General Terms and Conditions for General Support Grants to State Humanities Councils

Introduction

This document replaces the

November 2005 Edition of the General Terms and Conditions for General Support Grants to State Humanities Councils.

It should be noted that these terms and conditions apply only to general support grants awarded to the fifty-six state humanities councils by the Federal/State Partnership.

Awards that a state humanities council receives from other programs of the NEH are subject to either the General Terms and Conditions for Awards or the Administration of NEH Challenge Grants.

There are numerous minor changes in this edition as well as the following substantive changes:

Article 5. Payments, Interest, and Refunds, and Article 14. Reporting Requirements reference the recently updated Financial Reporting Requirements that provide detailed procedures for requesting payment from NEH and summarizes the financial reports that are now required.  The SF 425, Federal Financial Report (FFR) is now the form required for submission of the annual and final financial reports.  The submission of the quarterly SF 272, Federal Cash Transactions Report is no longer required, as NEH will use the SF 270, Request for Advance or Reimbursement to determine whether excessive amounts of federal funds (cash on hand) are being held.

Article 19. Procurement Standards and Article 28. Debarment and Suspension have been changed to reflect changes in the government-wide debarment and suspension rules.  Councils must ensure that all subrecipients  (e.g., regrantees, contractors, fellows or seminar participants) are not debarred or suspended by any federal department or agency.   Councils are required to ensure subrecipient and contractor compliance by including a term or condition in the lower-tier transaction that requires compliance with Subpart C of the regulations, and are also responsible for further requiring the inclusion of a similar term or condition in any subsequent lower- tier covered transaction.   Signed certifications are no longer required.

Two new articles have been added:
U.S. Constitution Day Education Program (PL. 108-447, Div. J. Sec. 111(b) (Article 32); and
Coordination of Geographic Information and Related Spatial Data (OMB Circular A-16 and Executive Order 12906) (Article 33)

NEH Office of Grant Management

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TABLE OF CONTENTS

Glossary of Terms

• Basic Responsibilities

  1. Applicability of General Terms and Conditions
  2. Eligibility for NEH Grant Support
  3. Acknowledgment of Support and Disclaimer
  4. Regrant Activities

• Payment

  5. Payments, Interest and Refunds

• Project Costs

  6. Allowable Costs
  7. Fund Raising
  8. Equipment
  9. Real Property, Construction, and Facility Improvement
  10. Travel Costs
  11. Foreign Travel

• Changes

  12. Budget Revisions
  13. Award Period

• Reporting and Recordkeeping

  14. Reporting Requirements
  15. Program Income
  16. Financial Management Standards
  17. Cost Sharing and Cost-Sharing Records
  18. Valuation of Third Party In‑Kind Contributions
  19. Procurement Standards

• Audit

  20. Audit Requirements
  21. Record Retention
  22. CFDA Numbers (Catalog of Federal Domestic Assistance)

• Rights

  23. Intangible Property

• Government-wide Requirements

  24. Uniform Administrative Requirements
  25. Nondiscrimination
  26. Lobbying Activities
  27. Drug‑Free Workplace Requirements
  28. Debarment and Suspension
  29. Labor Standards
  30. Native American Graves Protection and Repatriation Act of 1990
  31. National Historic Preservation Act of 1966

• NEH-Specific Requirement

  32. U.S. Constitution Day Education Program (PL 108-447, Div. J. Sec. 111(b))
  33. Coordination of Geographic Information and Related Spatial Data
      (OMB Circular A-16 and Executive Order 12906)
  34. Dissemination of Award Results
  35. Activities Outside the United States
  36. Data Collection
  37. Research Misconduct
  38. Code of Ethics for Projects Related to Native Americans

• Suspension and Termination

  39. Suspension and Termination
  40. Termination Review Procedures

TABLE OF CONTENTS

1. Administrative Requirements That Apply To Regrantees
2. Provisions Applicable To Contracts
3. Prohibition on Use of Funds to ACORN or its subsidiaries

Glossary of Terms

General Terms and Conditions for General Support Grants

 to State Humanities Councils

ARTICLES

1. Applicability of General Terms and Conditions

   These general terms and conditions apply to all general support grants and annual funding amendments that the National Endowment for the Humanities has issued to state humanities councils as of November 1,2009. In accepting a general support grant, a state humanities council assumes the legal responsibility for administering the award in accordance with these general terms and conditions and of complying fully with any special terms and conditions that are included in the award agreement. Failure to comply with the General Terms and Conditions for General Support Grants to State Humanities Councils or the specific terms and conditions of an award agreement may result in the suspension or termination of the award and the NEH’s recovery of award funds. Should there be any inconsistency between these general terms and conditions and the specific terms and conditions of an award, the latter will govern.

2. Eligibility for NEH Grant Support

   Only those state humanities councils that have currently approved compliance plans are eligible to receive a general support grant from Federal/State Partnership.

   Although state humanities councils must be constituted for nonprofit purposes to be eligible to receive NEH funds, a council does not have to be incorporated.

3. Acknowledgment of Support and Disclaimer

   Unless advised to the contrary, all materials publicizing or resulting from award activities shall contain an acknowledgment of NEH support. The acknowledgment shall also include the following statement: “Any views, findings, conclusions or recommendations expressed in this (publication) (program) (exhibition) (website) do not necessarily represent those of the National Endowment for the Humanities.”

   One copy of all award products from council-conducted projects should be forwarded to the Federal/State Partnership as soon as they are available.

4. Regrant Activities

   Councils are authorized to award regrants (see definition in the “Glossary of Terms”) to private nonprofit organizations; institutions of higher education; state, local, and federally recognized Indian tribal governments; institutions of the federal government; groups of persons that form an association to carry out a project; and individuals. Organizations or groups that apply to the councils for funding must be constituted for nonprofit purposes. It is not necessary that such organizations or groups be incorporated or have tax‑exempt status. State humanities councils may not award regrants to for-profit entities.

   State humanities councils shall award regrants to provide support for humanities projects selected in open competition on the basis of established criteria that are widely known. When a regrant is awarded the council must inform the subrecipient of the relevant NEH award number.

   In addition, the administrative requirements set forth in Appendix A of these general terms and conditions shall apply to all regrants awarded by the state humanities councils.

5. Payments, Interest and Refunds

   A detailed explanation of payment procedures will be found in the Financial Reporting Requirements.

   Recipients will be paid on an advance basis, unless otherwise specified in the award, and payment will be effected through electronic funds transfer. Whenever possible, advances should be consolidated to cover the anticipated cash needs for all NEH awards to the recipient and should be deposited and maintained in insured accounts. Recipients are also encouraged to use women-owned and minority-owned banks (banks that are owned at least 50 percent by women or minority group members).

   Requests for advance payment shall be limited to the recipient's immediate cash needs and are not to exceed anticipated expenditures for a 30-day period. Award funds that have been paid to the recipient but are unspent at the end of the award period must be promptly refunded to the NEH.

   All recipients, except states (see definition), are required to maintain advances of federal funds in interest-bearing accounts unless one of the following conditions pertains:  a) the recipient receives less than $120,000 per year in advances of award funds; b) the most reasonably available interest-bearing account would not earn more than $250 per year on the federal cash balance; or c) placing the money in such an account would entail bank services charges in excess of the interest earned.

   Interest that is earned on advanced payments up to $250 per year may be retained by the recipient for administrative expenses. Interest earned in excess of $250 a year shall be remitted annually to the Department of Health and Human Services (DHHS). If possible, interest should be remitted through an electronic medium such as the FEDWIRE Deposit system. Recipients that do not have this capability should make payment by check and mail it to the DHHS Payment Management System, P.O. Box 6021, Rockville, MD 20852.

6. Allowable Costs

   The allowability of costs and cost allocation methods for work performed under an NEH general support grant to a state humanities council shall be determined in accordance with OMB Circular A‑122, Cost Principles for Nonprofit Organizations (2 CFR Part 230). When funds are regranted by a council, one of the following sets of cost principles will apply:

   1. OMB Circular A-21 (2 CFR Part 220) for awards to public and private institutions of higher education.
   2. OMB Circular A-122 (2 CFR Part 230) for awards to nonprofit organizations that are not institutions of higher education.
   3. OMB Circular A-87 (2 CFR Part 225)for awards to state, local, and federally recognized Indian tribal governments.

7. Fund Raising

   Section 7(f) of the National Foundation on the Arts and Humanities Act of 1965, as amended, provides the NEH with the authority to allow fund‑raising costs to be charged as expenditures against NEH and cost‑sharing funds in general support awards made to the state humanities councils. The state humanities councils are therefore authorized to make such charges to general support award funds.

   However, fund-raising costs may not be charged as expenditures in regrant budgets.

8. Equipment

   Equipment (see definition in the “Glossary of Terms”) may be purchased without the prior approval of the NEH. Subject to the obligations and conditions set forth below, title to equipment acquired under an award or regrant vests upon acquisition in the council or the regrantee respectively.

   In expending NEH award funds for equipment and products, recipients and subrecipients will comply with the Buy American Act, 41 U.S.C. 10a-c.

   1. Use of Equipment

      1. Equipment must be used by the council or the regrantee 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 federal funds. When no longer needed for the original program or project, the equipment may be used in other activities currently or previously supported by a federal agency.
      2. The council or regrantee shall also make equipment available for use on other projects or programs currently or previously supported by the federal government, providing such use does not interfere with the work on the projects or programs for which it was originally acquired. First preference for other use shall be given to other programs or projects supported by the NEH. If appropriate, user fees may be considered and treated as program income to the award.
      3. The council or regrantee shall not use equipment acquired with award funds to provide services for a fee to compete unfairly with private companies that provide equivalent services, unless this is specifically permitted or contemplated by federal statute.
      4. When acquiring replacement equipment, the council or regrantee may use the equipment to be replaced as a trade‑in or may sell the equipment and use the proceeds to offset the cost of the replacement equipment.

   2. Management Requirements

      Procedures for managing equipment (including replacement equipment), whether acquired in whole or in part with award funds, must at a minimum meet the following requirements until disposition takes place:

      1. Equipment records must be maintained that include a description of the equipment, a serial number or other identification number, the source of equipment, who holds title, the acquisition date, the cost of the equipment, the location, use, and condition of the equipment, and any ultimate disposition data including the date of disposal and the sale price of the equipment.
      2. A physical inventory of the equipment must be taken and the results reconciled with the equipment records at least once every two years.
      3. A control system must exist to ensure adequate safeguards to prevent loss, damage, or theft of the equipment. Any loss, damage, or theft shall be investigated.
      4. Adequate maintenance procedures must exist to keep the equipment in good condition.
      5. If the council or regrantee is authorized or required to sell the equipment, sales procedures must be followed that provide for competition to the extent practicable and result in the highest possible return.

   3. Disposition

      When original or replacement equipment acquired under an award or regrant is no longer needed for the original project or program or for other activities currently or previously supported by the NEH, a council may retain, sell, or otherwise dispose of the equipment without further obligation to the NEH.

   4. Right to Transfer Title

      The NEH reserves the right to transfer title to equipment acquired with award funds to the federal government or a third party named by the NEH when such a third party is eligible under existing statutes. Such transfers are subject to the following standards:

      1. The equipment must be identified in the award or otherwise made known to the council or regrantee in writing.
      2. The NEH shall issue disposition instructions within 120 calendar days after the end of the federal support of the project for which it was acquired.
      3. When title to equipment is transferred, the council or regrantee must be compensated for its share.

9. Real Property, Construction, and Facility Improvement

   NEH funds may not be budgeted for any costs related to the purchase of land or facilities by a council or for the construction and renovation of any council-owned facilities. If a council owns or plans to purchase a facility which will be used to carry out its humanities activities, it may not allocate award funds to cover the down payment, mortgage payments, or other expenses related to the use of the facility. The NEH will, however, negotiate an occupancy rate which will take into account such things as depreciation of the property, maintenance and repair costs, utilities, insurance, taxes, interest, etc.

   If a state council funds a regrant project that includes construction or renovation costs, the requirements of the Davis-Bacon Act (Article 29.b and Appendix B, 3.) and the National Historic Preservation Act (Article 31) will apply to the regrant.

10. Travel Costs

    Travel costs are the expenses for transportation, lodging, subsistence, and related items incurred by those who are in travel status on official business of the council that is directly attributable to specific work under an award or are incurred in the normal course of the administration of the council.

    Such costs may be charged on an actual basis, on a per diem or mileage basis in lieu of actual costs, or on a combination of the two, provided the method used results in charges consistent with those normally allowed by the council in its regular operation.

    Airfare costs in excess of the customary standard commercial airfare (coach or equivalent), federal government contract airfare (where authorized and available), or the lowest commercial discount airfare are unallowable except when such accommodations would: (a)require circuitous routing; (b)require travel during unreasonable hours; (c)excessively prolong travel; (d)result in additional costs that would offset the transportation savings; or (e)offer accommodations not reasonably adequate for the traveler’s medical needs. All air travel that is paid in whole or in part with NEH funds must be undertaken on U.S. flag air carriers, unless one or more of the situations described under foreign travel (Article 11) apply.

11. Foreign Travel

    Council board and staff members may undertake foreign travel, that is, travel outside the United States, its territories and possessions, and Canada without prior NEH approval whenever such travel is necessary to carry out council activities. Councils may also approve foreign travel that will be undertaken by a regrantee.

    However, any air transportation of persons or property from, between, or within a country other than the United States that is paid in whole or in part with NEH funds must be performed on a U.S. flag air carrier when such service is available. U.S. flag air‑carrier service is considered available even though a comparable or different kind of service can be provided at less cost by a foreign carrier or foreign air‑carrier service is preferred by, or is more convenient for, the traveler.

    U.S. flag air‑carrier service is considered to be available unless any of the circumstances listed below applies:

    1. no U.S. flag air carrier provides service on a particular leg of the route;
    2. a U.S. flag air carrier involuntarily reroutes the traveler on a foreign air carrier;
    3. a foreign air carrier operates under a “code-share” arrangement with a U.S. flag air carrier and the ticket, or documentation for an electronic ticket, identifies the U.S. flag air carrier’s designator code and flight numbers;
    4. service on a foreign air carrier would be three hours or less, and use of the U.S. flag air carrier service would at least double the en route travel time;

    5. when flying between the United States and another country

       1. the use of nonstop or direct U.S. flag air carrier service would extend a person’s travel time, including a delay at origin, by 24 hours or more, or
       2. where U.S. nonstop or direct service is not available, the use of a U.S. flag air carrier on every portion of the route where it provides service would, when compared to using a foreign air carrier
          1. increase the number of aircraft changes a person would have to make outside the U.S. by 2 or more; or
          2. extend travel time by 6 hours or more; or
          3. require a connecting time of 4 hours or more at an overseas interchange point.
    6. when flying outside the United States, the use of a U.S. flag air carrier would result in any of the situations described in e.(2) above.

    Lower cost, convenience, or traveler preferences are NOT acceptable reasons for using a foreign air carrier.

12. Budget Revisions

    The budgets for state humanities councils include the anticipated expenditures of NEH award funds and cost‑sharing contributions and are divided into a number of distinct activities, e.g., general management, program services, council-conducted projects, regrants.

    With the exception of funds allocated for regrants, councils have the authority to shift funds among budget line items within a program and from one activity or program to another. Funds may also be shifted into the regrant program without NEH approval. Once the budget for the funding period has been approved by the NEH, funds may not be transferred from the regrant category without the NEH’s written approval, except to cover increased costs related to the auditing of regrants.

13. Award Period

    State humanities councils have the responsibility of ensuring that all council and regrantee activities that are charged to a particular NEH award take place within the official award period.

    General support award periods usually run for five years. Supplemental funding will be issued in the second and third years of the award period. Councils have two years following the last funding period to close out the award. The NEH will not extend any general support grant.

    Councils are expected to obligate most of the funds awarded each year by the end of the funding period, but they will be able to carry forward unobligated funds into the succeeding year and may obligate funds that become available through deobligation any time during the award period, provided that all obligations are liquidated within 90 days after the completion date of the award period.

14. Reporting Requirements

    Each council will periodically be required to submit a report that outlines its activities, accomplishments, and future plans. Details on the content of these reports and when they are due will be provided by Federal/State Partnership well in advance of the report due dates.

    A schedule of due dates for interim and final reports will be found on the last page of the award document.

    An annual and final Federal Financial Report, SF425 (FFR), shall be submitted to the NEH Office of Grant Management within 90 days after the completion date of the respective reporting period.

    Should the recipient discover an error in the final Federal Financial Report after it has been submitted to the NEH, a revised report must be submitted promptly. NEH shall then make any additional payment due the recipient, or request an additional refund, as appropriate.

    Failure to submit reports on a timely basis may result in delayed payments and the suspension of action on pending applications from the recipient.

    Detailed information on the financial reporting requirements will be found in the publication entitled Financial Reporting Requirements.

15. Program Income

    Program income is money that is earned or received by a council or a subrecipient from the activities supported by award funds or from products resulting from award activities. It includes, but is not limited to, income from fees for services performed and from the sale of items produced under an award; usage or rental fees for equipment or property acquired under an award; admission fees; broadcast or distribution rights; and royalties on patents and copyrights. However, income from royalties and license fees for copyrighted material, patents, patent applications, trademarks, and inventions developed by a council do not have to be treated as program income if the revenues are not specifically identified in the award.

    Councils and their regrantees may deduct the costs incident to the generation of program income, if these are not already charged to the award or regrant, to determine net program income.

    Councils may use the net program income which they generate during the award period to meet their cost‑sharing requirements or to support any of their humanities related activities. For general support grants, the NEH places no restrictions on the use of program income earned after the award period.

16. Financial Management Standards

    The financial management systems of the councils and their regrantees must meet the following standards:

    1. Financial Reporting. Accurate, current, and complete disclosure of all financial transactions related to federally sponsored projects must be made in accordance with the financial requirements of the award or regrant.

    2. Accounting Records. The councils and their regrantees must maintain records that adequately identify the source and application of funds provided for financially‑assisted activities. These records must contain information pertaining to obligations, unobligated balances, assets, liabilities, expenditures, and income.

       Each council or its fiscal agent shall have a double‑entry accounting system that is maintained according to generally accepted accounting principles that are applied on a consistent basis. The system should provide for a general ledger, a cash receipts journal, a cash disbursements journal, and a general journal. The general ledger would contain control accounts for regrant funds that are awarded (obligated) and cost‑sharing funds that are provided by the council itself. A separate control account, which may be recorded in a memorandum ledger rather than the general ledger, should be established for cost‑sharing funds that are provided by regrantees and the council’s board.

       There should also be a subsidiary ledger in which each regrant is listed separately and which contains the following information: the date of the award, the amount of gifts received, the amount of outright and matching funds awarded, the beginning and ending dates of the regrant period, the payments made, the net balance to be paid, and the cost sharing reported by the regrantee. The subsidiary ledger account balances for each regrant should be added monthly and reconciled to the general ledger if the council uses an accrual basis system. If the council’s records are maintained on a cash basis, the payments recorded in the subsidiary ledger account should be added monthly and reconciled to the general ledger.

       To facilitate the management of gifts and matching funds, councils are to maintain a log or journal that contains the name and the classification of the donor, the name of the recipient (if the gift was not given directly to the council), the amount of the gift, the designation of the gift as restricted or unrestricted, the amount of the gift that is certified to the NEH and the date certified, the amount of matching funds awarded by the NEH and the date of that award, and the allocation of the gifts and matching funds to one or more council activities.

    3. Internal Control. Effective control and accountability must be maintained for all cash, real and personal property, and other assets. The councils and their regrantees must adequately safeguard all such property and must provide assurance that it is used solely for authorized purposes. They must also have systems in place that ensure compliance with the terms and conditions of any awards they administer.
    4. Budget Control. Records of expenditures are to be maintained by the cost categories of the approved budget and actual expenditures are to be compared with budgeted amounts.
    5. Allowable Costs. The applicable OMB Cost Principles, the General Terms and Conditions for General Support Grants to State Humanities Councils, and the terms and conditions of award and regrant agreements will be followed in determining the reasonableness, allowability, and allocability of costs.

    6. Source Documentation. Accounting records must be supported by such source documentation as canceled checks, bank statements, invoices, paid bill, donor letters, time and attendance records, activity reports, travel reports, contractual and consultant agreements, and subaward documentation. All supporting documentation should be clearly identified with the award identification number and name of the general ledger accounts which are to be charged or credited.

       Formal agreements with independent contractors, such as consultants, must include a description of the services to be performed, the period of performance, the fee and method of payment, an itemization of travel and other costs which are chargeable to the agreement, and the signatures of both the contractor and an appropriate official of the council.

    7. Cash Management. Councils shall normally draw down funds at least once a month and shall have procedures in place to ensure that award funds on hand do not exceed the council’s cash needs for a 30-day period. Councils shall also monitor the cash drawdowns of their regrantees to ensure that they conform substantially to the standards of timing and amounts set forth in Appendix A of these terms and conditions.

17. Cost Sharing and Cost-Sharing Records

    By law the NEH cannot support more than 50 percent of the costs of a state humanities council’s activities[.1] The balance of support may come from cash contributions to the council that are made from any source (including funds from other federal agencies), program income the council has earned, the allowable costs that a subrecipient incurs in carrying out a council‑funded project, and the value of in‑kind contributions that are made by a third party.

    All cash and in-kind contributions to a project that are provided by the council, a subrecipient, or a third party are acceptable as the recipient’s cost sharing when such contributions meet the following criteria:

    • they must be verifiable from the council’s or the subrecipient records;
    • they must not be included as contributions for any other federally-assisted program;
    • they must be necessary and reasonable for the proper and efficient accomplishment of project objectives;
    • they must be types of charges that would be allowable under the applicable cost principles;
    • they must be used to support activities that are included in the approved project workplan; and
    • they must be incurred during the award period.

    NEH has traditionally viewed cost sharing as a means to assure that a wide range of individuals and educational, cultural, and other organizations are involved in and meaningfully invested in a council's work.  State humanities councils are strongest when they have a deep commitment to being a statewide organization at the same time as they are firmly rooted in local communities and involved with a broad range of citizens.  For these reasons, NEH strongly encourages councils to meet their cost sharing requirements with a wide range of contributions and also strongly discourages state councils from meeting their cost sharing requirements with contributions from only a minimum number of regrantees.
    
    Any contribution that a subrecipient makes to its own project must be based either on the cost incurred to provide that contribution or, in the case of donated buildings or equipment, on depreciation or a use allowance that is computed in accordance with the applicable cost principles. When a subrecipient is not able to calculate the exact cost involved in contributing its own equipment, space, services, etc. to the project, then the subrecipient must indicate in the project budget the basis for determining the value of the contribution.
    _______________________

    [1]This requirement is modified for the four territorial councils covered under the Economic Development of Territories Act of 1984.

18. Valuation of Third Party In‑Kind Contributions

    When the recipient’s cost sharing includes third-party in-kind contributions, the basis for determining the valuation of volunteer services (including board member time) and donated property or space must be documented and must conform to the principles set out below.

    1. Volunteer services that are provided to the council or subrecipient by professional and technical personnel, consultants, and other skilled and unskilled labor may be counted as cost sharing if the service is an integral and necessary part of an approved project or program. Volunteer services shall be valued at rates consistent with those ordinarily paid for similar work within the recipient organization. If the council does not have employees performing similar work, the rates will be consistent with those ordinarily paid by other employers for similar work in the same labor market. In either case, a reasonable amount of fringe benefits may be included in the valuation.
    2. Board members should value their donated services (time) at a standard rate per day. A rate of $520 per day or $65 per hour is considered a reasonable standard rate at this time. Board member service time may be valued at the members normal billing rate when a board member performs the services of his or her profession, such as a lawyer, accountant, etc.  Any greater rate should be approved by the NEH’s Federal State Partnership.
    3. When an employer furnishes the services of an employee, these services shall be valued at the employee’s regular rate of pay (plus an amount of fringe benefits that is reasonable), provided that these services involve the same skills for which the employee is normally paid.
    4. The value of donated equipment shall not exceed the fair market value of equipment of the same age and condition at the time of donation, and the value of loaned equipment shall not exceed its fair rental value.
    5. The value of donated space shall not exceed the fair rental value of comparable space, as established by an independent appraisal of comparable space and facilities in a privately-owned building in the same locality.
    6. The value assigned to donated supplies or other expendable property should be reasonable and should not exceed the fair market value of the property at the time of donation.
    7. The value of project related services that are provided without charge would be the fee the third party would normally charge for the service.

19. Procurement Standards

    NOTE: The standards contained in this section do not relieve the council of the responsibilities arising under its contracts. The council is the responsible authority, without recourse to the NEH, regarding the settlement and satisfaction of all contractual and administrative issues arising out of procurements entered into in support of an award or other agreement. Matters concerning the violation of a statute are to be referred to such federal, state, or local authority as may have proper jurisdiction.

    When procuring property or services under an NEH award, a council will follow the same policies and procedures it uses for procurements with its nonfederal funds, but these policies and procedures must adhere to the standards set forth below. Subrecipients of award funds are subject to the same policies and procedures as the recipient.

    1. The council and its subrecipients will maintain a system for contract administration that ensures that contractors perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders. Recipients shall evaluate contractor performance and document, as appropriate, whether or not contractors have met the terms, conditions, and specifications of the contract.

    2. A written standard for awarding and administering contracts shall be maintained by the council and its subrecipients. No employee, officer, or agent of the council or subrecipient shall participate in the selection, or in the awarding or administration of a contract supported by federal funds, if a real or apparent conflict of interest would be involved. Such a conflict would arise when any of the following has a financial or other interest in the firm selected for a contract: 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 preceding.

       The officers, employees, and agents of a council or a subrecipient will neither solicit nor accept gratuities, favors, or anything of monetary value from contractors, or parties to subagreements. However, a council or a subrecipient may set standards governing when the financial interest is not substantial or the gift is an unsolicited item of nominal value. The standards of conduct shall provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the council or a subrecipient.

    3. All procurement transactions will be conducted in a manner to provide, to the maximum extent practical, open and free competition. The council and subrecipient should be alert to organizational conflicts of interest or noncompetitive practices among contractors that may restrict or eliminate competition or otherwise restrain trade. In order to insure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, invitations for bids, or requests for proposals should be excluded from competing for such procurements. Awards shall be made to the bidder or offeror whose bid or offer is responsive to the solicitation and is most advantageous to the council or subrecipient, when price, quality and other factors are considered. Solicitations shall clearly set forth all requirements that the bidder or offeror must fulfill in order for the bid or offer to be evaluated by the council or subrecipient. When it is in the council’s or subrecipient’s interest to do so, any bid or offer may be rejected.

    4. All councils and their subrecipients shall establish written procurement procedures that provide for, at a minimum, the following procedural requirements:

       1. The council and subrecipient must ensure that all parties with whom they contract for goods or services are not debarred or suspended from doing business with the federal government (see Excluded Parties List System) when (1) the amount of the contract is $25,000 or more, or (2) the contract requires NEH consent, or (3) the contract is for federally-required audit services. The council and subrecipient are required to include a term or condition in the contract that requires the contractor’s compliance with Subpart C of 2 CFR Parts 180 and 3369.
       2. Proposed procurements are to be reviewed to avoid the purchase of unnecessary or duplicative items. Where appropriate, an analysis shall be made of lease and purchase alternatives to determine which would be the most economical, practical procurement.

       3. Solicitations for goods and services shall provide the following:

          1. A clear and accurate description of the technical requirements for the material, product, or service to be procured. In competitive procurements, such a description shall not contain features which unduly restrict competition.
          2. Requirements which the bidder or offeror must fulfill and all other factors to be used in evaluating bids or proposals.
          3. Whenever practicable, a description of technical requirements in terms of the functions to be performed or the performance required, including the range of acceptable characteristics or minimum acceptable standards.
          4. The specific features of "brand name or equal" descriptions that bidders are required to meet when such items are included in the solicitation.
          5. Preference, to the extent practical and economically feasible, for products and services that conserve natural resources, protect the environment, and are energy efficient.
       4. The council and subrecipient shall make positive efforts to assure that small businesses, minority owned firms, and women’s business enterprises are used when possible. Organizations receiving federal awards shall take all the steps outlined below to further this goal. This shall include (i) placing qualified small and minority businesses and women’s business enterprises on solicitation lists; (ii) assuring that these businesses and enterprises are solicited whenever they are potential sources; (iii) contracting with consortiums of small, minority owned, or women’s business enterprises, when a contract is too large for one of these firms to handle individually; (iv) using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Department of Commerce’s Minority Business Development Agency; and (v) considering in the contract process whether firms competing for larger contracts intend to subcontract with small businesses, minority owned firms, and women’s business enterprises.
       5. The type of procurement instrument used, e.g., fixed price contracts, cost reimbursable contracts, incentive contracts, purchase orders, will be determined by the council or subrecipient, but must be appropriate for the particular procurement and for promoting the best interest of the program involved. The “cost‑plus‑a‑percentage‑of‑cost” or “percentage-of- construction-cost” methods shall not be used.
       6. Contracts will be made only with responsible contractors who possess the potential ability to perform successfully under the terms and conditions of a proposed procurement. Consideration should be given to such matters as contractor integrity, the record of past performance, financial and technical resources or accessibility to other necessary resources.
       7. Some form of price or cost analysis should be made in connection with every procurement action. Price analysis may be accomplished in various ways, including the comparison of price quotations submitted, market prices and similar indicia, together with discounts. Cost analysis is the review and evaluation of each element of cost to determine reasonableness, allocability, and allowability.
       8. Procurement records and files for purchases in excess of the simplified acquisition threshold (currently $150,000) shall include the basis for contractor selection, justification for lack of competition when competitive bids or offers are not obtained, and the basis for award cost or price.

    5. Council contracts in excess of the simplified acquisition threshold must provide for

       1. Administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and such remedial actions as may be appropriate.
       2. Termination for cause and for convenience by the recipient, including the manner by which it will be effected and the basis for settlement. In addition, these contracts shall also contain a description of the conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor.
       3. Access by the council, the NEH, the Comptroller General of the United States, or any other duly authorized representatives to any books, documents, papers, and records of the contractor which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions.
       4. All contracts, including small purchases, that are awarded by the council, its regrantees, and their contractors shall contain the provisions contained in Appendix B as applicable.

20. Audit Requirements

    State humanities councils and regrantees that are subject to these general terms and conditions shall have audits performed that meet the requirements of OMB Circular A‑133. In addition, state humanities councils must comply with the CFDA 45.129 section of the OMB Compliance Supplement.

21. Record Retention

    Financial records, supporting documentation, statistical records, and all other records pertinent to the award shall be retained by the council and regrantees for three years following the submission of the final Federal Financial Report.

    If the three-year retention period is extended because of audits, appeals, litigation, or the settlement of claims arising out of the performance of the project, the records shall be retained by the council and regrantee until such audits, appeals, litigation, or claims are resolved. Unless court action or audit proceedings have been initiated, the recipient may substitute microfilm copies of original records.

    The NEH, the Comptroller General of the United States, and any of their duly authorized representatives shall have access to any pertinent books, documents, papers, and records of the council and its subrecipients to make audits, examinations, excerpts, transcripts, and copies. Further, any contract in excess of the simplified acquisition threshold (currently $150,000) that is negotiated by the council for the purposes of carrying out award activities shall include a provision to the effect that the recipient, the NEH, the Comptroller General, or any of their duly authorized representatives shall have access for similar purposes to any records of the contractor that are directly pertinent to the award.

22. CFDA Numbers (Catalog of Federal Domestic Assistance)

    The Catalog of Federal Domestic Assistance (CFDA) profiles all federal award programs, projects, services, and activities which provide assistance or benefits to the American public and assigns each a specific number. The CFDA is jointly issued by the Office of Management and Budget and the General Services Administration. The CFDA number is important for tracking purposes and is also used by recipients and their auditors to identify the sources of federal awards covered by an OMB Circular A-133 audit. With each notification of funding, the NEH provides the relevant CFDA number to the recipient. The number appears at the bottom of the “Remarks” section of the “Official Notice of Action” for each new award or amendment. State councils must provide this number to their subrecipients.

     

23. Intangible Property

    1. The council may copyright any work that is subject to copyright and was developed, or for which ownership was purchased, under the award. Similarly, a regrantee may copyright any work that is subject to copyright and was developed, or for which ownership was purchased, under its regrant. The NEH reserves a royalty-free, nonexclusive, and irrevocable right to reproduce, publish or otherwise use these materials for Federal purposes and to authorize others to do so (see 2 CFR Part 215.36. Intangible Property, OMB Circular A-110).

       “Federal purposes” include the use of award products in activities or programs undertaken by the federal government, in response to a governmental request, or as otherwise required by federal law. However, the federal government’s use of copyrighted materials is not intended to interfere with or disadvantage the recipient or assignee in the sale and distribution of the award product.

       The NEH may request copies of an award product for non-profit use by other state humanities councils if the product forms an integral part of a council conducted program. These copies will be provided to the councils at the cost of reproduction and shipping, and no royalties or other fees will be charged.

    2. Councils or regrantees that are awarded funds for experimental, developmental, or research work are subject to the regulations governing patents and inventions, including government-wide regulations issued by the Department of Commerce at 37 CFR Part 401, “Rights to Inventions made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements.”

    3. The NEH has the right to:

       1. obtain, reproduce, publish or otherwise use the data first produced under an award; and
       2. authorize others to receive, reproduce, publish, or otherwise use such data for federal purposes.
    4. In addition, in response to a Freedom of Information Act (FOIA) request for research data relating to published research findings produced under an award that were used by the Federal Government in developing an agency action that has the force and effect of law, the NEH shall request, and the recipient shall provide, within a reasonable time, the research data so that they can be made available to the public through the procedures established under the FOIA. If the NEH obtains the research data solely in response to a FOIa request, the NEH may charge the requester a reasonable fee equaling the full incremental cost of obtaining the research data. This fee should reflect costs incurred by the agency, the recipient, and applicable subrecipients. This fee is in addition to any fees the agency may assess under the FOIA (5 U.S.C. 552(a)(4)(A)). For additional information and definition of terms, please see 2 CFR Part 215.36(d) Intangible Property, OMB Circular A-110.
    5. Title to intangible property acquired under an award or subaward vests upon acquisition in the recipient. The recipient shall use that property for the originally authorized purpose and shall not encumber the property without the NEH’s approval. The NEH reserves the right to determine the disposition of the intangible property when it is no longer needed for the originally authorized purpose.

24. Uniform Administrative Requirements

    General support grants to state humanities councils are subject to the uniform administrative requirements of OMB Circular A‑110 (2 CFR Part 215). The standards set forth in these General Terms and Conditions for General Support Grants to State Humanities Councils and in the Financial Reporting Requirements are consistent with these administrative requirements.

25. Nondiscrimination

    The state humanities councils and their institutional subrecipients must execute projects, productions, workshops, and programs in accordance with the following laws, where applicable.

    1. Title VI of the Civil Rights Act of 1964, as amended, provides that no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving federal financial assistance. (42U.S.C. 2000d et seq.) Title VI also extends protection to persons with limited English proficiency. Please note that NEH has issued policy guidance for recipients and subrecipients on “Title VI Prohibition Against National Origin Discrimination As It Affects Persons With Limited English Proficiency.”
    2. Title IX of the Education Amendments of 1972 provides that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subject to discrimination under any education program or activity receiving federal financial assistance. (20 U.S.C. 1681 et seq.)
    3. The Age Discrimination Act of 1975 provides that no person in the United States shall, on the basis of age, be excluded from participation in, be denied benefits of, or be subject to discrimination under any program or activity receiving federal financial assistance. (42U.S.C. 6101 et seq.)
    4. Section 504 of the Rehabilitation Act of 1973 provides that no otherwise qualified individual with a disability in the United States, shall, solely by reason of his/her disability, be excluded from participation in, be denied benefits of, or be subject to discrimination under any program or activity receiving federal financial assistance. (29U.S.C.794)
    5. The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination on the basis of disability in employment (Title I), state and local government services (Title II), places of public accommodation and commercial facilities (TitleIII). (42U.S.C.12101‑12213)

26. Lobbying Activities

    The Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, prohibits recipients of federal contracts, grants, and loans from using appropriated funds to influence the Executive or Legislative Branches of the Federal Government in connection with a specific contract, grant, cooperative agreement, loan, or any other award covered by §1352. 18 U.S.C. 1913 makes it a crime to use funds appropriated by Congress to influence members of Congress regarding congressional legislation or appropriations. Finally, 2 CFR Part 230, Appendix B.25. Lobbying, OMB Circular A‑122 designates the following as unallowable charges to grant funds or cost sharing: certain electioneering activities, financial support for political parties, attempts to influence federal or state legislation either directly or through grass‑roots lobbying, and some legislative liaison activities.

    Therefore, any costs associated with lobbying activities will have to be recorded separately in a council’s books to ensure that they are not charged to award funds or to the council’s mandated cost sharing on its awards. Furthermore, any portion of the state humanities council’s membership dues that are paid to the Federation of State Humanities Councils from the NEH’s award funds or the council’s mandated cost sharing may not be used to support the Federation’s lobbying activities.

    The NEH is required by the provisions of its appropriations act to include the text of 18U.S.C.1913 in all of its award, cooperative agreement, and contract documents.

    Text of 18U.S.C.1913:

    No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy, or appropriation, whether before or after the introduction of any bill, measure, or resolution proposing such legislation, law, ratification, policy, or appropriation; but this shall not prevent officers or employees of the United States or of its departments or agencies from communicating to any such Member or official, at his request, or to Congress or such official, through the proper official channels, requests for any legislation, law, ratification, policy, or appropriations which they deem necessary for the efficient conduct of the public business, or from making any communication whose prohibition by this section might, in the opinion of the Attorney General, violate the Constitution or interfere with the conduct of foreign policy, counter-intelligence, intelligence, or national security activities. Violations of this section shall constitute violations of section 1352(a) of title 31.

    For further information, please refer to the NEH regulations on lobbying restrictions located at 45 CFR Part 1168.

27. Drug‑Free Workplace Requirements

    State humanities councils and their institutional subrecipients are required to maintain a drug-free workplace in accordance with the Drug-Free Workplace Act of 1988, 41U.S.C. 701, and must comply with the drug-free workplace requirements contained at2 CFR Part 182 and the NEH regulations at 2 CFR Part 3373, Governmentwide Requirements for Drug-Free Workplace (Financial Assistance).”These regulations require recipients to

    1. have an on-going drug-free awareness program;
    2. publish a drug-free workplace statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the recipient’s workplace;
    3. maintain evidence that this statement was given to each employee engaged in the performance of the award;
    4. take actions concerning employees who are convicted of violating drug statutes in the workplace; and
    5. identify in documents kept on file in its office all known workplace(s) where award activities will be carried out. Councils should therefore indicate that, in addition to their office space, anywhere their staff carries out council activities is considered a part of the workplace.

    Further details on the drug-free workplace requirements are contained in the NEH regulations referenced above.

28. Debarment and Suspension

    Federal agencies and award recipients are prohibited from doing business with any organization or person (as a recipient, subrecipient, contractor, or key employee) if they have been debarred or suspended by any federal department or agency.

    The OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) contained in 2 CFR Parts 180 and the NEH regulations contained in 2 CFR Part 3369 apply to this award. The state councils must comply, and must require their subrecipients (for example, regrantees, fellows, seminar participants) and contractors as outlined below, to comply with Subpart C of these regulations.

    The recipient must require contractors to comply when (1) the amount of the contract is $25,000 or more,  (2) the contract requires NEH consent, or (3) the contract is for federally-required audit services.

    Recipients are required to ensure subrecipient and contractor compliance by including a term or condition in the lower-tier transaction that requires the subrecipient and contractor’s compliance with Subpart C of these regulations. Recipients are also responsible for further requiring the inclusion of a similar term or condition in any subsequent lower tier covered transaction.

    In the event of suspension or debarment, the information is made publicly available through the Excluded Parties List System , maintained by the U.S. General Services Administration.

29. Labor Standards

    1. Employment of Professional Performers

       Councils and subrecipients that employ professional performers and related or supporting professional personnel under an award (including but not limited to scriptwriters, actors, extras, musicians, stage hands, scenery designers, technicians, electricians, and  cinematographers) are subject to the labor standards set forth in 29CFRPart 505, “Labor Standards on Projects or Productions Assisted by Awards from the National Endowments for the Arts and Humanities.” Councils and subrecipients are required to provide written assurance that

       1. these employees will be paid, without subsequent deduction or rebate on any account, not less than the minimum compensation as determined in accordance with 29CFR505.3 to be the prevailing minimum compensation for persons employed to perform similar activities (for example, union or guild rates), and
       2. no part of any project or production which is financed in whole or in part under an NEH award will be performed or engaged in under working conditions which are unsanitary, hazardous, or dangerous to the health and safety of the employee engaged in such project or production.

       These regulations apply to faculty and staff employed by educational institutions only if such employees are hired primarily to engage in or to assist in performance activities. Regular faculty or staff hired primarily to teach are excluded even though their teaching activities may include performing or assisting in a performance.

       The NEH must receive from each state council a signed form ESA-38, “Assurances as to Labor Standards” each time a new general support grant is awarded.

    2. Employment of Laborers and Mechanics under Construction Contracts

       Construction or renovation projects funded by federal funds, in whole or in part, are subject in their entirety to the Davis-Bacon Act as amended (40 U.S.C. 276a through 276a‑5). Recipients are required by law to furnish assurances to the Secretary of Labor that all laborers and mechanics employed by contractors or subcontractors on NEH-supported construction projects shall be paid wages at rates that are not less than those prevailing on similar construction in the locality, as determined by the Secretary of Labor.

       Additional information is available by contacting the U.S. Department of Labor, Wage and Hour Division, Division of Contract Standards and Operations, 200 Constitution Avenue, NW, Washington DC 20210, or from the “Davis-Bacon and Related Acts Home Page”.

30. Native American Graves Protection and Repatriation Act of 1990 (25 U.S.C. 3001 etseq, and 43 CFR Part 10)

    The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) provides protection of Native American graves and items, that is, human remains, funerary objects, and sacred objects. NAGPRA applies to any organization which controls or possesses Native American human remains and associated funerary objects and which receives federal funding, even for a purpose unrelated to the Act. More information may be found on the National Park Service website.

31. National Historic Preservation Act of 1966 (16 U.S.C. 470 et seq)

    If a state council awards a regrant[2] with NEH funds that includes construction, renovation, repair, rehabilitation or ground or visual disturbances, the regrantee is required to comply with Section 106 of the National Historic Preservation Act of 1966, 16 U.S.C. § 470f, and its implementing regulations, 36 C.F.R. Part 800.  Section 106 requires NEH to consider the effects of projects offered or awarded NEH funding on historic properties and, when applicable, to provide the Advisory Council on Historic Preservation an opportunity to comment on such projects. 

    Regrantees are required to obtain a written determination from their State Historic Preservation Officer (SHPO) and/or Tribal Historic Preservation Officer (THPO) as to whether there are any historic properties in or near the project site; how the NEH-funded project would affect any historic properties; and how any adverse effects might be avoided, minimized, or mitigated.  Regrantees must also submit this determination to NEH, as well as any other materials NEH needs to successfully complete its Section 106 review of a project.

    NEH cannot release any Federal funds and regrantees cannot begin any work involving construction, renovation, repair, rehabilitation, or ground or visual disturbance until NEH concludes its Section 106 review.  For additional information about the Section 106 review process, you may wish to visit the following webpages: Section 106 of the National Historic Preservation Act and Frequently Asked Questions about Section 106.

    [2] State councils may not use NEH general support grant funds for construction or renovation of council-owned facilities; see Article 9.

32. U.S. Constitution Day Education Program (PL 108-447, Div. J. Sec.111(b))

    Recipients and subrecipients must comply with Public Law 108-447, Div. J, Title I, Sec. 111 (36 U.S.C. 106 note), which requires each educational institution receiving Federal funds in a Federal fiscal year to hold an educational program on the United States Constitution on September 17 during that year for the students served by the educational institution. For more information on how to implement this requirement and suggested resources, see here.

33. Coordination of Geographic Information and Related Spatial Data (OMB Circular A-16 and Executive Order 12906)

    Recipients of NEH awards that include funding for geospatial data, products, and services must comply and must ensure that subrecipients comply with the government-wide requirements contained in OMB Circular A-16, Coordination of Geographic Information and Related Spatial Data and Executive Order 12906: Coordinating Geographic Data Access. Recipients must ensure that federally-funded geospatial data, products, and services follow the appropriate standards, are documented using the Federal Geographic Data Committee metadata standard discoverable via the Geodata.gov website, and are made available for use by other agencies and organizations.

34. Dissemination of Award Results

    Councils and subrecipients are expected to publish or otherwise make publicly available the results of work conducted under an award. All publication and distribution agreements shall include provisions giving the government a royalty‑free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the material for government purposes and requiring the acknowledgment of NEH support. The publication shall also include the disclaimer contained in Article 3 of these general terms and conditions.

35. Activities Outside the United States

    Prior to undertaking activities outside the United States, recipients shall ensure that all project staff secure the necessary passports, visas, or other required documents for entry into foreign countries. Recipients shall also obtain the appropriate licenses, permits, or approvals. The recipient must notify the NEH if a permit is denied or revoked after an award has been issued, or if an unforeseen circumstance, such as a natural disaster or political turmoil, prevents or threatens to prevent the recipient from carrying out project activities. These situations are considered on a case by case basis to determine whether the award should be suspended or if a revised plan of work is feasible.

    Arrangements for liability and medical insurance for staff and foreign workers engaged on project activities are the responsibility of the recipient.

    The NEH does not assume responsibility for recipient compliance with the laws and regulations of the country in which work is to be conducted.

    NEH encourages its recipients to register with the State Department’s Safe Traveler Enrollment Program. Recipients registering with the State Department's Safe Traveler Enrollment Program (STEP) receive the most current information and travel alerts from the U.S. embassy in the country in which they are traveling, and registration makes it easier for the Embassy to know how to contact travelers in an emergency. In addition, recipients can get travel advisories and warnings on the State Department's website, by fax service at 202-647-3000; by telephone at (888) 407-4747 from within the United States, or, from overseas, (202) 501-4444.  For specific questions regarding an emergency involving an American citizen overseas, recipients should contact the Office of Overseas Citizens Services, at (202) 647-5225.

     

36. Data Collection

    Data collection activities performed under an award are the responsibility of the council or the subrecipient, and the NEH’s support of award activities does not constitute approval of the survey design, questionnaire content, or data collection procedures. The council or the subrecipient shall not represent to respondents that such data are being collected for, or in association with, the NEH or any other government agency without the specific written approval of the data collection plan or device by the NEH. However, this requirement is not intended to preclude mention of NEH’s support of award activities in response to an inquiry or acknowledgment of such support in any publication of this data.

    The federal government has the right to obtain, reproduce, publish, or otherwise use the data first produced under an award and authorize others to do so for government purposes.

37. Research Misconduct

    The NEH will take appropriate action against individuals or organizations upon a determination that misconduct has occurred in proposing, performing, or reviewing research or in reporting results from research activities funded by the NEH in accordance with the NEH Research Misconduct Policy. The NEH may also take interim action during an investigation.

    Research misconduct is defined as fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.

    The recipient bears primary responsibility for prevention and detection of research misconduct and for the inquiry, investigation, and adjudication of research misconduct alleged to have occurred in association with its own institution.

    The NEH Inspector General in most cases will refer an allegation of research misconduct made directly to the NEH to the appropriate grant recipient and will rely on the recipient to make the initial response. Circumstances in which the NEH may elect not to defer to the recipient include, but are not limited to, the following: the agency determines that the recipient is not prepared to handle the allegation in a manner consistent with this policy; agency involvement is needed to protect the public interest; or the allegation involves an entity of sufficiently small size that it cannot reasonably conduct the investigation itself. At any time, however, the NEH may proceed with its own inquiry or investigation. If the allegation of research misconduct is first made to the recipient, the recipient will notify the NEH if the allegation meets the definition of research misconduct given above, and if the recipient’s inquiry into the allegation determines that there is sufficient evidence to proceed to an investigation.

    At any time during an inquiry or investigation, the recipient will immediately notify the NEH if NEH resources or interests are threatened; if public health or safety is at risk; if research activities should be suspended; if there is reasonable indication of possible violations of civil or criminal law; if federal action is required to protect the interests of those involved in the investigation; if the recipient believes the inquiry or investigation may be made public prematurely so that appropriate steps can be taken to safeguard evidence and protect the rights of those involved; or if the research community or public should be informed.

    The NEH will make a finding of misconduct or take action on such a finding only after careful inquiry and investigation by a recipient, another federal agency, or the NEH. In the event of a finding of research misconduct, the NEH will determine what administrative actions are appropriate.

    Administrative actions available include, but are not limited to, appropriate steps to correct the research record; letters of reprimand; the imposition of special certification or assurance requirements to ensure compliance with applicable regulations or terms of an award; suspension or termination of an active award; or suspension and debarment in accordance with applicable NEH and government-wide rules on suspension and debarment. In the event of suspension or debarment, the information is made publicly available through the Excluded Parties List System, maintained by the U.S. General Services Administration. If the NEH Inspector General believes that criminal or civil fraud violations may have occurred, the Inspector General shall promptly inform the Department of Justice.

    The text of the NEH Research Misconduct Policyis available online. Possible misconduct in activities funded by the NEH should be reported to the NEH Office of the Inspector General, 1100 Pennsylvania Avenue, NW, Washington, DC 20506, (202) 606-8350.

38. Code of Ethics for Projects Related to Native Americans

    The state councils have the responsibility of ensuring that researchers and scholars working on NEH-sponsored projects (both council-conducted and regrants) related to Native Americans, Aleut, Eskimo, or Native Hawaiian peoples will adhere to certain provisions protecting the rights of native communities and peoples as detailed in the Code of Ethics for Projects Related to Native Americans.

39. Suspension and Termination

    Awards may be terminated in whole or in part

    1. by the NEH, if a recipient materially fails to comply with the terms and conditions of an award;
    2. by the NEH, when the NEH has other reasonable cause;
    3. by the NEH, when ordered under the NEH Research Misconduct Policy;
    4. by the NEH, when the recipient or a subrecipient is determined to be in violation of the requirement in paragraph (g) of Section 106 of the Trafficking Victims Protection Act of 2000 (TVPA) as amended (22 U.S.C. 7104(g)). Termination may occur as described in 2 CFR Part 175, Award Term for Trafficking in Persons.
    5. by the NEH with the consent of the recipient, in which case the two parties shall agree upon the termination conditions, including the effective date and, in the case of partial termination, the portion of the project to be terminated; or
    6. by the recipient upon sending to the NEH written notification setting forth the reasons for such termination, the effective date, and, in the case of partial termination, the portion of the project to be terminated. However, if the NEH determines that the reduced or modified portion of the award will not accomplish the purposes for which the award was made, it may terminate the award in its entirety either unilaterally or with the consent of the recipient.

    When the NEH determines that a recipient has failed to comply with the terms and conditions of the award, the NEH may suspend or terminate the award for cause. Normally, this action will be taken only after the recipient has been notified of the deficiency and given sufficient time to correct it, but this does not preclude immediate suspension or termination when such action is required to protect the interests of the government.

    In the event that an award is suspended and corrective action is not taken within 90 days of the effective date, the NEH may issue a notice of termination. No costs that are incurred during the suspension period or after the effective date of termination will be allowable, except those that are specifically authorized by the suspension or termination notice or those that, in the opinion of the NEH, could not have been reasonably avoided.

    Within 30 days of the termination date, the recipient shall furnish to the NEH a summary of progress achieved under the award, an itemized accounting of charges incurred against award funds and cost sharing prior to the effective date of the suspension or termination, and a separate accounting and justification for any costs that may have been incurred after this date.

40. Termination Review Procedures

    A state humanities council that has received a notice of termination may request the NEH’s review of the termination action. The request must be postmarked no later than thirty days after the date of the termination notice and should be addressed to the Deputy Chairman, National Endowment for the Humanities, 1100 Pennsylvania Avenue, N.W., Washington, D.C. 20506.

    The request for review must contain a full statement of the council’s position and the pertinent facts and reasons that support such a position. The Deputy Chairman will promptly acknowledge the request for review and appoint a review committee of at least three staff members. Pending the resolution of the review request, the notice of termination will remain in effect.

    None of the review committee members may be staff from the Federal/State Partnership or the section of the Office of Grant Management that recommended termination or was responsible for monitoring the programmatic or administrative aspects of the award. The committee will have full access to all relevant background materials. The committee may also request the submission of additional information from the council or the NEH staff and, at its discretion, may meet with representatives of both groups to discuss the pertinent issues. All review activities will be fully documented by the committee. Based on its review, the committee will present its written recommendation to the Deputy Chairman, who will advise the parties concerned of the final decision.

Appendix A

ADMINISTRATIVE REQUIREMENTS THAT APPLY TO REGRANTEES

With the exception of reporting forms and methods of payment, the uniform administrative requirements of Office of Management and Budget Circular A‑110 apply not only to the state humanities councils but also to their regrantees. The administrative requirements that are most relevant to the councils’ regranting programs are included in this appendix.

1. Payments

   Councils are to pay their regrantees on an advance basis, provided the regrantees’ financial management systems meet the standards for fund control and accountability found in Article 16 of these general terms and conditions. Awards of $500 or less may be paid in one installment, and the councils may advance a regrantee up to $10,000 for a three‑month period. When a regrantee’s cash needs exceed $10,000 for a three‑month period, advances will be limited to the regrantee’s anticipated cash expenditures for a thirty‑day period.

   Councils may withhold a small amount of a regrant award (not more than 10 percent) if this is the only way to ensure the timely submission of final reports from the regrantee. Councils should take care that this delay in funding does not jeopardize the project or cause serious inconvenience to the regrantee. Final payment should be made promptly once the required reports are received.

2. Interest Earned on Advances

   Regrantees are not required to maintain advances of federal funds in interest‑bearing accounts unless they receive $120,000 or more in advances during their fiscal year. If a regrantee chooses to deposit these funds in an interest‑bearing account, it may retain the first $250 in interest earned each fiscal year. Interest earned in excess of this amount on funds advanced by a council shall be forwarded to the council and returned to the Department of Health and Human Services, as detailed in Article 5, “Payments, Interest and Refunds.”

3. Program Changes

   All changes in the scope or the objectives of a project, the project director, or the duration of the project should be approved in writing by councils. Councils may also require that their approval be obtained before a regrantee may subcontract or transfer substantive project work.

4. Budget Changes

   Councils may require regrantees to seek approval for budget changes that involve the addition or deletion of budget items, the inclusion of costs that were specifically disallowed by the terms of the award, the transfer of funds allotted for training purposes, for example, participant stipends and fellowship awards, and the transfer of funds that were budgeted for direct costs to absorb increases in indirect costs or indirect‑cost type items.

   When federal funding does not exceed $100,000, councils may not restrict regrantees from transferring funds among direct cost categories other than training, provided the scope or objectives of the project are not changed. Councils may, however, restrict the transfer of funds among direct costs categories when the federal share of funding exceeds $100,000 and the cumulative amount of the transfers exceeds or is expected to exceed 10 percent of the total budget, which would include cost sharing as well as award funds.

5. Reporting Requirements

   Councils may not require the submission of performance or financial reports more frequently than quarterly, and regrantees should be permitted to submit payment requests whenever they need award funds.

   Regrantees shall have 30 days following the reporting period to submit interim reports and 90 days from the completion date of the regrant period to submit final reports.

6. Program Income

   Councils shall stipulate in their regrant agreements how the regrantee is to use program income earned during the award period. They may, if they wish, require that program income be deducted from the regrantee’s total allowable costs to determine net allowable costs or they may allow the income to be used as the regrantee’s cost sharing or to cover additional project costs.

   Unless a council specifies in the award how income earned after the regrant period and income earned from license fees and royalties on patents and copyrights is to be used, the regrantee may dispose of that income in any way it chooses.

   When a council requires regrantees to return program income earned after the regrant period, the amount of income returned should be proportionate to the council’s funding of the project.

7. Suspension and Termination Procedures

   Written procedures for the suspension and termination of regrants and the review of a termination action should be issued as a part of the terms and conditions of a council award.

8. Acknowledgment of NEH Support and Disclaimer

   The provisions of Article 3 apply to regrantees.

9. Research Misconduct Policy

   The provisions of Article 37 apply to regrantees.

10. Government-wide Requirements

    The Nondiscrimination (Article 25), Lobbying Activities (Article 26), Debarment and Suspension (Article 28) ), Native American Graves Protection and Repatriation Act of 1990 (Article 30), National Historic Preservation Act of 1966 (Article 31), U.S. Constitution Day Education Program (Article 32), and Coordination of Geographic Information and Related Spatial Data (Article 33) requirements apply to regrantees.

Appendix B

PROVISIONS APPLICABLE TO CONTRACTS

Contracts issued by a council or its subrecipient shall contain the following provisions as applicable:

1. Equal Employment Opportunity

   All contracts awarded by recipients and their contractors and subrecipients having a value of more than $10,000 must contain a provision requiring compliance with Executive Order 11246, entitled “Equal Employment Opportunity” as amended by Executive Order 11375, and as supplemented in Department of Labor regulations (41 CFR Part 60).

2. Copeland “Anti‑Kick Back” Act (18 U.S.C. 874)

   All contracts and subawards in excess of $2,000 for construction or repair awarded by councils and subrecipients shall include a provision for compliance with the Copeland “Anti‑Kick Back” Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3). The Act provides that each contractor or subrecipient shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The council shall report all suspected or reported violations to the federal awarding agency.

3. Davis‑Bacon Act (40 U.S.C. 276a to a-5)

   All construction contracts awarded by the councils and subrecipients of more than $2,000 shall include a provision for compliance with the Davis‑Bacon Act as supplemented by Department of Labor regulations (29 CFR Part 5). Under this Act contractors shall be required to pay wages to laborers and mechanics at a rate not less than the minimum wages specified in a wage determination made by the Secretary of Labor. In addition, contractors shall be required to pay wages not less than once a week. The council shall place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation and the award of a contract shall be conditioned upon the acceptance of the wage determination. The council shall report all suspected or reported violations to the federal sponsoring agency.

4. Preservation of Open Competition and Government Neutrality Towards Government Contractors’ Labor Relations on Federal and Federally Funded Construction Projects (Executive Orders 13202 and 13208)

   Recipients and subrecipients awarding new construction contracts shall ensure that neither the bid specifications, project agreements, nor other controlling documents for construction contracts shall:

   1. require bidders, offerors, contractors, or subcontractors to enter into or adhere to agreements with one or more labor organizations, on the same or other related construction project(s) or forbid them from doing so; or
   2. otherwise discriminate against bidders, offerors, contractors, or subcontractors for becoming or refusing to become or remain signatories or otherwise to adhere to agreements with one or more labor organizations, on the same or other related construction project(s).

5. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-330)

   Where applicable, all contracts awarded by councils in excess of $100,000 for construction contracts and other contracts that involve the employment of mechanics or laborers shall include a provision for compliance with sections 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327‑330) as supplemented by Department of Labor regulations (29 CFR Part 5). Under section 102 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard work day of 8 hours and a standard work week of 40 hours. Work in excess of the standard workday or workweek is permissible, provided that the worker is compensated at a rate of not less than 1½ times the basic rate of pay for all hours worked in excess of 8 hours in any calendar day or 40 hours in the workweek.

   Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his/her health and contrary to safety and health standards promulgated by the Secretary of Labor. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.

6. Rights to Inventions and Materials Generated Under a Contract or Agreement

   Contracts or agreements for the performance of experimental, developmental, or research work shall provide for the rights of the Government and the council in any resulting invention in accordance with 37 CFR Part 401 and any implementing regulations issued by the sponsoring agency.

7. Clean Air Act of 1970 (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) as Amended

   Contracts and subawards of amounts in excess of $100,000 shall contain a provision that requires the recipient to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act of 1970 and the Federal Water Pollution Control Act as amended. Violations shall be reported to the federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).

8. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)

   Contractors who apply or bid for an award of $100,000 or more must file a certification with the council stating that they will not and have not used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, award, cooperative agreement, loan or any other award covered by 31 U.S.C. 1352. Such contractors must also disclose to the council any lobbying that takes place in connection with obtaining any Federal award.

Appendix C

PROHIBITION ON USE OF FUNDS TO ACORN OR ITS SUBSIDIARIES

In accordance with Public Law 111-88 Sec.427, none of the funds made available under an NEH award may be distributed to the Association of Community Organizations for Reform Now (ACORN) or its subsidiaries.