms of the
Agreement.
All requests for amendment of the Agreement shall be made in writing, provide a full description
of the reason for the request, and be sent to the attention of the GO. Any request for project
period extension shall be made at least 45 days prior to the end of the project period of the
Agreement or the project period date of any extension that may have been previously granted.
Any determination to extend the project period or to provide follow-on funding for continuation
of a project is solely at the discretion of Reclamation.
8. KEY PERSONNEL
8.1 Recipient's Key Personnel.
The Recipient's Project Manager for this Agreement shall be:
David Brown
Assistant Director of Public Works
2301 Fruitvale Blvd.
Yakima, WA 98902-1298
(509) 575-6204
david.brown@yakimawa.gov
9. LIMITATION OF AUTHORITIES
9.1 Grants Officer (GO).
The Reclamation GO is the only official with legal delegated authority to represent Reclamation.
The Reclamation GO's responsibilities include, but are not limited to, the following:
(a) Formally obligate Reclamation to expend funds or change the funding level of the
Agreement;
(b) Approve through formal amendment changes in the scope of work and/or budget;
(c) Approve through formal amendment any increase or decrease in the period of
performance of the Agreement;
(d) Approve through formal amendment changes in any of the expressed terms, conditions,
or specifications of the Agreement;
(e) Be responsible for the overall administration, management, and other non-programmatic
aspects of the Agreement including, but not limited to, interpretation of financial
assistance statutes, regulations, circulars, policies, and terms of the Agreement;
Where applicable, ensures that Reclamation complies with the administrative
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requirements required by statutes, regulations, circulars, policies, and terms of the
Agreement.
9.2 Grants Management Specialist(GMS).
The Reclamation Grants Management Specialist(GMS) is the primary administrative point of
contact for this agreement and should be contacted regarding issues related to the day-to-day
management of the agreement. Requests for approval regarding the terms and conditions of the
agreement, including but not limited to amendments and prior approval, may only be granted, in
writing, by a Reclamation GO. Please note that for some agreements,the Reclamation GO and
the Reclamation GMS may be the same individual.
10. REPORTING REQUIREMENTS AND DISTRIBUTION
10.1 Noncompliance. Failure to comply with the reporting requirements contained in this
Agreement may be considered a material noncompliance with the terms and conditions of the
award. Noncompliance may result in withholding of payments pending receipt of required
reports, denying both the use of funds and matching credit for all or part of the cost of the
activity or action not in compliance, whole or partial suspension or termination of the
Agreement, recovery of funds paid under the Agreement, withholding of future awards, or other
legal remedies in accordance with 2 CFR 200.340.
10.2 Financial Reports. Federal Financial Reports shall be submitted by means of the SF-425
and shall be submitted according to the Report Frequency and Distribution schedule below. All
financial reports shall be signed by an Authorized Certifying Official for the Recipient's
organization.
10.3 Monitoring and Reporting Program Performance.
(a) Monitoring by the non-Federal entity. The non-Federal entity is responsible for oversight
of the operations of the Federal award supported activities. The non-Federal entity must
monitor its activities under Federal awards to assure compliance with applicable Federal
requirements and performance expectations are being achieved. Monitoring by the non-
Federal entity must cover each program, function or activity. See also 2 CFR 200.332
Requirements for pass-through entities.
(b)Non-construction performance reports. The Federal awarding agency must use standard,
OMB-approved data elements for collection of performance information (including
performance progress reports, Research Performance Progress Report, or such future
collections as may be approved by OMB and listed on the OMB Web site).
(1) The non-Federal entity must submit performance reports at the interval required by
the Federal awarding agency or pass-through entity to best inform improvements in
program outcomes and productivity. Intervals must be no less frequent than annually
nor more frequent than quarterly except in unusual circumstances, for example where
more frequent reporting is necessary for the effective monitoring of the Federal award
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or could significantly affect program outcomes. Annual reports must be due 90
calendar days after the reporting period; quarterly or semiannual reports must be due
30 calendar days after the reporting period. Alternatively, the Federal awarding
agency or pass-through entity may require annual reports before the anniversary dates
of multiple year Federal awards. The final performance report will be due 120
calendar days after the period of performance end date. If a justified request is
submitted by a non-Federal entity, the Federal agency may extend the due date for
any performance report.
(2) The non-Federal entity must submit performance reports using OMB-approved
governmentwide standard information collections when providing performance
information. As appropriate in accordance with above mentioned information
collections, these reports will contain, for each Federal award, brief information on
the following unless other collections are approved by OMB:
(i) A comparison of actual accomplishments to the objectives of the Federal award
established for the period. Where the accomplishments of the Federal award can
be quantified, a computation of the cost(for example, related to units of
accomplishment) may be required if that information will be useful. Where
performance trend data and analysis would be informative to the Federal
awarding agency program, the Federal awarding agency should include this as a
performance reporting requirement.
(ii) The reasons why established goals were not met, if appropriate.
(iii) Additional pertinent information including, when appropriate, analysis and
explanation of cost overruns or high unit costs.
(c) Construction performance reports. For the most part, onsite technical inspections and
certified percentage of completion data are relied on heavily by Federal awarding
agencies and pass-through entities to monitor progress under Federal awards and
subawards for construction. The Federal awarding agency may require additional
performance reports only when considered necessary.
(d) Significant developments. Events may occur between the scheduled performance
reporting dates that have significant impact upon the supported activity. In such cases, the
non-Federal entity must inform the Federal awarding agency or pass-through entity as
soon as the following types of conditions become known:
(1)Problems, delays, or adverse conditions which will materially impair the ability to
meet the objective of the Federal award. This disclosure must include a statement of
the action taken, or contemplated, and any assistance needed to resolve the situation.
(2) Favorable developments which enable meeting time schedules and objectives sooner
or at less cost than anticipated or producing more or different beneficial results than
originally planned.
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Reclamation requires Performance reporting for all financial assistance awards, both
Construction and non-Construction. Performance reports for Construction agreements shall meet
the same minimum requirements outlined in paragraph (b)(2) above.
10.4 Report Frequency and Distribution. The following table sets forth the reporting
requirements for this Agreement. Please note the first report due date listed for each type of
report.
Required Reports Interim Reports Final Report
Performance Report
Format No specific format required. See content Summary of activities completed
requirements within Section 10.3 and any during the entire period of
program specific reporting requirements performance is required. See
identified in Section 6.1 of this content requirements within Section
Agreement. 10.3 and any program specific
reporting requirements identified in
Section 6.1 of this Agreement.
Reporting Annual Final Report due within 120 days
Frequency after the end of the period of
performance.
Reporting Period The Federal Fiscal Year, October 1 Entire period of performance
through September 30.
Due Date Within 90 days after the end of the Final Report due within 120 days
Reporting Period. after the end of the period of
performance or completion of the
project.
First Report Due The first performance report is due for N/A
Date reporting period ending 9/30/2022.
Submit to: Michele McGinnis Grants Management Michele McGinnis Grants
Specialist at centralized bor-pnr- Management Specialist at
postaward@usbr.gov for reporting. centralized bor-pnr-
or postaward cgi,usbr.gov for reporting.
GrantSolutions. or
GrantSolutions.
Federal Financial Report
Format SF-425 (all sections must be completed) SF-425(all sections must be
completed)
Reporting Annual Final Report due within 120 days
Frequency after the end of the period of
performance or completion of the
project.
Reporting Period The Federal Fiscal Year, October 1 Entire period of performance
through September 30.
Due Date Within 90 days after the end of the Final Report due within 120 days
Reporting Period. after the end of the period of
performance or completion of
project.
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First Report Due The first performance report is due for N/A
Date reporting period ending 9/30/2022.
Submit to: Michele McGinnis Grants Management Michele McGinnis Grants
Specialist at centralized bor-pnr- Management Specialist at
postaward(cusbr.gov for reporting. centralized bor-pnr-
or postaward cgi,usbr.gov for reporting.
GrantSolutions. or
GrantSolutions.
11. REGULATORY COMPLIANCE
The Recipient agrees to comply or assist Reclamation with all regulatory compliance
requirements and all applicable state, Federal, and local environmental and cultural and
paleontological resource protection laws and regulations as applicable to this project. These may
include, but are not limited to, the National Environmental Policy Act(NEPA), including the
Council on Environmental Quality and Department of the Interior regulations implementing
NEPA,the Clean Water Act,the Endangered Species Act, consultation with potentially affected
Tribes, and consultation with the State Historic Preservation Office. If the Recipient begins
project activities that require environmental or other regulatory compliance approval prior to
receipt of written notice from a Reclamation GO that all such clearances have been obtained,
then Reclamation reserves the right to initiate remedies for non-compliance as defined by 2 CFR
200.340 up to and including unilateral termination of this agreement.
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II. RECLAMATION STANDARD TERMS AND CONDITIONS
1. REGULATIONS
The regulations at 2 CFR Subtitle A, Chapter II, Part 200 "Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal Awards", are hereby
incorporated by reference as though set forth in full text. Failure of a Recipient to comply with
any applicable regulation or circular may be the basis for withholding payments for proper
charges made by the Recipient and/or for termination of support.
2. PAYMENT
2.1 Payment (2 CFR 200.305).
(a) For states, payments are governed by Treasury-State Cash Management Improvement Act
(CMIA) agreements and default procedures codified at 31 CFR part 205 and Treasury Financial
Manual (TFM) 4A-2000, "Overall Disbursing Rules for All Federal Agencies".
(b) For non-Federal entities other than states, payments methods must minimize the time
elapsing between the transfer of funds from the United States Treasury or the pass-through entity
and the disbursement by the non-Federal entity whether the payment is made by electronic funds
transfer, or issuance or redemption of checks,warrants, or payment by other means. See also
§200.302(b)(6). Except as noted elsewhere in this part, Federal agencies must require recipients
to use only OMB-approved, governmentwide information collection requests to request payment.
(1) The non-Federal entity must be paid in advance, provided it maintains or demonstrates
the willingness to maintain both written procedures that minimize the time elapsing
between the transfer of funds and disbursement by the non-Federal entity, and financial
management systems that meet the standards for fund control and accountability as
established in this part. Advance payments to a non-Federal entity must be limited to the
minimum amounts needed and be timed to be in accordance with the actual, immediate
cash requirements of the non-Federal entity in carrying out the purpose of the approved
program or project. The timing and amount of advance payments must be as close as is
administratively feasible to the actual disbursements by the non-Federal entity for direct
program or project costs and the proportionate share of any allowable indirect costs. The
non-Federal entity must make timely payment to contractors in accordance with the
contract provisions.
(2) Whenever possible, advance payments must be consolidated to cover anticipated cash
needs for all Federal awards made by the Federal awarding agency to the recipient.
(i) Advance payment mechanisms include, but are not limited to, Treasury check and
electronic funds transfer and must comply with applicable guidance in 31 CFR part
208.
(ii) Non-Federal entities must be authorized to submit requests for advance payments
and reimbursements at least monthly when electronic fund transfers are not used,
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and as often as they like when electronic transfers are used, in accordance with the
provisions of the Electronic Fund Transfer Act(15 U.S.C. 1693-1693r).
(3) Reimbursement is the preferred method when the requirements in this paragraph (b)
cannot be met, when the Federal awarding agency sets a specific condition per §200.208,
or when the non-Federal entity requests payment by reimbursement. This method may be
used on any Federal award for construction, or if the major portion of the construction
project is accomplished through private market financing or Federal loans, and the
Federal award constitutes a minor portion of the project. When the reimbursement
method is used, the Federal awarding agency or pass-through entity must make payment
within 30 calendar days after receipt of the billing, unless the Federal awarding agency or
pass-through entity reasonably believes the request to be improper.
(4) If the non-Federal entity cannot meet the criteria for advance payments and the Federal
awarding agency or pass-through entity has determined that reimbursement is not feasible
because the non-Federal entity lacks sufficient working capital,the Federal awarding
agency or pass-through entity may provide cash on a working capital advance basis.
Under this procedure, the Federal awarding agency or pass-through entity must advance
cash payments to the non-Federal entity to cover its estimated disbursement needs for an
initial period generally geared to the non-Federal entity's disbursing cycle. Thereafter,the
Federal awarding agency or pass-through entity must reimburse the non-Federal entity
for its actual cash disbursements. Use of the working capital advance method of payment
requires that the pass-through entity provide timely advance payments to any
subrecipients in order to meet the subrecipient's actual cash disbursements. The working
capital advance method of payment must not be used by the pass-through entity if the
reason for using this method is the unwillingness or inability of the pass-through entity to
provide timely advance payments to the subrecipient to meet the subrecipient's actual
cash disbursements.
(5) To the extent available, the non-Federal entity must disburse funds available from
program income (including repayments to a revolving fund), rebates, refunds, contract
settlements, audit recoveries, and interest earned on such funds before requesting
additional cash payments.
(6) Unless otherwise required by Federal statutes, payments for allowable costs by non-
Federal entities must not be withheld at any time during the period of performance unless
the conditions of§200.208, subpart D of this part, including §200.339, or one or more of
the following applies:
(i) The non-Federal entity has failed to comply with the project objectives, Federal
statutes, regulations, or the terms and conditions of the Federal award.
(ii) The non-Federal entity is delinquent in a debt to the United States as defined in
OMB Circular A-129, "Policies for Federal Credit Programs and Non-Tax
Receivables."Under such conditions,the Federal awarding agency or pass-
through entity may, upon reasonable notice, inform the non-Federal entity that
payments must not be made for financial obligations incurred after a specified
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date until the conditions are corrected or the indebtedness to the Federal
Government is liquidated.
(iii) A payment withheld for failure to comply with Federal award conditions, but
without suspension of the Federal award, must be released to the non-Federal
entity upon subsequent compliance. When a Federal award is suspended, payment
adjustments will be made in accordance with §200.343.
(iv) A payment must not be made to a non-Federal entity for amounts that are
withheld by the non-Federal entity from payment to contractors to assure
satisfactory completion of work. A payment must be made when the non-Federal
entity actually disburses the withheld funds to the contractors or to escrow
accounts established to assure satisfactory completion of work.
(7) Standards governing the use of banks and other institutions as depositories of advance
payments under Federal awards are as follows.
(i) The Federal awarding agency and pass-through entity must not require separate
depository accounts for funds provided to a non-Federal entity or establish any
eligibility requirements for depositories for funds provided to the non-Federal
entity. However, the non-Federal entity must be able to account for funds
received, obligated, and expended.
(ii) Advance payments of Federal funds must be deposited and maintained in insured
accounts whenever possible.
(8) The non-Federal entity must maintain advance payments of Federal awards in interest-
bearing accounts, unless the following apply:
(i) The non-Federal entity receives less than $250,000 in Federal awards per year.
(ii) The best reasonably available interest-bearing account would not be expected to
earn interest in excess of$500 per year on Federal cash balances.
(iii) The depository would require an average or minimum balance so high that it
would not be feasible within the expected Federal and non-Federal cash resources.
(iv) A foreign government or banking system prohibits or precludes interest-bearing
accounts.
(9) Interest earned amounts up to $500 per year may be retained by the non-Federal entity for
administrative expense. Any additional interest earned on Federal advance payments
deposited in interest-bearing accounts must be remitted annually to the Department of
Health and Human Services Payment Management System (PMS)through an electronic
medium using either Automated Clearing House (ACH)network or a Fedwire Funds
Service payment.
(i) For returning interest on Federal awards paid through PMS, the refund should:
(A) Provide an explanation stating that the refund is for interest;
(B) List the PMS Payee Account Number(s) (PANs);
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(C) List the Federal award number(s)for which the interest was earned; and
(D) Make returns payable to: Department of Health and Human Services.
(ii) For returning interest on Federal awards not paid through PMS, the refund should:
(A) Provide an explanation stating that the refund is for interest;
(B) Include the name of the awarding agency;
(C) List the Federal award number(s)for which the interest was earned; and
(D) Make returns payable to: Department of Health and Human Services.
(10)Funds, principal, and excess cash returns must be directed to the original Federal agency
payment system. The non-Federal entity should review instructions from the original
Federal agency payment system. Returns should include the following information:
(i) Payee Account Number (PAN), if the payment originated from PMS, or Agency
information to indicate whom to credit the funding if the payment originated from
ASAP, NSF, or another Federal agency payment system.
(ii) PMS document number and subaccount(s), if the payment originated from PMS,
or relevant account numbers if the payment originated from another Federal
agency payment system.
(iii) The reason for the return (e.g., excess cash, funds not spent, interest, part interest
part other, etc.)
(11)When returning funds or interest to PMS you must include the following as applicable:
(i) For ACH Returns:
Routing Number: 051036706
Account number: 303000
Bank Name and Location: Credit Gateway ACH Receiver St. Paul, MN
(ii) For Fedwire Returns':
Routing Number: 021030004
Account number: 75010501
Bank Name and Location: Federal Reserve Bank Treas NYC/Funds Transfer
Division New York, NY
'Please note that the organization initiating payment is likely to incur a charge
from their Financial Institution for this type of payment.
(iii) For International ACH Returns:
Beneficiary Account: Federal Reserve Bank of New York/ITS (FRBNY/ITS)
Bank: Citibank N.A. (New York)
Swift Code: CITIUS33
Account Number: 36838868
Bank Address: 388 Greenwich Street, New York, NY 10013 USA
Payment Details (Line 70): Agency Locator Code (ALC): 75010501
Name (abbreviated when possible) and ALC Agency POC
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(iv) For recipients that do not have electronic remittance capability, please make
check2 payable to: "The Department of Health and Human Services."
Mail Check to Treasury approved lockbox:
HHS Program Support Center, P.O. Box 530231, Atlanta, GA 303 53-023 1
2Please allow 4-6 weeks for processing of a payment by check to be applied to the
appropriate PMS account.
(v) Questions can be directed to PMS at 877-614-5533 or PMSSupport@psc.hhs.gov.
2.2 Payment Method.
Recipients must utilize the Department of Treasury Automated Standard Application for
Payments (ASAP) payment system to request advance or reimbursement payments. ASAP is a
Recipient-initiated payment and information system designed to provide a single point of contact
for the request and delivery of Federal funds. ASAP is the only allowable method for request
and receipt of payment. Recipient procedures must minimize the time elapsing between the
drawdown of Federal funds and the disbursement for agreement purposes.
In accordance with 2 CFR 25.200(b)(2)the Recipient shall "Maintain an active SAM registration
with current information, including information on a recipient's immediate and highest level
owner and subsidiaries, as well as on all predecessors that have been awarded a Federal contract
or grant within the last three years, if applicable, at all times during which it has an active
Federal award or an application or plan under consideration by a Federal awarding agency. If
the Recipient allows their SAM registration to lapse, the Recipient's accounts within ASAP will
be automatically suspended by Reclamation until such time as the Recipient renews their SAM
registration.
3. PROCUREMENT STANDARDS (2 CFR 200.317 through 200.327)
§200.317 Procurements by States.
When procuring property and services under a Federal award, a State must follow the same
policies and procedures it uses for procurements from its non-Federal funds. The State will
comply with §§200.321, 200.322, and 200.323 and ensure that every purchase order or other
contract includes any clauses required by §200.327. All other non-Federal entities, including
subrecipients of a State, must follow the procurement standards in §§200.318 through 200.327.
§200.318 General procurement standards.
(a) The non-Federal entity must use its own documented procurement procedures which
reflect applicable State, local, and tribal laws and regulations, provided that the
procurements conform to applicable Federal law and the standards identified in this part.
(b)Non-Federal entities must maintain oversight to ensure that contractors perform in
accordance with the terms, conditions, and specifications of their contracts or purchase
orders.
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(c)
(1) The non-Federal entity must maintain written standards of conduct covering conflicts
of interest and governing the actions of its employees engaged in the selection, award
and administration of contracts. No employee, officer, or agent may participate in the
selection, award, or administration of a contract supported by a Federal award if he or
she has a real or apparent conflict of interest. Such a conflict of interest would arise
when the employee, officer, or agent, any member of his or her immediate family, his
or her partner, or an organization which employs or is about to employ any of the
parties indicated herein, has a financial or other interest in or a tangible personal
benefit from a firm considered for a contract. The officers, employees, and agents of
the non-Federal entity may neither solicit nor accept gratuities, favors, or anything of
monetary value from contractors or parties to subcontracts. However, non-Federal
entities may set standards for situations in which the financial interest is not
substantial or the gift is an unsolicited item of nominal value. The standards of
conduct must provide for disciplinary actions to be applied for violations of such
standards by officers, employees, or agents of the non-Federal entity.
(2) If the non-Federal entity has a parent, affiliate, or subsidiary organization that is not a
state, local government, or Indian tribe, the non-Federal entity must also maintain
written standards of conduct covering organizational conflicts of interest.
Organizational conflicts of interest means that because of relationships with a parent
company, affiliate, or subsidiary organization, the non-Federal entity is unable or
appears to be unable to be impartial in conducting a procurement action involving a
related organization.
(d) The non-Federal entity's procedures must avoid acquisition of unnecessary or duplicative
items. Consideration should be given to consolidating or breaking out procurements to
obtain a more economical purchase. Where appropriate, an analysis will be made of lease
versus purchase alternatives, and any other appropriate analysis to determine the most
economical approach.
(e) To foster greater economy and efficiency, and in accordance with efforts to promote cost-
effective use of shared services across the Federal Government, the non-Federal entity is
encouraged to enter into state and local intergovernmental agreements or inter-entity
agreements where appropriate for procurement or use of common or shared goods and
services.
(f) The non-Federal entity is encouraged to use Federal excess and surplus property in lieu of
purchasing new equipment and property whenever such use is feasible and reduces
project costs.
(g) The non-Federal entity is encouraged to use value engineering clauses in contracts for
construction projects of sufficient size to offer reasonable opportunities for cost
reductions. Value engineering is a systematic and creative analysis of each contract item
or task to ensure that its essential function is provided at the overall lower cost.
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(h) The non-Federal entity must award contracts only to responsible contractors possessing
the ability to perform successfully under the terms and conditions of a proposed
procurement. Consideration will be given to such matters as contractor integrity,
compliance with public policy, record of past performance, and financial and technical
resources. See also 200.212 Suspension and debarment.
(i) The non-Federal entity must maintain records sufficient to detail the history of
procurement. These records will include, but are not necessarily limited to the following:
rationale for the method of procurement, selection of contract type, contractor selection
or rejection, and the basis for the contract price.
d)
(1) The non-Federal entity may use a time and materials type contract only after a
determination that no other contract is suitable and if the contract includes a
ceiling price that the contractor exceeds at its own risk. Time and materials type
contract means a contract whose cost to a non-Federal entity is the sum of:(i) The
actual cost of materials; and
(ii) Direct labor hours charged at fixed hourly rates that reflect wages, general and
administrative expenses, and profit.
(2) Since this formula generates an open-ended contract price, a time-and-materials
contract provides no positive profit incentive to the contractor for cost control or
labor efficiency. Therefore, each contract must set a ceiling price that the contractor
exceeds at its own risk. Further, the non-Federal entity awarding such a contract must
assert a high degree of oversight in order to obtain reasonable assurance that the
contractor is using efficient methods and effective cost controls.
(k) The non-Federal entity alone must be responsible, in accordance with good administrative
practice and sound business judgment, for the settlement of all contractual and
administrative issues arising out of procurements. These issues include, but are not
limited to, source evaluation, protests, disputes, and claims. These standards do not
relieve the non-Federal entity of any contractual responsibilities under its contracts. The
Federal awarding agency will not substitute its judgment for that of the non-Federal
entity unless the matter is primarily a Federal concern. Violations of law will be referred
to the local, state, or Federal authority having proper jurisdiction.
§200.319 Competition.
(a) All procurement transactions for the acquisition of property or services required under a
Federal award must be conducted in a manner providing full and open competition
consistent with the standards of this section and §200.320.
(b) In order to ensure objective contractor performance and eliminate unfair competitive
advantage, contractors that develop or draft specifications, requirements, statements of
work, or invitations for bids or requests for proposals must be excluded from competing
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for such procurements. Some of the situations considered to be restrictive of competition
include but are not limited to:
(1)Placing unreasonable requirements on firms in order for them to qualify to do
business;
(2) Requiring unnecessary experience and excessive bonding;
(3)Noncompetitive pricing practices between firms or between affiliated companies;
(4)Noncompetitive contracts to consultants that are on retainer contracts;
(5) Organizational conflicts of interest;
(6) Specifying only a"brand name"product instead of allowing"an equal"product to be
offered and describing the performance or other relevant requirements of the
procurement; and
(7) Any arbitrary action in the procurement process.
(c) The non-Federal entity must conduct procurements in a manner that prohibits the use of
statutorily or administratively imposed state, local, or tribal geographical preferences in
the evaluation of bids or proposals, except in those cases where applicable Federal
statutes expressly mandate or encourage geographic preference. Nothing in this section
preempts state licensing laws. When contracting for architectural and engineering(A/E)
services, geographic location may be a selection criterion provided its application leaves
an appropriate number of qualified firms, given the nature and size of the project,to
compete for the contract.
(d) The non-Federal entity must have written procedures for procurement transactions. These
procedures must ensure that all solicitations:
(1) Incorporate a clear and accurate description of the technical requirements for the
material, product, or service to be procured. Such description must not, in competitive
procurements, contain features which unduly restrict competition. The description
may include a statement of the qualitative nature of the material, product or service to
be procured and, when necessary, must set forth those minimum essential
characteristics and standards to which it must conform if it is to satisfy its intended
use. Detailed product specifications should be avoided if at all possible. When it is
impractical or uneconomical to make a clear and accurate description of the technical
requirements, a"brand name or equivalent" description may be used as a means to
define the performance or other salient requirements of procurement. The specific
features of the named brand which must be met by offers must be clearly stated; and
(2) Identify all requirements which the offerors must fulfill and all other factors to be
used in evaluating bids or proposals.
(e) The non-Federal entity must ensure that all prequalified lists of persons,firms, or
products which are used in acquiring goods and services are current and include enough
qualified sources to ensure maximum open and free competition. Also,the non-Federal
entity must not preclude potential bidders from qualifying during the solicitation period.
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(f)Noncompetitive procurements can only be awarded in accordance with §200.320(c).
§200.320 Methods of procurement to be followed.
The non-Federal entity must have and use documented procurement procedures, consistent with
the standards of this section and §§200.317, 200.318, and 200.319 for any of the following
methods of procurement used for the acquisition of property or services required under a Federal
award or sub-award.
(a) Informal procurement methods. When the value of the procurement for property or
services under a Federal award does not exceed the simplified acquisition threshold
(SAT), as defined in §200.1, or a lower threshold established by a non-Federal entity,
formal procurement methods are not required. The non-Federal entity may use informal
procurement methods to expedite the completion of its transactions and minimize the
associated administrative burden and cost. The informal methods used for procurement of
property or services at or below the SAT include:
(1) Micro-purchases (i) Distribution. The acquisition of supplies or services, the
aggregate dollar amount of which does not exceed the micro-purchase threshold (See
the definition of micro-purchase in §200.1). To the maximum extent practicable, the
non-Federal entity should distribute micro-purchases equitably among qualified
suppliers.
(ii) Micro-purchase awards. Micro-purchases may be awarded without soliciting
competitive price or rate quotations if the non-Federal entity considers the price to
be reasonable based on research, experience, purchase history or other
information and documents it files accordingly. Purchase cards can be used for
micro-purchases if procedures are documented and approved by the non-Federal
entity.
(iii) Micro-purchase thresholds. The non-Federal entity is responsible for
determining and documenting an appropriate micro-purchase threshold based on
internal controls, an evaluation of risk, and its documented procurement
procedures. The micro-purchase threshold used by the non-Federal entity must
be authorized or not prohibited under State, local, or tribal laws or regulations.
Non-Federal entities may establish a threshold higher than the Federal threshold
established in the Federal Acquisition Regulations (FAR) in accordance with
paragraphs (a)(1)(iv) and (v) of this section.
(iv)Non-Federal entity increase to the micro-purchase threshold up to $50,000. Non-
Federal entities may establish a threshold higher than the micro-purchase
threshold identified in the FAR in accordance with the requirements of this
section. The non-Federal entity may self-certify a threshold up to $50,000 on an
annual basis and must maintain documentation to be made available to the
Federal awarding agency and auditors in accordance with §200.334. The self-
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certification must include a justification, clear identification of the threshold, and
supporting documentation of any of the following:
(A) A qualification as a low-risk auditee, in accordance with the criteria in
§200.520 for the most recent audit;
(B) An annual internal institutional risk assessment to identify, mitigate, and
manage financial risks; or,
(C) For public institutions, a higher threshold consistent with State law.
(v) Non-Federal entity increase to the micro-purchase threshold over $50,000.
Micro-purchase thresholds higher than $50,000 must be approved by the
cognizant agency for indirect costs. The non-federal entity must submit a request
with the requirements included in paragraph (a)(1)(iv) of this section. The
increased threshold is valid until there is a change in status in which the
justification was approved.
(2) Small purchases (i) Small purchase procedures. The acquisition of property or
services, the aggregate dollar amount of which is higher than the micro-purchase
threshold but does not exceed the simplified acquisition threshold. If small purchase
procedures are used, price or rate quotations must be obtained from an adequate
number of qualified sources as determined appropriate by the non-Federal entity.
(ii) Simplified acquisition thresholds. The non-Federal entity is responsible for
determining an appropriate simplified acquisition threshold based on internal
controls, an evaluation of risk and its documented procurement procedures which
must not exceed the threshold established in the FAR. When applicable, a lower
simplified acquisition threshold used by the non-Federal entity must be
authorized or not prohibited under State, local, or tribal laws or regulations.
(b) Formal procurement methods. When the value of the procurement for property or services
under a Federal financial assistance award exceeds the SAT, or a lower threshold
established by a non-Federal entity, formal procurement methods are required. Formal
procurement methods require following documented procedures. Formal procurement
methods also require public advertising unless a non-competitive procurement can be
used in accordance with §200.319 or paragraph (c) of this section. The following formal
methods of procurement are used for procurement of property or services above the
simplified acquisition threshold or a value below the simplified acquisition threshold the
non-Federal entity determines to be appropriate:
(1) Sealed bids. A procurement method in which bids are publicly solicited and a firm
fixed-price contract(lump sum or unit price) is awarded to the responsible bidder
whose bid, conforming with all the material terms and conditions of the invitation for
bids, is the lowest in price. The sealed bids method is the preferred method for
procuring construction, if the conditions.
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(i) In order for sealed bidding to be feasible, the following conditions should be
present:
(A) A complete, adequate, and realistic specification or purchase description is
available;
(B) Two or more responsible bidders are willing and able to compete effectively for
the business; and
(C) The procurement lends itself to a firm fixed price contract and the selection of
the successful bidder can be made principally on the basis of price.
(ii) If sealed bids are used, the following requirements apply:
(A) Bids must be solicited from an adequate number of qualified sources,
providing them sufficient response time prior to the date set for opening the
bids, for local, and tribal governments,the invitation for bids must be publicly
advertised;
(B) The invitation for bids, which will include any specifications and pertinent
attachments, must define the items or services in order for the bidder to
properly respond;
(C) All bids will be opened at the time and place prescribed in the invitation for
bids, and for local and tribal governments,the bids must be opened publicly;
(D) A firm fixed price contract award will be made in writing to the lowest
responsive and responsible bidder. Where specified in bidding documents,
factors such as discounts, transportation cost, and life cycle costs must be
considered in determining which bid is lowest. Payment discounts will only be
used to determine the low bid when prior experience indicates that such
discounts are usually taken advantage of; and
(E) Any or all bids may be rejected if there is a sound documented reason.
(2)Proposals. A procurement method in which either a fixed price or cost-reimbursement
type contract is awarded. Proposals are generally used when conditions are not
appropriate for the use of sealed bids. They are awarded in accordance with the
following requirements:
(i) Requests for proposals must be publicized and identify all evaluation factors and
their relative importance. Proposals must be solicited from an adequate number of
qualified offerors. Any response to publicized requests for proposals must be
considered to the maximum extent practical;
(ii) The non-Federal entity must have a written method for conducting technical
evaluations of the proposals received and making selections;
(iii) Contracts must be awarded to the responsible offeror whose proposal is most
advantageous to the non-Federal entity, with price and other factors considered;
and
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(iv) The non-Federal entity may use competitive proposal procedures for
qualifications-based procurement of architectural/engineering(A/E)professional
services whereby offeror's qualifications are evaluated and the most qualified
offeror is selected, subject to negotiation of fair and reasonable compensation.
The method, where price is not used as a selection factor, can only be used in
procurement of A/E professional services. It cannot be used to purchase other
types of services though A/E firms that are a potential source to perform the
proposed effort.
(c) Noncompetitive procurement. There are specific circumstances in which noncompetitive
procurement can be used. Noncompetitive procurement can only be awarded if one or
more of the following circumstances apply:
(1) The acquisition of property or services,the aggregate dollar amount of which does not
exceed the micro-purchase threshold (see paragraph (a)(1) of this section);
(2) The item is available only from a single source;
(3) The public exigency or emergency for the requirement will not permit a delay
resulting from publicizing a competitive solicitation;
(4) The Federal awarding agency or pass-through entity expressly authorizes a
noncompetitive procurement in response to a written request from the non-Federal
entity; or
(5) After solicitation of a number of sources, competition is determined inadequate.
§200.321 Contracting with small and minority businesses,women's business enterprises,
and labor surplus area firms.
(a) The non-Federal entity must take all necessary affirmative steps to assure that minority
businesses, women's business enterprises, and labor surplus area firms are used when
possible.
(b) Affirmative steps must include:
(1)Placing qualified small and minority businesses and women's business enterprises on
solicitation lists;
(2) Assuring that small and minority businesses, and women's business enterprises are
solicited whenever they are potential sources;
(3) Dividing total requirements, when economically feasible, into smaller tasks or
quantities to permit maximum participation by small and minority businesses, and
women's business enterprises;
(4) Establishing delivery schedules, where the requirement permits, which encourage
participation by small and minority businesses, and women's business enterprises;
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(5)Using the services and assistance, as appropriate, of such organizations as the Small
Business Administration and the Minority Business Development Agency of the
Department of Commerce; and
(6) Requiring the prime contractor, if subcontracts are to be let, to take the affirmative
steps listed in paragraphs (b)(1)through (5) of this section.
§200.322 Domestic preferences for procurements.
(a) As appropriate and to the extent consistent with law,the non-Federal entity should, to the
greatest extent practicable under a Federal award, provide a preference for the purchase,
acquisition, or use of goods, products, or materials produced in the United States
(including but not limited to iron, aluminum, steel, cement, and other manufactured
products). The requirements of this section must be included in all subawards including
all contracts and purchase orders for work or products under this award.
(b) For purposes of this section:
(1) "Produced in the United States"means, for iron and steel products,that all manufacturing
processes, from the initial melting stage through the application of coatings, occurred in
the United States.
(2) "Manufactured products"means items and construction materials composed in whole or
in part of non-ferrous metals such as aluminum; plastics and polymer-based products
such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical
fiber; and lumber.
§200.323 Procurement of recovered materials.
A non-Federal entity that is a state agency or agency of a political subdivision of a state and its
contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring
only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR
part 247 that contain the highest percentage of recovered materials practicable, consistent with
maintaining a satisfactory level of competition, where the purchase price of the item exceeds
$10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000;
procuring solid waste management services in a manner that maximizes energy and resource
recovery; and establishing an affirmative procurement program for procurement of recovered
materials identified in the EPA guidelines.
§200.324 Contract cost and price.
(a) The non-Federal entity must perform a cost or price analysis in connection with every
procurement action in excess of the Simplified Acquisition Threshold including contract
amendments. The method and degree of analysis is dependent on the facts surrounding
the particular procurement situation, but as a starting point,the non-Federal entity must
make independent estimates before receiving bids or proposals.
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(b) The non-Federal entity must negotiate profit as a separate element of the price for each
contract in which there is no price competition and in all cases where cost analysis is
performed. To establish a fair and reasonable profit, consideration must be given to the
complexity of the work to be performed, the risk borne by the contractor, the contractor's
investment, the amount of subcontracting, the quality of its record of past performance,
and industry profit rates in the surrounding geographical area for similar work.
(c) Costs or prices based on estimated costs for contracts under the Federal award are
allowable only to the extent that costs incurred or cost estimates included in negotiated
prices would be allowable for the non-Federal entity under subpart E of this part. The
non-Federal entity may reference its own cost principles that comply with the Federal
cost principles.
(d) The cost plus a percentage of cost and percentage of construction cost methods of
contracting must not be used.
§200.325 Federal awarding agency or pass-through entity review.
(a) The non-Federal entity must make available, upon request of the Federal awarding agency
or pass-through entity, technical specifications on proposed procurements where the
Federal awarding agency or pass-through entity believes such review is needed to ensure
that the item or service specified is the one being proposed for acquisition. This review
generally will take place prior to the time the specification is incorporated into a
solicitation document. However, if the non-Federal entity desires to have the review
accomplished after a solicitation has been developed,the Federal awarding agency or
pass-through entity may still review the specifications, with such review usually limited
to the technical aspects of the proposed purchase.
(b) The non-Federal entity must make available upon request, for the Federal awarding
agency or pass-through entity pre-procurement review, procurement documents, such as
requests for proposals or invitations for bids, or independent cost estimates, when:
(1) The non-Federal entity's procurement procedures or operation fails to comply with the
procurement standards in this part;
(2) The procurement is expected to exceed the Simplified Acquisition Threshold and is to
be awarded without competition or only one bid or offer is received in response to a
solicitation;
(3) The procurement, which is expected to exceed the Simplified Acquisition Threshold,
specifies a"brand name"product;
(4) The proposed contract is more than the Simplified Acquisition Threshold and is to be
awarded to other than the apparent low bidder under a sealed bid procurement; or
(5) A proposed contract amendment changes the scope of a contract or increases the
contract amount by more than the Simplified Acquisition Threshold.
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(c) The non-Federal entity is exempt from the pre-procurement review in paragraph (b)of
this section if the Federal awarding agency or pass-through entity determines that its
procurement systems comply with the standards of this part.
(1) The non-Federal entity may request that its procurement system be reviewed by the
Federal awarding agency or pass-through entity to determine whether its system
meets these standards in order for its system to be certified. Generally,these reviews
must occur where there is continuous high-dollar funding, and third-party contracts
are awarded on a regular basis;
(2) The non-Federal entity may self-certify its procurement system. Such self-
certification must not limit the Federal awarding agency's right to survey the system.
Under a self-certification procedure, the Federal awarding agency may rely on written
assurances from the non-Federal entity that it is complying with these standards. The
non-Federal entity must cite specific policies, procedures, regulations, or standards as
being in compliance with these requirements and have its system available for review.
§200.326 Bonding requirements.
For construction or facility improvement contracts or subcontracts exceeding the Simplified
Acquisition Threshold,the Federal awarding agency or pass-through entity may accept the
bonding policy and requirements of the non-Federal entity provided that the Federal awarding
agency or pass-through entity has made a determination that the Federal interest is adequately
protected. If such a determination has not been made, the minimum requirements must be as
follows:
(a) A bid guarantee from each bidder equivalent to five percent of the bid price. The "bid
guarantee"must consist of a firm commitment such as a bid bond, certified check, or
other negotiable instrument accompanying a bid as assurance that the bidder will, upon
acceptance of the bid, execute such contractual documents as may be required within the
time specified.
(b) A performance bond on the part of the contractor for 100 percent of the contract price. A
"performance bond" is one executed in connection with a contract to secure fulfillment of
all the contractor's requirements under such contract.
(c) A payment bond on the part of the contractor for 100 percent of the contract price. A
"payment bond" is one executed in connection with a contract to assure payment as
required by law of all persons supplying labor and material in the execution of the work
provided for in the contract.
§200.327 Contract provisions.
The non-Federal entity's contracts must contain the applicable provisions described in
appendix II to this part.
[78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014, and 85 FR 49506]
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4. EQUIPMENT (2 CFR 200.313)
See also 200.439 Equipment and other capital expenditures.
(a) Title. Subject to the obligations and conditions set forth in this section,title to equipment
acquired under a Federal award will vest upon acquisition in the non-Federal entity. Unless a
statute specifically authorizes the Federal agency to vest title in the non-Federal entity
without further obligation to the Federal Government, and the Federal agency elects to do so,
the title must be a conditional title. Title must vest in the non-Federal entity subject to the
following conditions:
(1)Use the equipment for the authorized purposes of the project during the period of
performance, or until the property is no longer needed for the purposes of the project.
(2)Not encumber the property without approval of the Federal awarding agency or pass-
through entity.
(3)Use and dispose of the property in accordance with paragraphs (b), (c) and (e) of this
section.
(b) A state must use, manage and dispose of equipment acquired under a Federal award by the
state in accordance with state laws and procedures. Other non-Federal entities must follow
paragraphs (c)through (e) of this section.
(c)Use.
(1) Equipment must be used by the non-Federal entity in the program or project for which it
was acquired as long as needed, whether or not the project or program continues to be
supported by the Federal award, and the non-Federal entity must not encumber the
property without prior approval of the Federal awarding agency. When no longer needed
for the original program or project, the equipment may be used in other activities
supported by the Federal awarding agency, in the following order of priority:
(i) Activities under a Federal award from the Federal awarding agency which funded
the original program or project,then
(ii) Activities under Federal awards from other Federal awarding agencies. This
includes consolidated equipment for information technology systems.
(2) During the time that equipment is used on the project or program for which it was
acquired, the non-Federal entity must also make equipment available for use on other
projects or programs currently or previously supported by the Federal Government,
provided that such use will not interfere with the work on the projects or program for
which it was originally acquired. First preference for other use must be given to other
programs or projects supported by Federal awarding agency that financed the equipment
and second preference must be given to programs or projects under Federal awards from
other Federal awarding agencies. Use for non-federally-funded programs or projects is
also permissible. User fees should be considered if appropriate.
(3) Notwithstanding the encouragement in 200.307 Program income to earn program income,
the non-Federal entity must not use equipment acquired with the Federal award to
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provide services for a fee that is less than private companies charge for equivalent
services unless specifically authorized by Federal statute for as long as the Federal
Government retains an interest in the equipment.
(4) When acquiring replacement equipment, the non-Federal entity may use the equipment to
be replaced as a trade-in or sell the property and use the proceeds to offset the cost of the
replacement property.
(d) Management requirements. Procedures for managing equipment(including replacement
equipment), whether acquired in whole or in part under a Federal award, until disposition
takes place will, as a minimum, meet the following requirements:
(1) Property records must be maintained that include a description of the property, a serial
number or other identification number, the source of funding for the property (including
the FAIN), who holds title,the acquisition date, and cost of the property, percentage of
Federal participation in the project costs for the Federal award under which the property
was acquired,the location, use and condition of the property, and any ultimate disposition
data including the date of disposal and sale price of the property.
(2) A physical inventory of the property must be taken and the results reconciled with the
property records at least once every two years.
(3) A control system must be developed to ensure adequate safeguards to prevent loss,
damage, or theft of the property. Any loss, damage, or theft must be investigated.
(4) Adequate maintenance procedures must be developed to keep the property in good
condition.
(5) If the non-Federal entity is authorized or required to sell the property, proper sales
procedures must be established to ensure the highest possible return.
(e) Disposition. When original or replacement equipment acquired under a Federal award is no
longer needed for the original project or program or for other activities currently or
previously supported by a Federal awarding agency, except as otherwise provided in Federal
statutes, regulations, or Federal awarding agency disposition instructions, the non-Federal
entity must request disposition instructions from the Federal awarding agency if required by
the terms and conditions of the Federal award. Disposition of the equipment will be made as
follows, in accordance with Federal awarding agency disposition instructions:
(1) Items of equipment with a current per unit fair market value of$5,000 or less may be
retained, sold or otherwise disposed of with no further obligation to the Federal awarding
agency.
(2) Except as provided in 200.312 Federally-owned and exempt property, paragraph (b), or if
the Federal awarding agency fails to provide requested disposition instructions within
120 days, items of equipment with a current per-unit fair-market value in excess of
$5,000 may be retained by the non-Federal entity or sold. The Federal awarding agency is
entitled to an amount calculated by multiplying the current market value or proceeds
from sale by the Federal awarding agency's percentage of participation in the cost of the
original purchase. If the equipment is sold, the Federal awarding agency may permit the
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non-Federal entity to deduct and retain from the Federal share $500 or ten percent of the
proceeds, whichever is less, for its selling and handling expenses.
(3) The non-Federal entity may transfer title to the property to the Federal Government or to
an eligible third party provided that, in such cases, the non-Federal entity must be entitled
to compensation for its attributable percentage of the current fair market value of the
property.
(4) In cases where a non-Federal entity fails to take appropriate disposition actions, the
Federal awarding agency may direct the non-Federal entity to take disposition actions.
[78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75884, Dec. 19, 2014]
5. SUPPLIES (2 CFR 200.314)
See also 200.453 Materials and supplies costs, including costs of computing devices.
(a) Title to supplies will vest in the non-Federal entity upon acquisition. If there is a residual
inventory of unused supplies exceeding $5,000 in total aggregate value upon termination or
completion of the project or program and the supplies are not needed for any other Federal
award, the non-Federal entity must retain the supplies for use on other activities or sell them,
but must, in either case, compensate the Federal Government for its share. The amount of
compensation must be computed in the same manner as for equipment. See 200.313
Equipment, paragraph (e)(2)for the calculation methodology.
(b) As long as the Federal Government retains an interest in the supplies,the non-Federal entity
must not use supplies acquired under a Federal award to provide services to other
organizations for a fee that is less than private companies charge for equivalent services,
unless specifically authorized by Federal statute.
6. INSPECTION
Reclamation has the right to inspect and evaluate the work performed or being performed under
this Agreement, and the premises where the work is being performed, at all reasonable times and
in a manner that will not unduly delay the work. If Reclamation performs inspection or
evaluation on the premises of the Recipient or a sub-Recipient, the Recipient shall furnish and
shall require sub-recipients to furnish all reasonable facilities and assistance for the safe and
convenient performance of these duties.
7. AUDIT REQUIREMENTS (2 CFR 200.501)
(a) Audit required. A non-Federal entity that expends $750,000 or more during the non-Federal
entity's fiscal year in Federal awards must have a single or program-specific audit conducted
for that year in accordance with the provisions of this part.
(b) Single audit. A non-Federal entity that expends $750,000 or more during the non-Federal
entity's fiscal year in Federal awards must have a single audit conducted in accordance with
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200.514 Scope of audit except when it elects to have a program-specific audit conducted in
accordance with paragraph (c) of this section.
(c) Program-specific audit election. When an auditee expends Federal awards under only one
Federal program (excluding R&D) and the Federal program's statutes, regulations, or the
terms and conditions of the Federal award do not require a financial statement audit of the
auditee, the auditee may elect to have a program-specific audit conducted in accordance with
200.507 Program-specific audits. A program-specific audit may not be elected for R&D
unless all of the Federal awards expended were received from the same Federal agency, or
the same Federal agency and the same pass-through entity, and that Federal agency, or pass-
through entity in the case of a subrecipient, approves in advance a program-specific audit.
(d) Exemption when Federal awards expended are less than $750,000. A non-Federal entity that
expends less than $750,000 during the non-Federal entity's fiscal year in Federal awards is
exempt from Federal audit requirements for that year, except as noted in 200.503 Relation to
other audit requirements, but records must be available for review or audit by appropriate
officials of the Federal agency, pass-through entity, and Government Accountability Office
(GAO).
(e) Federally Funded Research and Development Centers (FFRDC). Management of an auditee
that owns or operates a FFRDC may elect to treat the FFRDC as a separate entity for
purposes of this part.
(f) Subrecipients and Contractors. An auditee may simultaneously be a recipient, a subrecipient,
and a contractor. Federal awards expended as a recipient or a subrecipient are subject to audit
under this part. The payments received for goods or services provided as a contractor are not
Federal awards. Section 200.331 Subrecipient and contractor determinations sets forth the
considerations in determining whether payments constitute a Federal award or a payment for
goods or services provided as a contractor.
(g) Compliance responsibility for contractors. In most cases,the auditee's compliance
responsibility for contractors is only to ensure that the procurement, receipt, and payment for
goods and services comply with Federal statutes, regulations, and the terms and conditions of
Federal awards. Federal award compliance requirements normally do not pass through to
contractors. However,the auditee is responsible for ensuring compliance for procurement
transactions which are structured such that the contractor is responsible for program
compliance or the contractor's records must be reviewed to determine program compliance.
Also, when these procurement transactions relate to a major program,the scope of the audit
must include determining whether these transactions are in compliance with Federal statutes,
regulations, and the terms and conditions of Federal awards.
(h) For-profit subrecipient. Since this part does not apply to for-profit subrecipients,the pass-
through entity is responsible for establishing requirements, as necessary, to ensure
compliance by for-profit subrecipients. The agreement with the for-profit subrecipient must
describe applicable compliance requirements and the for-profit subrecipient's compliance
responsibility. Methods to ensure compliance for Federal awards made to for-profit
subrecipients may include pre-award audits, monitoring during the agreement, and post-
award audits. See also 200.332 Requirements for pass-through entities.
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[78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75887, Dec. 19, 2014; 85 FR 49571,
Aug. 13, 2020]
8. REMEDIES FOR NONCOMPLIANCE (2 CFR 200.339)
200.339 Remedies for noncompliance.
If a non-Federal entity fails to comply with Federal statutes, regulations or the terms and
conditions of a Federal award, the Federal awarding agency or pass-through entity may impose
additional conditions, as described in 200.207 Specific conditions. If the Federal awarding
agency or pass-through entity determines that noncompliance cannot be remedied by imposing
additional conditions,the Federal awarding agency or pass-through entity may take one or more
of the following actions, as appropriate in the circumstances.
(a) Temporarily withhold cash payments pending correction of the deficiency by the non-Federal
entity or more severe enforcement action by the Federal awarding agency or pass-through
entity.
(b) Disallow (that is, deny both use of funds and any applicable matching credit for) all or part of
the cost of the activity or action not in compliance.
(c) Wholly or partly suspend or terminate the Federal award.
(d) Initiate suspension or debarment proceedings as authorized under 2 CFR part 180 and
Federal awarding agency regulations (or in the case of a pass-through entity, recommend
such a proceeding be initiated by a Federal awarding agency).
(e) Withhold further Federal awards for the project or program.
(f) Take other remedies that may be legally available.
9. TERMINATION (2 CFR 200.340)
(a) The Federal award may be terminated in whole or in part as follows:
(1) By the Federal awarding agency or pass-through entity, if a non-Federal entity fails to
comply with the terms and conditions of a Federal award;
(2) By the Federal awarding agency or pass-through entity,to the greatest extent authorized
by law, if an award no longer effectuates the program goals or agency priorities;
(3) By the Federal awarding agency or pass-through entity with the consent of the non-
Federal entity, in which case the two parties must agree upon the termination conditions,
including the effective date and, in the case of partial termination, the portion to be
terminated;
(4) By the non-Federal entity upon sending to the Federal awarding agency or pass-
through entity 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 the Federal awarding agency or pass-through entity determines in the
case of partial termination that the reduced or modified portion of the Federal award
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or subaward will not accomplish the purposes for which the Federal award was made,
the Federal awarding agency or pass-through entity may terminate the Federal award
in its entirety; or
(5) By the Federal awarding agency or pass-through entity pursuant to termination
provisions included in the Federal award.
(b) When a Federal award is terminated or partially terminated, both the Federal awarding
agency or pass-through entity and the non-Federal entity remain responsible for compliance
with the requirements in 200.344 Closeout and 200.345 Post-closeout adjustments and
continuing responsibilities.
10. DEBARMENT AND SUSPENSION (2 CFR 1400)
The Department of the Interior regulations at 2 CFR 1400 Governmentwide Debarment and
Suspension (Nonprocurement), which adopt the common rule for the governmentwide system of
debarment and suspension for nonprocurement activities, are hereby incorporated by reference
and made a part of this Agreement. By entering into this grant or cooperative Agreement with
the Bureau of Reclamation, the Recipient agrees to comply with 2 CFR 1400, Subpart C, and
agrees to include a similar term or condition in all lower-tier covered transactions. These
regulations are available athttp://www.gpoaccess.gov/ecfr/.
11. DRUG-FREE WORKPLACE (2 CFR 182 and 1401)
The Department of the Interior regulations at 2 CFR 1401 Governmentwide Requirements for
Drug-Free Workplace (Financial Assistance), which adopt the portion of the Drug-Free
Workplace Act of 1988 (41 U.S.C. 701 et seq, as amended) applicable to grants and cooperative
agreements, are hereby incorporated by reference and made a part of this agreement. By
entering into this grant or cooperative agreement with the Bureau of Reclamation, the Recipient
agrees to comply with 2 CFR 182.
12. ASSURANCES AND CERTIFICATIONS INCORPORATED BY REFERENCE
The provisions of the Assurances, SF 424B or SF 424D as applicable, executed by the Recipient
in connection with this Agreement shall apply with full force and effect to this Agreement. All
anti-discrimination and equal opportunity statutes, regulations, and Executive Orders that apply
to the expenditure of funds under Federal contracts, grants, and cooperative Agreements, loans,
and other forms of Federal assistance. The Recipient shall comply with Title VI or the Civil
Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the
Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and any program-specific
statutes with anti-discrimination requirements. The Recipient shall comply with civil rights laws
including, but not limited to, the Fair Housing Act, the Fair Credit Reporting Act, the Americans
with Disabilities Act, Title VII of the Civil Rights Act of 1964, the Equal Educational
Opportunities Act,the Age Discrimination in Employment Act, and the Uniform Relocation Act.
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Such Assurances also include, but are not limited to,the promise to comply with all applicable
Federal statutes and orders relating to nondiscrimination in employment, assistance, and housing;
the Hatch Act; Federal wage and hour laws and regulations and work place safety standards;
Federal environmental laws and regulations and the Endangered Species Act; and Federal
protection of rivers and waterways and historic and archeological preservation.
13. COVENANT AGAINST CONTINGENT FEES
The Recipient warrants that no person or agency has been employed or retained to solicit or
secure this Agreement upon an Agreement or understanding for a commission, percentage,
brokerage, or contingent fee, excepting bona fide employees or bona fide offices established and
maintained by the Recipient for the purpose of securing Agreements or business. For breach or
violation of this warranty, the Government shall have the right to annul this Agreement without
liability or, in its discretion, to deduct from the Agreement amount, or otherwise recover, the full
amount of such commission, percentage, brokerage, or contingent fee.
14. TRAFFICKING VICTIMS PROTECTION ACT OF 2000 (2 CFR 175.15)
Trafficking in persons.
(a) Provisions applicable to a recipient that is a private entity. You as the recipient, your
employees, subrecipients under this award, and subrecipients' employees may not
(1) Engage in severe forms of trafficking in persons during the period of time that the award
is in effect;
(2) Procure a commercial sex act during the period of time that the award is in effect; or
(3) Use forced labor in the performance of the award or subawards under the award.
(b) We as the Federal awarding agency may unilaterally terminate this award, without penalty, if
you or a subrecipient that is a private entity
(1) Is determined to have violated a prohibition in paragraph a.1 of this award term; or
(2) Has an employee who is determined by the agency official authorized to terminate the
award to have violated a prohibition in paragraph a.1 of this award term through conduct
that is either:
(i) Associated with performance under this award; or
(ii) Imputed to you or the subrecipient using the standards and due process for
imputing the conduct of an individual to an organization that are provided in 2
CFR part 180, "OMB Guidelines to Agencies on Governmentwide Debarment
and Suspension (Nonprocurement)," as implemented by our agency at 2 CFR part
1400.
(c) Provision applicable to a recipient other than a private entity. We as the Federal awarding
agency may unilaterally terminate this award, without penalty, if a subrecipient that is a
private entity
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(1) Is determined to have violated an applicable prohibition in paragraph a.1 of this award
term; or
(2) Has an employee who is determined by the agency official authorized to terminate the
award to have violated an applicable prohibition in paragraph a.1 of this award term
through conduct that is either:
(i) Associated with performance under this award; or
(ii) Imputed to the subrecipient using the standards and due process for imputing the
conduct of an individual to an organization that are provided in 2 CFR part 180,
"OMB Guidelines to Agencies on Governmentwide Debarment and Suspension
(Nonprocurement)," as implemented by our agency at 2 CFR part 1400.
(d) Provisions applicable to any recipient.
(1) You must inform us immediately of any information you receive from any source
alleging a violation of a prohibition in paragraph a.1 of this award term.
(2) Our right to terminate unilaterally that is described in paragraph a.2 orb of this section:
(i) Implements section 106(g) of the Trafficking Victims Protection Act of 2000
(TVPA), as amended (22 U.S.C. 7104(g)), and
(ii) Is in addition to all other remedies for noncompliance that are available to us
under this award.
(3) You must include the requirements of paragraph a.1 of this award term in any subaward
you make to a private entity.
(e) Definitions. For purposes of this award term:
(1) "Employee"means either:
(i) An individual employed by you or a subrecipient who is engaged in the
performance of the project or program under this award; or
(ii) Another person engaged in the performance of the project or program under this
award and not compensated by you including, but not limited to, a volunteer or
individual whose services are contributed by a third party as an in-kind
contribution toward cost sharing or matching requirements.
(2) "Forced labor"means labor obtained by any of the following methods: the recruitment,
harboring, transportation, provision, or obtaining of a person for labor or services,
through the use of force, fraud, or coercion for the purpose of subjection to involuntary
servitude, peonage, debt bondage, or slavery.
(3) "Private entity":
(i) Means any entity other than a state, local government, Indian tribe, or foreign
public entity, as those terms are defined in 2 CFR 175.25.
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(ii) Includes:
(A) A nonprofit organization, including any nonprofit institution of higher
education, hospital, or tribal organization other than one included in the
definition of Indian tribe at 2 CFR 175.25(b).
(B) A for-profit organization.
(4) "Severe forms of trafficking in persons," "commercial sex act," and "coercion"have the
meanings given at section 103 of the TVPA, as amended (22 U.S.C. 7102).
15. NEW RESTRICTIONS ON LOBBYING (43 CFR 18)
The Recipient agrees to comply with 43 CFR 18, New Restrictions on Lobbying, including the
following certification:
(a)No Federal appropriated funds have been paid or will be paid, by or on behalf of the
Recipient,to any person for influencing or attempting to influence an officer or employee of
an agency, a Member of Congress, and officer or employee of Congress, or an employee of a
Member of Congress in connection with the awarding of any Federal contract, the making of
any Federal grant, the making of any Federal loan, the entering into of any cooperative
agreement, and the extension, continuation, renewal, amendment, or amendment of any
Federal contract, grant, loan, or cooperative agreement.
(b) If any funds other than Federal appropriated funds have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report
Lobbying" in accordance with its instructions.
(c) The Recipient shall require that the language of this certification be included in the award
documents for all subawards at all tiers (including subcontracts, subgrants, and contracts
under grants, loans, and cooperative agreements) and that all subrecipients shall certify
accordingly. This certification is a material representation of fact upon which reliance was
placed when this transaction was made or entered into. Submission of this certification is a
prerequisite for making or entering into this transaction imposed by Section 1352, title 31,
U.S. Code. Any person who fails to file the required certification shall be subject to a civil
penalty of not less than $10,000 and not more than $100,000 for each such failure.
16. UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION
POLICIES ACT OF 1970 (URA) (42 USC 4601 et seq.)
(a) The Uniform Relocation Assistance Act(URA), 42 U.S.C. 4601 et seq., as amended,
requires certain assurances for Reclamation funded land acquisition projects conducted by a
Recipient that cause the displacement of persons, businesses, or farm operations. Because
Reclamation funds only support acquisition of property or interests in property from willing
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sellers, it is not anticipated that Reclamation funds will result in any "displaced persons," as
defined under the URA.
(b) However, if Reclamation funds are used for the acquisition of real property that results in
displacement,the URA requires Recipients to ensure that reasonable relocation payments and
other remedies will be provided to any displaced person. Further, when acquiring real
property, Recipients must be guided, to the greatest extent practicable, by the land acquisition
policies in 42 U.S.C. 4651.
(c) Exemptions to the URA and 49 CFR Part 24
(1) The URA provides for an exemption to the appraisal, review and certification rules for
those land acquisitions classified as "voluntary transactions." Such "voluntary
transactions" are classified as those that do not involve an exercise of eminent domain
authority on behalf of a Recipient, and must meet the conditions specified at 49 CFR
24.101(b)(1)(i)-(iv).
(2) For any land acquisition undertaken by a Recipient that receives Reclamation funds, but
does not have authority to acquire the real property by eminent domain, to be exempt
from the requirements of 49 CFR Part 24 the Recipient must:
(i) provide written notification to the owner that it will not acquire the property in the
event negotiations fail to result in an amicable agreement, and;
(ii) inform the owner in writing of what it believes to be the market value of the
property
(d) Review of Land Acquisition Appraisals. Reclamation reserves the right to review any land
appraisal whether or not such review is required under the URA or 49 CFR 24.104. Such
reviews may be conducted by the Department of the Interior's Appraisal Services Directorate
or a Reclamation authorized designee. When Reclamation determines that a review of the
original appraisal is necessary, Reclamation will notify the Recipient and provide an
estimated completion date of the initial appraisal review.
17. SYSTEM FOR AWARD MANAGEMENT and Universal Identifier Requirements (2
CFR 25, Appendix A)
A. Requirement for System for Award Management
Unless you are exempted from this requirement under 2 CFR 25.110, you as the recipient must
maintain current information in the SAM. This includes information on your immediate and
highest level owner and subsidiaries, as well as on all of your predecessors that have been
awarded a Federal contract or Federal financial assistance within the last three years, if
applicable, until you submit the final financial report required under this Federal award or
receive the final payment, whichever is later. This requires that you review and update the
information at least annually after the initial registration, and more frequently if required by
changes in your information or another Federal award term.
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B. Requirement for unique entity identifier
If you are authorized to make subawards under this award,you:
1. Must notify potential subrecipients that no entity(see definition in paragraph C of this
award term)may receive a subaward from you unless the entity has provided its unique
entity identifier to you.
2. May not make a subaward to an entity unless the entity has provided its Unique Entity
Identifier to you. Subrecipients are not required to obtain an active SAM registration,but
must obtain a Unique Entity Identifier.
C. Definitions
For purposes of this award term:
1. System for Award Management (SAM) means the Federal repository into which an entity
must provide information required for the conduct of business as a recipient. Additional
information about registration procedures may be found at the SAM Internet site
(currently at http://www.sam.gov).
2. Unique entity identifier means the identifier required for SAM registration to uniquely
identify business entities.
3. Entity, as it is used in this award term,means all of the following, as defined at 2 CFR
part 25, subpart C:
a. A Governmental organization, which is a State, local government, or Indian
Tribe;
b. A foreign public entity;
c. A domestic or foreign nonprofit organization;
d. A domestic or foreign for-profit organization; and
e. A Federal agency,but only as a subrecipient under an award or subaward to a
non-Federal entity.
4. Subaward has the meaning given in 2 CFR 200.1.
5. Subrecipient has the meaning given in 2 CFR 200.1.
18. PROHIBITION ON TEXT MESSAGING AND USING ELECTRONIC EQUIPMENT
SUPPLIED BY THE GOVERNMENT WHILE DRIVING
Executive Order 13513,Federal Leadership On Reducing Text Messaging While Driving, was
signed by President Barack Obama on October 1, 2009 (ref:
http://edocket.access.gpo.gov/2009/pdf/E9-24203.pdf). This Executive Order introduces a
Federal Government-wide prohibition on the use of text messaging while driving on official
business or while using Government-supplied equipment. Additional guidance enforcing the ban
will be issued at a later date. In the meantime, please adopt and enforce policies that
immediately ban text messaging while driving company-owned or rented vehicles, government-
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owned or leased vehicles, or while driving privately owned vehicles when on official
government business or when performing any work for or on behalf of the government.
19. REPORTING SUBAWARDS AND EXECUTIVE COMPENSATION (2 CFR 170
APPENDIX A)
I. Reporting Subawards and Executive Compensation.
a. Reporting of first-tier subawards.
1. Applicability. Unless you are exempt as provided in paragraph d. of this award term,
you must report each action that equals or exceeds $30,000 in Federal funds for a
subaward to a non-Federal entity or Federal agency(see definitions in paragraph e. of
this award term).
2. Where and when to report.
i. The non-Federal entity or Federal agency must report each obligating action
described in paragraph a.1. of this award term to http://www.fsrs.gov.
ii. For subaward information, report no later than the end of the month following
the month in which the obligation was made. (For example, if the obligation
was made on November 7, 2010, the obligation must be reported by no later
than December 31, 2010.)
3. What to report. You must report the information about each obligating action that the
submission instructions posted at http://www.fsrs.gov specify.
b. Reporting total compensation of recipient executives for non-Federal entities.
1. Applicability and what to report. You must report total compensation for each of your
five most highly compensated executives for the preceding completed fiscal year, if—
i. The total Federal funding authorized to date under this Federal award equals or
exceeds $30,000 as defined in 2 CFR 170.320;
ii. in the preceding fiscal year, you received—
(A) 80 percent or more of your annual gross revenues from Federal
procurement contracts (and subcontracts) and Federal financial assistance
subject to the Transparency Act, as defined at 2 CFR 170.320 (and
subawards), and
(B) $25,000,000 or more in annual gross revenues from Federal procurement
contracts (and subcontracts)and Federal financial assistance subject to the
Transparency Act, as defined at 2 CFR 170.320 (and subawards); and,
iii. The public does not have access to information about the compensation of the
executives through periodic reports filed under section 13(a) or 15(d)of the
Securities Exchange Act of 1934(15 U.S.C. 78m(a), 78o(d))or section 6104 of
the Internal Revenue Code of 1986. (To determine if the public has access to the
compensation information, see the U.S. Security and Exchange Commission
total compensation filings at http://www.sec.gov/answers/execomp.htm.)
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2. Where and when to report. You must report executive total compensation described
in paragraph b.1. of this award term:
i. As part of your registration profile at https://www.sam.gov.
ii. By the end of the month following the month in which this award is made, and
annually thereafter.
c. Reporting of Total Compensation of Subrecipient Executives.
1. Applicability and what to report. Unless you are exempt as provided in paragraph d.
of this award term, for each first-tier non-Federal entity subrecipient under this award,
you shall report the names and total compensation of each of the subrecipient's five
most highly compensated executives for the subrecipient's preceding completed fiscal
year, if—
i. in the subrecipient's preceding fiscal year, the subrecipient received—
(A) 80 percent or more of its annual gross revenues from Federal procurement
contracts (and subcontracts)and Federal financial assistance subject to the
Transparency Act, as defined at 2 CFR 170.320 (and subawards) and,
(B) $25,000,000 or more in annual gross revenues from Federal procurement
contracts (and subcontracts), and Federal financial assistance subject to the
Transparency Act(and subawards); and
ii. The public does not have access to information about the compensation of the
executives through periodic reports filed under section 13(a) or 15(d)of the
Securities Exchange Act of 1934(15 U.S.C. 78m(a), 78o(d))or section 6104 of
the Internal Revenue Code of 1986. (To determine if the public has access to the
compensation information, see the U.S. Security and Exchange Commission
total compensation filings at http://www.sec.gov/answers/execomp.htm.)
2. Where and when to report. You must report subrecipient executive total
compensation described in paragraph c.1. of this award term:
i. To the recipient.
ii. By the end of the month following the month during which you make the
subaward. For example, if a subaward is obligated on any date during the month
of October of a given year(i.e., between October 1 and 31), you must report any
required compensation information of the subrecipient by November 30 of that
year.
d. Exemptions.
If, in the previous tax year, you had gross income, from all sources, under $300,000, you are
exempt from the requirements to report:
i. Subawards, and
ii. The total compensation of the five most highly compensated executives of any
subrecipient.
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e. Definitions. For purposes of this award term:
1. Federal Agency means a Federal agency as defined at 5 U.S.C. 551(1) and further
clarified by 5 U.S.C. 552(t .
2. Non-Federal entity means all of the following, as defined in 2 CFR part 25:
i. A Governmental organization, which is a State, local government, or Indian
tribe;
ii. A foreign public entity;
iii. A domestic or foreign nonprofit organization; and,
iv. A domestic or foreign for-profit organization
3. Executive means officers, managing partners, or any other employees in management
positions.
4. Subaward:
i. This term means a legal instrument to provide support for the performance of
any portion of the substantive project or program for which you received this
award and that you as the recipient award to an eligible subrecipient.
ii. The term does not include your procurement of property and services needed to
carry out the project or program (for further explanation, see 2 CFR 200.331).
iii. A subaward may be provided through any legal agreement, including an
agreement that you or a subrecipient considers a contract.
5. Subrecipient means a non-Federal entity or Federal agency that:
i. Receives a subaward from you(the recipient)under this award; and
ii. Is accountable to you for the use of the Federal funds provided by the subaward.
6. Total compensation means the cash and noncash dollar value earned by the executive
during the recipient's or subrecipient's preceding fiscal year and includes the
following(for more information see 17 CFR 229.402(c)(2)).
[85 FR 49526, Aug. 13, 2020]
20. RECIPIENT EMPLOYEE WHISTLEBLOWER RIGHTS AND REQUIREMENT TO
INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS (SEP 2013)
(a) This award and employees working on this financial assistance agreement will be subject
to the whistleblower rights and remedies in the pilot program on Award Recipient
employee whistleblower protections established at 41 U.S.C. 4712 by section 828 of the
National Defense Authorization Act for Fiscal Year 2013 (Pub.L. 112-239).
(b) The Award Recipient shall inform its employees in writing, in the predominant language
of the workforce, of employee whistleblower rights and protections under 41 U.S.0 4712.
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(c) The Award Recipient shall insert the substance of this clause, including this paragraph
(c), in all subawards or subcontracts over the simplified acquisition threshold. 48 CFR
52.203-17 (as referenced in 48 CFR 3.908-9).
21. REPORTING OF MATTERS RELATED TO RECIPIENT INTEGRITY AND
PERFORMANCE (APPENDIX XII to 2 CFR Part 200)
1. General Reporting Requirement
If the total value of your currently active grants, cooperative agreements, and procurement
contracts from all Federal awarding agencies exceeds $10,000,000 for any period of time during
the period of performance of this Federal award, then you as the recipient during that period of
time must maintain the currency of information reported to the System for Award Management
(SAM)that is made available in the designated integrity and performance system (currently the
Federal Awardee Performance and Integrity Information System (FAPIIS)) about civil, criminal,
or administrative proceedings described in paragraph 2 of this award term and condition. This is
a statutory requirement under section 872 of Public Law 110-417, as amended (41 U.S.C. 2313).
As required by section 3010 of Public Law 111-212, all information posted in the designated
integrity and performance system on or after April 15, 2011, except past performance reviews
required for Federal procurement contracts, will be publicly available.
2. Proceedings About Which You Must Report
Submit the information required about each proceeding that:
a. Is in connection with the award or performance of a grant, cooperative agreement, or
procurement contract from the Federal Government;
b. Reached its final disposition during the most recent five-year period; and
c. Is one of the following:
(1) A criminal proceeding that resulted in a conviction, as defined in paragraph 5 of this
award term and condition;
(2) A civil proceeding that resulted in a finding of fault and liability and payment of a
monetary fine, penalty, reimbursement, restitution, or damages of$5,000 or more;
(3) An administrative proceeding, as defined in paragraph 5. of this award term and
condition, that resulted in a finding of fault and liability and your payment of either a
monetary fine or penalty of$5,000 or more or reimbursement, restitution, or damages
in excess of$100,000; or
(4) Any other criminal, civil, or administrative proceeding if
(i) It could have led to an outcome described in paragraph 2.c.(1), (2), or(3) of this
award term and condition;
(ii) It had a different disposition arrived at by consent or compromise with an
acknowledgment of fault on your part; and
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(iii) The requirement in this award term and condition to disclose information about
the proceeding does not conflict with applicable laws and regulations.
3. Reporting Procedures
Enter in the SAM Entity Management area the information that SAM requires about each
proceeding described in paragraph 2 of this award term and condition. You do not need to submit
the information a second time under assistance awards that you received if you already provided
the information through SAM because you were required to do so under Federal procurement
contracts that you were awarded.
4. Reporting Frequency
During any period of time when you are subject to the requirement in paragraph 1 of this award
term and condition, you must report proceedings information through SAM for the most recent
five year period, either to report new information about any proceeding(s)that you have not
reported previously or affirm that there is no new information to report. Recipients that have
Federal contract, grant, and cooperative agreement awards with a cumulative total value greater
than $10,000,000 must disclose semiannually any information about the criminal, civil, and
administrative proceedings.
5. Definitions
For purposes of this award term and condition:
a. Administrative proceeding means a non-judicial process that is adjudicatory in nature in
order to make a determination of fault or liability (e.g., Securities and Exchange
Commission Administrative proceedings, Civilian Board of Contract Appeals
proceedings, and Armed Services Board of Contract Appeals proceedings). This includes
proceedings at the Federal and State level but only in connection with performance of a
Federal contract or grant. It does not include audits, site visits, corrective plans, or
inspection of deliverables.
b. Conviction, for purposes of this award term and condition, means a judgment or
conviction of a criminal offense by any court of competent jurisdiction, whether entered
upon a verdict or a plea, and includes a conviction entered upon a plea of nolo
contendere.
c. Total value of currently active grants, cooperative agreements, and procurement contracts
includes
(1) Only the Federal share of the funding under any Federal award with a recipient cost
share or match; and
(2) The value of all expected funding increments under a Federal award and options,
even if not yet exercised.
[80 FR 43310, July 22, 2015, as amended at 85 FR 49582, Aug. 13, 2020]
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22. CONFLICTS OF INTEREST
(a) Applicability.
(1) This section intends to ensure that non-Federal entities and their employees take
appropriate steps to avoid conflicts of interest in their responsibilities under or with
respect to Federal financial assistance agreements.
(2) In the procurement of supplies, equipment, construction, and services by recipients and
by subrecipients, the conflict of interest provisions in 2 CFR 200.318 apply.
(b) Requirements.
(1) Non-Federal entities must avoid prohibited conflicts of interest, including any significant
financial interests that could cause a reasonable person to question the recipient's ability
to provide impartial,technically sound, and objective performance under or with respect
to a Federal financial assistance agreement.
(2) In addition to any other prohibitions that may apply with respect to conflicts of interest,
no key official of an actual or proposed recipient or subrecipient, who is substantially
involved in the proposal or project, may have been a former Federal employee who,
within the last one (1) year, participated personally and substantially in the evaluation,
award, or administration of an award with respect to that recipient or subrecipient or in
development of the requirement leading to the funding announcement.
(3) No actual or prospective recipient or subrecipient may solicit, obtain, or use non-public
information regarding the evaluation, award, or administration of an award to that
recipient or subrecipient or the development of a Federal financial assistance opportunity
that may be of competitive interest to that recipient or subrecipient.
(c) Notification.
(1) Non-Federal entities, including applicants for financial assistance awards, must disclose
in writing any conflict of interest to the DOI awarding agency or pass-through entity in
accordance with 2 CFR 200.112, Conflicts of Interest.
(2) Recipients must establish internal controls that include, at a minimum, procedures to
identify, disclose, and mitigate or eliminate identified conflicts of interest. The recipient
is responsible for notifying the Financial Assistance Officer in writing of any conflicts of
interest that may arise during the life of the award, including those that have been
reported by subrecipients.
(d) Restrictions on Lobbying. Non-Federal entities are strictly prohibited from using funds under
this grant or cooperative agreement for lobbying activities and must provide the required
certifications and disclosures pursuant to 4 3 CFR Part 18 and 31 USC 13 52.
(e) Review Procedures. The Financial Assistance Officer will examine each conflict of interest
disclosure on the basis of its particular facts and the nature of the proposed grant or
cooperative agreement, and will determine whether a significant potential conflict exists and,
if it does, develop an appropriate means for resolving it.
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(f) Enforcement. Failure to resolve conflicts of interest in a manner that satisfies the
Government may be cause for termination of the award. Failure to make required disclosures
may result in any of the remedies described in 2 CFR 200.338, Remedies for
Noncompliance, including suspension or debarment(see also 2 CFR Part 180).
23. DATA AVAILABILITY
(a) Applicability. The Department of the Interior is committed to basing its decisions on the best
available science and providing the American people with enough information to
thoughtfully and substantively evaluate the data, methodology, and analysis used by the
Department to inform its decisions.
(b) Use of Data. The regulations at 2 CFR 200.315 apply to data produced under a Federal
award, including the provision that the Federal Government has the right to obtain,
reproduce, publish, or otherwise use the data produced under a Federal award as well as
authorize others to receive,reproduce, publish, or otherwise use such data for Federal
purposes.
(c) Availability of Data. The recipient shall make the data produced under this award and any
subaward(s) available to the Government for public release, consistent with applicable law,
to allow meaningful third party evaluation and reproduction of the following:
(i) The scientific data relied upon;
(ii) The analysis relied upon; and
(iii)The methodology, including models, used to gather and analyze data.
24. PROHIBITION ON PROVIDING FUNDS TO THE ENEMY
(a) The recipient must—
(1) Exercise due diligence to ensure that none of the funds, including supplies and services,
receivedunder this grant or cooperative agreement are provided directly or indirectly
(including through subawards or contracts)to a person or entity who is actively opposing
the United States or coalition forces involved in a contingency operation in which
members of the Armed Forces are actively engaged in hostilities, which must be
completed through 2 CFR 180.300 prior to issuing a subaward or contract and;
(2) Terminate or void in whole or in part any subaward or contract with a person or entity
listed in SAM as a prohibited or restricted source pursuant to subtitle E of Title VIII of
the NDAA for FY 2015, unless the Federal awarding agency provides written approval to
continue the subaward or contract.
(b) The recipient may include the substance of this clause, including paragraph(a) of this clause,
in subawards under this grant or cooperative agreement that have an estimated value over
$50,000 and will be performed outside the United States, including its outlying areas.
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(c) The Federal awarding agency has the authority to terminate or void this grant or cooperative
agreement, in whole or in part, if the Federal awarding agency becomes aware that the
recipient failed to exercise due diligence as required by paragraph (a) of this clause or if the
Federal awarding agency becomes aware that any funds received under this grant or
cooperative agreement have been provided directly or indirectly to a person or entity who is
actively opposing coalition forces involved in a contingency operation in which members of
the Armed Forces are actively engaged in hostilities.
25. ADDITIONAL ACCESS TO RECIPIENT RECORDS
(a) In addition to any other existing examination-of-records authority, the Federal Government
is authorized to examine any records of the recipient and its subawards or contracts to the
extent necessary to ensure that funds, including supplies and services, available under this
grant or cooperative agreement are not provided, directly or indirectly,to a person or entity
that is actively opposing United States or coalition forces involved in a contingency
operation in which members of the Armed Forces are actively engaged in hostilities, except
for awards awarded by the Department of Defense on or before Dec 19, 2017 that will be
performed in the United States Central Command (USCENTCOM)theater of operations.
(b) The substance of this clause, including this paragraph (b), is required to be included in
subawards or contracts under this grant or cooperative agreement that have an estimated
value over $50,000 and will be performed outside the United States, including its outlying
areas.
26. PROHIBITION ON CERTAIN TELECOMMUNICATION AND VIDEO
SURVEILLANCE SERVICES OR EQUIPMENT
Federal award recipients are prohibited from using government funds to enter contracts (or
extend or renew contracts) with entities that use covered telecommunications equipment or
services as described in section 889 of the 2019 National Defense Authorization Act. This
prohibition applies even if the contract is not intended to procure or obtain, any equipment,
system, or service that uses covered telecommunications equipment or services.
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III. DEPARTMENT OF THE INTERIOR STANDARD AWARD TERMS
AND CONDITIONS
The Department of the Interior(DOI) Standard Award Terms and Conditions found at
https://www.doi.gov/sites/doi.gov/files/uploads/doi-standard-award-terms-and-conditions-
effective-december-2-2019-revised-june-19-2020.pdf are hereby incorporated by reference as
though set forth in full text. These terms and conditions are in addition to the assurances and
certifications made as part of the award and terms, conditions or restrictions reflected on this
Agreement. Recipient acceptance of this Agreement carries with it the responsibility to be aware
of and comply with all DOI terms and conditions applicable to this Agreement. The Recipient is
responsible for ensuring their subrecipients and contractors are aware of and comply with
applicable statutes, regulations, and agency requirements.
Recipient and subrecipient failure to comply with the general terms and conditions outlined
below and those directly reflected in this Agreement can result in the DOI taking one or more of
remedies described in 2 Code of Federal Regulations parts 200.338 and 200.339. The DOI will
notify the recipient whenever terms and conditions are updated to accommodate instances in the
passage of a regulation or statute that requires compliance. Also, DOI will inform the Recipient
of revised terms and conditions in the action of an Agreement amendment adding additional
Federal funds. Reclamation will make such changes by issuing a Notice of Award amendment
that describes the change and provides the effective date. Revised terms and conditions do not
apply to the Recipient's expenditures of funds or activities the Recipient carries out before the
effective date of the revised DOI terms and conditions.
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