Provision Title

Administrative GT&C - Mandatory

Instructions

Accounting System Requirements

(1) Accurate, current, and complete disclosure of the financial results of each FAS sponsored project or program. FAS requires financial reporting on an accrual basis; however, the Recipient shall not be required to establish an accrual accounting system. These Recipients shall develop such accrual data through best estimate for their reports on the basis of an analysis of the documentation on hand.

(2) Records that identify the source and application of funds for federally sponsored activities. These records shall contain information pertaining to Federal awards, authorizations, obligations, unobligated balances, assets, outlays, income and interest.

(3) Effective control over and accountability for all funds, property and other assets. Recipients shall adequately safeguard all such assets and assure they are used solely for authorized purposes.

(4) Comparison of outlays with budget amounts for each award. Whenever appropriate, financial information should be related to performance and unit cost data.

(5)  Written procedures to minimize the time elapsing between the transfer of funds to the Recipient from the U.S. Treasury and the issuance or redemption of a check, warrant or payment by other means for program purposes by the Recipient. To the extent that the provisions of the Cash Management Improvement Act (CMIA) (Pub. L. 101–453) govern, payment methods of State agencies, instrumentalities, and fiscal agents shall be consistent with CMIA Treasury-State Agreements or the CMIA default procedures codified at 31 CFR part 205, ‘‘Rules and procedures for efficient Federal State funds transfer.’’

(6) Written procedures for determining the reasonableness, allocability and allowability of costs in accordance with the provisions of the applicable Federal cost principles and the terms and conditions of the award.

(7) Accounting records including cost accounting records that are supported by source documentation.

Applies to all CAs and DGs.

Accounting, Audit, and Records

(a) The Recipient shall maintain financial records, supporting documents, statistical records and all other records pertinent to the Agreement in accordance with Generally Accepted Accounting Principles formally prescribed by the United States to sufficiently substantiate charges to this Agreement. Accounting records that are supported by documentation shall at a minimum be adequate to show all costs incurred under the Agreement, receipt, and use of goods and services acquired under the Agreement, the costs of the program supplied from other sources, and the overall progress of the program. Unless otherwise notified, the Recipient’s records and sub Recipient’s records which pertain to this Agreement shall be retained for a period of three years from the date of submission of the final expenditure report, except when a longer retention period is required by law and may be audited by FAS and/or its representatives.

(b) Non-federal for-profit and non-profit organizations that expend $500,000 or more per their fiscal year in Federal awards, i.e. as Recipients or sub Recipients of Federal grants or cooperative agreements, or as cost reimbursable subcontractors of Federal grants or cooperative agreements, shall have an annual audit conducted in accordance with the provisions of 7 CFR Part 3052.

(c) Non-federal for-profit and non-profit organizations expending less than $500,000 per their fiscal year under Federal cost-reimbursable contracts, grants, cooperative agreements, or agreements shall be exempt from the above financial audit requirements for that year, but are subject to the requirement to make records available upon request for review by FAS officials or their designees.

(d) FAS shall retain the right to conduct a financial review, require an audit, or otherwise ensure adequate accountability of organizations expending FAS funds regardless of the audit requirement.

(e) Organizations that provide FAS resources to other organizations to carry out FAS program and activities shall be responsible for monitoring their subcontractors or sub Recipients. The cost of agreed-upon procedures to monitor sub Recipients who are exempted from A-133 under section 200(d) are allowable, subject to the conditions listed in A-133, section 230(b)(2).

(f) The audit reports referenced in paragraph 2 and 5 shall be submitted to FAS within the earlier of 30 days after receipt of the auditor’s report or not later than 9 months after the end of the audit period. No audit costs may be charged to this Agreement if audits have not been made in accordance with the terms of 7 CFR Part 3052. In cases of continued inability or unwillingness to have an audit performed in accordance with the terms of  7 CFR Part 3052, FAS shall consider appropriate sanctions which may include, inter alia, suspension of all or a percentage of disbursements until the audit is satisfactorily completed.

(g) This provision in its entirety shall be incorporated into all subawards with non-U.S. organizations that meet the $500,000 threshold as described at paragraph (b) of this provision. Subawards to non-U.S. organizations which are for more than $10,000 but do not meet the $500,000 threshold shall at a minimum incorporate paragraph (d) of this provision. Subawards of grants and cooperative agreements made to U.S. organizations, except for not-for-profits, shall state that the U.S. organization is subject to the audit requirements contained in OMB Circular A-133.

Applies to all CAs and DGs.

 Agreement Closeout

(b) Any unobligated balance of cash advanced to the Recipient shall be immediately refunded to FAS, including any interest (to HHS PMS), or other relevant law or regulation.

(c) In the event a final audit has not been performed prior to the closeout of the Agreement, FAS reserves the right to disallow and recover an appropriate amount after fully considering any recommended disallowances resulting from an audit which may be conducted later.

(d) Submit final SF-PPR, SF-425, and SF-428, as applicable under the provisions of this Agreement.

(e) Failure to close out an agreement according to the provisions of this agreement in a timely manner may result in adverse actions.

Applies to all CAs and DGs.

Allowable Costs

(a) The Recipient shall be reimbursed for costs incurred in carrying out the purposes of this Agreement which are determined by the Grants Management Officer to be reasonable, allocable, and allowable in accordance with the terms of this Agreement and the applicable cost principles in effect on the date of this Agreement.  The Recipient may obtain a copy of the applicable cost principles from the Grants Management Officer. Brief definitions of what may be considered as reasonable, allocable, and allowable costs are provided below; however, it is the Recipient's responsibility to ensure that costs incurred are in accordance to the relevant federal Cost Principles.

(1) Reasonable. Shall mean those costs that are generally recognized as ordinary and necessary and would be incurred by a prudent person in the conduct of normal business.

(2) Allocable Costs. Shall mean those that are incurred specifically for the Agreement.

(3) Allowable Costs. Shall mean those costs that conform to any limitations in the Agreement.

(b) Prior to incurring a questionable or unique cost, the Recipient shall obtain the Grants Management Officer's written determination on whether the cost will be allowable.

(c) No funds provided under this Agreement shall be paid as profit or fee to the Recipient or paid by the Recipient to any sub Recipient under this Agreement.  However, funds may be used to pay subcontractors profit or fees under this Agreement. 

(d)  Failure to comply with indirect cost rate requirements may lead to substantial overpayments or underpayments. 

(e) The Recipient must inform FAS, through the Grants Management Officer, of all applicable indirect cost rate adjustments.

Applies to all CAs and DGs.

Applicability of Federal Financial Assistance Requirements, Part 1

(a) 2 CFR part 180 and part 417, “OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement)” and “Nonprocurement Debarment and Suspension”;

(b) Executive Order 13224, as amended, “Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”;

(c) OMB Circular A-133, as codified in 7 CFR part 3052, ‘‘Audits of States, Local Governments, and Nonprofit Organizations’’;

(d) 7 CFR part 3015.175(b), ‘‘Copyrights’’;

(e) 2 CFR part 25 “Universal Identifier and Central Contractor Registration”;

(f) 2 CFR part 170, “Reporting Subaward and Executive Compensation Information”;

(g) 41 U.S.C. §§ 351 – 358, “the McNamara-O'Hara Service Contract Act of 1965”

(h) 37 CFR part 401.14, ‘‘Standard Patent Rights Clause’’;

(i) 15 U.S.C. 205a et seq., ‘‘The Metric Conversion Act, as amended by the Omnibus Trade and Competitiveness Act’’;

(j) 42 U.S.C. 6962, ‘‘Resource Conservation and Recovery Act (RCRA)’’;

(k) 49 U.S.C. 40118 et seq., “Fly America Act”;

(l) 8 USC 1324a, “Immigration and Nationality Act”;

(m) OMB Circular A–21, ‘‘Cost Principles for Educational Institutions’’ codified at 2 CFR 220;

(n) 5 U.S.C. 552, “Freedom of Information Act”;

(o) Executive Order (EO) 13513, “Federal Leadership on Reducing Text Messaging While Driving”;

(p) 41 U.S.C. 22, “Interest of Members of Congress”;

(q) 40 U.S.C. 3141-3148, “the Davis–Bacon Act”; and,

(r) Other laws, regulations, Executive Orders, and other applicable requirements, which are hereby incorporated in this Agreement.

Applies to all CAs and DGs.

Disputes

Whenever disputes, disagreements or misunderstanding arise regarding issues under this Agreement, the Recipient and FAS shall attempt to resolve the issues by discussion and mutual agreement as soon as practicable.  If the parties are unable to mutually resolve the dispute, the Recipient may submit, in writing, a disputed claim or issue to the FAS Deputy Administrator for the Division administering the Agreement, or their designee, for a decision.  No hearing will be provided, unless another hearing, appeal, or other administrative proceeding is available to the Recipient under any statute or regulations applicable to the action involved.  The Recipient’s submission must specify the nature and basis of the claim and the relief requested and include all data to support such claim.  A copy of the submission shall be concurrently furnished to the Grants Management Officer.  The Grants Management Officer shall furnish the Recipient a written copy of the Deputy Administrator’s decision. Decisions of the Deputy Administrator shall be final unless, within 30 days of receipt of the decision, the Recipient appeals the decision to the FAS Administrator.  Any appeal made shall be in writing and addressed to the FAS Administrator.  No hearing will be provided.

Applies to all CAs and DGs.

Endorsement

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

Applies to all CAs and DGs.

Enforcement

(a) Remedies for noncompliance. If a Recipient materially fails to comply with the terms and conditions of an award, whether stated in a Federal statute, regulation, assurance, application, or notice of award, FAS may, in addition to imposing special conditions, take one or more of the following actions.

(1) Temporarily withhold cash payments pending correction of the deficiency by the Recipient or more severe enforcement action by FAS.

(2) Disallow all or part of the cost of the activity or action not in compliance.

(3) Wholly or partly suspend or terminate the current award.

(4) Withhold further awards for the project or program.

(5) Take other remedies that may be legally available.

(b) Effects of suspension and termination. Costs of a Recipient resulting from obligations incurred by the Recipient during a suspension or after termination of an award are not allowable unless FAS expressly authorizes them in the notice of suspension or termination or thereafter. Other Recipient costs during suspension or after termination which are necessary and not reasonably avoidable are allowable if paragraphs (b)(1) and (2) of this provision apply.

(1) The costs result from obligations which were properly incurred by the Recipient before the effective date of suspension or termination, are not in anticipation of it, and in the case of a termination, are non-cancellable.

(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.

(3) Relationship to debarment and suspension. The enforcement remedies identified in this provision, including suspension and termination, do not preclude a Recipient from being subject to debarment and suspension under 2 CFR part 180 and part 417.

Applies to all CAs and DGs.

Modifications

Modifications to this Agreement shall be made by mutual consent of the parties, by the issuance of a written modification signed and dated by properly authorized, signatory officials, prior to any changes being performed.  Requests for modification should be made at least 30 days prior to implementation of the requested change.  FAS is not obligated to fund any changes not properly approved in advance.

Applies to all CAs and DGs.

Non-Liability

FAS does not assume liability for any third-party claims for damages arising out of this Agreement.  Subrecipients, subawardees, and contractors have no privity of contract with FAS under the terms of this Agreement.

Applies to all CAs and DGs.

Notices

Any notice given by FAS or the Recipient will be sufficient only if in writing and delivered in person, or transmitted electronically by e-mail or fax (not by postal mail), as follows: 

To FAS:  FAS Program Manager and FAS Grants Manager Officer, at the address specified in this Agreement. 

To the Recipient:  The Recipient's address specified in this Agreement.   Notices will be effective when delivered in accordance with this provision, or on the effective date of the notice, whichever is later.

Applies to all CAs & DGs. May incorporate actually addresses here along with specific names.

Overpayment

(a) Any funds paid to the Recipient in excess of the amount to which the Recipient is finally determined to be entitled under the terms and conditions of the Agreement constitute a debt to the Federal Government. If not paid within a reasonable period after the demand for payment, FAS may in accordance with 7 CFR part 3, reduce the debt by—

(6) Making an administrative offset against other requests for reimbursements, or

(7) Taking other action permitted by statute. (31 U.S.C. 3716 and 7 CFR, part 3, Subpart B). 

(b) The following must also be considered as a debt or debts owed by the Recipient to FAS:

(1) Any royalties or other special classes of program income which, under the provisions of the Agreement, are required to be returned. 

(c) Except as otherwise provided by law, FAS shall charge interest on an overdue debt in accordance with 31 CFR part 900, ‘‘Federal Claims Collection Standards.’’

Applies to all CAs and DGs.

Participation in Similar Activities

This Agreement in no way restricts FAS or the Recipient from participating in similar activities with other public or private agencies, organizations, and individuals.

Applies to all CAs and DGs.

Press Releases

Press releases or other forms of public notification will be submitted to FAS for review prior to release to the public. FAS will be given the opportunity to review, in advance, all written press releases and any other written information to be released to the public by the Recipient, and require changes as deemed necessary, if the material mentions by name FAS or the USDA, or any USDA employee or research unit or location.

Applies to all CAs and DGs.

Prior Approvals

(a) The budget is the financial expression of the project or program as approved during the award process. FAS requires that all Federal costs be itemized on the approved budget. The budget shall be related to performance for program evaluation purposes.

(b) Recipients are required to report deviations from budget and program plans, and request prior approvals for budget and program plan revisions.

(c) Recipients shall request prior approvals from FAS for one or more of the following program or budget related reasons.

(1) Incur pre-award costs up to 90 days prior to award date. All preaward costs are incurred at the Recipient’s risk (i.e., FAS is under no obligation to reimburse such costs if for any reason the Recipient does not receive an award or if the award is less than anticipated and inadequate to cover such costs).

(2) Change in the scope or the objective of the project or program (even if there is no associated budget revision requiring prior written approval).

(3) The absence for more than three months, or a 25 percent reduction in time devoted to the project, by the approved project director or principal investigator.

(4) Extensions of time, within statutory limitations, to complete project objectives. This extension may not be requested merely for the purpose of using unobligated balances. The Recipient shall request the extension in writing with supporting reasons.

(5) The transfer of amounts budgeted for indirect costs to absorb increases in direct costs, or vice versa.

(6) The inclusion of costs that require prior approval in accordance the applicable set of federal Cost Principles.

(7) Unless described in this Agreement and associated budget, the subaward, transfer or contracting out of any work.

(8) If FAS requires the Recipient to hire or appoint technical staff under this Agreement, the Recipient shall send formal notification within 30 days of any new hires or appointments.  When FAS funding derives from a PASA, and the activity requires long-term hires or appointments, FAS must participate in the Recipient’s selection panel.

(9) Changes in Key personnel.

(10) Change in a budget line item or cost category of 10% or more.

(11) Request for additional funding.

(12) The transfer of funds allotted for training allowances (direct payment to trainees) to other categories of expense.

(13) Advertising.

Applies to all CAs and DGs.

Program Management

(b) Recipients are responsible for managing the day-to-day operations of this Agreement using their established controls and policies, as long as they are consistent with FAS requirements.

(c) Monitoring of a project or activity continues for as long as FAS retains a financial interest in the project or activity. FAS reserves the right to monitor a project after it has been administratively closed out and no longer providing active support in order to resolve issues of accountability and other administrative requirements.

(d) FAS reserves the right to perform site visits at Recipient locations.

(e) Recipients shall immediately notify FAS of developments that have a significant impact on the award-supported activities. Also, notification shall be given in the case of problems, delays, or adverse conditions which materially impair the ability to meet the objectives of the Agreement. This notification shall include a statement of the action taken or contemplated, and any assistance needed to resolve the situation.

Applies to all CAs and DGs.

Project Supervision and Responsibilities

(a) The Recipient is solely responsible and accountable for the performance and conduct of all Recipient employees assigned to the project, including, but not limited to personnel, performance and time management issues. FAS does not have authority to supervise Recipient employees or engage in the employer employee relationship.

(b) The Recipient shall immediately notify FAS of developments that have a significant impact on the activities supported under this Agreement.  Also, notification shall be given in case of problems, delays or adverse conditions that materially impair the ability to meet the objectives of the agreement.  This notification shall include a statement of the action taken or contemplated, and any assistance needed to resolve the situation.

Applies to all CAs and DGs.

Responsibility for Making and Monitoring Subawards

(b) All subawards shall at a minimum contain provisions to define a sound and complete agreement in addition to those that are specifically required by any other provisions in this Agreement and clauses required by Federal law, executive orders and the implementing Federal regulations. Whenever a provision within this Agreement is required to be inserted in a subaward, the Recipient shall insert a statement in the subaward that in all instances where FAS is mentioned, the Recipient's name will be substituted.

(c) The Recipient shall monitor its subawards and contracts in compliance with the requirements for sub Recipient monitoring as contained in 31 USC 7502(f)(2)(B) (Single Audit Act Amendments of 1996 (Pub. L. No. 104-156)), OMB Circular A-133 as codified at 7 CFR Part 3052,and OMB Circular A-110 as codified at 7 CFR Part 3019.

Applies to all CAs and DGs.

Retention and Access Requirements for Records

(a) This provision sets forth requirements for record retention and access to records.  As used in this provision, “records” includes books, documents, accounting procedures and practice, and other data, regardless of the type or format. 

(b) Financial records, supporting documents, statistical records, and all other records pertinent to an award shall be retained for a period of 3 years from the date of submission of the final expenditure report or, for awards that are renewed quarterly or annually, from the date of the submission of the quarterly or annual financial report, as authorized by FAS. The only exceptions are the following:

(1) If any litigation, claim, or audit is started before the expiration of the 3- year period, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved and final action taken;

(2) Records for tangible property acquired with Federal funds shall be retained for 3 years after final disposition;

(3) When records are transferred to or maintained by FAS, the 3- year retention requirement is not applicable to the Recipient;

(4) Indirect cost rate proposals, cost allocations plans, etc., as specified in paragraph (f) of this provision.

(c) Copies of original records may be substituted for the original records if authorized by FAS.

(d) FAS will request transfer of certain records to its custody from Recipients when it determines that the records possess long-term retention value. However, in order to avoid duplicate record keeping, FAS may make arrangements for Recipients to retain any records that are continuously needed for joint use.

(e) FAS, the Inspector General, Comptroller General of the United States, or any of their duly authorized representatives, have the right of timely and unrestricted access to any books, documents, papers, or other records of Recipients that are pertinent to the awards, in order to make audits, examinations, excerpts, transcripts and copies of such documents. This right also includes timely and reasonable access to a Recipient’s personnel for the purpose of interview and discussion related to such documents. The Recipient shall provide access to any program site(s) to FAS or any of its authorized representatives.  The rights of access in this paragraph are not limited to the required retention period, but shall last as long as records are retained.

(f) No Recipient shall disclose its records that are pertinent to an award until the Recipient provides notice of the intended disclosure with copies of the relevant records to FAS.

(g) Indirect cost rate proposals, cost allocations plans, etc. Paragraphs (g)(1) and (g)(2) of this provision apply to the following types of documents, and their supporting records: Indirect cost rate computations or proposals, cost allocation plans, and any similar accounting computations of the rate at which a particular group of costs is chargeable (such as computer usage charge back rates or composite fringe benefit rates).

(1) If submitted for negotiation. If the Recipient submits to FAS or the sub Recipients submits to the Recipient the proposal, plan, or other computation to form the basis for negotiation of the rate, then the 3-year retention period for its supporting records starts on the date of such submission.

(2) If not submitted for negotiation. If the Recipient is not required to submit to FAS or the sub Recipients is not required to submit to the Recipient the proposal, plan, or other computation for negotiation purposes, then the 3-year retention period for the proposal, plan, or other computation and its supporting records starts at the end of the fiscal year (or other accounting period) covered by the proposal, plan, or other computation.

Applies to all CAs and DGs.

Revision of Budget

(a) The approved agreement budget in Attachment C is the financial expression of the recipient's program as approved by FAS, pending approval of any subsequent budget.

(b) The recipient is required to report deviations from budget and program plans, and request prior approvals from the FAS Program Manager for any of the following reasons:

(1) To change the scope or the objectives of the program and/or revise the funding allocated among program objectives.

(2) To change a key person where specified in the awarding document, or allow a 25% reduction in time devoted to the project.

(3) Additional Federal funding is needed.

(4) Where indirect costs have been authorized, the recipient plans to transfer funds budgeted for indirect costs to absorb increases in direct costs or vice versa.

(5) The inclusion of costs that require prior approval in accordance with the applicable set of federal Cost Principles.

(6) The transfer of funds allotted for training allowances (direct payment to trainees) to other categories of expense.

(c)  FAS is under no obligation to reimburse the recipient for costs incurred in excess of the total amount obligated under the Agreement. If the total obligated amount under the Agreement has been increased, FAS will notify the recipient in writing of the increase and specify the new total obligated amount.

Applies to all CAs and DGs.

Rules of the Workplace

Recipient 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 CAs and DGs when Recipients work at FAS’ (or USDA) facilities.

Subrecipient Notification

The Recipient shall require subrecipients under this Agreement to comply with the terms and conditions and the following cost principle and audit requirements, as applicable:

Applies to all CAs and DGs.

Tangible Personal Property

The Recipient 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 CAs and DGs.

Termination

2. This Agreement may be terminated, in whole or part, as follows:  

(a) Awards may be suspended or terminated in whole or in part if paragraphs (1), (2), (3), or (4) of this provision apply.

(1) When FAS and the Recipient agree upon the termination conditions, including the effective date and, in the case of partial termination, the portion to be terminated.

(2) By 30 days written notification by the Recipient to FAS setting forth the reasons for termination, effective date, and in the case of partial termination, the portion to be terminated.

(3) By FAS, if the Recipient materially fails to comply with the terms and conditions of the Agreement.

(4) If, in the case of a partial termination, FAS determines that the remaining portion of the Agreement will not accomplish the purposes for which the Agreement was made, FAS may terminate the Agreement in its entirety.

(b) Upon termination of the Agreement, the Recipient shall not incur any new obligations for the terminated portion of the Agreement after the effective date, and shall cancel as many outstanding obligations as possible.  FAS shall allow full credit to the Recipient for the United States Federal share of the non-cancelable obligations properly incurred by the Recipient up to the effective date of the termination.  The Recipient shall refund excess funds to FAS within 60 days after the effective date of termination.

Applies to all CAs and DGs.

The Recipient Shall Pt. 1

(b) {Recipient Specific Performance Requirements}

Applies to all CAs and DGs.

Provision Title

Administrative GT&C – Conditional

Program Income

Instructions

Program Income

(a) The Recipient shall apply the standards set forth in this Provision to account for program income earned under the award/agreement.

(b) If any program income is generated as a result of this grant/agreement, the income shall be applied using the  alternative as described in 7 CFR 3016.25 and 3019.24; the deductive alternative is the preferred method, unless specifically authorized by the Signatory Official.

(c) Unless the terms and conditions of the award/agreement provide otherwise, Recipients shall have no obligation to the U.S. Government regarding program income earned after the end of the project period.

(d) Costs incident to the generation of program income may be deducted from gross income to determine program income, provided these costs have not been charged to the award/agreement and they comply with the applicable Cost Principles.

(e) Unless the terms and conditions of the award/agreement provide otherwise, Recipients shall have no obligation to the U.S. Government with respect to program income earned from license fees and royalties for copyrighted material, patents, patent applications, trademarks, and inventions produced under an award. However, Patent and Trademark Amendments (35 U.S.C. 18) apply to inventions made under an experimental, developmental, or research awards.

Applies to all CAs  and DGs when program income is anticipated.

Provision Title

Administrative GT&C – Conditional

Publications

Instructions

Publications and Acknowledgment of Support

(a) Publications. FAS and the Federal Government shall enjoy a royalty-free, nonexclusive, and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use, any materials developed in conjunction with this Agreement or contract under such an agreement.

(1) Recipients shall acknowledge FAS support in any publications written or published with Federal support and, if feasible, on any publication reporting the results of, or  describing, a Federally supported activity as follows: ‘‘This material is based upon work supported by the U.S. Department of Agriculture, FAS under Agreement No. (Recipient should enter the applicable agreement number here).’’

(2) All such material must also contain the following disclaimer unless the publication is formally cleared by the awarding agency: ‘‘Any opinions, findings, conclusion, or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the view of the U.S. Department of Agriculture.’’

(3) Any public or technical information related to work carried out under this Agreement shall be submitted by the developing party to the other for advice and comment. Information released to the public shall describe the contributions of both parties to the work effort. In the event of a dispute, a separate publication may be made with effective statements of acknowledgment and disclaimer.

(4) The Recipient, or its designees, to develop and publish documents that could be sold and distributed for profit.

(b) Media. Recipients shall acknowledge FAS support, as indicated in § 15XX.31(a) above, in any form of media (print, DVD, audio production, web, etc.) produced with Federal support that has a direct production cost to the Recipient of over $5,000. Unless the terms of the Federal award provide otherwise, this requirement does not apply to media produced as research instruments or for documenting experimentation or findings and intended for presentation or distribution to a USDA/FAS audience.

(c) Printing. Title 7, United States Code, section 3319a does not preclude the applicability of Government Printing Office regulations when Federal dollars are used for printing, regardless of whether the printing is accomplished by the Recipient or by contract.

(d) Miscellaneous.

(2) Publication and Media Releases Requirement. The Recipient must provide the Grants Management Officer and PM with one copy of all published works developed under the Agreement and with lists of other written work produced under this Agreement.

(3) Nondiscrimination Statement – Printed, Electronic, or Audiovisual Material Requirement. The Recipient shall include the following statement, in full, in any printed, audiovisual material, or electronic media for public distribution developed or printed with any Federal funding: “In accordance with Federal law and U.S. Department of Agriculture policy, this institution is prohibited from discriminating on the basis of race, color, national origin, sex, age, or disability.  (Not all prohibited bases apply to all programs.  To file a complaint of discrimination, write USDA, Director, Office of Civil Rights, Room 326-W, Whitten Building, 1400 Independence Avenue, SW, Washington, DC  20250-9410 or call (202) 720-5964 (voice and TDD).  USDA is an equal opportunity provider and employer.”) If the material is too small to permit the full statement to be included, the material must, at minimum, include the following statement, in print size no smaller than the text: "This institution is an equal opportunity provider."

Applies to all CAs and DGs when publication of any printed, audiovisual, or electronic material is contemplated.

Provision Title

Administrative GT&C – Conditional

Contract

Instructions

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 CAs and DGs when procurement of goods and/or services are anticipated.

Funding Equipment and Supplies

Federal funding under this Agreement is available for reimbursement of the Recipient’s purchase of equipment and 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 CAs & DGs when FAS is funding supplies.

Provision Title

Administrative GT&C – Conditional

Research

Instructions

Copyrighting

(a) The Recipient may copyright any work that is subject to copyright and was developed, by the Recipient, or jointly by the Federal Government and the Recipient, or for which ownership was purchased, under this Agreement. FAS reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so for Federal purposes.  The Recipient may not copyright text, photographs, or materials created by FAS or other USG employees on Government time and/or composed on Government equipment. 

(b) Recipients are subject to applicable regulations governing patents and inventions, including governmentwide regulations issued by the Department of Commerce at 37 CFR part 401, ‘‘Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements.’’

(c) FAS has the right to:

(1) Obtain, reproduce, publish or otherwise use the data first produced under this Agreement; and

(2) Authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes.

(d) (1) In addition, in response to a Freedom of Information Act (FOIA) request for research data relating to published research findings produced under this Agreement that were used by the Federal Government in developing an Agency action that has the force and effect of law, FAS shall request, and the Recipient shall provide, within a reasonable time, the research data so that they can be made available to the public through the procedures established under the FOIA. If FAS obtains the research data solely in response to a FOIA request, FAS may charge the requester a reasonable fee equaling the full incremental cost of obtaining the research data. This fee should reflect costs incurred by the Agency, the Recipient, and applicable sub Recipients. This fee is in addition to any fees FAS may assess under the FOIA (5 U.S.C. 552(a)(4)(A)).

(2) The following definitions apply for purposes of paragraph (d) of this provision:

(i) Research data is defined as the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not any of the following: preliminary analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues. This ‘‘recorded’’ material excludes physical objects (e.g., laboratory samples). Research data also do not include:

(A) Trade secrets, commercial information, materials necessary to be held confidential by a researcher until they are published, or similar information which is protected under law; and

(B) Personnel and medical information and similar information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, such as information that could be used to identify a particular person in a research study.

(ii) Published is defined as either when:

(A) Research findings are published in a peer-reviewed scientific or technical journal;

(B) A Federal Agency publicly and officially cites the research findings in support of an Agency action that has the force and effect of law; or

(C) Used by the Federal Government in developing an Agency action that has the force and effect of law is defined as when an Agency publicly and officially cites the research findings in support of an Agency action that has the force and effect of law.

(D) All rights, title, and interest in any Subject Invention made solely by employee(s) of FAS shall be owned by FAS. All rights, title, and interest in any Subject Invention made solely by at least one (1) employee of FAS and at least one (1) employee of the Recipient shall be jointly owned by FAS and the Recipient, subject to the provisions of 37 CFR part 401.

(E) FAS shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the United States the subject invention throughout the world.

Applies to all CAs and DGs when development or publication of any printed, audiovisual, or electronic material is contemplated.

Patent Rights

3. Each agreement awarded by the Recipient to a small business firm, non-profit organization, or university which is to be performed in the United States, its possessions, or Puerto Rico and has as a purpose the performance of experimental, development, or research work, must contain the Patents Rights Provision.

(1) Invention.  Any invention or discovery which is or may be patentable, or otherwise protectable under Title 35 of the United States Code (U.S.C.), or any novel variety of plant which is or may be protected under the Plant Variety Protection Act (7 U.S.C. 2321 et seq.).

(2) Subject Invention.  Any invention of the Recipient conceived or first actually reduced to practice in the performance of work under this Agreement, provided that in the case of a variety of plant, the date of determination (as defined in section 41(d) of the Plant Variety Protection Act, 7 U.S.C. 2401(d) must also occur during the period of the Agreement performance.

(3) Practical Application.  To manufacture in the case of a composition or product, to practice in the case of a process or method, or to operate in the case of a machine or system and, in each case, under such conditions as to establish that the invention is being utilized and that its benefits are, to the extent permitted by law or Government regulations available to the public on reasonable terms.

(4) Made.  When used in relation to any invention, the conception or first actual reduction to practice of such invention.

(5) Small Business Firm.  A small business concern as defined at section 2 of Public Law 85-536 (15 U.S.C. 632) and implementing regulations of the administrator of the Small Business Administration.  For the purpose of this provision, the size standard for small business concerns involved in Government procurement and subgranting as 13 CFR 121.3-8 and 13 CFR 121.3-12, respectively, will be used.

(6) Non-Profit Organization.  A university or other institution of higher education or an organization of the type described in section 501 (c) (3) of the Internal Revenue Code of 1954 Internal Revenue Code (26 U.S.C. 501c) and exempt from taxation under section 501(a) of the Internal Revenue Code (26 U.S.C. 501(a)) or any nonprofit scientific or educational organization qualified under a State nonprofit organization statute.

(1) All rights, title, and interest in any Subject Invention made solely by employee(s) of FAS shall be owned by FAS.

(2) All rights, title, and interest in any Subject Invention made solely by employee(s) of the Recipient shall be owned by the Recipient.

(3) All rights, title, and interest in any Subject invention made jointly by at least one (1) employee of FAS and at least one (1) employee of the Recipient shall be jointly owned by FAS and the Recipient.

(4) With respect to any subject invention in which the Recipient retains title, the Federal Government shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the United States any subject invention throughout the world.

(1) The Recipient shall disclose each subject invention to FAS within 2 months after the inventor discloses it in writing to personnel responsible for patent matters.  The disclosure to FAS shall be in the form of a written report and must identify the agreement under which the invention was made and the inventor(s).  It must be sufficiently complete in technical detail to convey a clear understanding, to the extent known at the time of the disclosure, of the nature, purpose, operation, and the physical, chemical, biological or electric characteristics of the invention.  The disclosure must also identify any publication, on sale of public use of the invention, and whether a manuscript describing the invention has been submitted for publication and, if so, whether it has been accepted for publication at the time of disclosure.  In addition, after disclosure to FAS, the Recipient shall promptly notify FAS of the acceptance of any manuscript describing the invention for publication or of any on sale or public use planned by the Recipient.

(2) The Recipient shall elect in writing whether or not to retain title to any such invention by notifying FAS within 2 years of disclosure by the Recipient; provided that in any case where publication, on sale or public use has initiated the 1 year statutory period wherein valid patent protection can still be obtained in the United States, the period for election of title may be shortened by FAS to a date that is no more than 60 days prior to the end of the statutory period.

(3) The Recipient shall file its initial patent application on an elected invention within 1 year after election or, if earlier, prior to the end of any statutory period wherein valid protection can be obtained in the United States after publication, on sale, or public use.  The Recipient shall file patent applications in additional countries within either 10 months from the corresponding initial patent application or 6 months from the date permission is granted by the Commissioner of Patents and trademarks to file foreign patent applications where such filing has been prohibited by a Secrecy Order.

(4) Requests for extension of the time for disclosure to FAS, election, and filing may, at the discretion of FAS, be granted.

(1) If the Recipient fails to disclose or elect the subject invention within the times specified in item c herein or elects not to retain title; provided that FAS may only request title within 60 days after learning of the failure of the Recipient to disclose or elect within the specified times.

(2) In those countries in which the Recipient fails to file patent applications within the times specified in item (c)(3) herein; provided, however, that if the Recipient has/have filed a patent application in a country after the times specified in item (c)(3), but prior to its receipt of the written request of FAS, the Recipient shall continue to retain title in that country.

(3) In any country in which the Recipient decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend in reexamination or opposition proceeding on, a patent on a subject invention.

(e) Minimum Rights to the Recipient and Protection of the Contractor Right to File.

(1) The Recipient shall retain a nonexclusive, royalty-free license throughout the world in each subject invention to which the Government obtains title, except if the Recipient fails to disclose the subject invention within the times specified in item (c) herein.  The Recipient’s license extends to its domestic subsidiaries and affiliates, if any, within the corporate structure of which the Recipient is a party and includes the right to grant sublicenses of the same scope to the extent the Recipient was legally obligated to do so at the time the agreement was awarded.  The license is transferable only with approval of FAS, except when transferred to the successor of that party of the Recipient’s business to which the invention pertains.

(2) The Recipient‘s domestic license may be revoked or modified by FAS to the extent necessary to achieve expeditious practical application of the subject invention, pursuant to an application for an exclusive license submitted in accordance with applicable provisions at 37 CFR Part 404.  This license will not be revoked in that field of use or the geographical areas in which the Recipient has achieved practical application and continues to make the benefits of the invention reasonably accessible to the public.  The license in any foreign country may be revoked or modified at the discretion of FAS to the extent the Recipient, its licensees, or its domestic subsidiaries or affiliates have failed to achieve practical application in that foreign country.

(3) Before revocation or modification of the license FAS shall furnish the Recipient a written notice of its intention to revoke or modify the license, and the Recipient shall be allowed 30 days (or such other time as may be authorized by FAS for good cause shown by the Recipient) after the notice to show cause why the license should not be revoked or modified.  The Recipient has the right to appeal, in accordance with applicable regulations in 37 CFR Part 404 concerning the licensing Government-owned inventions, any decision concerning the revocation or modification of its license.

(1) The Recipient agrees to execute, or to have executed, and promptly deliver to FAS all agreements necessary to

(i) establish or confirm the rights the Government has throughout the world in those subject inventions to which the Recipient elects to retain title, and

(ii) Convey title to FAS when requested under paragraph (c) herein and to enable the Government to obtain patent protection throughout the world in that subject invention.

(iii) The Recipient agrees to require, by written agreement, its employees, other than clerical and non-technical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in a format suggested by the Recipient each subject invention made under the disclose provisions of paragraph c herein and to execute all papers necessary to file patent applications on subject inventions and to establish the Government's rights in the subject invention.  This disclosure format should require, as a minimum, the information required by paragraph (c) above, and to execute all papers necessary to file patent applications on subject inventions and to establish the government's rights in the subject inventions.  This disclosure format should require, as a minimum, the information required by paragraph (c)(1). The Recipient shall instruct such employees' agreements or other suitable educational programs on the importance of reporting inventions in sufficient time to permit the filing of patent applications prior to United States or foreign statutory bars.

(2) The Recipient shall notify FAS of any decision not to continue the prosecution of a patent application, pay maintenance fees, or defend in a reexamination or opposition proceeding on a patent, in any country, not less than 30 days before the expiration of the response period required by the relevant patent office.

(3) The Recipient agrees to include, within the specification of any United States patent application and any patent issuing thereon covering a subject invention, the following statement:  This invention was made with the Government support under (insert FAS agreement number) awarded by FAS.  The Government has certain rights in this invention.

(g)   Subcontracts

(1) The Recipient shall include this provision, suitably modified to identify the parties, in all subcontracts, regardless of tier, for experimental, developmental, or research work to be performed by a small business firm or domestic nonprofit organization.  The subcontractor shall retain all rights provided for the Recipient in this provision, and the Recipient shall not, as part of the consideration for awarding the subgrant or subcontract under the Agreement, obtain rights in the subgrantee's or subcontractor's subject inventions.

(2) The Recipient shall include in all other subcontracts the patent rights provision, regardless of tier, for experimental, developmental, or research work.

(3) In the case of subcontracts, at any tier, when the prime award with the Federal agency was a contract (but not a grant or cooperative agreement), the agency, subcontractors, and the contractor agree that the mutual obligations of the parties created by this provision constitute a contract between the subcontractor and the Federal agency with respect to those matters covered by this provision; provided, however, that nothing in this paragraph is intended to confer any jurisdiction under the Contract Disputes Act in connection with proceedings under paragraph (j) of this provision.

(h) Reporting on Utilization of Subject Invention. The Recipient agrees to submit, on request, periodic reports no more frequently than annually on the utilization of a subject invention or on efforts at obtaining such utilization that are being made by the Recipient or its licensees or assignees.  Such reports must include information regarding the status of development, date of first commercial sale or use, gross royalties received by the Recipient, and such other data and information as FAS may reasonably specify. The Recipient also agrees to provide additional reports as may be requested by FAS in connection with any march-in proceeding undertaken by FAS in accordance with paragraph (j) of this provision.  As required by 35 U.S.C. 202(c)(5), FAS agrees it shall not disclose such information to persons outside the government without permission of the Recipient.

(i) Preference for United States Industry.  Notwithstanding any other provision of this provision, the Recipient agrees that neither it nor any assignee shall grant to any person the exclusive right to use or sell any subject invention in the United States unless such person agrees that any product embodying the subject invention will be manufactured substantially in the United States.  However, in individual cases the requirement for such an agreement may be waived by FAS upon a showing by the Recipient or its assignee that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States, or that under the circumstances, domestic manufacture is not commercially feasible.

(j) March-in-Rights. The Recipient agrees that with respect to any subject invention in which it has acquired title, FAS has the right in accordance with the procedures in 37 CFR 401.6 and any supplemental regulations of FAS to require the Recipient, an assignee or exclusive licensee of a subject invention to grant a nonexclusive, partially exclusive, or exclusive license in any field of use to a responsible applicant or applicants, upon terms that are reasonable under the circumstances, and if the Recipient assignee, or exclusive licensee refuses such a request, FAS has the right to grant such a license itself if FAS determines that:

(1) Such action is necessary because the Recipient or assignee has not taken, or is not expected to take within a reasonable time, effective steps to achieve practical application of the subject invention in such field of use;

(2) Such action is necessary to alleviate health or safety needs which are not reasonably satisfied by the Recipient, assignee, or their licensees;

(3) Such action is necessary to meet requirements for public use specified by Federal regulations and such requirements are not reasonably satisfied by the Recipient, assignee, or licensees; or

(4) Such action is necessary because the agreement required by paragraph i of this provision has not been obtained or waived, or because a licensee of the exclusive right to use or sell any subject invention in the United States is in breach of such agreement.

(k) Special Provisions for Contracts with Non-profit Organizations.  If the Recipient/contractor is a non-profit organization, it agrees that:

(1) Rights to a subject invention in the United States may not be assigned without the approval of FAS, except where such assignment is made to an organization which has as one of its primary functions the management of inventions provided that such assignee shall be subject to the same provisions as the Recipient.

(2) The Recipient shall share royalties collected on a subject invention with the inventor, including Federal employee coinventors (when FAS deems it appropriate) when the subject invention is assigned in accordance with 35 U.S.C. 202(e) and 37 CFR 401.10.

(3) The balance of any royalties or income earned by the Recipient with respect to subject inventions, after payment of expense (including payments to inventor) incidental to the administration of subject inventions will be utilized for the support of scientific research or education; and

(4) It shall make efforts that are reasonable under the circumstances to attract licensees of subject invention that are small business firms and that it shall give preference to a small business firm when licensing a subject invention if the Recipient determines that the small business firm has a plan or proposal for marketing the invention which, if executed, is equally as likely to bring the invention to practical application as any plans or proposals from applicants that are not small business firms; provided, that the Recipient is also satisfied that the small business firm has the capability and resources to carry out its plan or proposal.  The decision whether to give preference in any specific case will be at the discretion of the Recipient.  However, the Recipient agrees that the Secretary may review the Recipient’s licensing program and decisions regarding small business applicants, and the Recipient shall negotiate changes to its licensing policies, procedures, or practices with the Secretary when the Secretary's review discloses that the Recipient could take reasonable steps to implement more effectively the requirements of this paragraph.

(l) Communication

(1) Communications relating to the administration of this provision and disclosure statements should be directed to the GMO.

(2) Practice statements are also made to the Patent Advisor.

(i) When the agreement is for the operation of a federally funded research and development center of a government-owned production facility;

(ii) In exceptional circumstances when it is determined by FAS that restriction or elimination of the right to retain title to any subject invention shall better promote the policy and objective of Title 35, Chapter 18 of the United States Code; or

(iii) When it is determined by a Government authority which is authorized by statute or Executive Order to conduct foreign intelligence or counter intelligence activities that the restriction or elimination of the right to retain title to any subject invention is necessary to protect the security of such activities.

(3) Any determination under this provision must be in writing and accompanied by a written statement of facts and must contain such information as FAS field office deems relevant and, at a minimum, must:

(i) Identify the small business firm or nonprofit organization involved.

(ii) Describe the extent to which FAS action restricted or eliminated the right to retain title to a subject invention.

(iii) State the facts and rationale supporting FAS action.

(iv) Provide supporting documentation for those facts and rationale.

(v) Indicate the nature of any objections to FAS action and provide any documentation in which those objections appear.  A copy of each such determination and written statement of facts must be sent to the Director, Fiscal and Public Safety, Washington Office, for review and forwarded to the Comptroller General of the United States within 30 days after the award of the applicable agreement.  In some cases of determinations applicable to agreements with small business firms, copies must also be sent to the Chief Counsel for advocacy of the Small Business Administration.

Applies to all CAs and DGs when patents are anticipated.

Research Misconduct

(a) The Recipient bears the primary responsibility for prevention and detection of research misconduct and for the inquiry, investigation and adjudication of research misconduct alleged to have occurred in association with their own institution.

(b) The Recipient and its employees shall comply with the Code of Scientific Ethics of USDA.  See, http://www.fs.fed.us/research/publications/fs_code_of%20_scientific_ethics.pdf. 

(c) The Recipient shall:

(1) Maintain procedures for responding to allegations or instances of research misconduct that has the following components:

(i) Objectivity;

(ii) Due process;

(iii) Whistle blower protection;

(iv) Confidentiality;

(v) Timely resolution;

(2) Promptly conduct an inquiry into any allegation of research misconduct;

(3) Conduct an investigation if an inquiry determines that the allegation or apparent instance of research misconduct has substance;

(4) Provide appropriate separation of responsibilities between those responsible for inquiry and investigation, and those responsible for adjudication;

(5) Advise FAS of outcome at end of inquiries and investigations into allegations or instances of research misconduct; and

(6) Upon request, provide FAS, upon request, hard copy (or website address) of their policies and procedures related to research misconduct.

(d) Research misconduct or allegations of research misconduct shall be reported to the USDA Research Integrity Officer (RIO) and/or to the USDA, Office of Inspector General (OIG) Hotline.

(1) The USDA RIO can be reached at: USDA Research Integrity Officer, 214–W Whitten Building, Washington, DC 20250, Telephone: 202–720–5923, Email: researchintegrity@usda.gov.

(2) The USDA OIG Hotline can be reached on: 1–800–424–9121.

Applies to all CAs and DGs when research activities are anticipated.

USDA Guidelines for Quality of Information

This agreement is subject to the “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies; Republication” and the “USDA Guidelines for Quality of Information” which are found at http://www.fs.fed.us/qoi/.

Applies to all CAs and DGs.

Provision Title

Administrative GT&C – Conditional

International

Instructions

Security Issues

Applies to CAs and DGs that take place outside the U.S.