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EPA's Revised Interim Financial Assistance Conflict of Interest Policy

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1.0 Purpose


As required by Title 2 of the Code of Federal Regulations (CFR) section 200.112, EPA has established the following revised interim policy governing disclosure of actual and potential conflicts of interest (COI policy) by applicants for, and recipients of, federal financial assistance awards from EPA. This policy is intended to prevent personal and organizational conflict of interests in the award and administration of EPA financial assistance.

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2.0 Applicability, Effective Date and Relationship to other Policies


This COI Policy applies to all individuals and non-Federal entities requesting and receiving EPA financial assistance on or after May 22, 2015. It is distinct from and different than EPA policies governing scientific integrity and those implementing the Standards of Ethical Conduct for Employees of the executive branch. In addition, nothing in this COI policy supersedes the conflict of interest provisions of EPA Order 5700.5A1, Policy for Competition of Assistance Agreements (02/06/2014) (EPA’s Competition Policy).

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3.0 Definitions


Applicant: An individual (including applicants for competitive fellowships under 40 CFR Part 46) or non-federal entity who submits a competitive proposal and/or final Standard Form 424, Application for Federal Assistance (SF-424)(3 pp, 265 K, About PDF) following selection by EPA to receive a federal financial assistance award under competitive or noncompetitive procedures.

Conflicts of Interest (COI): An actual or potential situation that undermines, or may undermine, the impartiality of an individual or non-federal entity because their self-interest conflicts, or may conflict, with their duty and obligations to EPA and the public in performing an EPA financial assistance agreement. The term also includes situations that create, or may create, an unfair competitive advantage, or the appearance of such, for an applicant in competing for federal financial assistance from EPA.

COI Point of Contact: The individual designated by the applicant or recipient to disclose and resolve COI for Federal Financial Assistance awards or subawards. A COI Point of Contact for applicants for competitive funding may be the authorized representative specified on the Standard Form 424, Application for Federal Financial Assistance unless the applicant designates another official.  Applicants for noncompetitive funding and recipients may designate the authorized representative or another employee or officer of the Non-Federal Entity or another entity (e.g. consultant or attorney) expressly authorized by the non-federal entity to speak on its behalf.

Federal Financial Assistance: This term is defined at 2 CFR 200.40.

Micro-purchase: This term is defined at 2 CFR 200.67.

Non-Federal Entity: This term is defined at 2 CFR 200.69.

Immediate Family: For the purposes of this COI Policy only, unless otherwise defined in a state, tribal or local government recipient or subrecipient’s laws, ordinances, or other legally binding enactments, immediate family includes a person’s husband or wife; natural or adoptive parent; child or sibling; stepparent, stepchild, stepbrother or stepsister; father-, mother-, daughter-, son-, brother- or sister-in-law; grandparent or grandchild; or spouse of a grandparent or grandchild.

Individual: A natural person.

Pass-through entity: This term is defined at 2 CFR 200.74.

Recipient: This term is defined at 2 CFR 200.86 and for the purposes of this COI Policy also includes individuals who receive awards under EPA statutes authorizing direct Federal financial assistance to individuals.

State: This term is defined at 2 CFR 200.90. For the purposes of this COI Policy, institutions of higher education that are instrumentalities of a state under their state’s laws are subject to the same disclosure obligations as state government agencies.

Subaward: This term is defined at 2 CFR 200.92.

Subrecipient: This term is defined at 2 CFR 200.93 and for the purpose of this COI Policy also includes individuals (who are not program beneficiaries) who receive subawards.

Please refer to the appendix to this COI Policy for the text of the above cited definitions from 2 CFR Part 200.

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4.0 Situations Requiring Disclosure


This policy addresses the following COI situations:

(a) COIs related to competitive assistance agreements. All EPA solicitations will include a clause requiring the Applicant’s  COI Point of Contact to notify the EPA contact identified in Section VII of the solicitation of any actual or potential conflict of interest that they are aware of that may provide the Applicant with an unfair competitive advantage in competing for EPA financial assistance awards. Examples of an unfair competitive advantage include but are not limited to situations in which an EPA employee reviewed and commented on or drafted all or part of an applicant’s proposal.  Note that EPA does not generally consider receiving information from an EPA employee limited to whether the applicant or the applicant’s proposed project is eligible to compete for funding to confer an unfair competitive advantage.

(b) COIs related to the selection, award and administration of recipient contracts. Any COI described at 2 CFR 200.318(c)(1) involving a procurement contract including, but not limited to, consulting fees or other compensation paid to employees, officers, agents of the applicant or recipient and/or members of their Immediate Families.
 
(c) Recipient procurement actions raising organizational COIs with a parent, affiliate or subsidiary organization that is not a state, local government or Indian Tribe. Any organizational COI described at 2 CFR 200.318(c)(2) involving a procurement contract. Organizational conflicts of interest means that because of relationships with a parent company, affiliate, or subsidiary organization, the non-Federal entity is unable or appears to be unable to be impartial in conducting a procurement action involving a related organization. For the purpose of this disclosure requirement, the non-Federal entity should use the definition of affiliate at 2 CFR 180.905 for guidance.

(d) Subaward COIs. Consistent with OMB’s Frequently Asked Questions on 2 CFR 200.112, any COI in the award, administration, or monitoring of subawards that would arise due to:

i. COIs similar to those described at 2 CFR 200.318(c)(1) including consulting fees or other compensation paid to employees, officers, agents of a subrecipient or members of their Immediate Families paid by procurement contractors or other subrecipients receiving EPA funding under a subaward.

ii. Organizational COI similar to those described at 2 CFR 200.318(c)(2) between the subrecipient and procurement contractors or other subrecipients receiving EPA funding under a subaward.

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5.0 Disclosure requirements by applicant/recipient type


(a) Consistent with 2 CFR 200.317, authorized representatives or other designated officials for states must provide COI disclosures to EPA only  when competing for EPA funding under the solicitation provision described in Section 4.0(a) or as a Pass-Through Entity under 5.0(c).

(b) Individuals applying for EPA fellowship awards under 40 CFR Part 46 are only subject to the disclosure requirements under the competitive solicitation provision described in Section 4.0(a). They are not subject to any other COI disclosure requirements.

(c) Non-federal entities (other than states) and individuals must provide COI disclosures to EPA under the situations described in Section 4.0(a) through 4.0(d).

(d) Applicants/Recipients, including states, acting as a pass-rhrough entity must require subrecipients receiving or being considered for a subaward to disclose to the applicant/recipient the COI situations described in Section 4.0(d). The pplicant/Eecipient must in turn disclose the COI to EPA.

(e) EPA only requires that Applicants/Recipients disclose any COI following the inquiries described in section 6.0. If applicants/recipients do not discover a COI, they do not need to advise EPA of the results of their inquiries.

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6.0 Scope of inquiry


With the exception of situations described at 6.0(a) applicants/recipients must, as described below, conduct a reasonable COI inquiry to meet their disclosure obligations under section 5.0 of this policy.

(a) Under Section 4.0(a), the applicant’s COI point of contact need only disclose to EPA situations that they are personally aware of at the time the applicant submits its competitive proposal to EPA or subsequently becomes aware of prior to being notified by EPA of the outcome of the competition. EPA does not require that COI points of contact make additional inquiries regarding situations covered in section 4.0(a).   

(b) For pre-award COI disclosures addressing the situations described in Sections 4.0(b), 4.0(c), and 4.0(d), the applicant’s COI point of contact must make a reasonable inquiry to determine whether any situations requiring disclosure are present prior to the applicant’s submission of its final SF-424. Inquiries may be limited to personnel with responsibility for selection, award or administration of procurement contracts or subawards for the project described in the final SF-424.  If applicants have not identified contractors or subrecipients at the time of submission of the SF-424, no inquiries are necessary.

(c) For COI disclosures addressing the situations described in Sections 4.0(b), (c), and (d) after award, the applicant’s COI point of contact must inform recipient personnel with responsibility for selection, award or administration of procurement contracts and subawards of their obligation to disclose COI.

(d) Pass through entities, including states, must impose COI inquiry requirements on non-federal entities and individuals being considered for or receiving subawards that are, at a minimum, consistent with those required in this section.

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7.0 Timing of disclosures


(a) For awards EPA will make competitively, the applicant’s COI point of contact must provide disclosures, if any, covered by Section 4.0(a) to EPA’s point of contact identified in Section VII of the solicitation within 10 calendar days of becoming aware of the COI. 

(b) In situations in which EPA is awarding financial assistance without competition or following a competitive selection, applicants must provide COI disclosures required by 4.0(b), 4.0(c), and 4.0(d) when EPA advises them to submit a final Standard Form 424, “Application for Federal Financial Assistance” (SF-424) or otherwise advises the applicant that they have been selected to receive an award. The COI disclosure must be provided in a prominently marked document. Should a selected applicant discover a previously undisclosed COI prior to EPA awarding financial assistance, the applicant’s COI point of contact must disclose the COI to EPA no later than 5 calendar days following discovery.

(c) For COI disclosures required by 4.0(b), (c), and (d) that arise after EPA has made an award, recipients must provide their COI Disclosure, as applicable, within 10 calendar days of discovery of the COI to EPA.

(d) Pass-through entities must disclose subrecipient COI’s to EPA within 10 calendar days of receiving notification of a COI by the subrecipient unless the pass-through entity requests that EPA grant a longer period of time to resolve the subrecipient COI.

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8.0 Content of disclosures


(a) All COI disclosures must be in writing preferably through email communication.

(b) In situations covered under Section 4.0(a), applicants must describe the unfair competitive advantage (e.g., proposal preparation assistance they received from an EPA employee and the approximate time frame in which the assistance was provided) circumstances.

(c) For the COIs described in Sections 4.0(b), 4.0(c) and 4.0(d), applicants and recipients must provide EPA with any information regarding measures to eliminate, neutralize, mitigate or otherwise resolve the COI. 

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9.0 EPA actions


(a) EPA will notify applicants of their COI disclosure obligations prior to award either through the solicitation clause described in 4.0(a) or otherwise and include a term and condition in all awards describing the recipients COI disclosure obligations. The notifications and terms and conditions will identify EPA’s point of contact for COI disclosures.

(b) The agency will review COI disclosures under 4.0(b), 4.0(c) and 4.0(d) and measures applicants/recipients propose to resolve the COI and advise applicants/recipients of EPA’s determination on the effectiveness of the measures within 30 calendar days of disclosure unless a longer period of time is necessary due to the complexity of the situation. EPA will not allow the cost of any procurement contract that materially violates 2 CFR 200.318(c)(1), an unresolved organizational COI under 2 CFR 200.318(c)(2) or a subaward that, in the agency’s judgment, is affected by a similar COI.

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