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EPA Solicitation Clauses
i

(updated January 10, 2014)

Section IV

Confidential Business Information
Pre-proposal/Application Assistance and Communications
Management Fees
Contracts and Subawards
Duplicate Funding

Section VI ii

Notification of Expected Electronic Submission Requirement in FY 15
Human Subjects
Animal Welfare
Data Access and Information Release
Nonprofit Administrative Capability Clause
Final Application Submission
Subaward and Executive Compenstation Reporting
System for Award Management (SAM) and Data Universal Numbering Systems (DUNS) Requirements
Unliquidated Obligations
Website References in Solicitations
Unpaid Federal Tax Liabilities and Felony Convictions for Non-Profit and For-Profit Organizations
Unfair Competitive Advantage
Exchange Network
Disputes
Copyrights
Restrictions on Use of Federal Funds

Competency of Organizations Generating Environmental Measurement Data

Section IV

a. Confidential Business Information. 

EPA recommends that you do not include confidential business information (“CBI”) in your proposal/application. However, if CBI is included, it will be treated in accordance with 40 CFR 2.203. Applicants must clearly indicate which portion(s) of their proposal/application they are claiming as CBI. EPA will evaluate such claims in accordance with 40 CFR Part 2. If no claim of confidentiality is made, EPA is not required to make the inquiry to the applicant otherwise required by 40 CFR 2.204(c)(2) prior to disclosure. The Agency protects competitive proposals/applications from disclosure under applicable provisions of the Freedom of Information Act prior to the completion of the competitive selection process.

b.  Pre-proposal/Application Assistance and Communications.  

In accordance with EPA's Assistance Agreement Competition Policy (EPA Order 5700.5A1), EPA staff will not meet with individual applicants to discuss draft proposals, provide informal comments on draft proposals, or provide advice to applicants on how to respond to ranking criteria. Applicants are responsible for the contents of their applications/proposals. However, consistent with the provisions in the announcement, EPA will respond to questions from individual applicants regarding threshold eligibility criteria, administrative issues related to the submission of the proposal, and requests for clarification about the announcement. In addition, if necessary, EPA may clarify threshold eligibility issues with applicants prior to making an eligibility determination.

c. Management Fees

When formulating budgets for proposals/applications, applicants must not include management fees or similar charges in excess of the direct costs and indirect costs at the rate approved by the applicants cognizant audit agency, or at the rate provided for by the terms of the agreement negotiated with EPA. The term "management fees or similar charges" refers to expenses added to the direct costs in order to accumulate and reserve funds for ongoing business expenses, unforeseen liabilities, or for other similar costs that are not allowable under EPA assistance agreements. Management fees or similar charges may not be used to improve or expand the project funded under this agreement, except to the extent authorized as a direct cost of carrying out the scope of work.

d.  Contracts and Subawards:

a. Can funding be used for the applicant to make subawards, acquire contract services, or fund partnerships? 

EPA awards funds to one eligible applicant as the recipient even if other eligible applicants are named as partners or co-applicants or members of a coalition or consortium.  The recipient is accountable to EPA for the proper expenditure of funds.

Funding may be used to provide subgrants or subawards of financial assistance, which includes using subawards or subgrants to fund partnerships ,  provided the recipient complies with applicable requirements for subawards or subgrants including those contained in 40CFR  Parts 30 or 31, as appropriate.   Applicants must compete contracts for services and products, including consultant contracts, and conduct cost and price analyses, to the extent required by the procurement provisions of the regulations at 40 CFR Parts 30 or 31, as appropriate. The regulations also contain limitations on consultant compensation. Applicants are not required to identify subawardees/subgrantees and/or contractors (including consultants) in their proposal/application.  However, if they do, the fact that an applicant selected for award has named a specific subawardee/subgrantee, contractor, or consultant in the proposal/application EPA selects for funding does not relieve the applicant of its obligations to comply with subaward/subgrant and/or competitive procurement requirements as appropriate.   Please note that applicants may not award sole source contracts to consulting, engineering or other firms assisting applicants with the proposal solely based on the firm's role in preparing the proposal/application. 

Successful applicants cannot use subgrants or subawards to avoid requirements in EPA grant regulations for competitive procurement by using these instruments to acquire commercial services or products from for-profit organizations to carry out its assistance agreement.  The nature of the transaction between the recipient and the subawardee or subgrantee must be consistent with the standards for distinguishing between vendor transactions and subrecipient assistance under Subpart B Section .210 of OMB Circular A-133 , and the definitions of subaward at 40 CFR 30.2(ff) or subgrant at 40 CFR 31.3, as applicable. EPA will not be a party to these transactions.  Applicants acquiring commercial goods or services must comply with the competitive procurement standards in 40 CFR Part 30 or 40 CFR Part 31.36 and cannot use a subaward/subgrant as the funding mechanism.   

b. How will an applicant's proposed subawardees/subgrantees and
 contractors be considered during the evaluation process described in SectionV of the announcement?

Section V of the announcement describes the evaluation criteria and evaluation process that will be used by EPA to make selections under this announcement.  During this evaluation, except for those criteria that relate to the applicant's own qualifications, past performance, and reporting history, the review panel will consider, as appropriate and relevant, the qualifications, expertise, and experience of:

(i) an applicant's named subawardees/subgrantees identified in the proposal/application if the applicant demonstrates in the proposal/application that if it receives an award that the subaward/subgrant will be properly awarded consistent with the applicable regulations in 40 CFR Parts 30 or 31.  For example, applicants must not use subawards/subgrants to obtain commercial services or products from for profit firms or individual consultants.  
(ii) an applicant's named contractor(s), including consultants, identified in the proposal/application if the applicant demonstrates in its proposal/application that the contractor(s) was selected in compliance with the competitive Procurement Standards in 40 CFR Part 30 or 40 CFR 31.36 as appropriate.  For example, an applicant must demonstrate that it selected the contractor(s) competitively or that a proper non-competitive sole-source award consistent with the regulations will be made to the contractor(s), that efforts were made to provide small and disadvantaged businesses with opportunities to compete, and that some form of cost or price analysis was conducted.   EPA may not accept sole source justifications for contracts for services or products that are otherwise readily available in the commercial marketplace.

EPA will not consider the qualifications, experience, and expertise of named subawardees/subgrantees and/or named contractor(s) during the proposal/application evaluation process unless the applicant complies with these requirements.

e. Duplicate Funding

Generally, applicants are not prohibited from submitting the same or virtually the same proposal to EPA under multiple competitions, if appropriate. However, if an applicant does so, and the proposal is selected for award under another competition, that may affect their ability to receive an award under this competition for that proposal.

Section VI Clauses (as applicable to the solicitation)ii

a. Notification of Expected Electronic Submission Requirement in FY 15:

EPA is moving towards electronic submission of all grant applications through www.grants.gov.  It is expected that all solicitations issued on or after October 1, 2014 will require applicants to submit their application materials electronically through www.grants.gov.
  
b. Human Subjects
(if applicable):

A grant applicant must agree to meet all EPA requirements for studies using human subjects prior to implementing any work with these subjects. These requirements are given in 40 CFR § 26. Studies involving intentional exposure of human subjects who are children or pregnant or nursing women are prohibited by Subpart B of 40 CFR § 26. For observational studies involving children or pregnant women and fetuses please refer to Subparts C & D of 40 CFR § 26. U.S. Department of Health and Human Services regulations at 45 CFR § 46.101(e) have long required "... compliance with pertinent Federal laws or regulations which provide additional protection for human subjects." EPA’s regulation 40 CFR § 26 is such a pertinent Federal regulation. Therefore, the applicant's Institutional Review Board (IRB) approval must state that the applicant's study meets the EPA's regulations at 40 CFR § 26. No work involving human subjects, including recruiting, may be initiated before the EPA has received a copy of the applicant’s IRB approval of the project and the EPA has also provided approval. Where human subjects are involved in the research, the recipient must provide evidence of subsequent IRB reviews, including amendments or minor changes of protocol, as part of annual reports.

Guidance and training for investigators conducting EPA-funded research involving human subjects may be obtained here:
http://www.epa.gov/osainter/phre/policy.htm
http://www.epa.gov/osainter/phre/phre_course/index.htm

c. Animal Welfare (if applicable):

A grant recipient must agree to comply with the Animal Welfare Act of 1966 (P.L. 89-544), as amended, 7 U.S.C. 2131-2159. The recipient must also agree to abide by the "U.S. Government Principles for the Utilization and Care of Vertebrate Animals used in Testing, Research, and Training." (50 Federal Register 20864-20865 (May 20, 1985))

* This clause applies if a research facility (defined as any school (except elementary or secondary), institution, organization or person) receives funds under a grant from a federal agency for the purpose of carrying out research, tests, or experiments involving animals.

d. Data Access and Information Release:

EPA has the right to obtain, reproduce, publish, or otherwise use the data first produced under the awards to be made under this solicitation and authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes under 40 C.F.R. § 30.36(c). In addition, pursuant to 40 C.F.R. § 30.36(d), if EPA receives a Freedom of Information Act request for research data that (1) relates to published research findings produced under an EPA award and (2) was used by the Federal Government in developing an agency action that has the force and effect of law, then EPA shall request, and the award recipient shall provide, within a reasonable time, the research data so that it may be made available to the public through procedures established under the FOIA.

e . Nonprofit Administrative Capability Clause (applicable to certain non-profit awards)

Non-profit applicants that are recommended for funding under this announcement are subject to pre-award administrative capability reviews consistent with Section 8b, 8c and 9d of EPA Order 5700.8 - Policy on Assessing Capabilities of Non-Profit Applicants for Managing Assistance Awards (http://www.epa.gov/ogd/grants/award/5700_8.pdf). In addition, non-profit applicants that qualify for funding may, depending on the size of the award, be required to fill out and submit to the Grants Management Office the Administrative Capabilities Form with supporting documents contained in Appendix A of EPA Order 5700.8.

f. Final Application Submission

Generally, following EPA’s evaluation of proposals/applications, all applicants will be notified regarding their status. Final applications and forms will be requested, as necessary, from those eligible entities whose proposal/application has been successfully evaluated and preliminarily recommended for award. Those entities will be provided with instructions and a due date for submittal of the final application package.

g. Subaward and Executive Compensation Reporting

Applicants must ensure that they have the necessary processes and systems in place to comply with the sub-award and executive total compensation reporting requirements established under OMB guidance at 2 CFR Part 170, unless they qualify for an exception from the requirements, should they be selected for funding.

h. System for Award Management (SAM) and Data Universal Numbering System (DUNS) Requirements

Unless exempt from these requirements under OMB guidance at 2 CFR Part 25 (e.g., individuals), applicants must: 
1. Be registered in SAM prior to submitting an application or proposal under this announcement. SAM information can be found at https://www.sam.gov/portal/public/SAM/. 
2. Maintain an active SAM registration with current information at all times during which it has an active Federal award or an application or proposal under consideration by an agency, and
3. Provide its DUNS number in each application or proposal it submits to the agency. Applicants can receive a DUNS number, at no cost, by calling the dedicated toll-free DUNS Number request line at 1-866-705-5711, or visiting the D&B website at: http://www.dnb.com.

If an applicant fails to comply with these requirements, it will, should it be selected for award, affect their ability to receive the award.

Please note that the Central Contractor Registration (CCR) has been replaced by the System for Award Management (SAM). To learn more about SAM, go to SAM.gov or https://www.sam.gov/portal/public/SAM/.

i. Unliquidated Obligations

An applicant that receives an award under this announcement is expected to manage assistance agreement funds efficiently and effectively and make sufficient progress towards completing the project activities described in the work-plan in a timely manner. The assistance agreement will include terms/conditions implementing this requirement.

j. Website References in Solicitations

Any non-federal websites or website links included in this solicitation are provided for proposal preparation and/or informational purposes only.  EPA does not endorse any of these entities or their services. In addition, EPA does not guarantee that any linked, external websites referenced in this solicitation comply with Section 508 (Accessibility Requirements) of the Rehabilitation Act.

k. Unpaid Federal Tax Liabilities and Felony Convictions for Non-Profit and For-Profit Organizations (if applicable):

For announcements open to for-profits or non-profits where awards will be funded by FY 12 and later appropriations

Unpaid Federal Tax Liabilities and Felony Convictions for Non-Profit and For-Profit Organizations

Awards made under this announcement are subject to the provisions originally contained in the Department of Interior, Environment, and Related Agencies Appropriations Act, 2012, Public Law 112-74, Division E, Title IV, Sections 433 and 434 regarding unpaid federal tax liabilities and federal felony convictions, which have been continued in subsequent appropriations. These provisions prohibit EPA from awarding funds made available by the Act to any for-profit or non-profit organization: (1) 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; or (2) that was convicted (or had an officer or agent of such corporation acting on its behalf convicted) of a felony criminal conviction under any Federal law within 24 months preceding the award, unless EPA has considered suspension or debarment of the corporation, or such officer or agent, based on these tax liabilities or convictions, and determined that such action is not necessary to protect the Government’s interests. Non-profit or for-profit organizations that are covered by these prohibitions are ineligible to receive an award under this announcement.

l. Unfair Competitive Advantage

EPA personnel will take appropriate actions in situations where it is determined that an applicant may have an unfair competitive advantage, or the appearance of such, in competing for awards under this announcement. Affected applicants will be provided an opportunity to respond before any final action is taken.

m. Exchange Network

EPA, states, territories, and tribes are working together to develop the National Environmental Information Exchange Network, a secure, Internet- and standards-based way to support electronic data reporting, sharing, and integration of both regulatory and non-regulatory environmental data.  States, tribes and territories exchanging data with each other or with EPA, should make the Exchange Network and the Agency's connection to it, the Central Data Exchange (CDX), the standard way they exchange data and should phase out any legacy methods they have been using.   More information on the Exchange Network is available at www.exchangenetwork.net 

n. Disputes

Assistance agreement competition-related disputes will be resolved in accordance with the dispute resolution procedures published in 70 FR (Federal Register) 3629, 3630 (January 26, 2005) which can be found at http://www.epa.gov/ogd/competition/resolution.htm. Copies of these procedures may also be requested by contacting the person listed in Section VII of the announcement.

o. Copyrights

In accordance with 40 CFR 31.34 (for state, local and Indian tribal governments) or 40 CFR 30.36, as applicable, EPA reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, for Federal Government purposes, copyrighted works developed under a grant, subgrant or contract under a grant or subgrant. Examples of federal purpose include but are not limited to: (1) Use by EPA and other federal employees for official Government purposes; (2) Use by federal contractors performing specific tasks for the Government; (3) Publication in EPA documents provided the document does not disclose trade secrets (e.g. software codes) and the work is properly attributed to the recipient through citation or otherwise; (4) Reproduction of documents for inclusion in federal depositories; (5) Use by state, tribal and local governments that carry out delegated federal environmental programs as “co-regulators” or act as official partners with EPA to carry out a national environmental program within their jurisdiction; and (6) Limited use by other grantees to carry out federal grants provided the use is consistent with the terms of EPA’s authorization to the grantee to use the copyrighted material. 

p. Restrictions on Use of Federal Funds

All costs incurred under this program must be allowable under 40 CFR 30.27 or 40 CFR 31.22, as applicable, and the applicable Office of Management and Budget (OMB) Cost Circulars: 2 CFR Part 225 (State, local, or Indian tribal governments), 2 CFR Part 230 (non-profit organizations), or 2 CFR Part 220 (Educational institutions). Copies of these circulars can be found at http://www.whitehouse.gov/omb/circulars/. In accordance with applicable law, regulation, and policy, any recipient of funding must agree to comply with restrictions on using assistance funds for unauthorized lobbying, fund-raising, or political activities (i.e., lobbying members of Congress or lobbying for other federal grants, cooperative agreements, or contracts). Funds generally cannot be used to pay for travel by federal agency staff. Proposed project activities must also comply with all state and federal regulations applicable to the project area. The applicant must also review the solicitation for any other programmatic funding restrictions applicable to this program. If awarded funding, the recipient must refer to the terms and conditions of its award for other funding restrictions applicable to its award. It is the responsibility of the recipient to ensure compliance with these requirements.

q. Competency of Organizations Generating Environmental Measurement Data (if applicable):

In accordance with EPA's Policy to Assure the Competency of Organizations Generating Environmental Measurement Data under Agency-Funded Assistance Agreements, successful applicants/recipients for awards under this competition that are expected to exceed  $200,000 in federal funding that involve the generation or use of environmental data must demonstrate competency to perform such work either prior to award, or if that is not practicable or will delay the award, prior to beginning any work involving the generation or use of environmental data under the agreement.  Applicants that demonstrate competency prior to award must maintain competency, as appropriate, during the award period. Applicants that do not address competency prior to award must demonstrate competency prior to beginning any work involving the generation or use of environmental data under the agreement and maintain competency, as appropriate, during the award period.  A copy of the Policy is available online at http://www.gpo.gov/fdsys/pkg/FR-2013-04-29/html/2013-10043.htm or a copy may also be requested by contacting the person listed in Section VII of the announcement.

i. Any questions about these clauses should be raised to the EPA contact identified in the solicitation.
ii. Except as noted all Section VI Clauses apply to every award and/or solicitation.  Questions about the applicability of any of these clauses should be raised to the EPA contact identified in the solicitation.

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