Cost Reimbursable Agreements - National Policy General Terms and Conditions - Prior to July 29, 2016

Provision Title

National Policy GT&C Provisions - Mandatory

CR Instructions

Assurance Regarding Felony Conviction or Tax Delinquent Status for Corporate Applicants

This award is subject to the provisions contained in the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2012, P.L. No. 112-55, Division A, Sections 738 and 739 regarding corporate felony convictions and corporate federal tax delinquencies. Accordingly, by accepting this award the Cooperator acknowledges that it:

(1) does not have a tax delinquency, meaning that it is not subject to any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, and

(2) has not been convicted (or had an officer or agent acting on its behalf convicted) of a felony criminal violation under any Federal or State law within 24 months preceding the award, unless a suspending and debarring official of the United States Department of Agriculture has considered suspension or debarment of the Cooperator corporation, or such officer or agent, based on these convictions and/or tax delinquencies and determined that suspension or debarment is not necessary to protect the interests of the Government. If the Cooperator fails to comply with these provisions, [insert agency name] will annul this agreement and may recover any funds the Cooperator has expended in violation of sections 738 and 739.

Applies to all CRs.

Building and Computer Access by Non-U.S. Foreign Agricultural Service Personnel

The Cooperator may be granted access to U.S. Foreign Agricultural Service facilities and/or computer systems to accomplish work described in the Operating Plan or Statement of Work. All non-government employees with unescorted access to U.S. Foreign Agricultural Service facilities and computer systems must have background checks following the procedures established by USDA Directives 3505 and Departmental Manual 4620-02. Those granted computer access must fulfill all U.S. Foreign Agricultural Service requirements for mandatory security awareness and role-base advanced security training, and sign all applicable U.S. Foreign Agricultural Service statements of responsibilities.

Applies to all CRs when the Cooperator or their subcontractors will have unescorted access to USDA/FAS facilities or computer systems. Prior to granting access to the computer system or facility, contact FAS Information Security & Risk Management Branch.

Central Contractor Registration and Universal Identifier Requirements Under 2 CFR Part 25 - Financial Assistance Use of Universal Identifier and Central Contractor Registration; Appendix A to Part 25

(a) Requirement for Central Contractor Registration (CCR).
Unless you are exempted from this requirement under 2 CFR 25.110, you as the Cooperator must maintain the currency of your information in the CCR until you submit the final financial report required under this Agreement or receive the final payment, whichever is later. This requires that you review and update the information at least annually after the initial registration, and more frequently if required by changes in your information or another award term.

(b) Requirement for Data Universal Numbering System (DUNS) Numbers If you are authorized to make subawards under this Agreement, you:

(1) Must notify potential sub cooperators that no entity (see definition in paragraph C of this provision) may receive a subaward from you unless the entity has provided its DUNS number to you.

(2) May not make a subaward to an entity unless the entity has provided its DUNS number to you.

(c) Definitions

For purposes of this provision:

(1) Central Contractor Registration (CCR) means the Federal repository into which an entity must provide information required for the conduct of business as a Cooperator. Additional information about registration procedures may be found at the CCR Internet site (currently at http://www.ccr.gov).

(2) Data Universal Numbering System (DUNS) number means the nine-digit number established and assigned by Dun and Bradstreet, Inc. (D&B) to uniquely identify business entities. A DUNS number may be obtained from D&B by telephone (currently 866-705-5711) or the Internet (currently at http://fedgov.dnb.com/webform).

(3) Entity, as it is used in this provision, means all of the following, as defined at 2 CFR part 25, subpart C:

i. A Governmental organization, which is a State, local government, or Indian Tribe;

ii. A foreign public entity;

iii. A domestic or foreign nonprofit organization;

iv. A domestic or foreign for-profit organization; and

v. A Federal agency, but only as a sub cooperator under an award or subaward to a non-Federal entity.

(4) Subaward:

i. This term means a legal instrument to provide support for the performance of any portion of the substantive project or program for which you received this award and that you as the Cooperator award to an eligible sub cooperator.

ii. The term does not include your procurement of property and services needed to carry out the project or program (for further explanation, see Sec. ----.210 of the attachment to OMB Circular A-133, ``Audits of States, Local Governments, and Non-Profit Organizations'').

iii. A subaward may be provided through any legal agreement, including an agreement that you consider a contract.

(5) Sub Cooperator means an entity that:

i. Receives a subaward from you under this Agreement; and

ii. Is accountable to you for the use of the Federal funds provided by the subaward.

Applies to all CRs, except with any entity when avoiding the compromise of classified information or national security or jeopardizing the personal safety of the entity's clients).

Debarment and Suspension

The Cooperator shall immediately inform the FAS if they or any of their principals are presently excluded, debarred, or suspended from entering into covered transactions with the Federal Government according to the terms of 2 CFR Part 180 as supplemented by 2 CFR Part 417. A listing of debarred or suspended entities can be found at www.epls.gov. Additionally, should the Cooperator or any of their principals receive a transmittal letter or other official Federal notice of debarment or suspension, they shall notify the FAS without undue delay. This applies whether the exclusion, debarment, or suspension is voluntary or involuntary. The Cooperator must include this provision, or a similar one, as term or condition in any lower tier covered transaction.

Applies to all CRs.

Eligible Workers

As related to workers hired for employment within the United States, the Cooperator shall ensure that all such employees complete the I-9 form to certify that they are eligible for lawful employment under the Immigration and Nationality Act (8 USC 1324a). The Cooperator shall comply with regulations regarding certification and retention of the completed forms. These requirements also apply to any contract or supplemental agreements awarded under this Agreement.

Applies to all CRs.

Endorsement

Any of the Cooperator’s contributions made under this Agreement do not by direct reference or implication convey FAS endorsement of the Cooperator's products or activities.

Applies to all CRs.

The parties may negotiate the following, additional, text,”…, and does not by direct reference or implication convey the Cooperator's endorsement of the FAS’ products or activities.

Freedom of Information Act (FOIA)

Public access to agreement records shall not be limited, except when such records must be kept confidential and would have been exempted from disclosure pursuant to "Freedom of Information" regulations (5 U.S.C. 552).

Applies to all CRs.

Implementation of E.O. 13224 – Executive Order on Terrorist Financing

Presidentially signed Executive Orders and U.S. law prohibit transactions with, and the provision of resources and support to, individuals and organizations associated with terrorism. Except when the United States Government provides a background investigation during the visa review process for an international participant on the request of USDA, it is the legal responsibility of the Cooperator to ensure compliance with Executive Order 13224 and related laws. This provision must be included in all subawards and contracts issued under this Agreement.

Key responsibilities include, but are not limited to:

(a) The Cooperator has not provided, and will take all reasonable steps to ensure that they do not, and will not, knowingly provide material support or resources to any individual or entity that commits, attempts to commit, advocates, facilitates, or participates in terrorist acts, or has committed, attempted to commit, facilitated, or participated in terrorist acts.

(b) Specifically, in order to comply with Cooperator obligations under paragraph 1, the Cooperator will take the following steps:

(1) Before providing any material support or resources to an individual or entity, the Cooperator will verify that the individual or entity does not appear:

(i) On the master list of Specially Designated Nationals and Blocked Persons, which list is maintained by the U.S. Treasury’s Office of Foreign Assets Control (OFAC) and is available online at OFAC’s Web site : http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/defaul…, or

(ii) On any supplementary list of prohibited individuals or entities that may be provided by FAS to the Cooperator.

(iii) The Cooperator also will verify that the individual or entity has not been designated by the United Nations Security (UNSC) sanctions committee established under UNSC Resolution 1267 (1999) (the “1267 Committee”) [individuals and entities linked to the Taliban, Usama bin Laden, or the Al Qaida Organization]. To determine whether there has been a published designation of an individual or entity by the 1267 Committee, the Cooperator should refer to the consolidated list available online at the Committee’s Web site: http://www.un.org/Docs/sc/committees/1267/1267ListEng.htm.

(2) Before providing any material support or resources to an individual or entity, the Cooperator will consider all information about that individual or entity of which it is aware or that is available to the public.

(3) The Cooperator will implement reasonable monitoring and oversight procedures to safeguard against assistance being diverted to support terrorist activity.

(c) For purposes of this Certification:

(1) “Material support and resources” means currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.

(2) “Terrorist act” means:

(i) An act prohibited pursuant to one of the 12 United Nations Conventions and Protocols related to terrorism (see UN terrorism conventions Internet site: http://untreaty.un.org/English/Terrorism.asp); or

(ii) An act of premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents; or

(iii) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

(3) “Entity” means a partnership, association, corporation, or other organization, group or subgroup.

Applies to all CRs .

Members of U.S. Congress

Pursuant to 41 U.S.C. 22, no United States member of, or United States delegate to, Congress shall be admitted to any share or part of this Agreement, or benefits that may arise there from, either directly or indirectly.

Applies to all CRs.

Nondiscrimination

The Cooperator assures compliance with the following requirement: No person in the United States shall, on the grounds of race, color, national origin, sex, age, religion, political beliefs, or disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any project or activity under this Agreement.

Specific institutions and organizations have exemptions from the nondiscrimination requirements regarding religious preference, age limitations, gender focus, and tax exemption under section 501(a) of the Internal Revenue Code of 1954. Even though a basis or protected category is exempt in the operation of the organization, other civil rights provisions and protected bases may still apply.

These exemptions for instructional organizations are:

(a) Educational institutions controlled by religious organizations.

(b) Military and merchant marine educational organizations.

(c) Membership qualifications in organizations, such as social fraternities and sororities, YMCA, YWCA, Girl Scouts, Boy Scouts, Camp Fire Girls, and voluntary youth services organizations.

(d) Additionally, some activities have exemptions: Activities sponsored by the American Legion, such as selection of students relative to Girls State Conferences, Girls Nation Conferences, Boys State Conferences, and Boys Nation Conferences; father-son and mother-daughter activities at educational institutions if such activities are available to both gender groups equally; financial awards and scholarships that result from participation in pageants and contests limited to one gender.

To file a complaint of discrimination write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, S.W., Washington, D.C. 20250-9410 or call (800) 795-3272 (voice) or (202) 720-6382 (TDD). USDA is an equal opportunity provider and employer. The Cooperator should post within a common area of their offices a copy of the “Justice for All” poster, AD-475A.

Applies to all CRs.

Positions of Influence

The Cooperator shall establish safeguards to prohibit employees from using their positions for a purpose that is or gives the appearance of being motivated by a desire for private gain for themselves or others, particularly those with whom they have family, business, or other ties.

Applies to all CRs.

Questionnaires and Survey Plans

The Cooperator is required to submit to FAS copies of questionnaires and other forms for clearance in accordance with the Paperwork Reduction Act of 1980 and 5 CFR part 1320.

Applies to all CRs, when information collections under the Paper Reduction Act are anticipated.

Reporting Subawards and Executive Compensation Under 2 CFR Part 170 - Requirements for Federal Funding Accountability and Transparency Act Implementation; Appendix A to Part 170

(a) Reporting of first-tier subawards.

(1) Applicability. Unless you are exempt as provided in paragraph D. of this provision, you must report each action that obligates $25,000 or more in Federal funds that does not include Recovery funds (as defined in section 1512(a)(2) of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5) for a subaward to an entity (see definitions in paragraph E. of this award term).

(2) Where and when to report.

(i) You must report each obligating action described in paragraph (a)(1) of this provision to http://www.fsrs.gov.

(ii) For subaward information, report no later than the end of the month following the month in which the obligation was made. (For example, if the obligation was made on November 7, 2010, the obligation must be reported by no later than December 31, 2010.)

(3) What to report. You must report the information about each obligating action that the submission instructions posted at http://www.fsrs.gov specify.

(b) Reporting Total Compensation of Recipient Executives.

(1) Applicability and what to report. You must report total compensation for each of your five most highly compensated executives for the preceding completed fiscal year, if—

(i) the total Federal funding authorized to date under this Agreement is $25,000 or more;

(ii) in the preceding fiscal year, you received—

(A) 80 percent or more of your annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and

(B) $25,000,000 or more in annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and

(iii) The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total compensation filings at http://www.sec.gov/answers/execomp.htm.)

(2) Where and when to report. You must report executive total compensation described in paragraph (b)(1) of this provision:

(i) As part of your registration profile at http://www.ccr.gov.

(ii) By the end of the month following the month in which this

Applies to all CRs where subawards are contemplated that exceed $25,000. See 2 CFR 170 for specifics on applicability.

NOTE: All awards under $25,000 do not require this provision.

Rules of the Workplace

Cooperator employees, while engaged in work at FAS’ facilities, will abide by FAS’ standard operating procedures regarding the maintenance of laboratory notebooks, dissemination of information, equipment operation standards, hours of work, conduct, HSPD-12 requirements (access to buildings and computer systems), and other incidental matters stated in the rules and regulations of FAS.

Applies to all CRs when research activities are anticipated.

Text Messaging While Driving

In accordance with Executive Order (EO) 13513, “Federal Leadership on Reducing Text Messaging While Driving,” any and all text messaging by Federal employees is banned:

a) while driving a Government owned vehicle (GOV) or driving a privately owned vehicle (POV) while on official Government business; or

b) using any electronic equipment supplied by the Government when driving any vehicle at any time. All Cooperators, their employees, volunteers, and contractors are encouraged to adopt and enforce policies that ban text messaging when driving company owned, leased or rented vehicles, POVs or GOVs when driving while on official Government business or when performing any work for or on behalf of the Government.

Applies to all CRs.

U.S. Government Employment Status

In no event shall the Cooperator or its sub cooperators be considered as employees of the United States government, unless authorized by Federal Statute.

Applies to all CRs.

Provision Title

National Policy GT&C Provisions – Conditional

Procurement

CR Instructions

Competition

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

(b) Contracts shall be made only with responsible contractors who possess the potential ability to perform successfully under the terms and conditions of the proposed procurement. Consideration shall be given to such matters as contractor integrity, record of past performance, financial and technical resources or accessibility to other necessary resources. In certain circumstances, contracts with certain parties are restricted 2 CFR part 180 and part 417.

(c) Cooperators shall, on request, make available for FAS, pre-award review and procurement documents, such as request for proposals or invitations for bids, independent cost estimates, etc.

(d) The Cooperator is encouraged to utilize small businesses, minority-owned firms, and women’s business enterprises.

Applies to all CRs when procurement of goods and/or services are anticipated.

Contract Administration

A system for contract administration shall be maintained to ensure contractor conformance with the terms, conditions and specifications of the contract and to ensure adequate and timely follow up of all purchases. Cooperators shall evaluate contractor performance and document, as appropriate, whether contractors have met the terms, conditions and specifications of the contract.

Applies to all CRs when procurement of goods and/or services are anticipated.

Contract Provision

The Cooperator shall include, in addition to provisions to define a sound and complete agreement, the following provisions in all contracts. The following provisions shall also be applied to subcontracts.

(a) Contracts in excess of the simplified acquisition threshold shall contain contractual provisions or conditions that allow for administrative, contractual, or legal remedies in instances in which a contractor violates or breaches the contract terms, and provide for such remedial actions as may be appropriate.

(b) All contracts in excess of the simplified acquisition threshold shall contain suitable provisions for termination by the Cooperator, including the manner by which termination shall be effected and the basis for settlement. In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor.

(c) All negotiated contracts (except those for less than the simplified acquisition threshold) awarded by Cooperators shall include a provision to the effect that the Cooperator, FAS, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers and records of the contractor which are directly pertinent to a specific program for the purpose of making audits, examinations, excerpts and transcriptions.

(d) All contracts, including small purchases, awarded by Cooperators and their contractors shall contain the procurement provisions of Appendix A, 2 CFR part 215, as applicable.

Applies to all CRs when procurement of goods and/or services are anticipated.

Cooperator Responsibilities

The standards contained in this provision do not relieve the Cooperator of the contractual responsibilities arising under its contract(s). The Cooperator is the responsible authority, without recourse to FAS, regarding the settlement and satisfaction of all contractual and administrative issues arising out of procurements entered into in support of this Agreement. This includes disputes, claims, award protests, source evaluation or other matters of a contractual nature. Matters concerning violation of statute are to be referred to such Federal, State or local authority, as may have proper jurisdiction.

Applies to all CRs when procurement of goods and/or services are anticipated.

Cost and Price Analysis

Some form of cost or price analysis shall be made and documented in the procurement files in connection with every procurement action exceeding $500. Price analysis may be accomplished in various ways, including the comparison of price quotations submitted, market prices and similar indicia, together with discounts. Cost analysis is the review and evaluation of each element of cost to determine reasonableness, allocability and allowability.

Applies to all CRs when procurement of goods and/or services are anticipated.

Davis-Bacon and Service Contract Act

Additionally, federal wage provisions (Davis-Bacon or Service Contract Act) are applicable to any contract developed and awarded under this Agreement where all or part of the funding is provided with FAS funds. Davis-Bacon wage rates apply on all public works contracts in excess of $2,000 and Service Contract Act wage provisions apply to service contracts in excess of $2,500.

Applies to all CRs when procurement of goods and/or services are anticipated.

Funding Supplies

Federal funding under this Agreement is available for reimbursement of the Cooperator’s purchase of supplies. Equipment is defined as having a fair market value of $5,000 or more per unit and a useful life of over one year. Supplies are those items that are not equipment.

Applies to all CRs when FAS is funding supplies.

Procurement Records

Procurement records and files for purchases in excess of the small purchase threshold shall include the following at a minimum:

(a) Basis for contractor selection;

(b) Justification for lack of competition when competitive bids or offers are not obtained; and

(c) Basis for award cost or price.

Applies to all CRs when procurement of goods and/or services are anticipated.

Property Management

The Cooperator shall prepare and establish a program, for the receipt, use, maintenance, protection, custody, and care of equipment, materials, and supplies for which it has custodial responsibility, including the establishment of reasonable controls to enforce such program.

Applies to all CRs when procurement of equipment and/or supplies is anticipated.

Standards of Conduct

The Cooperator shall maintain written standards of conduct governing the performance of its employees engaged in the award and administration of contracts. No employee, officer, or agent shall participate in the selection, award, or administration of a contract supported by Federal funds if a real or apparent conflict of interest would be involved. Such a conflict would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in the firm selected for an award. The officers, employees, and agents of the Cooperator shall neither solicit nor accept gratuities, favors, or anything of monetary value from contractors, or parties to subagreements. However, Cooperators may set standards for situations in which the financial interest is not substantial or the gift is an unsolicited item of nominal value. The standards of conduct shall provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the Cooperator.

Applies to all CRs when procurement of goods and/or services are anticipated.

Supplies and Other Expendable Property

(a) Title to supplies and other expendable property shall vest in the Cooperator upon acquisition. If there is a residual inventory of unused supplies exceeding $5,000 in total aggregate value upon termination or completion of the project or program and the supplies are not needed for any other federally-sponsored project or program, the Cooperator shall retain the supplies for use on non-Federal sponsored activities or sell them, but shall, in either case, compensate the Federal Government for its share. The amount of compensation shall be computed in the same manner as for equipment.

(b) The Cooperator shall not use supplies acquired with Federal funds to provide services to non-Federal outside organizations for a fee that is less than private companies charge for equivalent services, unless specifically authorized by Federal statute as long as the Federal Government retains an interest in the supplies.

Applies to all CRs.

Tangible Personal Property

The Cooperator is required to provide annual, award closeout, and disposition request reports related to their inventories of FAS furnished tangible personal property or those tangible personal property items acquired with funds under this award using the SF-428 cover sheet and either: Annual Report, SF428-A; Final (Award Closeout) Report, SF-428-B; and a Disposition Request/Report, SF-428-C. A Supplemental Sheet, SF-428S, may be used to provide detailed individual item information.

Tangible personal property means property of any kind, except real property, that has physical existence. It includes equipment and supplies. It does not include copyrights, patents or securities.

Applies to all CRs when procurement of supplies is anticipated.