The General Terms and Conditions for Awards to Organizations apply to grants and cooperative agreements that the National Endowment for the Humanities (NEH) issues to private nonprofit organizations, institutions of higher education, and state, local, and federally recognized Indian tribal governments. These provisions also apply to subawards that are made by NEH award recipients and subrecipients to the types of organizations listed above.
Challenge Grants and general support grants to state humanities councils are not subject to the General Terms and Conditions for Awards to Organizations.
Should there be any inconsistency between the General Terms and Conditions for Awards to Organizations and the specific terms and conditions that are enumerated in the award document, the latter will govern.
The General Terms and Conditions for Awards to Organizations are based on the established policies of the NEH, the administrative requirements of the Office of Management and Budget Circular A-110, and the Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments.
We call your attention to Article 2 of these general terms and conditions. Successful applicants that currently do not have a prior approval system in place are required to develop one within 30 days after receiving an NEH award. To assist organizations in developing an acceptable prior approval system, the NEH Office of Grant Management has produced a sample prior approval form, which is included in the appendix of this publication.
TABLE OF CONTENTS
Reporting and Recordkeeping
Suspension and Termination
|Award||A grant or cooperative agreement.|
|Award Period||The span of time established in the award during which NEH activities and expenditures are to occur. Award periods begin on the first day of the month and end on the last day of the month.|
|Cash Contributions||The recipient's cash outlay for budgeted project activities, including the outlay of money contributed to the recipient by third parties.|
|Cooperative Agreement||An award of financial assistance that is used to enter into the same kind of relationship as a grant, but that is distinguished from a grant in that it provides for substantial involvement between the federal agency and the recipient in carrying out the activity contemplated by the award.|
|Cost Sharing||The portion of the costs of a project not charged to NEH funds. This would include cash contributions (as defined above) as well as the value of third-party in-kind contributions.|
|Debarment||The ineligibility of a recipient to receive any assistance or benefits from the federal government, either indefinitely or for a specified period of time, based on legal proceedings taken pursuant to agency regulations implementing Executive Order 12549.|
|Equipment||Tangible, non-expendable personal property having a useful life of more than one year and an acquisition cost of $5,000 or more per unit.|
|Federally Recognized Indian Tribal Government||The governing body or a governmental agency of any Indian tribe, Indian band, nation, or other organized group or community certified by the Secretary of the Interior as eligible for the special programs and services provided through the Bureau of Indian Affairs.|
|Grant||A legal instrument that provides financial assistance in the form of money or property to an eligible recipient. The term does not apply to technical assistance which provides services instead of money, or other assistance in the form of revenue sharing, loans, loan guarantees, interest subsidies, insurance, or direct appropriations. The term does not include fellowships or other lump sum awards, for which the recipient is not required to provide a financial accounting.|
|In-Kind Contributions||The value of noncash contributions provided by third parties. In-kind contributions may be in the form of charges for real property and equipment or the value of goods and services directly benefiting and specifically identifiable to the project.|
|Institutional Grant Administrator||The member of the recipient organization who has the official responsibility for administering the award, e.g., for negotiating budget revisions, overseeing the submission of required reports, and ensuring compliance with the terms and conditions of the award.|
|Intangible Property||Includes, but is not limited to, trademarks; copyrights; patents and patent applications.|
|Local Government||A county, municipality, city, town, township, local public authority, school district, special district, intrastate district, council of government, any other regional or interstate government entity, or any agency or instrumentality of a local government.|
|Obligation||The amounts of orders placed, contracts and awards issued, goods and services received, and similar transactions during the award period that will require payment.|
|Program Officer||The NEH division staff member designated in the section of the award entitled "Endowment Administration of the Award."|
|Program Income||Money that is earned or received by a recipient 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 fabricated 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.|
|Project Funds||Both the federal and non-federal funds that are used to cover the cost of budgeted project activities.|
|Recipient||The organization to which a grant or cooperative agreement is awarded and which is accountable for the use of the funds provided.|
|Simplified Acquisition Threshold||This term replaces "small purchase threshold," and the threshold is currently set at $100,000 [41 U.S.C. 403 (11)].|
|State||Any of the several states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, or any agency or instrumentality of a state exclusive of local governments, institutions of higher education, and hospitals.|
|Subaward||An award of financial assistance in the form of money or property, made under an award by a recipient to an eligible subrecipient or by a subrecipient to a lower-tier subrecipient. The term includes financial assistance which is provided by any legal agreement, even if the agreement is called a contract, but it does not include the procurement of goods and services nor does it include any form of assistance which is excluded from the definition of an "award."|
|Subrecipient||The legal entity to which a subaward is awarded and which is accountable to the recipient for the use of the funds provided.|
|Supplies||All personal property excluding equipment and intangible property, as defined in this glossary.|
|Termination||Cancellation of federal sponsorship of a project, including the withdrawal of authority to incur expenditures against previously awarded funds before that authority would otherwise expire.|
The recipient has full responsibility for the conduct of project activities under the NEH award, for adherence to the award conditions, and for informing the NEH during the course of the award of any significant programmatic, administrative, or financial problems that have arisen.
The recipient is responsible for notifying the NEH about any allegation of research misconduct if the allegation involves NEH funded research (or an application for NEH funding) and if the recipient's inquiry into the allegation determines there is sufficient evidence to proceed to an investigation in accordance with the NEH Research Misconduct Policy (see Article 36).
The requirements of this award are contained in these General Terms and Conditions for Awards to Organizations, the specific terms and conditions of the award, and the applicable federal uniform administrative requirements (see Article 25). Should there be any inconsistency between the specific terms and conditions of an award and the General Terms and Conditions for Awards to Organizations or the federal uniform administrative requirements, the specific terms and conditions will govern.
In accepting an award, the recipient assumes the legal responsibility of administering the award in accordance with these requirements and of maintaining documentation, which is subject to audit, of all actions/expenditures affecting the award. Failure to comply with the requirements of this award could result in suspension or termination of the award and the NEH's recovery of award funds.
Recipients are required to have written procedures in place for reviewing and approving in advance proposed administrative changes such as:
- the expenditure of project funds for items that, under the applicable cost principles, normally require prior agency approval (Article 5);
- the one-time extension of an award period (Article 12);
- the incurring of project costs prior to the beginning date of an award (Article 6); and
- budget revisions (see Article 11 for exceptions).
The procedures for approving such changes are sometimes referred to as an "organizational prior approval system."
The purpose of such a system is to ensure that:
- all award actions and expenditures are consistent with the terms and conditions of the award, as well as with the policies of the NEH and the recipient;
- any changes that may be made do NOT constitute a change in the scope of the project; and,
- any deviation from the budget approved by the NEH is necessary and reasonable for the accomplishment of project objectives and is allowable under the applicable federal cost principles.
Although recipients are free to design a prior approval system that suits their particular needs and circumstances, an acceptable system must at a minimum include the following:
- the procedure for review of proposed changes must be in writing;
- proposed changes must be reviewed at a level beyond the project director; and
- whenever changes are approved, the recipient has to retain documentation of the approval for three years following the submission of the final financial report.
To assist organizations in developing an acceptable prior approval system, the NEH Office of Grant Management has produced a sample prior approval form, which is included in the appendix to this publication.
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."
For most awards, a detailed explanation of payment procedures will be found in Enclosure 1 of the award. For some awards, the payment procedures will be stated in the specific terms and conditions of the award.
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 the recipient receives less than $120,000 per year in advances of award funds or the most reasonably available interest-bearing account would not earn more than $250 per year on the federal cash balance, or would entail bank services charges in excess of the interest earned.
Interest in excess of $250 a year that is earned on advanced payments shall be remitted annually to the Department of Health and Human Services. If possible, interest should be remitted through an electronic medium such as the Remittance Express (REX) Deposit system. Recipients that do not have this capability should make payment by check and mail it to the HHS Payment Management System, P.O. Box 6021, Rockville, MD 20852.
The allowability of costs and cost allocation methods for work performed under an NEH award shall be determined in accordance with the applicable federal cost principles and the terms and conditions of the award. However, the NEH delegates to the recipient the authority to approve costs that the applicable cost principles state are allowable only with the prior approval of the funding agency, unless specifically prohibited by other articles in these general terms and conditions, or by the specific terms and conditions of the award. Examples of such costs are foreign travel, pre-award costs, and equipment purchases. This delegation does not relieve the recipient of the responsibility to document that such charges are reasonable, necessary, and allocable to the project.
The following circulars set forth the federal cost principles that apply to the various types of NEH award recipients:
- OMB Circular A-21 (2 CFR Part 220)--public and private institutions of higher education.
- OMB Circular A-122 (2 CFR Part 230)--nonprofit organizations that are not institutions of higher education.
- OMB Circular A-87 (2 CFR Part 225)--state, local, and federally recognized Indian tribal governments.
The NEH award will specify the cost principles that apply to the award. Copies of the cost principles may be obtained from the NEH website or by writing to the NEH Office of Grant Management.
All requests for budget revisions requiring NEH review shall be signed by the institutional grant administrator and submitted to the NEH Office of Grant Management.
Within 30 calendar days from the date of receipt of the request for budget revision, the NEH will review the request and notify the recipient whether or not the budget revision has been approved. If the budget revision is still under consideration at the end of 30 calendar days, the NEH will inform the recipient in writing of the date by which the recipient may expect a decision.
Recipients may approve project costs incurred within the 90 calendar day period immediately preceding the beginning date of the award. Requests for pre-award costs for periods exceeding 90 calendar days must be signed by the institutional grant administrator and submitted to the NEH Office of Grant Management for review and approval. Pre-award expenditures are made at the recipient's risk and the recipient's authority to approve such costs does not impose an obligation on the NEH in the event an award is not made or is made for an amount that is less than the recipient anticipated.
Equipment is defined as tangible, nonexpendable personal property having a useful life of more than one year and an acquisition cost of $5,000 or more per unit. The purchase of equipment not included in the approved project budget is allowable only if it is specifically approved beforehand by the recipient and there is documentation to support that the purchase is necessary and reasonable to carry out project activities.
Equipment records must be maintained that include the description of the equipment, the serial number or other identification number, the source of equipment, the title holder, 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. A physical inventory of the equipment must be taken and the results reconciled with the equipment records at least once every two years.
Title to supplies and other expendable property shall vest in the recipient 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 and the supplies are not needed for any other federally-sponsored project or program, the recipient shall retain the supplies for use on non-federal sponsored activities or sell them, but shall in either case compensate the federal government for its share.
Travel costs are the expenses for transportation, lodging, subsistence, and related items incurred by those who are on official business attributable to work under an award.
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 recipient 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 10) apply.
For the purposes of these provisions, foreign travel is defined as any travel outside the United States, its territories and possessions, Canada, and Mexico.
For college and university recipients subject to OMB Circular A-21, no specific approval is required for foreign travel.
For recipients subject to OMB Circulars A-122 or A-87, each separate foreign trip requires prior approval. Unless specifically mentioned otherwise, the NEH's approval of a project budget includes approval of all foreign travel contained therein. Foreign travel that is not included in the approved budget requires specific prior approval, either by the recipient under its prior approval authority or by the NEH for those institutions or awards not on a prior approval system.
United States Flag Air Carriers
All air transportation of persons or property that is paid in whole or in part with NEH funds must be performed on a U.S. flag air carrier unless any of the circumstances listed below applies:
- no U.S. flag air carrier provides service on a particular leg of the route;
- a U.S. flag air carrier involuntarily reroutes the traveler on a foreign air carrier;
- 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;
- 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;
when flying between the United States and another country:
- 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
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:
- increase the number of aircraft changes a person would have to make outside the U.S. by 2 or more; or
- extend travel time by 6 hours or more; or
- require a connecting time of 4 hours or more at an overseas interchange point.
- 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.
The project budget is the schedule of anticipated project expenditures that is approved by the NEH for carrying out the purposes of the award. When recipients or third parties support a portion of the project costs, the project budget includes the nonfederal as well as the federal share of project expenses.
The NEH delegates to the recipient the authority to approve ALL budget revisions EXCEPT for the following, which require prior written approval from the NEH:
- the transfer to a third party (by subawarding, contracting, or other means) of any work under an award (NEH approval is not required for third-party transfers that were described in the approved project plan, or for the purchase of supplies, materials, or general support services);
- the addition of costs that are specifically disallowed by the terms and conditions of the award;
- the transfer of funds from stipends or training allowances to other budget categories; or
- revisions resulting from changes in the scope or objectives of the project (see Article 14).
The award period is the span of time designated in the award, or an amendment thereto, during which the recipient has the authority to obligate award funds and undertake project activities. However, when the recipient determines that it is necessary, project costs may be incurred in the 90-day period prior to the beginning date of the award period (see Article 6).
The NEH has delegated to recipients the authority to approve a one-time extension of the expiration date established in the initial award if additional time is required to complete the original scope of the project with the funds already made available. A single extension that shall not exceed 12 months may be made for this purpose, provided it is made prior to the original expiration date. The institutional grant administrator must inform the NEH Office of Grant Management in writing of the new expiration date at least 10 days before the award is scheduled to expire and must provide justification for the new extension period. The recipient's authority to extend an award may not be exercised merely for using the unliquidated balance of project funds.
If a recipient wishes to extend an award for more than a 12-month period or determines that a second extension is necessary, a written extension request must be submitted to the NEH Office of Grant Management for review and approval prior to the end of the award period. The request shall be signed by the institutional grant administrator and shall include a detailed justification for the extension, an estimate of the unexpended award funds, and a plan of work for the activities that will be undertaken during the requested extension period.
Recipients that have been offered federal matching funds by the NEH should note that authority to extend offers of NEH funding is not delegated to the recipient. Requests for offer extensions must be submitted in writing to the NEH Office of Grant Management for review and approval.
The replacement of the project director or the co-director or a substantial reduction in the level of that individual's effort, e.g., an unanticipated absence for more than three months, or a 25 percent reduction in the time devoted to the project, requires prior written approval from the NEH. When it is required in the specific terms and conditions of an award, written approval will also be needed for the replacement or the substantial reduction in the level of effort of other personnel whose work is deemed by the NEH to be critical to the project's successful completion.
All requests for approval of changes in key project personnel shall be signed by the institutional grant administrator and submitted to the appropriate NEH program officer for review and approval. Evidence of the qualifications for replacement personnel (such as a résumé) shall be included.
Any project that is carried out under an award must be consistent with the scope of the proposal that is approved for funding by the NEH. The scope of a project encompasses the purpose for which the award is undertaken, the subject matter, the treatment of the subject matter, the historical time frame of the project, the volume of material that will be studied/treated, and the products that are expected to result from award activities. No changes may be made in the scope of a project without written approval from the NEH.
All requests for a change in the scope of an award shall be signed by the institutional grant administrator and submitted to the appropriate NEH program officer for review and approval.
A schedule of due dates for interim and final reports will be found on the last page of the award.
A final performance report and a final Financial Status Report shall be submitted to the NEH Office of Grant Management within 90 days after the completion date of the award period.
Should the recipient discover an error in the Final Financial Status 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.
Recipients that are authorized to be paid on an advance basis are required to submit a Federal Cash Transactions Report within 30 days of the end of each calendar quarter.
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 and performance reporting requirements will be found in the publications entitled Enclosure 1, Financial Reporting Requirements and Financial Reporting Forms and Enclosure 2, Performance Reporting Requirements.
Program income is money that is earned or received by a recipient 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 fabricated under an award; usage or rental fees for equipment or property acquired under an award; admission fees; broadcast or distribution rights; and license fees and royalties on patents and copyrights. The federal share of program income is determined by the percentage of total project costs that are supported by the NEH.
Income Earned During the Award Period
The federal share of program income earned during the award period shall be retained by the recipient and, unless the award specifies how such income will be used, the recipient must use it in one or more of the following ways:
- It may be added to the existing project funding to cover increased costs of the project or it may be used to support other projects in the humanities;
- It may be used to finance the non-federal share of the project; or
- It may be used to finance the federal share of the project costs, which would result in an equivalent reduction in the amount of the NEH award.
A report of program income earned during the award period must be submitted with the final Financial Status Report whenever program income is actually earned during the award period or when the terms and conditions of the award specifically require such a report. The report shall indicate the total amount of program income that was earned and how it was used.
Income Earned After the Award Period
When the NEH's funding of a project amounts to $50,000 or more and the total program income earned after the award period exceeds $50,000, the NEH reserves the right to make a claim to or restrict the use of the federal share of income earned during the seven years following the award period. Due dates for the submission of program income reports may be listed in the award. However, even if the NEH does not specifically require the submission of program income reports after the award period, it is the recipient's responsibility to submit a report as soon as the cumulative amount of program income earned during the seven years after the award period exceeds $50,000.
In reporting program income earned after the award period, the recipient shall indicate the amount and sources of the gross income it has earned and the percentage of funding provided to the project by the NEH. The federal share of program income will be determined by (1) deducting the first $50,000 in gross income from total gross income, (2) deducting 5 percent of the balance of gross income to cover possible recipient costs, and (3) multiplying the balance of gross income by half the percentage of funding provided to the project by the NEH. For example if the NEH's award of $250,000 covered 60 percent of a project's costs and the project earned $200,000 in program income during the seven-year reporting period, the federal share of that income would be $42,750 ($200,000 minus $50,000 minus 5% x 30%). Once the federal share of income equals the amount of funding provided by the NEH, the NEH's claim to additional income will be reduced by half.
If income is to be returned to the NEH, a check made payable to the National Endowment for the Humanities and identified as program income must be submitted with the report.
The financial management systems of recipients and their subrecipients must meet the following standards:
Accounting System. Recipients and their subrecipients must have an accounting system that provides accurate, current, and complete disclosure of all financial transactions related to each federally sponsored project. Accounting records must contain information pertaining to federal awards, authorizations, obligations, unobligated balances, assets, outlays, and income. These records must be maintained on a current basis and balanced at least quarterly.
Cash contributions to the project from third parties must be accounted for in the general ledger with other award funds. Third-party in-kind (non-cash) contributions are not required to be recorded in the general ledger, but must be under accounting control, possibly through the use of a memorandum ledger.
Source Documentation. Accounting records must be supported by such source documentation as canceled checks, bank statements, invoices, paid bills, 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 and general ledger accounts which are to be charged or credited.
The documentation required for salary charges to awards is prescribed in detail by the cost principles applicable to the recipient (see Article 5). The following is a very brief summary of the requirements. Recipients must comply with all the requirements for documentation of salary charges spelled out in the applicable OMB Circular.
- For recipients subject to OMB Circular A-21 (educational institutions), documentation for salary charges shall be based on either a system of monitored workload or a system of personnel activity reports for professional or professorial staff. Nonprofessional employees must keep personnel activity reports.
- For recipients subject to OMB Circular A-122 (nonprofit organizations), documentation for all salary charges shall be based on a system of personnel activity reports.
- For recipients subject to OMB Circular A-87 (state and local governments), documentation for salary charges shall be based on a system of personnel activity reports unless an employee is working solely on a single federal award. In this case, the charge for salary will be supported by a certification signed by the employee or the supervisor.
Personnel activity reports shall account on an after-the-fact basis for one hundred percent of the employee's actual time, separately indicating the time spent on the NEH award, other awards or projects, vacation or sick leave, and administrative time, if applicable. The reports must be signed by the employee, approved by the appropriate official, be prepared at least monthly, and coincide with a pay period. These time records should be used to record the distribution of salary costs to the appropriate accounts no less frequently than quarterly. (See Appendix for Sample Activity Report.)
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 recipient organization.
For awards that contain an offer of federal matching funds, recipients are required to maintain:
- documentation that supports the eligibility of the gifts certified to release federal matching dollars, and
- a record that contains the name of the donor, the donor category as defined in the NEH Federal Matching Fund Guidelines, the amount of the gift, the designation of the gift as either restricted to the project or unrestricted, the date the gift is certified to the NEH, and the amount of federal matching funds awarded by the NEH as a result of the certification.
If third-party in-kind (non-cash) contributions are used on a project, the valuation of these contributions must be supported with adequate documentation (see Article 18).
- Internal Control. Effective control and accountability must be maintained for all cash, real and personal property, and other assets. Recipients must adequately safeguard all such property and must provide assurance that it is used solely for authorized purposes. Recipients must also have systems in place that ensure compliance with the terms and conditions of each award.
- Budget Control. Records of expenditures must be maintained for each project by the cost categories of the approved budget (including indirect costs that are charged to the project), and actual expenditures are to be compared with budgeted amounts no less frequently than quarterly. The NEH's approval is required for certain budget revisions (see Article 11).
- Allowable Costs. The applicable OMB cost principles, the General Terms and Conditions for Awards to Organizations, and the specific terms and conditions of the award shall be followed in determining the reasonableness, allowability, and allocability of costs.
- Cash Management. Recipients must also have written procedures to minimize the time elapsing between the receipt and the disbursement of award funds to avoid having excessive federal funds on hand. 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.
Recipients must insure that all award funds are obligated during the award period and paid no later than 90 days after the end of the award period.
Recipients are expected to share in project expenses at the level indicated in the approved project budget. They must also maintain auditable records of all project costs whether they are charged to award funds or supported by cost-sharing contributions.
All cash and in-kind contributions to a project that are provided by the recipient or by a third party are acceptable as the recipient's cost sharing when such contributions meet the following criteria:
- Are verifiable from the recipient's records;
- Are not included as contributions for any other federally-assisted program;
- Are necessary and reasonable for the proper and efficient accomplishment of project objectives;
- Are types of charges that would be allowable under the applicable cost principles;
- Are used to support activities that are included in the approved project workplan; and
- Are incurred during the award period.
Contributions, such as property, space, or services that are donated to a project by the recipient are to be valued in accordance with the applicable federal cost principles and not on the basis of what would normally be charged for the use of these items or services.
When the recipient's cost sharing includes third-party in-kind contributions, the basis for determining the valuation of volunteer services and donated property or space must be documented and must conform to the principles set out below.
- Volunteer services that are provided to the recipient 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 recipient 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.
- 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 these services involve the same skills for which the employee is normally paid.
- 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.
- 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.
- 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.
NOTE: The standards contained in this section do not relieve the recipient of the contractual responsibilities arising under its contracts. The recipient 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 award, the recipient's procurement policies must adhere to the standards set forth below. Subrecipients of award funds are subject to the same policies and procedures as the recipient.
- The recipient 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.
A written standard of conduct for awarding and administering contracts shall be maintained by the recipient. No employee, officer, or agent of the recipient 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 the recipient will neither solicit nor accept gratuities, favors, or anything of monetary value from contractors, or parties to subagreements. However, the recipient 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 recipient.
- All procurement transactions will be conducted in a manner to provide, to the maximum extent practical, open and free competition. The recipient 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 and/or requests for proposals should be excluded from competing for such procurements. Awards shall be made to the bidder/offeror whose bid/offer is responsive to the solicitation and is most advantageous to the recipient, price, quality, and other factors considered. Solicitations shall clearly set forth all requirements that the bidder/offeror must fulfill in order for the bid/offer to be evaluated by the recipient. When it is in the recipient's interest to do so, any bid/offer may be rejected.
- All recipients shall establish written procurement procedures that meet the requirements set forth in the Appendix to these general terms and conditions.
The Appendix also contains the provisions that must be included in procurement contracts when applicable.
Recipients and subrecipients that are subject to these general terms and conditions shall have audits performed that meet the requirements of OMB Circular A-133. (Copies of this circular may be obtained from the NEH website or by writing to the NEH Office of Grant Management.)
Awards included in an A-133 audit are identified by the federal Catalog of Federal Domestic Assistance (CFDA) number assigned to the particular funding opportunity. With each notification of funding, NEH provides the relevant CFDA number to the recipient. This number appears at the bottom of the "Remarks" section of the "Official Notice of Action" for each new award or amendment.
Financial records, supporting documentation, statistical records, and all other records pertinent to the award shall be retained by the recipient for three years from the date of submission of the final Financial Status Report. When the conditions of an award require the recipient to report program income, records relating to program income shall be retained for three years from the date of submission of the last required income 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 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 recipient and its subrecipients to make audits, examinations, excerpts, transcripts, and copies. Further, any contract in excess of the simplified acquisition threshold (currently $100,000) that is negotiated by the recipient for the purposes of carrying out the project 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 project.
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 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.
The recipient may copyright any work that is subject to copyright and was developed, or for which ownership was purchased, under the award. 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 §__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 the 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.
- Recipients 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 Awards, Contracts and Cooperative Agreements."
The NEH has the right to:
- obtain, reproduce, publish or otherwise use the data first produced under an award; and
- authorize others to receive, reproduce, publish, or otherwise use such data for federal purposes.
- 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 OMB Circular A-110, Section §__36(d).
- 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.
Title to equipment purchased or fabricated with NEH funds shall be vested in the recipient organization with the understanding that the equipment will be used for the project for which it was obtained but without further obligation to the federal government. The NEH may reserve the right to request the transfer of title to the federal government or to a third party when the current per unit fair market value of the equipment is $5,000 or more and the equipment is no longer needed to carry out the purposes of the project or other projects funded by government agencies.
Awards issued to state, local, and federally recognized Indian tribal governments are subject to the Uniform Administrative Requirements for Awards and Cooperative Agreements to State and Local Governments (45 CFR Part 1174). Awards to institutions of higher education, hospitals, and other nonprofit organizations are subject to the uniform administrative requirements of OMB Circular A-110 (2 CFR Part 215). The standards set forth herein and in NEH Enclosure 1 (Financial Reporting Requirements) and Enclosure 2 (Performance Reporting Requirements) are consistent with these administrative requirements.
Recipients and subrecipients must execute projects, productions, workshops, and programs in accordance with the following laws, where applicable.
- 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. Title VI also extends protection to persons with limited English proficiency. (42 U.S.C. 2000d et seq.)
- 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.)
- 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. (42 U.S.C. 6101 et seq.)
- 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. (29 U.S.C. 794)
- 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 (Title III). (42 U.S.C. 12101-12213)
The Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, prohibits recipients of federal contracts, awards, cooperative agreements, and loans from using appropriated funds to influence the Executive or Legislative Branches of the federal government in connection with a specific contract, award, 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, Attachment B25 of Office of Management and Budget Circular A-122 designates the following as unallowable charges to award 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.
The NEH is required by the provisions of its appropriations act to include the text of 18 U.S.C. 1913 in all of its award, cooperative agreement, and contract documents.
Text of 18 U.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.
Recipients are required to maintain a drug-free workplace. The Drug-Free Workplace Act of 1988, 41 U.S.C. 701, and the NEH regulations at Subpart B of 45 CFR Part 1173, "Governmentwide Requirements for Drug-Free Workplace (Financial Assistance)" require recipients to:
- have an on-going drug-free awareness program;
- 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;
- maintain evidence that this statement was given to each employee engaged in the performance of the award;
- take actions concerning employees who are convicted of violating drug statutes in the workplace; and
- identify in documents kept on file in its office all known workplace(s) where award activities will be carried out.
Further details on the drug-free workplace requirements are contained in the NEH regulations referenced above and are available on the NEH website.
Federal agencies and 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 3369 apply to this award. The recipient must comply, and must require subrecipients (e.g., contractors receiving $25,000 or more, regrantees, and seminar participants) to comply with these regulations, which are available here.
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.
Employment of Professional Performers
Recipients 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, cinematographers) are subject to the labor standards set forth in 29 CFR Part 505, "Labor Standards on Projects or Productions Assisted by Awards from the National Endowments for the Arts and Humanities." Recipients are required to provide written assurance that
- these employees will be paid, without subsequent deduction or rebate on any account, not less than the minimum compensation as determined in accordance with 29 CFR 505.3 to be the prevailing minimum compensation for persons employed on similar activities (e.g., union or guild rates), and
- no part of any project or production which is financed in whole or in part under an award will be performed or engaged in under working conditions which are unsanitary or 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.
Award funds will not be released until the NEH has received the signed form ESA-38, "Assurances as to Labor Standards" (1-page PDF). This form and the applicable Department of Labor regulations may be obtained from the NEH Office of Grant Management.
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 USC 276a through 276a-5). Award 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.
The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) provides protection of Native American graves and items, i.e., 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.
Recipients are required to identify to the NEH all property listed or eligible for listing on the National Register of Historic Places that will be affected by the NEH award, and to provide any information we may need with respect to the NEH award, to comply with Section 106 of the National Historic Preservation Act of 1966.
Awards supporting the construction of a free-standing structure, building renovations, or additions to buildings of any age are required to consult with their state historic preservation officer to determine whether a property or site is listed, or is eligible for listing, in the National Register of Historic Places. The preservation officer's eligibility determination must be submitted to the NEH.
If a property is eligible for or listed in the National Register, the recipient must obtain the state historic preservation officer's written comments as to the effect of the project on the building or site, in accordance with the guidelines set forth in the Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings. This letter must be provided to the NEH before federal funds are released.
Recipients are expected to publish or otherwise make publicly available the results of work conducted under an award. Unless otherwise specified in the award documents, two copies of any published material resulting from award activities should be forwarded to the appropriate NEH program officer as soon as it becomes available. This material should be labeled with the identifying NEH award ID number.
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 federal 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 for Awards to Organizations.
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, threatens or prevents 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.
Recipients should consult the updated travel advisories and warnings issued by the State Department through the American Citizens Services at 202-647-5225 or fax service 202-647-3000 or at the State Department's website.
Data collection activities performed under an award are the responsibility of the recipient, and NEH support of the project does not constitute approval of the survey design, questionnaire content, or data collection procedures. The recipient 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 support of the project in response to an inquiry or the 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.
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 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 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 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, by another federal agency or by 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 at http://www.epls.gov, 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.
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.
Recipients have the responsibility of ensuring that researchers and scholars working on NEH-sponsored projects 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.
Awards may be terminated in whole or in part:
- by the NEH, if a recipient materially fails to comply with the terms and conditions of an award;
- by the NEH when the NEH has other reasonable cause;
- by the NEH, when ordered under the NEH Research Misconduct Policy;
- 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
- 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.
A recipient who has received a notice of termination may request the NEH's review of the termination action. The request must be postmarked no later than 30 days after the date of the termination notice and should be addressed to the Deputy Chairman, National Endowment for the Humanities, 1100 Pennsylvania Avenue, NW, Washington, D.C. 20506.
The request for review must contain a full statement of the recipient'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, the notice of termination will remain in effect.
None of the review committee members may be from the NEH program 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 NEH background materials. The committee may also request the submission of additional information from the recipient 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.
All recipients shall establish written procurement procedures that provide for, at a minimum, the following procedural requirements:
Recipients 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 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.
Recipients may do this in one of three ways:
- by checking the Excluded Parties List System;
- by obtaining a certification from the contractor (available on the NEH website under "Grant Management"); or
- by adding the following clause to the contract or agreement: "By signing this contract, you certify that you are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or agency."
- 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.
Solicitations for goods and services shall provide the following:
- 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.
- Requirements which the bidder/offeror must fulfill and all other factors to be used in evaluating bids or proposals.
- 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.
- The specific features of "brand name or equal" descriptions that bidders are required to meet when such items are included in the solicitation.
- Preference, to the extent practical and economically feasible, for products and services that conserve natural resources, protect the environment, and are energy efficient.
The recipient shall make positive efforts to assure that small businesses, minority-owned firms, and women's business enterprises are used whenever possible. Organizations receiving federal awards shall take all the steps outlined below to further this goal. This shall include:
- placing qualified small, minority-owned, and women's business enterprises on solicitation lists;
- assuring that these businesses are solicited whenever they are potential sources;
- ontracting 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;
- 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
- 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.
- The type of procurement instrument used, e.g., fixed price contracts, cost reimbursable contracts, incentive contracts, purchase orders, will be determined by the recipient, but must be appropriate for the particular procurement and for promoting the best interests of the program involved. The "cost-plus-a-percentage-of-cost" or "percentage of construction cost" methods shall not be used.
- 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.
- 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.
- Procurement records and files for purchases in excess of the simplified acquisition threshold (currently $100,000) 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.
- Recipients 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 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.
Recipient contracts in excess of the simplified acquisition threshold (currently $100,000) must provide for:
- Administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and such remedial actions as may be appropriate.
- 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.
- Access by the recipient, 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.
All contracts, including small purchases, shall contain the following provisions as applicable:
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).
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 recipients and subrecipients shall include a provision for compliance with the Copeland "Anti-Kick Back" Act 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 recipient shall report all suspected or reported violations to the federal awarding agency.
Davis-Bacon Act (40 U.S.C. 276a to a-5)
All construction contracts awarded by the recipient and subrecipients of more than $2,000 shall include a provision for compliance with the Davis-Bacon Act and 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 recipient 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 recipient shall report all suspected or reported violations to the federal sponsoring agency.
Preservation of Open Competition and Government Neutrality Towards Government Contractors' Labor Relations on Federal and Federally-Funded Construction Projects (Executive Orders 13202 and 13208)
Effective February 18, 2001, recipients and subrecipients awarding new construction contracts shall ensure that neither the bid specifications, project agreements, nor other controlling documents for construction contracts shall:
- Require or prohibit 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
- 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).
Contract Work Hours and Safety Standards Act (40 U.S.C. 327-330)
Where applicable, all contracts awarded by recipients 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 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 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.
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 recipient in any resulting invention in accordance with 37 CFR Part 401 and any implementing regulations issued by the awarding agency.
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 sponsoring agency and the Regional Office of the Environmental Protection Agency (EPA).
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 recipient 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 recipient any lobbying that takes place in connection with obtaining any federal award.
Buy American Act
Consistent with the Buy American Act, 41 U.S.C. 10a-c and Public Law 105-277, recipients and subrecipients who purchase equipment and products with award funds should purchase only American-made equipment and products.
To supplement the welfare-to-work initiative, recipients and their subrecipients are encouraged, whenever possible, to hire welfare recipients and to provide additional needed training and/or mentoring.
Seat Belt Usage
Executive Order 13043 of April 16, 1997 requires each federal agency to encourage contractors, subcontractors and recipients to adopt and enforce on-the-job seat belt policies and programs for their employees when operating company-owned, rented, or personally owned vehicles.
- Prior Approval Form
- Sample Activity Report