HomeMy WebLinkAboutStaff Report 181-10City of Palo Alto
City Manager's Report
TO: HONORABLE CITY COUNCIL
FROM: . CITY MANAGER DEPARTMENT: PUBLIC WORKS
DATE: APRIL 5, 2010 CMR:181:10
REPORT TYPE: CONSENT
SUBJECT: Adoption of a Resolution Authorizing the City Manager to Execute
the Cooperative Assistance Agreement Between the City of Palo Alto
and the United States Department of the Interior, Bureau of
Reclamation for the Disbursement of $5,000,000 in Title XVI Federal
Grant Funds for the Palo Alto, Mountain ViewlMoffett Area Recycled
Water Pipeline Project (CIP WQ-04010)
RECOMMENDATION
Staff recommends that Council adopt the attached resolution (Attachment A) authorizing the
City Manager or designee to execute the Cooperative Assistance Agreement (Attachment B)
with the United States Department of the Interior, Bureau of Reclamation (USBR) for the
disbursement of a $5,000,000 Title XVI Federal grant to the City of Palo Alto (City) for the Palo
Alto, Mountain ViewlMoffett Area recycled water pipeline project.
BACKGROUND
The Palo Alto Regional Water Quality Control Plant (R WQCP) began working on the Mountain
ViewlMoffett Area (MV lMA) recycled water pipeline project in 2002. The MY IMA recycled
water pipeline project.is a joint project between the cities of Palo Alto and Mountain View to
construct a reclaimed water pipeline from the RWQCP to the Mountain View Shoreline
community. The City of Palo Alto, as the owner and operator of the RWQCP, is the lead
agency. The two cities have worked together and sought grant funds for the project since the
Fall of 2003. In January 2006, the RWQCP submitted an application to USBR for the Title XVI
Federal grant for the project.
Title XVI of the 1992 Central Valley Improvement Act (Public Law 102-575) directed the
USBR to form a partnership with San Francisco Bay Area water and wastewater agencies. The
mission of the partnership is to study regional opportunities to maximize water recycling
throughout the Bay region. Projects that obtained feasibility approval of USBR are qualified for
federal financial assistance under the umbrella of the Bay area regional program of Title XVI.
The R WQCP obtained USBR feasibility approval of the MY IMA reclaimed water pipeline
project in 2006. In May 2008, Council authorized the City Manager to execute the memorandum
of agreement with the Bay Area Recycled Water Coalition for federal legislative efforts for a
grant under Title XVI. In 2009,· the House and the Senate passed the bill and the president
signed into law, PL 110-229, that authorized $5 million in Title XVI reimbursement funding for
the MV IMA recycled water pipeline project. The project has also received two state grants and a
state clean water revolving fund loan. Construction of the project was completed in June 2009.
DISCUSSION
The Cooperative Assistance Agreement (Cooperative Agreement) governs both the conditions
and the process for submitting reimbursement requests to USBR and how USBR will disburse
the federal grant funds to the City.
In order to meet the project's State grant deadline, construction was started in July of 2007 while
the Title XVI grant application for the project was going through the congressional approval and
budget process. The work for the project is now complete, and the Cooperative Agreement is
retroactive. A copy of the draft Cooperative Agreement (attachment B) was provided to the City
for review, however the federal government do~s not allow changes to the standard language.
The agreement with the City will be substantially similar to the attached draft but with
modifications to reflect the facts of the MV IMA recycled water pipeline project. Under the
Cooperative Agreement, the City is entitled to a maximum reimbursement of $5,000,000 for the
City's implementation of the MVIMA recycled water pipeline project. The USBR agreement
includes the following relevant provisions:
1. The City will implement, operate, and maintain the MV IMA recycled water pipeline in
accordance with the work plan, schedule, and other attachments to the Cooperative
Agreement; and
2. The City will cooperate with USBR in fulfilling the obligations under the Cooperative
Agreement; and
3. The City will submit project reports and appropriation documentations in accordance
with the Cooperative Agreement.
The City Attorney's office has reviewed the draft Cooperative Agreement. The final
Cooperative Agreement will be forwarded to the Attorney's office for final review prior to
execution by the City Manager.
RESOURCE IMPACT
The MV IMA recycled water pipeline project is fully funded. There is no budget increase
associated with the project, and no additional funding is requested. However, throughout project
design and construction, the City committed to seek State and Federal grants to reduce project
costs. After receipt of the grant, two-thirds of the grant proceeds will be distributed to the City
of Mountain View to reimburse their share of the design and construction costs per Section
3.2(a)· of the existing agreement between the cities for the recycled water pipeline project
(CMR:243:07). The City's share of the Title XVI Federal grant is $1,666,667. This grant will
pay for the City's share of the state loan for the construction cost of the project, which totals $16
million. Prevailing wages were paid and certified payroll records were kept for this State and
Federal funded project in compliance with State law and Federal Davis-Bacon Act.
CMR:181:1O Page 2 of3
POLICY IMPLICATIONS
The recommendations of this staff report are consistent with City Council's sustainability policy.
ENVIRONMENTAL REVIEW
Execution of the Cooperative Agreement does not meet the definition of a project under the
California Environmental Quality Act pursuant to Public Resources Code Section 21065, thus
environmental review of Council's adoption of a resolution authorizing execution of the
Cooperative Agreement is not required. A Mitigated Negative Declaration and
mitigation/monitoring and reporting plan was prepared and adopted by Council for the MV!MA
recycled water pipeline project on January 12~ 2004.
ATTACHMENTS
Attachment A: Resolution
Attachment B: Cooperative Agreement
PREPARED BY:
JAMES S. ALLEN
Manager, Water Quality Control Plant
DEPARTMENT HEAD: ~SdB&1--
Director of Public Works
CITY MANAGER APPROVAL:
SKEENE
CMR:181:10 Page 3 of3
ATTACHMENT A
NOT YET APPROVED
Resolution No. -----Resolution of the Council of the City of Palo Alto Authorizing
the City Manager to Execute the Cooperative Assistance
Agreement Between the City of Palo Alto and·the United States
Department of the Interior, Bureau of Reclamation for the
Disbursement of $5,000,000 in Title XVI Federal Grant Fund
for the Mountain ViewlMoffett Area Recycled Water Pipeline
Project (CIP WQ-04010)
WHEREAS, the Mountain ViewlMoffett Area recycled water pipeline project is
a joint project between the cities of Palo Alto and Mountain View to construct a
reclaimed water pipeline from the Palo Alto Regional Water Quality Control Plant
(RWQCP) to the Mountain View Shoreline community;
WHEREAS, the City of Palo Alto is the lead agency for the project and has
worked together with the city of Mountain View to seek grant funds for the project since
the Fall of2003;
WHEREAS, pursuant to the Act of Congress of June 17, 1902 (32 Stat. 388), and
acts amendatory thereof or supplementary thereto, all commonly known as Reclamation
Law, $5,000,000 grant funds for the project are included in Public Law 110-229;
WHEREAS, Title XVI of the 1992 Central Valley Improvement Act (Public Law
102-575) directed the U.S. Bureau of Reclamation (USBR) to form a partnership with the
Bay area water and wastewater agencies and administer Title XVI funds;
WHEREAS, the project sponsor must provide notice to USBR that the agency
receiving grant funds is aware of and intends to comply with the terms of the Title XVI
grant agreement, the Cooperative Assistance Agreement; and
WHEREAS, construction of the project was started in July 2007 and completed in
July 2009, and the Cooperative Agreement is retroactive.
NOW, THEREFORE, the Council of the City of Palo Alto does resolve as
follows:
SECTION 1. The City of Palo Alto has complied with and agrees to the terms of
the Cooperative Assistance Agreement.
SECTION 2. The Council hereby authorizes and directs the City Manager or his
designee to execute the Cooperative Assistance Agreement between City and USBR for
the Mountain ViewlMoffett Area Recycled Water pipeline project.
1
100329 syn 6051122
NOT YET APPROVED
SECTION 3. The Council finds that the adoption of this resolution does not
require review under the California Environmental Quality Act because it does not meet
the definition of a "project" to California Public Code Section 21065. A mitigated
Negative Declaration and mitigation /monitoring and reporting plan was prepared and
adopted by Council for the Mountain ViewlMoffett Area Recycled Water pipeline project
on January 12, 2004.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSENT:
ABSTENTION:
ATTEST: APPROVED:
City Clerk Mayor
APPROVED AS TO FORM:
City Manager
Deputy City Attorney
Director of Administrative Services
Director of Public Works
2
100329 syn 6051122
7-2279 (05-22-09)
Bureau of Reclamation
ATTACHMENT 8
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
ASSISTANCE AGREEMENT Page 1 of 40
IA. AGREEMENT NUMBER liB. MOD NUMBER 12. TYPE OF AGREEMENT \3. CLASS OF RECIPIENT
[ ] GRANT City -r x -] COOPERATIVE AGREEMENT
4. ISSUING OFFICE (NAME. ADDRESS) 5. RECIPIENT (NAME,ADDRESS, TELEPHONE)
City of Palo Alto
Mid-Pacific Regional Office 250 Hamilton Ave.
Bureau of Reclamation Palo Alto, CA 94301
2800 Cottage Way 650-329-2243
Sacramento, CA 95825
ElN#;, 946000389 County: Santa Clara
DUN8#: 050520782 COI1gress. Dist:
CA-14
6. ADMlNISTRA TIVE POINT OF CONTACT (NAME, ADDRESS, TELEPHONE. E·MAIL) 7. RECIPIENT PROJECT MANAGER (NAME,ADDRESS. TELEPHONE, E·MA1L)
David White James Allen
Mid Pacific Regional Office Palo Alto Regional Water Quality Control Plant
Bureau of Reclamation 2501 Embarcadero Way
2800 Cottage Way, Palo Alto, CA 94303
Sacramento, CA 95825 Phone: 650-329-2243, E-mail: james.allen@cityofPaloalto.org
Phone: 916-978-5074, E-mail: dtwhite@mp.usbr.gov
8. GRANTS OFFICER TECHNICAL REPRESENTATIVE (NAME, ADDRESS, TELEPHONE.S. 9A. INITIAL AGREEMENT 9B. MODIFICATION EFFECTIVE DATE:
MAIL) EFFECTIVE DATE:
David White See Block 17 A N/A
Mid Pacific Regional Office 10. COMPLETION DATE
Bureau of Reclamation July 31, 2009 2800 Cottage Way,
Sacramento, CA 95825
Phone: 916-978-5074, E-mail: dtwhite@mp.usbr.gov
II. PROGRAM STATUTORY AUTHORITY J CFDA 15.504
Section 1616 Title XVI ofP.L. 102-575, as amended
12. FUNDING REQll!IfI'!T/Qll:Uili RECLAMATION 13. REQUISITION NUMBER
rNFORMA TrON
Total Estimated Amount $15,600,000 $5,000,000 14A. ACCOUNTING AND APPROPRIATION DATA
of Agreement Cost Authority: This Obligation $15,600,000 $5,000,000 Cost Center:
Previous Obligation
Object Code:
Total Obligation $15,600,000 $5,000,000 14B. TREASURY ACCOUNT FUNDING SYMBOL
Cost-Share % 75% 25%
15. PROJECT TITLE AND BRIEF SUMMARY OF PURPOSE AND OBJECTIVES OF PROJECT
ProiectTillej Mountain ViewlMoffett Area Recycled Water Pipeline Project
Summary Description; The Project is a regional water recycling pipeline project, composed of a transmission pipeline, laterals, and site
retrofits necessary to serve recycled water from the Palo Alto Regional Water Quality Control Plant (RWQCP) to the customers in the
city of Mountain View and Moffett Field area, with capability to serve other cities within the region in the future.
16a. Acceptance of this Assistance Agreement in accordance with the tenus and 17a. Award of this Assistance Agreement in accordance with the tenus and
conditions contained herein is hereby made on behalf of the above-named conditions contained herein is hereby made on behalf of the United States of
recipient America, Bureau of Reclamation
BY: BY;
DATE: DATE:
7-2279 (05-22-09)
Buteau of Reclamation
16b. NAME, TITLE, AND TELEPHONE NUMBER OF SIGNER
Additional signatures are attached
DOCUMENTS INCORPORATED HEREIN BY REFERENCE:
17b. NAME OF ORANTS OFFICER
TABLE OF CONTENTS
I. OVERVIEW AND SCHEDULE ........................................................................................... 3
1. AUTHORITY .................................................................................................................... 3
2. PUBLIC PURPOSE .......................................................................................................... 3
3. BACKGROUND AND OBJECTIVES .......... : ................................................................ 3
4. PERIOD OF PERFORMANCE AND FUNDS AVAILABILITy ............................... 3
5. SCOPE OF WORK ........................................................................................................... 4
6. RESPONSIBILITY OF THE PARTIES ........................................................................ 5
7. BUDGET ............................................................................................................................ 6
8. KEY PERSONNEL ........................................................................................................ 11
9. REPORTING REQUIREMENTS AND DISTRIBUTION ........................................ 13
10. REGULATORY COMPLIANCE ............................................................................. 16
11. RECLAMATION WAGE RATE IMPLEMENTATION REQUIREMENTS ..... 16
II RECLAMATION STANDARD TERMS AND CONDITIONS -STATES, LOCAL
GOVERNMENTS, AND FEDERALLY RECOGNIZED INDIAN TRIBAL
GOVERNMENTS ....................................................................................................................... 18
1. Regulations and Guidance ................................................................................................ 18
2. Payment .............................................................................................................................. 19
3. Procurement Standards (43 CFR §12.76) ........................................................................ 21
4. Equipment (43 CFR §12.72) .............................................................................................. 31
5. Supplies (43 CFR §12.73) ................................................................................................... 33
6. Inspection ............................................................................................................................ 33
7. Audit (31 U.S.C. 7501-7507) .............................................................................................. 33
8. Enforcement (43 CFR §12.83) ......... : ........................................................................... : .... 34
9. Termination For Convenience (43 CFR §12.84 .............................................................. 35
10. Debarment and Suspension (2 CFR §1400) ................................................................... 35
11. Drug-Free Workplace (43 CFR §43) .............................................................................. 35
12. Assurances and Certifications Incorporated by Reference ......................................... 36
13. Covenant Against Contingent Fees ................................................................................ 36
14. Trafficking Victims Protection Act of 2000, PL 106-386, as amended (2 CFR
§175.15) .................................................................................................................................... 36
15. Contracting with Small and Minority Firms and Women's Business Enterprises ... 39
16. Endorsement of Commercial Products and Services ................................................... 40
Agreement No. 2
Cooperative Agreement
Between
Bureau of Reclamation
And
City of Palo Alto
For
Title XVI Funding
Mountain ViewlMoffett Area Recycled Water Pipeline Project
I. OVERVIEW AND SCHEDULE
1. AUTHORITY
This Cooperative Agreement (Agreement and/or Grant) is entered into between the United States
of America, acting through the Department of Interior, Bureau of Reclamation, hereinafter
referred to as "Reclamation", and the City Of Palo Alto, hereinafter referred to as the
"Recipient" and/or "Grantee", pursuant to Section 1616 Title XVI of Public Law 102-575, as
amended.
2. PUBLIC PURPOSE
The City of Palo Alto's Mountain ViewlMoffett Area Recycled Water Pipeline Project will
deliver 1500 acre-foot per year of reliable, sustainable, and drought proof water for landscape
irrigation in the' City of Mountain View. This water will free up 10% of the City of Mountain
View's potable water supply for human consumption. '
The project will also provide a dependable, locally controlled water source to the local
communities. It preserves overdrawn river and groundwater supplies and improves the overall
security of urban water systems. The use of this new water source will reduce the demand for
imported water, improve local water resources, and provide a dependable source of water for
the Santa Clara County while also providing environmental benefits.
3. BACKGROUND AND OBJECTIVES
The project is part ofthe Palo Alto Regional Water Quality Control Plant regional water
recycling program. The project is composed of a transmission pipeline, laterals and site
retrofits necessary to serve recycled water from the RWQCP to customers in the Shoreline
business community of the city of Mountain View. It will also provide connectivity and
capability to serve other communities within the region in the future. The short-term goal of
the project is to provide 1500 AF/yr of recycled water for landscape irrigation. The long-term
goal of the project is to ramp up the recycled water usage in the region to 3000 AF/yr.
4. PERIOD OF PERFORMANCE AND FUNDS AVAILABILITY
This Agreement becomes effective on the date shown in Block 17a of Form 7-2277, United
States of America, Department of the Interior, Bureau of Reclamation, Assistance Agreement.
Agreement No. 3
The Agreement shall remain in effect until the date shown in Block 10 of Form 7-2277, United
States of America, Department ofthe Interior, Bureau of Reclamation, Assistance Agreement.
The period of performance for this Agreement may only be modified through written
modification of the Agreement by a Reclamation Grants Officer (GO).
Pursuant to the Act of Congress of June 17, 1902 (32 Stat. 388), and acts amendatory thereof or
supplementary thereto, all commonly known as Reclamation Law, funds for payment under this
Agreement are included in Public Law 110-229. Funding for any optional year of the Agreement
is contingent upon subsequent Congressional funding. Funding under this agreement is available
until September 30, 2015.
Reclamation has $5,000,000 available for this Agreement. The Government's obligation under
this Agreement is contingent upon the availability of appropriated funds from which payment for
Agreement purposes can be made. No legal liability on the part of the Government for any
payment may arise until funds are made available to the GO for this Agreement, and until the
Recipient receives notice of such availability through formal modification of this Agreement by
the GO.
It is recognized and agreed that all costs incurred by Reclamation related to the development and
administration of this Agreement are considered part of the total costs of the Project, and
therefore the Recipient agrees to provide 75 percent of these costs in accordance with the
authorization. These costs include, but are not limited to, salary, overhead, travel, and other
costs directly or indirectly related to the Agreement, as determined by Reclamation. Following
the completion of each quarter of the fiscal year, Reclamation shall provide the Recipiem with a
statement of Reclamation: s costs for the previous quarter. The Recipient may request .
explanations or a review of the costs included in the statement; however, Reclamation's
determination as to the validity of the costs is final. The Recipient's 75 percent share of
Reclamation's costs will be deducted from payments processed by Reclamation under this
Agreement.
5. SCOPE OF WORK
The Mountain ViewlMoffett Area Recycled Water Pipeline Project (Project) is under
construction to install approximately 4 miles of transmission pipeline from the Palo Alto
Regional Water Quality Control Plant to the City of Mountain View and Moffett Field area. A
distribution network is also being constructed to deliver reclaimed water to 120 customers in the
Mountain View Shoreline community. The Project could start recycled water delivery in the
spring of 20 1 0 to Shoreline Golf Links, parks, medians and large landscape sites in the Shoreline·
community for irrigation use. The near-term recycled water use is approximately 1500 AF IY r,
which represents a 10% saving in potable water supply for the city of Mountain View.
Provisions will be installed for future connections to the redevelopment in the Moffett field.
The Recipient shall complete the work described in this Scope of Work by adhering to the
following scheduled milestones:
A ward construction contract
Begin construction
Agreement No.
June 2007
July 2007
4
Complete construction July 2009
6. RESPONSIBILITY OF THE PARTIES
6.1 Recipient Responsibilities
6.1.1 The Recipient shall be responsible for carrying out the Scope of Work in accordance with
the tenns and conditions stated herein. The Recipient shall adhere to Federal, state, and local
laws, regulations, and codes, as applicable, and shall obtain all required approvals and pennits.
If applicable, the Recipient shall also coordinate and obtain approvals from site owners and
operators.
6.1.2 Additional Recipient Responsibilities include:
(a) Contribute at least 75 percent of the funds to complete the activities identified in the Scope of
Work of this Agreement. These funds may be obtained from any non-Federal source.
(b) Collaborate with Reclamation in causing to be completed the activities identified in the Scope
of Work of this A~reement.
( c) Create and obtain Reclamation approval of a work plan to which the Recipient agrees to
adhere and includes an outline of the portion of the project covered by this Agreement and target
dates for the achievement of project goals. Approval of the work plan will be incorporated into
this Agreement by modification by the GO.
(d) Consult with and seek input from Reclamation on maintaining the project within the work
plan and project goals as stated in this Agreement, and seek Reclamation concurrence for any
significant deviation from such work plan and project goals.
(e) Collaborate with Reclamation on technical and administrative aspects of the project through
periodic scheduled meetings with Reclamation personnel or periodic written updates.
(1) Provide Reclamation with its reasoning, in writing, when the Recipient chooses not to
implement Reclamation's written advice or comments on any technical aspect of fulfilling the
requirements of this Agreement.
6.2 Reclamation Responsibilities
Substantial involvement between Reclamation and the Recipient is anticipated during the
perfonnance of this Agreement. In support of this Agreement, Reclamation will provide the
following:
(a) Provide financial contribution not to exceed the available funding specified in Section IA
(Period of Perfonnance and Funds Availability of this Agreement), or 25 percent of the total
project costs for the activities identified in the Scope of Work of this Agreement, whichever is
less.
Agreement No. 5
(b) Shall work with the Recipient as necessary to ensure that the Recipient adheres to the
specified work plan and meets specified project goals as set forth in this Agreement.
(c) Shall not continue to advance funds nor award subsequent cooperative agreements to the
Recipient for work on the project unless the Recipient is in full compliance with the
requirements of the work plan and project goals that are included in this Agreement and has
obtained Reclamation concurrence for any deviations therefrom.
(d) Shall provide scientific or administrative advice on the development of the project. Such
advice will take into consideration factors such as: (1) the scientific complexities of the project;
(2) the Recipient's progress in meeting project goals; and (3) the Recipient's ability to meet the
proposed time schedule.
7. BUDGET
7.1 Approved Budget
Bud2et Table Bl
ComJ)utations Recipient Reclam~tion Total
Bud!!et Item Description Unit Pric Ouantitv Fundin!! Fundin!! Cost
Salaried and Wages N.A.
Classification 1 N.A.
Classification 2 N.A.
Additional classifications as
necessary N.A.
Frin2e Benefits -0/" N.A.
Travel N.A.
Airfare N.A.
Per Diem N.A.
Milea2e N.A.
E~uipment N.A.
Description A N.A.
Description B N.A.
Other Descriptions as
necessary N.A.
Supplies/Material N.A.
Description A N.A.
Description B N.A.
Other Descriptions as
necessary N.A.
Planning & Pre-Design $545,411 $545,411 $1696,822
Environmental Documentation $41,979 $41,979 $83,957
Design & Value Engineering $509,826.85 $169942.28 $679,769.13
Permits $259,948.92 $8~649.64 $346598.56
Easement Description $550 0 $550
$57,202.8
Services During Construction $171,608.5 $228,811
See
Construction l Tables $lt219,297.8 $4,073 699.2 $16,292397
Agreement No.
I
I
I
I
I
6
B-2 &
B-3 I
Construction Mana2ement $1058.l94.33 $352731.44 $1410925.77
Other $781.74 0 $781.74
Total Direct Costs $14,807,598 $5,327,015 $20,134,613
Indirect Costs -% N.A. N.A.
Total Proiect Cost Share $15,134612 $5,000,000 $20,134,612
Agreement No. 7
Start Assistance -Operate System Valves in Palo
Alto
Agreement No.
$93,333.00
$40,565.00
$16,876.00
$25,790.00
($29 ,978. 00)
8
tall Vandalproof Cages on Bridge Air Release
Valves
7.2 Cost Sharing Requirement
The Recipient will provide cost-share for this project equal to but not less than 75%.
7.3 Pre-Award Incurrence of Costs
The Recipient shall be entitled to have incurred costs for this Agreement for allowable costs,
which if had been incurred after this Agreement was awarded, would have been allowable,
allocable, and reasonable under the terms of the Agreement.
7.4 Allowable Costs (2 CFR Part §225)
Costs incurred for the peiformance of this Agreement must be allowable,allocable to the project,
and reasonable. The following Office of Management and Budget (OMB) Circular, codified
within the Code of Federal Regulations (CFR), governs the allowability of costs for Federal
financial assistance:
2 CFR Part 225 (OMB Circular A-87), IICost Principles for State, Local, and Indian Tribal
Governments"
Expenditures for the performance of this Agreement must conform to the requirements within
this Circular. The Recipient must maintain sufficient documentation to support these
expenditures. Questions on the allowability of costs should be directed to the GO responsible for
this Agreement.
The Recipient shall not incur costs or obligate funds for any purpose pertaining to operation of
the program or activities beyond the expiration date stated in the Agreement. The only costs
which are authorized for a period of up to 90 days following the project performance period are
those strictly associated with closeout activities for preparation of the final report.
7.5 Changes (43 CFR §12.70)
(a) General. Grantees and subgrantees are permitted to rebudget within the approved direct cost
budget to meet unanticipated requirements and may make limited program changes to the
approved project. However, unless waived by the awarding agency, certain types of post-award
changes in budgets and projects shall require the prior written approval of the awarding agency.
(b) Relation to cost principles. The applicable cost principles (see 43 § 12.62) contain
requirements for prior approval of certain types of costs. Except where waived, those
requirements apply to all grants and subgrants even if paragraphs (c) through (f) of this section
do not.
Agreement No. 9
(c) Budget changes.
(1) Nonconstruction projects. Except as stated in other regulations or an award document,
grantees or subgrantees shall obtain the prior approval of the awarding agency whenever any
of the following changes is anticipated under a nonconstruction award:
(i) Any revision which would result in the need for additional funding.
(ii) Unless waived by the awarding agency, cumulative transfers among direct cost
categories, or, if applicable, among separately budgeted programs, projects, functions, or
activities which exceed or are expect~d to exceed ten percent of the current total
approved budget, whenever the awarding agency's share exceeds $100,000.
(iii) Transfer offunds allotted for training allowances (i.e., from direct payments to
trainees to other expense categories).
(2) Construction projects. Grantees and subgrantees shall obtain prior written approval for
any budget revision which would result in the need for additional funds.
(3) Combined construction and nonconstruction projects. When a grant or subgrant provides
funding for both construction and nonconstruction activities, the grantee or sub grantee must
obtain prior written approval from the awarding agency before making any fund or budget
transfer from nonconstruction to construction or vice versa.
(d) Programmatic changes. Grantees or subgrantees must obtain the prior approval of the
awarding agency whenever any of the following actions is anticipated:
(1) Any revision of the scope or objectives of the project (regardless of whether there is an
associated budget revision requiring prior approval).
(2) Need to extend the period of availability of funds.
(3) Changes in key persons in cases where specified in an application or a grant award. In
research projects, a change in the project director or principal investigator shall always
require approval unless waived by· the awarding agency.
(4) Under nonconstruction projects, contracting out, subgranting (if authorized by law) or
otherwise obtaining the services of a third party to perform activities which are central to the
purposes of the award, unless included in the initialjundingproposal. This approval
requirement is in addition to the approval requirements of 43 §12.76 but does not apply to the
procurement of equipment, supplies, and general support services.
(e) Additional prior approval requirements. The awarding agency may not require prior approval
for any budget revision which is not described in paragraph (c) ofthis section.
Agreement No. 10
(f) Requesting prior approval.
(1) A request for prior approval of any budget revision will be in the same budget formal the
grantee used in its application and shall be accompanied by a narrative justification for the
proposed revision.
(2) A request for a prior approval under the applicable Federal cost principles (see §12.62)
may be made by letter.
(3) A request by a subgrantee for prior approval will be addressed in writing to the grantee.
The grantee will promptly review such request and shall approve or disapprove the request in
writing. A grantee will not approve any budget or project revision which is inconsistent with
the purpose or terms and conditions of the Federal grant to the grantee. lfthe revision,
requested by the subgrantee would result in a change to the grantee's approved project which
requires Federal prior approval, the grantee will obtain the Federal agency's approval before
approving the subgrantee's request.
7.6 Modifications
Any changes to this Agreement shall be made by means of a written modification. Reclamation
may make changes to the Agreement by means of a unilateral modification to address
administrative matters, such as changes in address, no-cost time extensions, the addition of
previously agreed upon funding, or deobligation of excess funds at the end of the Agreement.
Additionally, a unilateral modification may be utilized by Reclamation if it should become necessary to
suspend or terminate the Agreement in accordance with 43 CFR 12.83.
All other changes shall be made by means of a bilateral modification to the Agreement. No oral
statement made by any person, or written statement by any person other than the GO, shall be
allowed in any manner or degree to modify or otherwise effect the terms of the Agreement.
All requests for modification of the Agreement shall be made in writing, provide a full
description of the reason for the request, and be sent to the attention of the GO. Any request for
project extension shall be made at least 45 days prior to the expiration date of the Agreement or
the expiration date of any extension period that may have been previously granted. Any
determination to extend the period of performance or to provide follow-on funding for
continuation of a project is solely at the discretion of Reclamation.
8. KEY PERSONNEL
8.1 Recipient's Key Personnel
The Recipient's Project Manager for this Agreement shall be:
James Allen
Palo Alto Regional Water Quality Control Plant
2501 Embarcadero Way
Palo Alto, CA 94303
Agreement No. 11
Phone: 650-329-2243, E-mail: james.allen@cityofpaloalto.org
Changes to Key Personnel require compliance with 43 CFR 12.70(d)(3).
8.2 Reclamation's Key Personnel
David White
Mid Pacific Regional Office
Bureau of Reclamation
2800 Cottage Way,
Sacramento, CA 95825
Phone: 916-978-5074, E-mail: dtwhite@mp.usbr.gov
8.2.1 Grants Officer (GO):
William J. Steele
Area Manager
Bureau of Reclamation
27708 Jefferson Ave., Suite 202
Temecula, CA 92590
Phone: 951-695-5310
The GO is the only official with legal delegated authority to represent Reclamation. The GO's
responsibilities include, but are not limited to, the following:
a) Formally obligate Reclamation to expend funds or change the funding level of the
Agreement;
b) Approve through formal modification changes in the scope of work and/or budget;
c) Approve through formal modification any increase or decrease in the period of performance
of the Agreement;
d) Approve through formal modification changes in any of the expressed terms, conditions, or
specifications of the Agreement;
e) Be responsible for the overall administration, management, and other non-programmatic
aspects of the Agreement including, but not limited to, interpretation of financial assistance
statutes, regulations, circulars, policies, and terms of the Agreement;
f) Where applicable, ensures that Reclamation complies with the administrative requirements
required by statutes, regulations, circulars, policies, and terms of the Agreement.
8.2.2 Grants Officer Technical Representative (GOTR):
David White
Agreement No. 12
Mid Pacific Regional Office
Bureau of Reclamation
2800 Cottage Way,
Sacramento, CA 95825
Phone: 916-978-5074, E-mail: dtwhite@mp.usbr.gov
The GOTR's authority is limited to technical and programmatic aspects of the Agreement. The
GOTR's responsibilities include, but are not limited to, the following:
a) Assist the Recipient, as necessary, in interpreting and carrying out the scope of work in the
Agreement;
b) Review, and where required, approve Recipient reports and submittals as required by the
Agreement;
c) Where applicable, monitor the Recipient to ensure compliance with the technical
requirements of the Agreement; .
d) Where applicable, ensure that Reclamation complies with the technical requirements of the
Agreement;
The GOTR does not have the authority to and may not issue any technical assistance which:
a) Constitutes an assignment of additional work outside the scope of work of the Agreement;
b) In any manner causes an increase or decrease in the total estimated cost or the time required
for performance; or
c) Changes any of the expressed terms, conditions, or specifications of the Agreement.
9. REPORTING REQUIREMENTS AND DISTRIBUTION
Failure to comply with the reporting requirements contained in this Agreement may be
considered a material non-compliance with the terms and conditions of the award. Non
compliance may result in withholding of payments pending receipt of required reports, denying
both the use of funds and matching credit for all or part of the cost of the activity or action not in
compliance, whole or partial suspension or tennination of the Agreement, recovery of funds paid
under the Agreement, withholding of future awards, or other legal remedies (43 CFR 12.83).
9.1 Financial Reports. Financial Status Reports shall be submitted by means of the SF-425
and shall be submitted according to the Report Frequency and Distribution schedule below. All
financial reports shall be signed by an Authorized Certifying Official for the Recipient's
Agreement No. 13
organization. The SF-425 is available at
http://www.whitehouse.gov/omb/grants/grantsjorms.htmL
9.2 Monitoring and reporting program performance (43 CFR §12.80)
(a) Monitoring by grantees. Grantees are responsible for managing the day-to-day operations of
grant and subgrant supported activities. Grantees must monitor grant and sub grant supported
activities to assure compliance with applicable Federal requirements and that performance goals
are being achieved. Grantee monitoring must cover each program, function or activity .
. '
(b) Nonconstruction performance reports. The Federal agency may, if it decides that
performance information available from subsequent applications contains sufficient information
to meet its programmatic needs, require the grantee to.submit a performance report only upon
expiration or termination of grant support. Unless waived by the Federal agency this report will
be due on the same date as the fmal Financial Status Report.
(1) Grantees shall submit annual performance reports unless the awarding agency requires
quarterly or semi-annual reports. However, performance reports will not be required more
frequently than quarterly. Annual reports shall be due 90 days after the grant year, quarterly
or semi-annual reports shall be due 30 days after the reporting period. The final performance
report will be due 90 days after the expiration or termination of grant support. If a justified
request is submitted by a grantee, the Federal agency may extend the due date for any
performance report. Additionally, requirements for unnecessary performance reports may be
waived by the Federal agency.
(2) Performance reports will contain, for each grant, brief information on the following:
(i) A comparison of actual accomplishments to the objectives established for the period.
Where the output ofthe project can be quantified, a computation of the cost per unit of
output may be required if that information will be useful.
(ii) The reasons for slippage if established objectives were not met.
(iii) Additional pertinent information including, when appropriate, analysis and
explanation of cost overruns or high unit costs.
(3) Grantees will not be required to submit more than the original and two copies of
performance reports.
(4) Grantees will adhere to the standards in this section in prescribing performance reporting
requirements for subgrantees.
(c) Construction performance reports. For the most part, on-site technical inspections and
certified percentage-of-completion data are relied on heavily by Federal agencies to monitor
progress under construction grants and subgrants. The Federal agency will require additional
Agreement No. 14
formal performance reports only when considered necessary, and never more frequently than
quarterly.
(d) Significant developments. Events may occur between the scheduled performance reporting
dates which have significant impact upon the grant or subgrant supported activity. In such cases,
the grantee must inform the Federal agency as soon as the following types of conditions become
known:
(1) Problems, delays, or adverse conditions which will materially impair the ability to meet
the objective of the award. This disclosure must include a statement of the action taken, or
contemplated, and any assistance needed to resolve the situation.
(2) Favorable developments which enable meeting time schedules and objectives sooner or at
less cost than anticipated or producing more beneficial results than originally planned.
(e) Federal agencies may make site visits as warranted by program needs.
(f) Waivers, extensions.
(1) Federal agencies may waive any performance report required by this part if not needed.
(2) The grantee may waive any performance report from a sub grantee when not needed. The
grantee may extend the due date for any performance report from a subgrantee if the grantee
will still be able to meet its performance reporting obligations to the Federal agency.
9.3 Report Frequency and Distribution. The following table summarizes the reporting
requirements for this Agreement.
REQUIRED REPORTS Interim Reports Final Report
Pro2ram Performance Report
Format Format required within Format required within
www.FederalRenortin1!.!lov . www.FederaIRenortinll.gov.
Reporting Frequency Quarterly Final Report due upon completion
of Agreement's period of
performance
Reporting Period Federal fiscal quarters ending: Entire period of performance
December 31, March 31, June
30, September 30
Due Date Within 10 days after the end Within 90 days after the completion
of the Reporting Period date ofthe Agreement
Submit to: www.FederaIRe];!orting.gov; www.FederalReporting.gov
for quarterly reporting before
www.FederaIRe];!orting.gov is
available, submit to both the
GO and GOm for this
Agreement.
Financial Status Report
Format SF-425 SF-425
Agreement No. 15
i
i
I
Reporting Frequency Quarterly Final Report due upon completion
of Agreement's period of
performance
Reporting Period Federal fiscal quarters ending: Entire period of performance
December 31, March 31, June
30, September 30
Due Date Within 10 days after the end Within 90 days after the completion
of the Reporting Period date of the Agreement
Send one original to both: GO and GOTR GOandGOTR
10. REGULATORY COMPLIANCE
The Recipient agrees to comply with or assist Reclamation in compliance all regulatory
compliance requirements and all applicable state, Federal, and local environmental and cultural
and paleontological resource protection laws and regulations as applicable to this project. These
may include, but are not limited to, the National Environmental Policy Act (NEP A) including the
Council on Environmental Quality and Department of the Interior regulations implementing
NEP A, the Clean Water Act, the Endangered Species Act, consultation with potentially affected
Tribes, and consultation with the State Historic Preservation Office.
Certain environmental and other associated compliance are Federal responsibilities, and will
occur as appropriate Reclamation will identify the need for, and assure the completion of, any
appropriate environmental compliance requirements, as identified above, pursuant to activities
specific to this assisted activity. Environmental and other associated compliance shall be
completed prior to the start of this project. As such. notwithstanding any other provision of this
Agreement. Reclamation shall not provide any funds to the recipient for Agreement purposes.
and the Recipient shall not begin implementation of the assisted activity described in this
Agreement. unless and until Reclamation provides written notice to the recipient that all
applicable environmental and regulatory compliance analyses and clearances have been
completed. and the Recipient may begin implementation of the assisted activity.
11. RECLAMATION WAGE RATE IMPLEMENTATION REQUIREMENTS
This section serves as Reclamation specific implementation requirements for compliance with
Section 11.4 of this Agreement, "Wage Rate Requirements -Section 1606 of the Recovery Act.
(29 CFR §5.5)". The Wage Rate Requirements do not apply to government agencies (such as
States or their political subdivisions) where the construction work is performed by the
government agency's own employees. Davis-Bacon Act wage rate requirements do apply to
contracts issued by government agencies for construction work. Monitoring contractor
performance and compliance is the primary responsibility of the Recipient. The Recipient agrees
to comply with Section 11.4 of this Agreement and the following Reclamation implementation
requirements for all construction activities performed with an estimated value that exceeds
$2000:
(a) Certified Payrolls. The Recipient will obtain certified payrolls from all contractors and
subcontractors performing construction activities in support of this Agreement on a weekly
basis. Further, the Recipient shall review a representative sample of the data within these
Agreement No. 16
payrolls as well as compare them with the independent inspection interviews conducted on
site to ensure that all contractors and subcontractors are in compliance with the Prevailing
Wage Rates that are Attachment 1 of this Agreement. The Recipient shall provide the
certified payrolls, the independent inspection documentation, and the documentation of
reviews must be submitted to the GOTR on a monthly basis.
(b) Signage Requirements. The wage determination (including any additional classifications
and wage rates conformed) and a Davis~Bacon poster (WH-3121) must be posted at all times
by the Recipient at the site of the work in a prominent and accessible place where it can be
easily seen.
(c) Independent Inspections. As part of the construction inspection responsibilities of the
Recipient, the Recipient is responsible for ensuring that a sampling of interviews with on-site
laborers are conducted on at least a weekly basis. This documentation is to be submitted to
the GOTR at the same time as the certified payrolls are submitted.
(d) Resolution. Resolution of apparent discrepancies noted between the prevailing wage rates
and the certified payrolls is the responsibility of the Recipient, the GOTR, the GO, and the
contractor. Documentation of any resolutions must be provided to the GOTR in a timely
fashion.
Agreement No. 17
II. RECLAMATION STANDARD TERMS AND CONDITIONS -STATES, LOCAL
GOVERNMENTS, AND FEDERALLY RECOGNIZED INDIAN TRIBAL
GOVERNMENTS
1. Regulations and Guidance
The regulations at 43 CFR, Part 12, Subparts A, C, E, and F, are hereby incorporated by
reference as though set forth in full text. The following Office of Management and Budget
(OMB) Circulars, as applicable, and as implemented by 43 CFR Part 12, are also incorporated by
reference and made a part of this Agreement. Failure of a Recipient to comply with any
applicable regulation or circular may be the basis for withholding payments for proper charges
made by the Recipient and/or for termination of support. Copies of OMB Circulars are available
at http://www.whitehouse.gov/omb/grants/grants_circulars.html. The implementation of the
circulars at 43 CFR Part 12 is available at http://www.gpoaccess.gov/ecfr.
1.1 Colleges and Universities that are Recipients or Subrecipients shall use the following:
2 CFR Part 220 (Circular A 21), "Cost Principles for Educational Institutions"
Circular A 110, as amended September 30, 1999, "Uniform Administrative Requirements for
Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit
Organizations" (Codification by Department ofInterior, 43 CFR 12, Subpart F)
31 U.S.C. 1501-7507 (Circular A-03), revised June 27, 2d03, "Audits of States, Local
Governments, and Non-Profit Organizations"
1.2 State, Local and Tribal Governments that are Recipients or Subrecipients shall use the
following:
2 CFR Part 225 (Circular A 87), "Cost Principles for State, Local, and Indian Tribal
Governments"
43 CFR 12, Subpart C (Circular A 102), as amended August 29, 1997, "Grants and Cooperative
Agreements with State and Local Governments"
31 U.S.C. 7501-7507 (Circular A-133, revised June 27, 2003, "Audits of States, Local
Governments, and Non-Profit Organizations"
1.3 Nonprofit Organizations that are Recipients or Subrecipients shall use the following:
2 CFR Part 230 (Circular A 122), "Cost Principles for Non-Profit Organizations"
Circular A 110, as amended September 30, 1999, "Uniform Administrative Requirements for
Grants and Agreements With Institutions of Higher Education, Hospitals, and Other N on-Profit
Organizations" (Codification by Department ofInterior, 43 CFR 12, Subpart F).
Agreement No. 18
31 U.S.c. 7501-7507 (Circular A-133, revised June 27,2003, "Audits of States, Local
Governments, and Non-Profit Organizations"
1.4 Organizations other than those indicated above that are Recipients or Subrecipients shall use
the basic principles ofOMB Circular A-110 (Codification by Department ofInterior, 43 CFR 12,
Subpart F), and cost principles shall be in accordance with 48 CFR Subpart 31.2, titled
"Contracts with Commercial Organizations," which is available at
http://www.gpoaccess.gov/ecfr/ .
1.5 Additionally, please reference 43 CFR 12.77 for further regulations that cover the award and
administration of subawards by State governments.
2. Payment.
Acceptance of a financial assistance Agreement from Reclamation creates a legal responsibility
on the part of the Recipient organization to use the funds and property provided in accordance
with the terms and conditions of the Agreement. Reclamation has a reversionary interest in the
.unused balance of funding and in any funds improperly applied.
2.1 Payment Standards. (43.CFR §12.61)
(a) Scope. This section prescribes the basic standard and the methods under which a Federal
agency will make payments to grantees, and grantees will make payments to subgrantees and . . .
contractors.
(b) Basic standard. Methods and procedures for payment shall minimize the time elapsing
between the transfer of funds and disbursement by the grantee or subgrantee, in accordance with
Treasury regulations at 31 CFR part 205. '
(c) Advances. Grantees and subgrantees shall be paid in advance, provided they maintain or
demonstrate the willingness and ability to maintain procedures to minimize the time elapsing
between the transfer of the funds and their disbursement by the grantee or subgrantee.
(d) Reimbursement. Reimbursement shall be the preferred method when the requirements in
paragraph (c) of this section are not met. Grantees and subgrantees may also be paid by
reimbursement for any construction grant. Except as otherwise specified in regulation, Federal
agencies shall not use the percentage of completion method to pay construction grants. The
grantee or subgrantee may use that method to pay its construction contractor, and if it does, the
awarding agency's payments to the grantee or sub grantee will be based on the grantee's or
sub grantee's actual rate of disbursement.
(e) Working capital advances. If a grantee cannot meet the criteria for advance payments
described in paragraph (c) of this section, and the Federal agency has determined that
reimbursement is not feasible because the grantee lacks sufficient working capital, the awarding
agency may provide cash or a working capital advance basis. Under this procedure the awarding
Agreement No. 19
agency shall advance cash to the grantee to cover its estimated disbursement needs for an initial
period generally geared to the grantee's disbursing cycle. Thereafter, the awarding agency shall
reimburse the grantee for its actual cash disbursements. The working capital advance method of
payment shall not be used by grantees or subgrantees if the reason for using such method is the
unwillingness or inability of the grantee to provide timely advances to the sub grantee to meet the
subgrantee's actual cash disbursements.
(f) Effect of program income, refunds, and audit recoveries on payment.
(I) Grantees and subgrantees shall disburse repaymellts to and interest earned on a revolving
fund before requesting additional cash payments for the same activity.
(2) Except as provided in paragraph (f)(1) of this section, grantees and subgrantees shall
disburse program income, rebates, refunds, contract settlements, audit recoveries and interest
earned on such funds before requesting additional cash payments.
(g) Withholding payments.
(I) Unless otherwise required by Federal statute, awarding agencies shall not withhold
payments for proper charges incurred by grantees or sub grantees unless-
(i) The grantee or subgrantee has failed to comply with grant award conditions, or
(ii) The grantee or subgrantee is indebted to the United States.
(2) Cash withheld for failure to comply With grant award condition, but without suspension
of the grant, shall be released to the grantee upon subsequent compliance. When a grant is
suspended, payment adjustments will be made in accordance with § 12.83{ c).
(3) A Federal agency shall not make payment to grantees for amounts that are withheld by
grantees or subgrantees from payment to contractors to assure satisfactory completion of
work. Payments shall be made by the Federal agency when the grantees or subgrantees
actually disburse the withheld funds to the contractors or to escrow accounts established to
assure satisfactory completion of work.
(h) Cash depositories.
(I) Consistent with the national goal of expanding the opportunities for minority business
enterprises, grantees and subgrantees are encouraged to use minority banks (a bank which is .
owned at least 50 percent by minority group members). A list of minority owned banks can
be obtained from the Minority Business Development Agency, Department of Commerce,
Washington, DC 20230.
(2) A grantee or subgrantee shall maintain a separate bank account only when required by
Federal-State Agreement.
Agreement No. 20
(i) Interest earned on advances. Except for interest earned on advances of funds exempt
under the Intergovernmental Cooperation Act (31 U.S.C. 6501 et seq.) and the Indian
Self-Determination Act (23 U.S.C. 450), grantees and subgrantees shall promptly, but at
least quarterly, remit interest earned on advances to the Federal agency. The grantee or
sub grantee may keep interest amounts up to $100 per year for administrative expenses.
2.2 Payment Method
Requesting Payments --Requests for advance or reimbursement may be made by the following
methods:
(1) SF-270, Request for Advance or Reimbursement -Recipients may submit an original and
properly certified SF-270 form to the GO. For advance payments, this form may be submitted
on a monthly basis, at least two weeks prior to the date on which funds are required, and on the
basis of expected disbursements for the succeeding month and the amount of Federal funds
already on hand. Requests for reimbursement may be submitted on a monthly basis, or more
frequently if authorized by the (GO). The SF-70 is available on the Internet at
http://www.whitehouse.gov/omb/grants/grants forms.html.
(2) SF-271, Outlay Report and Request for Reimbursement for Construction Programs
The SF-271 shall be used for construction Agreements paid by the reimbursement method, letter
of credit, electronic funds transfer, or Treasury check advance, except where the advance is
based on periodic requests from the Recipient, in which case the SF-270 shall be used. This
request may be submitted on a quarterly basis, but no less frequently than on an annual basis.
Recipients may submit an original, properly certified SF-271 form to the GO. The SF-271 is·
available on the Internet at http://www.whitehouse.gov/omb/grants/grants forms.html.
(3) Automated Standard Application for Payments (ASAP) -Recipients may utilize the
Department of Treasury ASAP payment system to request advances or reimbursements. ASAP
is a Recipient-initiated payment and information system designed to provide a single point of
contact for the request and delivery of Federal funds. Further information regarding ASAP may
be obtained from the ASAP website at http://www.frns.treas.gov/asap. Upon award, you will be
provided with information regarding enrollment in the ASAP system.
Recipients interested in enrolling in the ASAP system, please contact Dee Devillier at 303-445-
3461 or Sheri Oren at 303-445-3448.
3. Procurement Standards (43 CFR §12.76).
(a) States. When procuring property and services under a grant, a State will follow the same
policies and procedures it uses for procurements from its non-Federal funds. The State will
ensure that every purchase order or other contract includes any clauses required by Federal
statutes and executive orders and their implementing regulations. Other grantees and subgrantees
will follow paragraphs (b) through (i) in this section.
(b) Procurement standards.
Agreement No. 21
(1) Grantees and subgrantees will use their own procurement procedures which reflect
applicable State and local laws and regulations, provided that the procurements conform to
applicable Federal law and the standards identified in this section.
(2) Grantees and sub grantees will maintain a contract administration system which ensures
that contractors perfonn in accordance with the tenns, conditions, and specifications of their
contracts or purchase orders.
(3) Grantees and sub grantees will maintain a written ~ode of standards of conduct governing
, the perfonnance of their employees engaged in the award and administration of contracts. No
employee, officer or agent of the grantee or subgrantee shall participate in selection, or in the
award or administration of a contract supported by Federal funds if a conflict of interest, real
or apparent, would be involved. Such a conflict would arise when:
(i) The employee, officer or agent,
(ii) Any member of his immediate family,
(iii) His or her partner, or
(iv) An organization which employs, or is about to employ, any of the above, has a
financial or other interest in the finn selected for award. The grantee's or subgrantee's
officers, employees or agents will neither solicit nor accept gratuities, favors or anything
of monetary value from contractors, potential contractors, or parties to subagreements.
Grantee and subgrantees may set minimum rules where the financial interest is not
substantial or the gift is an unsolicited item of nominal intrinsic value. To the extent
permitted by State or local law or regulations, such standards or conduct will provide for
penalties, sanctions, or other disciplinary actions for violations of such standards by the
grantee's and subgrantee's officers, employees, or agents, or by contractors or their
agents. The awarding agency may in regulation provide additional prohibitions relative to
real, apparent, or potential conflicts of interest.
(4) Grantee and sub grantee procedures will provide for a review of proposed procurements to
avoid purchase of unnecessary or duplicative items. Consideration should be given to
consolidating or breaking out procurements to obtain a more economical purchase. Where
appropriate, an analysis will be made of lease versus purchase alternatives, and any other
appropriate analysis to determine the most economical approach.
(5) To foster greater economy and efficiency, grantees and subgrantees are encouraged to
enter into State and local intergovernmental agreements for procurement or use of common
goods and services.
(6) Grantees and subgrantees are encouraged to use Federal excess and surplus property in
lieu of purchasing new equipment and property whenever such use is feasible and reduces
project costs.
Agreement No. 22
(7) Grantees and subgrantees are encouraged to use value engineering clauses in contracts for
construction projects of sufficient size to offer reasonable opportunities for cost reductions.
Value engineering is a systematic and creative analysis of each contract item or task to
ensure that its essential function is provided at the overall lower cost.
(8) Grantees and subgrantees will make awards only to responsible contractors possessing the
ability to perform successfully under the terms and conditions of a proposed procurement.
Consideration will be given to such matters as contractor integrity, compliance with public
policy, record of past performance, and financial and.technical resources.
(9) Grantees and subgrantees will maintain records sufficient to detail the significant history
of a procurement. These records will include, but are not necessarily limited to the following:
rationale for the method of procurement, selection of contract type, contractor selection or
rejection, and the basis for the contract price.
(10) Grantees and sub grantees will use time and material type contracts only-
(i) After a determination that no other contract is suitable, and
(ii) If the contract includes a ceiling price that the contractor exceeds at its own risk.
(11) Grantees and subgrantees alone will be responsible, in accordance with good
administrative practice and sound business judgment, for the settlement of all contractual and
administrative issues arising out of procurements. These issues include, but are not limited to
source evaluation, protests, disputes, and claims. These standards do not relieve the grantee
or subgrantee of any contractual responsibilities under its contracts. Federal agencies will not
substitute their judgment for that of the grantee or subgrantee unless the matter is primarily a
Federal concern. Violations oflaw will be referred to the local, State, or Federal authority
having proper jurisdiction.
(12) Grantees and subgrantees will have protest procedures to handle and resolve disputes
relating to their procurements and shall in all instances disclose information regarding the
protest to the awarding agency. A protestor must exhaust all administrative remedies with the
grantee and subgrantee before pursuing a protest with the Federal agency. Reviews of
protests by the Federal agency will be limited to:
(i) Violations of Federal law or regulations and the standards of this section (violations of
State or local law will be under the jurisdiction of State or local authorities) and
(ii) Violations of the grantee's or subgrantee's protest procedures for failure to review a
complaint or protest. Protests received by the Federal agency other than those specified
above will be referred to the grantee or subgrantee.
(c) Competition.
Agreement No. 23
(1) All procurement transactions will be conducted in a manner providing full and open
competition consistent with the standards of §12.76. Some of the situations considered to be
restrictive of competition include but are not limited to:
(i) Placing unreasonable requirements on firms in order for them to qualify to do
business,
(ii) Requiring unnecessary experience and excessive bonding,
(iii) Noncompetitive pricing practices between firms or between affiliated companies,
(iv) Noncompetitive awards to consultants that are on retainer contracts,
(v) Organizational conflicts of interest,
(vi) Specifying only a "brand name" product instead of allowing "an equal" product to be
offered and describing the performance of other relevant requirements of the
procurement, and
(vii) Any arbitrary action in the procurement process.
(2) Grantees and subgrantees will conduct procurements in a manner that prohibits the use of
statutorily or administratively imposed in-State or local geographical preferences in the
evaluation of bids or proposals, except in those cases where applicable Federal statutes
expressly mandate or encourage geographic preference. Nothing in this section preempts
State licensing laws. When contracting for architectural and engineering (AlE) services,
geographic location may be a selection criteria provided its application leaves an appropriate
number of qualified firms, given the nature and size of the project, to compete for the
contract. t
(3) Grantees will have written selection procedures for procurement transactions. These
procedures will ensure that all solicitations:
(i) Incorporate a clear and accurate description of the technical requirements for the
material, product, or service to be procured. Such description shall not, in competitive
procurements, contain features which unduly restrict competition. The description may
include a statement of the qualitative nature of the material, product or service to be
procured, and when necessary, shall set forth those minimum essential characteristics and
standards to which it must conform if it is to satisfy its intended use. Detailed product
specifications should be avoided if at all possible. When it is impractical or uneconomical
to make a clear and accurate description of the technical requirements, a "brand name or
equal" description may be used as a means to define the performance or other salient
requirements of a procurement. The specific features of the named brand which must be
met by offerors shall be clearly stated; and
Agreement No. 24
(ii)·Identify all requirements which the offerors must fulfill and all other factors to be
used in evaluating bids or proposals.
(4) Grantees and sub grantees will ensure that all pre qualified lists of persons, firms, or
products which are used in acquiring goods and services are current and include enough
qualified sources to ensure maximum open and free competition. Also, grantees and
subgrantees will not preclude potential bidders from qualifying during the solicitation period.
(d) Methods of procurement to be followed -(1) Procurement by small purchase procedures.
Small purchase procedures are those relatively simple and informal procurement methods for
securing services, supplies, or other property that do not cost more than the simplified acquisition
threshold fixed at41 U.S.C. 403(11) (currently set at $100,000). If small purchase procedures are
used, price or rate quotations shall be obtained from an adequate number of qualified sources.
(2) Procurement by sealed bids (formal advertising). Bids are publicly solicited and a firm
fixed-price contract (lump sum or unit price) is awarded to the responsible bidder whose bid,
conforming with all the material terms and conditions of the invitation for bids, is the lowest
in price. The sealed bid method is the preferred method for procuring construction, if the
conditions in §12.76(d)(2)(i) apply.
(i) In order for sealed bidding to be feasible, the following conditions should be present:
(A) A complete, adequate, and realistic specification or purchase description is
available;
(B) Two or more responsible bidders are willing and able to compete effectively and
for the business; and
(C) The procurement lends itself to a firm fixed price contract and the selection of the
successful bidder can be made principally on the basis of price.
(ii) If sealed bids are used, the following requirements apply:
(A) The invitation for bids will be publicly advertised and bids shall be solicited from
an adequate number of known suppliers, providing them sufficient time prior to the
date set for opening the bids;
(B) The invitation for bids, which will include any specifications and pertinent
attachments, shall define the items or services in order for the bidder to properly
respond;
(C) All bids will be publicly opened at the time and place prescribed in the invitation
for bids;
(D) A firm fixed-price contract award will be made in writing to the lowest
responsive and responsible bidder. Where specified in bidding documents, factors
Agreement No. 25
such as discounts, transportation cost, and life cycle costs shall be considered in
determining which bid is lowest. Payment discounts will only be used to determine
the low bid when prior experience indicates that such discounts are usually taken
advantage of; and
(E) Any or all bids may be rejected if there is a sound documented reason.
(3) Procurement by competitive proposals. The technique of competitive proposals is
normally conducted with more than one source submitting an offer, and either a fixed~price
or cost-reimbursement type contract is awarded. It is ,generally used when conditions are not
appropriate for the use of sealed bids. If this method is used, the following requirements
apply:
(i) Requests for proposals will be publicized and identifY all evaluation factors and
their relative importance. Any response to publicized requests for proposals shall be
honored to the maximum extent practical;
(ii) Proposals will be solicited from an adequate number of qualified sources;
(iii) Grantees and sub grantees will have a method for conducting technical
evaluations of the proposals received and for selecting awardees; ,
(iv) Awards will be made to the responsible firm whose proposal is most
advantageous to the program, with price and other factors considered; and . .
(v) Grantees and subgrantees may use competitive proposal procedures for
qualifications-based procurement of architectural/engineering (AlE) professional
services whereby competitors' qualifications are evaluated and the most qualified
competitor is selected, subject to negotiation of fair and reasonable compensation.
The method, where price is not used as a selection factor, can only be used in
procurement of AlE professional services. It cannot be used to purchase other types of
services though AlE firms are a potential source to perform the proposed effort.
(4) Procurement by noncompetitive proposals is procurement through solicitation of a
proposal from only one source, or after solicitation of a number of sources, competition is
determined inadequate.
(i) Procurement by noncompetitive proposals may be used only when the award of a
contract is infeasible under small purchase procedures, sealed bids or competitive
proposals and one of the following circumstances applies:
(A) The item is available only from a single source;
(B) The public exigency or emergency for the requirement will not permit a delay
resulting from competitive solicitation;
Agreement No. 26
(C) The awarding agency authorizes noncompetitive proposals; or
(D) After solicitation of a number of sources, competition is determined inadequate.
(ii) Cost analysis, i.e., verifying the proposed cost data, the projections of the data, and
the evaluation of the specific elements of costs and profits, is required.
(iii) Grantees and sub grantees may be required to submit the proposed procurement to the
awarding agency for pre-award review in accordance with paragraph (g) of this section.
(e) Contracting with small and minority firms, women's business enterprise and labor surplus
area firms. (1) The grantee and subgrantee will take all necessary affirmative steps to assure that
minority firms, women's business enterprises, and labor surplus area firms are used when
possible.
(2) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and women's business enterprises on
solicitation lists;
(ii) Assuring that small and minority businesses, and women's business enterprises are
solicited whenever they are potential sources;
(iii) Dividing total requirements, when economically feasible, into smaller tasks or
quantities to permit maximum participation by small and minority business, and women's .
business enterprises;
(iv) Establishing delivery schedules, where the requirement permits, which encourage
participation by small and minority business, and women's business enterprises;
(v) Using the services and assistance of the Small Business Administration, and the
Minority Business Development Agency of the Department of Commerce; and
(vi) Requiring the prime contractor, if subcontracts are to be let, to take the affirmative
steps listed in paragraphs (e)(2) (i) through (v) of this section.
(f) Contract cost and price.
(1) Grantees and subgrantees must perform a cost or price analysis in connection with every
procurement action including contract modifications. The method and degree of analysis is
dependent on the facts surrounding the particular procurement situation, but as a starting
point, grantees must make independent estimates before receiving bids or proposals. A cost
analysis must be performed when the offeror is required to submit the elements of his
estimated cost, e.g., under professional, consulting, and architectural engineering services
contracts. A cost analysis will be necessary when adequate price competition is lacking,and
for sole source procurements, including contract modifications or change orders, unless price
Agreement No. 27
reasonableness can be established on the basis of a catalog or market price of a commercial
product sold in substantial quantities to the general public or based on prices set by law or
regulation. A price analysis will be used in all other instances to determine the
reasonableness of the proposed contract price.
(2) Grantees and subgrantees will negotiate profit as a separate element of the price for each
contract in which there is no price competition and in all cases where cost analysis is
performed. To establish a fair and reasonable profit, consideration will be given to the
complexity of the work to be performed, the risk borne by the contractor, the contractor's
investment, the amount of subcontracting, the quality of its record of past performance, and
industry profit rates in the surrounding geographical area for similar work.
(3) Costs or prices based on estimated costs for contracts under grants will be allowable only
to the extent that costs incurred or cost estimates included in negotiated prices are consistent
with Federal cost principles (see § 12.62). Grantees may reference their own cost principles
that comply with the applicable Federal cost principles.
(4) The cost plus a percentage of cost and percentage of construction cost methods of
contracting shall not be used.
(g) Awarding agency review.
(1) Grantees and sub grantees must make available, upon request of the awarding agency,
teclmical specifications on proposed procurements where the awarding agency believes such
review is needed to ensure that the item and/or service specified is the one being proposed for
purchase. This review generally will take place prior to the time the specification is
incorporated into a solicitation document. However, if the grantee or subgrantee desires to
have the review accomplished after a solicitation has been developed, the awarding agency
may still review the specifications, with such review usually limited to the teclmical aspects
of the proposed purchase.
(2) Grantees and subgrantees must on request make available for awarding agency pre~award
review procurement documents, such as requests for proposals or invitations for bids,
independent cost estimates, etc. when:
(i) A grantee's or subgrantee's procurement procedures or operation fails to comply with
the procurement standards in this section; or
(ii) The procurement is expected to exceed the simplified acquisition threshold and is to
be awarded without competition or only one bid or offer is received in response to a
solicitation; or
(iii) The procurement, which is expected to exceed the simplified acquisition threshold,
specifies a "brand name" product; or
Agreement No. 28
(iv) The proposed award is more than the simplified acquisition threshold and is to be
awarded to other than the apparent low bidder under a sealed bid procurement; or
(v) A proposed contract modification changes the scope of a contract or increases the
contract amount by more than the simplified acquisition threshold.
(3) A grantee or subgrantee will be exempt from the pre-award review in paragraph (g)(2) of
this section if the awarding agency determines that its procurement systems comply with the
standards of this section.
(i) A grantee or subgrantee may request that its procurement system be reviewed by the
awarding agency to determine whether its system meets these standards in order for its
system to be certified. Generally, these reviews shall occur where there is a continuous
high-dollar funding, and third-party contracts are awarded on a regular basis.
(ii) A grantee or subgrantee may self-certify its procurement system. Such self
certification shall not limit the awarding agency's right to survey the system. Under a
self-certification procedure, awarding agencies may wish to rely on written assurances
from the grantee or subgrantee that it is complying with these standards. A grantee or
subgrantee will cite specific procedures, regulations, standards, etc., as being in
compliance with these requirements and have its system available for review.
(h) Bonding requirements. For construction or facility improvement contracts or subcontracts
exceeding the simplified acquisition threshold, the awarding agency may accept the bonding
policy and requirements of the grantee or subgrantee provided the awarding agency has made a
determination that the awarding agency's interest is adequately protected. If such a determination
has not been made, the minimum requirements shall be as follows:
(1) A bid guarantee from each bidder equivalent to five percent of the bid price. The "bid
guarantee" shall consist of a firm commitment such as a bid bond, certified check, or other
negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance
of his bid, execute such contractual documents as may be required within the time specified.
(2) A performance bond on the part of the contractor for 100 percent of the contract price. A
"performance bond" is one executed in connection with a contract to secure fulfillment of all
the contractor's obligations under such contract.
(3) A payment bond on the part of the contractor for 100 percent of the contract price. A
"payment bond" is one executed in connection with a contract to assure payment as required
. by law of all persons supplying labor and material in the execution of the work provided for
in the contract.
(i) Contract provisions. A grantee's and subgrantee's contracts must contain provisions in
paragraph (i) of this section. Federal agencies are permitted to require changes, remedies,
changed conditions, access and records retention, suspension of work, and other clauses
approved by the Office of Federal Procurement Policy.
Agreement No. 29
(1) Administrative, contractual, or legal remedies in instances where contractors violate or
breach contract terms, and provide for such sanctions and penalties as may be appropriate.
(Contracts more than the simplified acquisition threshold)
(2) Termination for cause and for convenience by the grantee or subgrantee including the
manner by which it will be effected and the basis for settlement. (All contracts in excess of
$10,000)
(3) Compliance with Executive Order 11246 of Sept~mber 24, 1965, entitled "Equal
Employment Opportunity," as amended by Executive Order 11375 of October 13,1967, and
as supplemented in Department of Labor regulations (41 CFR chapter 60). (All construction
contracts awarded in excess of $10,000 by grantees and their contractors or sub grantees)
(4) Compliance with the Copeland "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in
Department of Labor regulations (29 CFR Part 3). (All contracts and subgrants for
construction or repair)
(5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) as supplemented by
Department of Labor regulations (29 CFR Part 5). (Construction contracts in excess of $2000
awarded by grantees and subgrantees when required by Federal grant program legislation)
(6) Compliance with Sections 103 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). (Construction contracts awarded by· grantees and subgrantees in excess of $2000, and in
excess of $2500 for other contracts which involve the employment of mechanics or laborers)
(7) Notice of awarding agency requirements and regulations pertaining to reporting.
(8) Notice of awarding agency requirements and regulations pertaining to patent rights with
respect to any discovery or invention which arises or is developed in the course of or under
such contract.
(9) Awarding agency requirements and regulations pertaining to copyrights and rights in
data.
(10) Access by the grantee, the subgrantee, the Federal grantor agency, the Comptroller
General of the United States, or any of their 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.
(11) Retention of all required records for three years after grantees or subgrantees make final
payments and all other pending matters are closed.
(12) Compliance with all applicable standards, orders, or requirements issued under section
306 of the Clean Air Act (42 U.S.C. 1857(h», section 508 of the Clean Water Act (33 U.S.C.
Agreement No. 30
1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR
part 15). (Contracts, subcontracts, and sub grants of amounts in excess of $100,000)
(13) Mandatory standards and policies relating to energy efficiency which are contained in
the State energy conservation plan issued in compliance with the Energy Policy and
Conservation Act (Pub. L. 94-163, 89 Stat. 871).
4. Equipment (43 CFR §12.72)
(a) Title. Subject to the obligations and conditions set forth in this section, title to equipment
acquired under a grant or subgrant will vest upon acquisition in the grantee or subgrantee
respectively.
(b) States. A State will uSe, manage, and dispose of equipment acquired under a grant by the
State in accordance with State laws and procedures. Other grantees and sub grantees will follow
paragraphs (c) through ( e) of this section.
(c) Use.
(1) Equipment shall be used by the grantee or sub grantee 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 grantee or subgrantee shall also make equipment available for use on other projects
or programs currently or previously supported by the Federal Government, providing such
use will not interfere with the work on the projects or program for which it was originally
acquired. First preference for other use shall be given to other programs or projects supported
by the awarding agency. User fees should be considered if appropriate.
(3) Notwithstanding the encouragement in § 12.65(a) to earn program income, the grantee or
subgrantee must not use equipment acquired with grant funds to provide services for a fee to
compete unfairly with private companies that provide equivalent services, unless specifically
permitted or contemplated by Federal statute.
(4) When acquiring replacement equipment, the grantee or subgrantee may use the
equipment to be replaced as a trade-in or sell the property and use the proceeds to offset the
cost of the replacement property, subject to the approval of the awarding agency.
(d) Management requirements. Procedures for managing equipment (including replacement
equipment), whether acquired in whole or in part with grant funds, until disposition takes place
will, as a minimum, meet the following requirements:
(1) Property records must be maintained that include a description of the property, a serial
number or other identification number, the source of property, who holds title, the acquisition
Agreement No. 31
date, and cost of the property, percentage of Federal participation in the cost of the property,
the location, use and condition of the property, and any ultimate disposition data including
the date of disposal and sale price of the property.
(2) A physical inventory of the property must be taken and the results reconciled with the
property records at least once every two years.
(3) A control system must be developed to ensure adequate safeguards to prevent loss,
damage, or theft of the property. Any loss, damage, or theft shall be investigated.
(4) Adequate maintenance procedures must be developed to keep the property in good
condition.
(5) If the grantee or subgrantee is authorized or required to sell the property, proper sales
procedures must be established to ensure the highest possible return.
(e) Disposition. When original or replacement equipment acquired under a grant or subgrant is
no longer needed for the original project or program or for other activities currently or previously
supported by a Federal agency, disposition of the equipment will be made as follows:
(1) Items of equipment with a current per-unit fair market value ofless than $5,000 may be
retained, sold or otherwise disposed of with no further obligation to the awarding agency.
(2) Items of equipment with a current per unit fair market value in excess of $5,000 may be
retained or sold and the awarding agency shall have a right to an amount calculated by
multiplying the current market value or proceeds from sale by the awarding agencis share of
the equipment.
(3) In cases where a grantee or sub grantee fails to take appropriate disposition actions, the
awarding agency may direct the grantee or subgrantee to take excess and disposition actions.
(t) Federal equipment. In the event a grantee or sub grantee is provided Federally-owned
equipment:
(1) Title will remain vested in the Federal Government.
(2) Grantees or subgrantees will manage the equipment in accordance with Federal agency
rules and procedures, and submit an annual inventory listing.
(3) When the equipment is no longer needed, the grantee or subgrantee will request
disposition instructions from the Federal agency.
(g) Right to transfer title. The Federal awarding agency may reserve the right to transfer title to
the Federal Government or a third part named by the awarding agency when such a third party is
Agreement No. 32
otherwise eligible under existing statutes. Such transfers shall be subject to the following
standards: .
(1) The property shall be identified in the grant or otherwise made known to the grantee in
writing.
(2) The Federal awarding agency shall issue disposition instruction within 120 calendar days
after the end of the Federal support of the project for which it was acquired. If the Federal
awarding agency fails to issue disposition instructions within the 120 calendar-day period the
grantee shall follow 12.72(e).
(3) When title to equipment is transferred, the grantee shall be paid an amount calculated by
applying the percentage of participation in the purchase to the current fair market value of the
property.
5. Supplies (43 CFR §12.73)
(a) Title. Title to supplies acquired under a grant or sub grant will vest, upon acquisition, in the
grantee or subgrantee respectively.
(b) Disposition. If there is a residual inventory of unused supplies exceeding $5,000 in total
aggregate fair market value upon termination or completion of the award, and if the supplies are
not needed for any other Federally sponsored programs or projects, the grantee or subgrantee
shall compensate the awarding agency for its share.
6. Inspection
Reclamation has the right to inspect and evaluate the work performed or being performed under
this Agreement, and the premises where the work is being performed, at all reasonable times and
in a manner that will not unduly delay the work. If Reclamation performs inspection or
evaluation on the premises of the Recipient or a Subrecipient, the Recipient shall furnish and
shall require sub-recipients to furnish all reasonable facilities and assistance for the safe and
convenient performance of these duties.
7. Audit (31 U.S.C. 7501-7507)
Non-Federal entities that expend $500,000 or more in a year in Federal awards shall have a
single or program-specific audit conducted for that year in accordance with the Single Audit Act·
Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-l33, which is
available at http://www.whitehouse.gov/omb/grants/grants_circulars.html. Federal awards are
defined as Federal financial assistance and Federal cost-reimbursement contracts that non
Federal entities receive directly from Federal awarding agencies or indirectly from pass-through
entities. They do not include procurement contracts, under grants or contracts, used to buy goods
or services from vendors. Non-Federal entities that expend less than $500,000 a year in Federal
awards are exempt from Federal audit requirements for that year, except as noted in A-l33,
Agreement No. 33
§_.215( a), but records must be available for review or audit by appropriate officials of the
Federal agency, pass-through entity, and General Accounting Office (GAO).
Audits shall be made by an independent auditor in accordance with generally accepted
government auditing standards covering financial audits. General guidance on the single audit
process is included in a pamphlet titled, "Highlights of the Single Audit Process" which is
available on the internet at htlp:llwww.dot.gov/ostlm60/grant/sincontact.htm. Additional
information on single audits is available from the Federal Audit Clearinghouse at
htlp:/lharvester.census.gov/sacl .
8. Enforcement (43 CFR §12.83)
(a) Remedies for noncompliance. If a grantee or subgrantee materially fails to comply with any
term of an award, whether stated in a Federal statute or regulation, an assurance, in a State plan
or application, a notice of award, or elsewhere, the awarding agency may take one or more of the
following actions, as appropriate in the circumstances:
(1) Temporarily withhold cash payments pending correction of the deficiency by the grantee
or ,subgrantee or more severe enforcement action by the awarding agency,
(2) Disallow (that is, deny both use of funds and matching credit for) all or part of the cost of
the activity or action not in compliance,
(3) Wholly or partly suspend or terminate the current award for the grantee's or subgrantee's . .
program,
(4) Withhold further awards for the program, or
(5) Take other remedies that may be legally available.
(b) Hearings, appeals. In taking an enforcement action, the awarding agency will provide the
grantee or subgrantee an opportunity for such hearing, appeal, or other administrative proceeding
to which the grantee or sub grantee is entitled under any statute or regulation applicable to the
action involved.
(c) Effects of suspension and termination. Costs of grantee or subgrantee reSUlting from
obligations incurred by the grantee or subgrantee during a suspension or after termination of an
award are not allowable unless the awarding agency expressly authorizes them in the notice of
suspension or termination or subsequently. Other grantee or subgrantee costs during suspension
or after termination which are necessary and not reasonably avoidable are allowable if:
(1) The costs result from obligations which were properly incurred by the grantee or
subgrantee before the effective date of suspension or termination, are not in anticipation of it,
and, in the case of a termination, are noncancellable, and,
Agreement No. 34
(2) The costs would be allowable if the award were not suspended or expired normally at the
end of the funding period in which the termination takes effect.
(d) Relationship to Debarment and Suspension. The enforcement remedies identified in this
section, including suspension and termination, do not preclude grantee or sub grantee from being
subject to "Debarment and Suspension" under B.O. 12549 «2 CFR 29.5.12 and 2 CFR 1400,
Subpart C). .
9. Termination For Convenience (43 CFR §12.84
Except as provided in 43 CFR §12.83 awards may be terminated in whole or in part only as
follows:
(a) By the awarding agency with the consent of the grantee or subgrantee in which case the two
parties shall agree upon the termination conditions, including the effective date and in the case of
partial tennination, the portion to be terminated, or
(b) By the grantee or subgrantee upon written notification to the awarding agency, setting forth
the reasons for such termination, the effective date, and in the case of partial termination, the
portion to be terminated. However, if, in the case of a partial termination, the awarding agency
determines that the remaining portion of the award will not accomplish the purposes for which
the award was made, the awarding agency may terminate the award in its entirety under either
§ 12.83 or paragraph (a) ofthis section.
10. Debarment and Suspension (2 CFR §1400)
The Department of the Interior regulations at 2 CFR 1400-Governmentwide Debarment and
Suspension (Nonprocurement), which adopt the common rule for the governmentwide system of
debarment and suspension for nonprocurement activities, are hereby incorporated by reference
and made a part of this Agreement. By entering into this grant or cooperative Agreement with
the Bureau of Reclamation, the Recipient agrees to comply with 2 CFR 1400, Subpart C, and
agrees to include a similar term or condition in all lower-tier covered transactions. These
regulations are available at http://www.gpoaccess.gov/ecfr/ .
11. Drug-Free Workplace (43 CFR §43)
The Department of the Interior regulations at 43 CFR 43-Governmentwide Requirements for
Drug-Free Workplace (Financial Assistance), which adopt the portion of the Drug-Free
Workplace Act of 1988 (41 U.S.C. 701 et seq, as amended) applicable to grants and cooperative
Agreements, are hereby incorporated by reference and made a part of this Agreement. By
entering into this grant or cooperative Agreement with the Bureau of Reclamation, the Recipient
agrees to comply with 43 CFR 43, Subpart B, if the Recipient is not an individual, or with 43
CFR 43, Subpart C, if the Recipient is an individual. These regulations are available at
http://www.gpoaccess.gov/ecfr/ .
Agreement No. 35
12. Assurances and Certifications Incorporated by Reference
12.1 The provisions of the Assurances, SF 424B or SF 424D as applicable, executed by the
Recipient in connection with this Agreement shall apply with full force and effeCt to this
Agreement. All anti-discrimination and equal opportunity statutes, regulations, and Executive
Orders that apply to the expenditure of funds under Federal contracts, grants, and cooperative
agreements,loans, and other forms of Federal assistance. The Recipient shall comply with Title
VI or the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504
of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and nay program-specific
statutes with anti-discrimination requirements. The Recipient shall comply with civil rights laws
including, but not limited to, the Fair Housing Act, the Fair Credit Reporting Act, the Americans
with Disabilities Act, Title VII of the Civil Rights Act of 1964, the Equal Educational
Opportunities Act, the Age Discrimination in Employment Act, and the Uniform Relocation Act.
Such Assurances also include, but are not limited to, the promise to comply with all applicable
Federal statutes and orders relating to nondiscrimination in employment, assistance, and housing;
the Hatch Act; Federal wage and hour laws and regulations and work place safety standards;
Federal environmental laws and regulations and the Endangered Species Act; and Federal
protection of rivers and waterways and historic and archeological preservation.
12.2 When required by 43 CFR §18-New Restrictions on Lobbying, Recipients shall complete
a Certification Regarding Lobbying form. This certification is incorporated by reference and
made a part ofthis Agreement. These regulations are available at
http://www.gpoaccess.gov/ecfr.
13. Covenant Against Contingent Fees
The Recipient warrants that no person or agency has been employed or retained to solicit or
secure this Agreement upon an Agreement or understanding for a commission, percentage,
brokerage, or contingent fee, excepting bona fide employees or bona fide offices established and
maintained by the Recipient for the purpose of securing Agreements or business. For breach or
violation of this warranty, the Government shall have the right to annul this Agreement without
liability or, in its discretion, to deduct from the Agreement amount, or otherwise recover, the full
amount of such commission, percentage, brokerage, or contingent fee
14. Trafficking Victims Protection Act of 2000, PL 106-386, as amended (2 CFR §175.15)
(a) To implement the trafficking in persons requirement in section 106(g) of the TVPA, as
amended, a Federal awarding agency must include the award term in paragraph (b) of this
section in-
(1) A grant or cooperative agreement to a private entity, as defined in § 175.25( d); and
(2) A grant or cooperative agreement to a State, local government, Indian tribe or foreign
public entity, if funding could be provided under the award to a private entity as a
subrecipient.
Agreement No. 36
(b) The award term that an agency must include, as described in paragraph (a) of this section, is:
I. Trafficking in persons.
a. Provisions applicable to a recipient that is a private entity.
1. You as the recipient, your employees, subrecipients under this award, and subrecipients'
employees may not-
i. Engage in severe forms of trafficking in persons during the period of time that the
award is in effect;
ii. Procure a commercial sex act during the period of time that the award is in effect; or
iii. Use forced labor in the performance of the award or subawards under the award.
2. We as the Federal awarding agency may unilaterally terminate this award, without penalty,
if you or a subrecipient that is a private entity
i. Is determined to have violated a prohibition in paragraph a.I of this award term; or.
ii. Has an employee who is determined by the agency official authorized to terminate the
award to have violated a prohibition in paragraph a.I of this award term through conduct
that is either-.
A. Associated with performance under this award; or
B. Imputed to you or the subrecipient using the standards and due process for
imputing the conduct of an individual to an organization that are provided in 2 CFR
part 180, "OMB Guidelines to Agencies on Governmentwide Debarment and
Suspension (Nonprocurement)," as implemented by our agency at 2 CFR part 1400.
b. Provision applicable to a recipient other than a private entity. We as the Federal awarding
agency may unilaterally terminate this award, without penalty, if a subrecipient that is a private
entity-
1. Is determined to have violated an applicable prohibition in paragraph a.I of this award
term; or
2. Has an employee who is determined by the agency official authorized to terminate the
award to have violated an applicable prohibition in paragraph a.1 ofthis award term through
conduct that is either-
i. Associated with performance under this award; or
Agreement No. 37
ii. Imputed to the sUbrecipient using the standards and due process for imputing the conduct
of an individual to an organization that are provided in 2 CFR part 180, "OMB Guidelines
to Agencies on Governmentwide Debarment and Suspension (Nonprocurement)," as
implemented by our agency at 2 CFR part 1400.
c. Provisions applicable to any recipient.
1. You must inform us immediately of any information you receive from any source alleging
a violation of a prohibition in paragraph a.l of this award term.
2. Our right to terminate unilaterally that is described in paragraph a.2 or b of this section:
i. Implements section 106(g) of the Trafficking Victims Protection Act of 2000 (TVP A),
as amended (22 U.S.C. 7104(g)), and
ii. Is in addition to all other remedies for noncompliance that are available to us under
this award.
3. You must include the requirements of paragraph a.1 of this award term in any subaward
you make to a private entity.
d. Definitions. For purposes of this award term:
1. "Employee" means either:
i. An individual employed by you or a subrecipient who is engaged in the performance of
the project or program under this award; or
ii. Another person engaged in the performance of the project or program under this award
and not compensated by you including, but not limited to, a volunteer or individual
whose services are contributed by a third party as an in-kind contribution toward cost
sharing or matching requirements.
2. "Forced labor" means labor obtained by any of the following methods: the recruitment,
harboring, transportation, provision, or obtaining of a person for labor or services, through
the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude,
peonage, debt bondage, or slavery.
3. "Private entity":
i. Means any entity other than a State, local government, Indian tribe, or foreign public
entity, as those terms are defined in 2 CFR 175.25.
ii. Includes:
Agreement No. 38
A. A nonprofit organization, including any nonprofit institution of higher education,
hospital, or tribal organization other than one included in the definition of Indian tribe
at 2 CFR 175.25(b).'
B. A for~profit organization.
4. "Severe forms of trafficking in persons," "commercial sex act," and "coercion" have the
meanings given at section 103 of the TVPA, as amended (22 U.S.C. 7102).
(c) An agency may use different letters and numbers to designate the paragraphs of the award
term in paragraph (b) of this section, if necessary, to conform the system of paragraph
designations with the one used in other terms and conditions in the agency's awards
15. Contracting with Small and Minority Firms and Women's Business Enterprises
It is a national policy to award a fair share of contracts to small and minority business firms. The
Department of the Interior is strongly committed to the objectives of this policy and encourages
all Recipients of its grants and cooperative agreements to take affirmative steps to ensure such
fairness.
15.1 The grantee and sub grantee shall take all necessary affrrmative steps to assure that
minority frrms, and women's business enterprises are used when possible.
15.2 Affirmative steps shall include:
15.2.1 'Placing qualified small' and minority businesses and women's business 'enterprises on
solicitation lists;
15.2.2 Assuring that small and minority businesses, and women's business enterprises are
solicited whenever they are potential sources;
15.2.3 Dividing total requirements, when economically feasible, into smaller tasks or quantities
to permit maximum participation by small and minority business, and women's business
enterprises;
15.2.4 Establishing delivery schedules, where the requirement permits, which encourage
participation by small and minority business, and women's business enterprises;
15.2.5 Using the services and assistance of the Small Business Administration, and the Minority
Business Development Agency of the Department of Commerce as appropriate, and
15.2.6 Requiring the prime contractor, if subcontracts are to be let, to take the affrrmative steps
listed in C.6.2.1 through C.6.2.5, above.
Agreement No. 39
16. Endorsement of Commercial Products and Services
In accordance with 43 CFR 12.2(d), this provision applies to grants and cooperative agreements
whose principal purpose is a partnership where the Recipient contributes resources to promote
agency programs, publicize agency activities, assists in fund-raising, or provides assistance to the
agency. If the agreement is awarded to a Recipient, other than a State government, a local
government, or a federally-recognized Indian tribal government, and the agreement authorizes
joint dissemination of information and promotion of activities being supported, the following
provision shall be made a term and condition of the award:
Recipient shall not publicize or otherwise circulate, promotional material (such as
advertisements, sales brochures, press releases, speeches, still and motion pictures, articles,
manuscripts or other publications) which states or implies governmental, Departmental, bureau,
or government employee endorsement of a product, service or position which the Recipient
represents. No release of information relating to this award may state or imply that the
Government approves of the Recipient's work products, or considers the Recipient's work
product to be superior to other products or services.
All information submitted for publication or other public releases of information regarding this
project shall carry the following disclaimer:
"The views and conclusions contained in this document are those of the authors and should not
be interpreted as representing the opinions or policies of the U.S. Government. Mention of trade
names or commercial products does not constitute their endorsement by the U.S. Government."
Recipient must obtain prior Government approval for any public information releases concerning
this award which refer to the Department of the Interior or any bureau or employee (by name or
title). The specific text, layout photographs, etc., of the proposed release must be submitted with
the request for approval.
A Recipient further agrees to include this provision in a subaward to any Subrecipient, except for
a sub award to a State government, a local government, or to a federally-recognized Indian Tribe.
Agreement No. 40