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HomeMy WebLinkAboutPD CA Department of Boating and Waterway FundingItem No: Meeting Date: December 7, 2009 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: Police Prepared by: Ralph Pata, Lieutenant City Manager Approval: SUBJECT: A RESOLUTION OF THE SAN RAFAEL CITY COUNCIL APPROVING USE OF STATE OF CALIFORNIA DEPARTMENT OF BOATING AND WATERWAY FUNDS OF $25,000 FOR EQUIPMENT PURCHASE BY SEPTEMBER 30, 2010 AND AUTHORIZING THE MAYOR TO EXECUTE CONTRACT. RECOMMENDATION: Staff recommends the Council adopt resolution authorizing execution of contract with the Department of Boating and Waterways (DBW) to fund equipment purchase and installation by September 30, 2010. BACKGROUND: For more than thirty years, the San Rafael Police Department has patrolled six square miles of navigable waters including five miles of federally maintained canal -ways within the corporate limits of the City of San Rafael. This water area encompasses the San Pablo Bay area north of McNears Beach/ San Pedro Point and south to the Red Rock Island near the Richmond Long Wharf, including the deepwater channel for ocean-going ships. The "Mission City" is one of the few law enforcement patrol boats currently operational on the San Francisco Bay. Due to mechanical problems with both the City of Richmond and the Marin County Sheriff's patrol boats, the "Mission City' is typically the sole law enforcement vessel north of Angel Island. The other four law enforcement patrol boats are staffed by the Cities of San Francisco and Oakland and the Counties of San Mateo and Alameda. The Coast Guard, due to Homeland Security restrictions, has reduced response to search and rescue activities in the Bay, and calls upon the "Mission City" to respond to a greater number of rescues south and east of the normal search and rescue area. In 1985, the City of San Rafael received a grant for purchase of the current patrol vessel, "Mission City". In 2006, the City of San Rafael received a grant for the replacement of the patrol vessel engines. In 2007, the City of San Rafael received a grant for the purchase of a Thermal Visioning System and an Automatic Identification System (AIS) GPS system. FOR CITY CLERK ONLY File No.: Council Meeting: Disposition: SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2 Analysis: In April, we applied to the Department of Boating and Waterways for funding to purchase two propellers, rescue litter, three VFH radios, VHF direction finder, radio speakers, spotlight, wind meter, antenna poles, type IV life rings, safety night marker lights for our crew, cabin fans, rope, and fenders. All of these items are used by the patrol boat crew during their normal patrol and rescue missions. FISCAL IMPACT: The Grant will provide $25,000 to purchase the listed equipment. This amount will cover the complete costs and not require the expenditure of any city funds. The total projected cost for this project is as follows: Category -Eden Expense Code Amount Note(s) Design -01 0 Construction -02 0 Construction Management -03 0 Land Acquisition -04 0 Site Testing -05 0 Furniture and Equipment -06 0 Supplies and Services -07 $25,000.00 Personnel -08 Other Elements -99 Total Projected Cost 0 $25,000.00 Funding Source We request that the Council approve $25,000.00 for the project, from the following funding source(s): Source Amount Note(s) State of California, Department of Boating and Waterways $25,000.00 City of San Rafael General Fund 0 Total Available Funds $25,000.00 ACTION REQUIRED: Adopt resolution authorizing execution of contract with the Department of Boating and Waterways (DBW) to fund equipment purchase and installation by September 30, 2010. Attachments: (2) (1) Resolution (2) Equipment and Operation Contract between the State of California and the City of San Rafael RESOLUTION NO. RESOLUTION OF THE SAN RAFAEL CITY COUNCIL APPROVING USE OF STATE OF CALIFORNIA DEPARTMENT OF BOATING AND WATERWAY GRANT FUNDS IN THE AMOUNT OF $25,000 FOR A POLICE DEPARTMENT PATROL BOAT EQUIPMENT PURCHASE BY SEPTEMBER 30, 2010, AND AUTHORIZING THE MAYOR TO EXECUTE GRANT CONTRACT. Whereas, the City of San Rafael has operated the Police Department patrol boat, "Mission City", continuously since 1985; and Whereas, the State of California, Department of Boating and Waterways has approved a grant in an amount up to $25,000 to the City of San Rafael for purchase of equipment for the City's patrol boat; and Whereas, this grant money will be spent by the Police Department to purchase 2 props, a rescue litter, radio and communication equipment, a depth finder, spotlights, night marker lights, rope and fenders. NOW, THEREFORE BE IT RESOLVED, that the Mayor of the City of San Rafael is hereby authorized and directed to execute the Boating Safety and Enforcement Grant Equipment and Operation Contract (#09-204-773), in the form on file with the City Clerk, to fund the purchase of equipment for the Police Department patrol boat in an amount up to $25,000 by September 30, 2010. I, Esther Beirne, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the San Rafael City Council meeting held on December 7, 2009 by the following vote, to wit: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ESTHER BEIRNE, City Clerk STANDARD AGREEMENT SM. 21](V 02/9a) is entered into SCPRS NUMBER # eP 1036987 and the Contractor named below # 09-204-773 DEPARTMENT OF BOATING AND WATERWAYS CONTRACTOR'S NAME CITY OF SAN RAFAEL POLICE DEPARTMENT 2. The term of this Agreement is: FIFTEEN (15) YEARS 3. The maximum amount $ 25,000.00 of this Agreement is: 4. The parties agree to comply with the terms and conditions of the following exhibits which are by this reference made a part of the Agreement: Exhibit A — Standard Terms and Conditions Exhibit B — Administrative Requirements Exhibit C — Audits of State and Local Governments Exhibit D — Suggested Language for Certifications Exhibit E — Darfur Contracting Act *View at www.dgs.ca.gov/contracts LW, is been executed by the CONTRACTOR )arties hereto. CITY OF SAN RAFAEL POLICE DEPARTMENT BY (Authorized Signature) DATE SIGNED ALBERT J. BORO, MAYOR ATTEST: 1400 FIFTH AVENUE SAN RAFAEL CA 94915 STATE OF CALIFORNIA DEPARTMENT OF BOATING AND WATERWAYS 01114*619 RAYNOR TSUNEYOSHI, DIRECTOR 2000 EVERGREEN STREET SUITE 100 SACRAMENTO CA 95815 Department of General Services ® Exempt per 4.04 STANDARD AGREEMENT Sm, 213 (NEW 02/98) SCPRS NUMBER # eP 1036987 1. This Agreement is entered into between the State STATE AGENCY'S NAME DEPARTMENT OF BOATING AND WATERWAYS # 09-204-773 CITY OF SAN RAFAEL POLICE DEPARTMENT 2. The term of this Agreement is: FIFTEEN (15) YEARS 3. The maximum amount $ 25,000.00 of this Agreement is: 4. The parties agree to comply with the terms and conditions of the following exhibits which are by this reference made a part of the Agreement: Exhibit A — Standard Terms and Conditions Exhibit B — Administrative Requirements Exhibit C — Audits of State and Local Governments Exhibit D — Suggested Language for Certifications Exhibit E —Darfur Contracting Act *View at www.dgs.ca.gov/coritracts IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto. CALIFORNIA CONTRACTOR Department of General Services Use Only CONTRACTOR'S NAME (!f other than an individual, state whether a corporation, partnership, etc.) CITY OF SAN RAFAEL POLICE DEPARTMENT BY (Authorized Signature) DATE SIGNED PRINTED NAME AND TITLE OF PERSON SIGNING ALBERT J. BORO, MAYOR ATTEST: ADDRESS 1400 FIFTH AVENUE SAN RAFAEL CA 94915 STATE OF CALIFORNIA AGENCYNAME DEPARTMENT OF BOATING AND WATERWAYS BY (Authorized Signature) DATE SIGNED PRINTED NAME AND TITLE OF PERSON SIGNING RAYNOR TSUNEYOSHI, DIRECTOR ADDRESS 2000 EVERGREEN STREET SUITE 100 SACRAMENTO CA 95815 ® Exempt per 4.04 STANDARD AGREEMENT sm. 213 MW OV98) SCPRS NUMBER AUREEMEN'I NUMiSEK # el? 1036987 11 # 09-204-773 1. This Agreement is entered into between the State Agency and the Contractor named below STATE AGENCY'S NAME DEPARTMENT OF BOATING AND WATERWAYS CONTRACTOR'S NAME CITY OF SAN RAFAEL POLICE DEPARTMENT 2. The term of this Agreement is: FIFTEEN (15) YEARS 3. The maximum amount $ 25,000.00 of this Agreement is: 4. The parties agree to comply with the terms and conditions of the following exhibits which are by this reference made a part of the Agreement: Exhibit A — Standard Terms and Conditions Exhibit B — Administrative Requirements Exhibit C — Audits of State and Local Governments Exhibit D — Suggested Language for Certifications Exhibit E — Darfur Contracting Act *View at www.des.ca.gov/contracts IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto. CALIFORNIA CONTRACTOR Department of General Services Use Only CONTRACTOR'S NAME (If other than an individual, state whether a corporation, partnership, etc.) CITY OF SAN RAFAEL POLICE DEPARTMENT BY (Authorized Signature) DATE SIGNED PRINTED NAME AND TITLE OF PERSON SIGNING ALBERT J. BORO, MAYOR ATTEST: ADDRESS 1400 FIFTH AVENUE SAN RAFAEL CA 94915 STATE OF CALIFORNIA AGENCYNAME DEPARTMENT OF BOATING AND WATERWAYS BY (Authorized Signature) DATE SIGNED RA DIRECTOR 2000 EVERGREEN STREET SUITE 100 SACRAMENTO CA 95815 I ® Exempt per 4.04 STANDARD AGREEMENT STD. 213 MW 02/98) SCPRS NUMBER # eP 1036987 This Agreement is entered into between the State named below # 09-204-773 DEPARTMENT OF BOATING AND WATERWAYS CONTRACTOR'SNAME CITY OF SAN RAFAEL POLICE DEPARTMENT 2. The term of this Agreement is: FIFTEEN (15) YEARS 3. The maximum amount $ 25,000.00 of this Agreement is: 4. The parties agree to comply with the terms and conditions of the following exhibits which are by this reference made a part of the Agreement: Exhibit A — Standard Terms and Conditions Exhibit B — Administrative Requirements Exhibit C — Audits of State and Local Governments Exhibit D — Suggested Language for Certifications Exhibit E — Darfur Contracting Act *View at www.dgs.ca.gov/contracts DO this Agreement has CONTRACTOR CITY OF SAN RAFAEL POLICE DEPARTMENT BY (Authorized Signature) ALBERT J. BORO, MAYOR 1400 FIFTH AVENUE SAN RAFAEL CA 94915 3arties hereto. a corporation, parmersh DATE SIGNED ATTEST: STATE OF CALIFORNIA DEPARTMENT OF BOATING AND WATERWAYS RAYNOR 171=401033 Department of General Services 2000 EVERGREEN STREET SUITE 100 SACRAMENTO CA 95815 1 ® Exempt per 4.04 BOATING SAFETY AND ENFORCEMENT GRANT EQUIPMENT AND OPERATION CONTRACT CITY OF SAN RAFAEL POLICE DEPARTMENT [EQUIPMENT] # 09-204-773 California Department of Boating and Waterways INDEX CONTRACT PAGE CONTRACT DEFINITION..................................1 GRANT AMOUNT..................................1 PURCHASE COMPLETION DATE................................1 SPECIAL PROVISIONS..................................2 EXHIBIT A STANDARD TERMS AND CONDITIONS ARTICLE I, DEFINITIONS..................................3 ARTICLE II, TERM OF CONTRACT ..........................4 ARTICLE III, DISBURSEMENT OF GRANT.......................4 ARTICLE IV, EQUIPMENT OWNERSHIP .........................5 ARTICLE V, OPERATION AND MAINTENANCE OF EQUIPMENT ........ 5 ARTICLE VI, TERMINATION OF CONTRACT .....................6 ARTICLE VII, REVERSION OF EQUIPMENT TO DEPARTMENT ........ 7 ARTICLE VIII, LIABILITY .............................7 ARTICLE IX, WAIVER OF RIGHTS .............................8 ARTICLE X, REMEDIES NOT EXCLUSIVE .......................8 ARTICLE XI, OPINIONS AND DETERMINATIONS ..................9 ARTICLE XII, ASSIGNMENT OR TRANSFER OF EQUIPMENT ......... 9 ARTICLE XIII, PROCUREMENT PROCEDURES .....................9 DESCRIPTION EXHIBIT A (continued) PAGE ARTICLE XIV, SUBJECT TO AUDIT ............................12 ARTICLE XV, NON-DISCRIMINATION CLAUSE ..................13 ARTICLE XVI, DISABLED VETERAN BUSINESS ENTERPRISE PARTICIPATION REQUIREMENT - No Longer Applies Effective 8/26/2009 ARTICLE XVII, RECYCLING CERTIFICATION ...................14 ARTICLE XVIII, CONTRACTORS CERTIFICATION CLAUSES ......... 15 ARTICLE XIX, DISPOSITION OF PROCEEDS FROM SALE ..........16 EXHIBIT B 49 CFR 18, UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS ...........................17 EXHIBIT C CIRCULAR NO. A-128, AUDITS OF STATE AND LOCAL GOVERNMENTS ..........................67 EXHIBIT D SUGGESTED LANGUAGE FOR RECYCLING CERTIFICATION, CONTRACTOR CERTIFICATION CLAUSES,DVBE AND DARFUR.................... 79 EXHIBIT E DARFUR CONTRACTING ACT . . . . . . . . . . 86 BOATING SAFETY AND ENFORCEMENT GRANT EQUIPMENT AND OPERATION CONTRACT This CONTRACT #09-204-773, is entered into on October 20, 2009 between the California Department of Boating and Waterways (DEPARTMENT) and the City of San Rafael Police Department (GRANTEE) The DEPARTMENT and the GRANTEE agree as follows: 1: CONTRACT This CONTRACT includes EXHIBIT A, Standard Terms and Conditions, EXHIBIT B, 49 CFR Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, and EXHIBIT C, Circular No. A-128, Audits of State and Local Government. 2. GRANT The DEPARTMENT will make a grant to the GRANTEE of up to TWENTY-FIVE THOUSAND DOLLARS AND NO/100 ($25,000.00). This GRANT shall not exceed this amount, shall be made using Federal funds, and shall be used to purchase MISCELLANEOUS EQUIPMENT (2 props, rescue litter, radios/communications, depth finder, spotlights, night marker lights, rope and fenders) in accordance with EXHIBIT A. 3. PURCHASE COMPLETION DATE The EQUIPMENT purchase shall be completed no later than July 30, 2010. The DEPARTMENT will make payment under this CONTRACT upon receipt of a written request by the GRANTEE as specified in Article III and XIII of EXHIBIT A attached hereto. 1 4. SPECIAL PROVISIONS (a) GRANTEE hereby certifies that the obligations created by this CONTRACT do not violate the provisions of Sections 1090 to 1096 of the Government Code. (b) This CONTRACT is not fully executed until signed by the DEPARTMENT, GRANTEE, and approved by the Department of General Services, if required. Grantee may not go out to bid until CONTRACT is fully executed and equipment specifications have been approved by the DEPARTMENT. (c) GRANTEE hereby certifies that during the performance of this CONTRACT, GRANTEE and any sub -grantees shall fully comply with State regulations regarding the implementation of Disabled Veteran business participation goals as set forth in ARTICLE XVI, Disabled Veteran Business Enterprise Participation Requirements, ARTICLE XVII, Recycling Certification, and ARTICLE XVIII, CONTRACTORS CERTIFICATION CLAUSES. (d) GRANTEE shall continue with the responsibilities of this CONTRACT during any dispute. (e) Notices required between the DEPARTMENT and the GRANTEE shall be deemed to have been given when mailed to the respective addresses, first-class postage fully prepaid thereon. 2 EXHIBIT A STANDARD TERMS AND CONDITIONS FOR BOATING SAFETY AND ENFORCEMENT EQUIPMENT CONTRACT ARTICLE I — DEFINITIONS A. CONTRACT means the contract to which these standard terms and conditions are appended. B. EQUIPMENT means a DEPARTMENT approved electronics, power plant and other equipment purchased for use in boating safety and law enforcement activities. C. PURCHASE COSTS means those costs incurred by the GRANTEE. in purchasing the EQUIPMENT; such PURCHASE COSTS shall not include any operation and maintenance costs, nor any costs incurred prior to the effective date of this CONTRACT, nor any indirect or overhead costs claimed by the GRANTEE. D. GRANTEE FUNDS mean any funds provided by the GRANTEE for the operation and maintenance of the EQUIPMENT. E. GRANT means a grant, using FEDERAL FUNDS, made by the DEPARTMENT to the GRANTEE to finance all or part of the PURCHASE COSTS. 3 ARTICLE II — TERM OF CONTRACT A. The term of this CONTRACT shall begin on the effective date of the CONTRACT and shall continue for FIFTEEN [15] YEARS from such date unless terminated earlier in accordance with the terms and conditions of this CONTRACT B. No amendment or variation of the terms of this CONTRACT shall be valid unless made in writing, signed by the DEPARTMENT, GRANTEE, AND approved as required. No oral understanding or CONTRACT not incorporated in the CONTRACT is binding on any of the parties. ARTICLE III — DISBURSEMENT OF GRANT A. The DEPARTMENT shall have no obligation to disburse the GRANT B. C unless and until the GRANTEE obtains the prior written approval of the DEPARTMENT of the type and cost of the EQUIPMENT and attendant equipment. The DEPARTMENT will reimburse the GRANTEE through the GRANT for the PURCHASE COSTS of the EQUIPMENT. The DEPARTMENT may make payment under this CONTRACT upon receipt of a written -payment request by the GRANTEE, such request shall be substantiated by invoices or other such evidence of PURCHASE COSTS and a signed certification that the GRANTEE complied with procurement procedures as outlined in ARTICLE XIII. 2 ARTICLE IV — EQUIPMENT OWNERSHIP The DEPARTMENT shall be the legal owner of the EQUIPMENT. The GRANTEE shall not assign, mortgage, hypothecate or transfer its interest in the EQUIPMENT without the prior written approval of the DEPARTMENT. ARTICLE V — OPERATION AND MAINTENANCE OF EQUIPMENT A. The GRANTEE shall use the EQUIPMENT for the purposes of boating safety and law enforcement and shall keep the EQUIPMENT available for search and rescue operations. B. The GRANTEE shall be responsible for the costs of operating and maintaining the EQUIPMENT; the DEPARTMENT shall not be liable for such costs. C. The GRANTEE shall maintain the EQUIPMENT in good repair. D. The GRANTEE, at its own expense, agrees to replace the EQUIPMENT if it is destroyed or rendered useless prior to the expiration of this CONTRACT. E. Representatives, agents or employees of the GRANTEE in the performance of this CONTRACT shall act in independent capacity and not as officers, employees or agents of the DEPARTMENT. F. The GRANTEE shall keep complete and accurate records of all expenditures pertaining to the purchase of additional equipment and the operation and maintenance of the EQUIPMENT; such records shall be available and open to the DEPARTMENT at all reasonable times for inspection and audit by any authorized representative of the DEPARTMENT. 5 ARTICLE VI - TERMINATION OF CONTRACT A. Either DEPARTMENT or GRANTEE may unilaterally terminate this CONTRACT if a material breach of the CONTRACT is made by the other; such termination shall become effective NINETY [90] DAYS following the date of receipt by either the DEPARTMENT or the GRANTEE of a written notice of termination from the party initiating the termination. B. The GRANTEE may.terminate this CONTRACT if the GRANTEE becomes financially or legally unable to comply with the terms and conditions of this CONTRACT; such termination shall become effective NINETY [90] DAYS following receipt by the DEPARTMENT of a written notice of termination from the GRANTEE. C. The DEPARTMENT may terminate this contract immediately and be relieved of any payments should the legislative body of the GRANTEE fail to appropriate GRANTEE FUNDS or if the GRANTEE fails to perform the requirements of this Agreement at the time and in the manner herein provided; such termination to become effective upon receipt by the GRANTEE of a written termination notice from the DEPARTMENT. D. This CONTRACT shall terminate three years after the effective date specified on page 1 of the CONTRACT if the GRANTEE has not received all of the GRANT prior to such date. G ARTICLE VII — REVERSION OF EQUIPMENT TO DEPARTMENT If, for any reason whatsoever, this CONTRACT is terminated prior to the expiration of the term of the CONTRACT, then the GRANTEE shall deliver the EQUIPMENT to the DEPARTMENT and shall execute any document necessary to effect appropriate changes in pertinent public records; the reversion of registered title is hereby declared to be in addition to, and not in lieu of, any other remedies for breach of this CONTRACT which may be available to the DEPARTMENT. ARTICLE VIII — LIABILITY A. The GRANTEE waives all claims and recourse against the DEPARTMENT, including the right to contribution for any loss or damage arising from, growing out of or in any way connected with or incident to this CONTRACT. B. Contractor agrees to indemnify, defend and save harmless the State, its officers, agents and employees from any and all claims and losses accruing or resulting to any and all contractors, subcontractors, suppliers, laborers, and any other person, firm or corporation furnishing or supplying work services, materials, or supplies in connection with the performance of this Agreement, and from any and all claims and losses accruing or resulting to any person, firm or corporation who may be injured or damaged by GRANTEE in the performance of this Agreement. GRANTEE warrants, represents and agrees that it and its subcontractors, employees and representatives shall 7 at all times comply with all applicable State contracting laws, codes, rules and regulations in the performance of this agreement. C. If the DEPARTMENT is named as a co-defendant pursuant to Government Code Sections 895, et seq, the GRANTEE shall notify the DEPARTMENT and represent it unless the DEPARTMENT elects to represent itself. If the DEPARTMENT undertakes its own defense, it shall bear its own litigation costs, expenses and attorney's fees. ARTICLE IX — WAIVER OF RIGHTS It is the intention of the parties hereto that from time to time either party may waive certain of its rights under this CONTRACT. Any waiver at this time by either party hereto of its rights with respect to a default or any other matter arising in connection with this CONTRACT shall not be deemed to be a waiver with respect to any other default or matter. ARTICLE X — REMEDIES NOT EXCLUSIVE The use by either the DEPARTMENT or GRANTEE of any remedy specified in this CONTRACT for the enforcement of this CONTRACT is not exclusive and shall not deprive the party using such remedy of, or limit the application of, any other remedy provided by law. I ARTICLE XI — OPINIONS AND Where the terms of CONTRACT provide for action to be based upon the opinion, judgment, approval, review, or determination of either the DEPARTMENT or GRANTEE, such terms are not intended to be and shall never be construed as permitting such opinion, judgment, approval, review, or determination to be arbitrary, capricious, or unreasonable. ARTICLE XII — ASSIGNMENT OR TRANSFER OF EQUIPMENT No assignment or transfer of this CONTRACT or any part hereof, rights hereunder, or interest herein by GRANTEE shall be valid unless and until it is approved by the DEPARTMENT and made subject to such reasonable terms and conditions as the DEPARTMENT may impose. ARTICLE XIII — PROCUREMENT PROCEDURES A. The GRANTEE may use its own procurement procedures which reflect applicable State and Local laws and regulations, provided that the procedures conform to applicable Federal law, the standards identified in EXHIBIT B, 49 CFR Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, and the specifications prepared by the GRANTEE and approved by the DEPARTMENT. There shall be no changes, corrections; modifications or exceptions to DEPARTMENT approved specifications without advance approval by the DEPARTMENT. N ARTICLE XIII — PROCUREMENT PROCEDURES (CONTINUED) B. Procurement procedures for boats must be invitation for Bids. Please pay special attention to the specific procurement standards regarding advertising by your department, adequate purchase descriptions, sealed bids, and public openings. C. Procurement procedures used by the GRANTEE must conform to State law and regulations regarding Disabled Veteran Business Enterprise Participation Requirements, ARTICLE XVI, Recycling Certification, ARTICLE XVII, AND CONTRACTORS CERTIFICATION CLAUSES, ARTICLE XVIII. The GRANTEE is responsible, in its sole discretion, for the review of all bids for compliance. D. EQUIPMENT AND ELECTRONICS PROCCEDUREMENT PROCEDURES: Grantee must obtain at least three (3) bids or rate quotations from qualified sources for each item that has a unit cost of $5,000 or more. The bids may be obtained over the phone, but must be verified with a fax or original copy from the vendor, and must include the make, model, size, name of vendor, date, and cost of item. E. AWARDING AGENCY REVIEW (1) Grantees and sub -grantees must make available, upon request of the awarding agency, technical specifications on proposed procurements where the awarding agency believes such review is needed to ensure that the item and/or services specified is the one being proposed for purchase. This review generally will take place prior to the time the 1n ARTICLE XIII — PROCUREMENT PROCEDURES (CONTINUED) specification is incorporated into a solicitation document. However, if the grantee or sub -grantee desires to have the review accomplished after a solicitation has been developed, the awarding agency may still review the specifications, with such review usually limited to the technical aspects of the proposed purchase. (2) Grantees and sub -grantees must on request make available for Awarding agency pre -award review procurement documents, such as requests for proposals or invitations for bids, independent cost estimates, .etc. when: (A) A grantee's or sub -grantee's procurement procedures or operation fails to comply with the procurement standards in this section; or (8) The procurement is expected to be awarded without competition or only one bid or offer is received in response to a solicitation; or (C) The proposed award is to be awarded to other than the apparent low bidder under a sealed bid procurement; or (D) A proposed contract modification changes the scope of a contract. (3) A grantee or sub -grantee will be exempt from the pre -award review in paragraph (D)(2) of this section if the awarding agency determines that its procurement systems comply with the standards of this section. ARTICLE XIII — PROCUREMENT PROCEDURES (CONTINUED) (A)A grantee or sub -grantee may request that its procurement system be reviewed by the awarding agency to determine whether its system meets these standards in order for its system to be certified. Generally, these reviews shall occur where there is a continuous high - dollar funding, a third -party contracts are awarded on a regular basis. (8)A grantee or sub -grantee may self -certify its Procurement system. Such self -certification shall not Limit the warding agency's right to survey the system. Under a self -certification procedure, awarding agencies may wish to reply on written assurances from the grantee or sub -grantee that it is complying with these standards. A grantee or sub -grantee will cite specific procedures, regulations, standards, etc., as being in compliance with these requirements and have its system available for review. ARTICLE XIV - SUBJECT TO AUDIT GRANTEE agrees that the awarding department, the Department of General Services, the Bureau of State Audits, or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. GRANTEE agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer 19 ARTICLE XIV — SUBJECT TO AUDIT (CONTINUED) period of records retention is stipulated. GRANTEE agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, GRANTEE agrees to include a similar right of the State to audit records and interview staff in any subcontract related to performance of this Agreement (GC 8546.7, PCC 10115 et seq., and CCR Title 2, Section 1896). ARTICLE XV — NON-DISCRIMINATION CLAUSE A. During the performance of this contract, GRANTEE and its sub grantees shall not unlawfully discriminate, harass or allow harassment, against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, disability (including HIV and AIDS), medical condition (cancer), age, marital status, denial of family and medical care leave and denial of pregnancy disability leave. GRANTEES and sub -grantees shall insure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination and harassment. GRANTEES and sub -grantees shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12990 (a -f), 13 ARTICLE XV — NON-DISCRIMINATION CLAUSE (Continued) are set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations and are incorporated into this CONTRACT by reference and made a part hereof as if set forth in full. GRANTEE and sub -grantees shall give written notice of their obligations under this clause to labor organization with which they have a collective bargaining or other agreement. B. GRANTEE shall include the non-discrimination and compliance provisions of this clause in all sub -grants to perform work under this CONTRACT. ARTICLE XVI — DISABLED VETERAN BUSINESS ENTERPRISE PARTICIPATION REQUIREMENT No Longer Applies (effective 08/26/09) ARTICLE XVII — RECYCLING CERTIFICATION A. State law requires that state contracts shall have Recycling Certification in writing under penalty of perjury, the minimum, if not exact, percentage of recycled content, both post consumer waste and secondary waste as defined in the Public Contract Code, Sections 12161 and 12200, in materials, goods, or supplies offered or products used in the performance of this Agreement, regardless of whether the product meets the required recycled product percentage as defined in the Public Contract Code, Sections 12161 and 12200. Contractor may certify that the product contains zero recycled content. (PCC 10233, 10308.5, 10354) B. GRANTEE is responsible for advising all prospective bidders of responsibilities and requirements by including specific language 14 in any and all Invitations for Bids and Requests for Proposals. Suggested language and forms which may be used are attached to this exhibit. C. The GRANTEE is responsible for reviewing all bids for compliance with Recycling Certification requirement. ARTICLE XVIII — CONTRACTOR CERTIFICATION CLAUSES A. The CONTRACTOR CERTIFICATION CLAUSES contained in document CCC298 are hereby incorporated by reference and made a part of this Agreement by this reference as if attached hereto. B. GRANTEE is responsible for advising all prospective bidders of responsibilities and requirements by including specific language in any and all Invitations for Bids and Requests for Proposals. Suggested language and forms which may be used are attached to this exhibit. C. The GRANTEE is responsible for reviewing all bids for compliance with Recycling Certification requirement. 15 ARTICLE XIX — DISPOSITION OF PROCEEDS FROM SALE OF EQUIPMENT If the GRANTEE has contributed money other than GRANT funds to cover the payment of PURCHASE COSTS, and in the event of a sale of the EQUIPMENT after the expiration or termination of this CONTRACT or the reversion of the EQUIPMENT to the DEPARTMENT, then the proceeds of the EQUIPMENT sale shall be distributed between the DEPARTMENT and the GRANTEE in proportion to their respective contributions in paying the PURCHASE COSTS, e.g.: if the PURCHASE COSTS totaled $100,000 and the GRANT contribution amounts to $60,000, then the DEPARTMENT would receive 60% of the EQUIPMENT sale proceeds and the GRANTEE would receive 40%. 1F EXHIBIT B [Code of Federal Regulations] [Title 49, Volume 1, Parts 1 to 991 [Revised as of October 1, 1997] From the U.S. Government Printing Office via GPO Access [CITE: 49CFR181 TITLE 49—TRANSPORTATION Subtitle A—office of the Secretary of Transportation PART 18—UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS Subpart A—General Sec. 18.1 Purpose and scope of this part. 18.2 Scope of subpart. 18.3 Definitions. 18.4 Applicability. 18.5 Effect on other issuance's. 18.6 Additions and exceptions. Subpart B—Pre-Award Requirements 18.10 Forms for applying for grants. 18.11 State plans. 18.12 Special grant or sub grant conditions for "high risk^ grantees. Subpart C—Post-Award Requirements Financial Administration 18.20 Standards for financial management systems. 18.21 Payment. 18.22 Allowable costs. 18.23 Period of availability of funds. 18.24 Matching or cost sharing. 18.25 Program income. 18.26 Non -Federal audits. Changes, Property, and Sub awards 18.30 Changes. 18.31 Real property. 18.32 Equipment. 18.33 Supplies. 18.34 Copyrights. 18.35 Sub awards to debarred and suspended parties. 18.36 Procurement. 18.37 Sub grants. 17 Reports, Records Retention, and Enforcement 18.40 Monitoring and reporting program performance. 18.41 Financial reporting. 18.42 Retention and access requirements for records. 18.43 Enforcement. 18.44 Termination for convenience. Subpart D—After-the-Grant Requirements 18.50 Closeout. 18.51 Later disallowance's and adjustments. 18.52 Collection of amounts due. Subpart E—Entitlements [Reserved] Authority: 49 U.S.C. 322(a).Source: 53 FR 8086 and 8087, Mar. 11, 1988, unless otherwise noted. Editorial Note: For additional information, see related documents published at 49 FR 24958, June 18, 1984, 52 FR 20198, May 29, 1987, and 53 FR 8028, March 11, 1988. A—General Sec. 18.1 Purpose and scope of this part. This part establishes uniform administrative rules for Federal grants and cooperative agreements and sub awards to State, local and Indian tribal governments. Sec. 18.2 Scope of subpart. This subpart contains general rules pertaining to this part and procedures for control of exceptions from this part. Sec. 18.3 Definitions. As used in this part: Accrued expenditures mean the charges incurred by the grantee during a given period requiring the provision of funds for: (1) Goods and other tangible property received; (2) services performed by employees, contractors, sub grantees, subcontractors, and other payees; and (3) other amounts becoming owed under programs for which no current services or performance is required, such as annuities, insurance claims, and other benefit payments. Accrued income means the sum of: (1) Earnings during a given period from services performed by the grantee and goods and other tangible property delivered to purchasers, and 1R (2) amounts becoming owed to the grantee for which no current services or performance is required by the grantee. Acquisition cost of an item of purchased equipment means the net invoice unit price of the property including the cost of modifications, attachments, accessories, or auxiliary apparatus necessary to make the property usable for the purpose for which it was acquired. Other charges such as the cost of installation, transportation, taxes, duty or protective in -transit insurance, shall be included or excluded from the unit acquisition cost in accordance with the grantee's regular accounting practices. Administrative requirements mean those matters common to grants in general, such as financial management, kinds and frequency of reports, and retention of records. These are distinguished from "programmatic" requirements, which concern matters that can be treated only on a program -by -program or grant -by -grant basis, such as kinds of activities that can be supported by grants under a particular program. Awarding agency means: (1) with respect to a grant, the Federal agency, (2) with respect to a sub grant, the party that awarded the sub grant. Cash contributions means the grantee's cash outlay, including the outlay of money contributed to the grantee or sub grantee by other public agencies and institutions, and private organizations and individuals. When authorized by Federal legislation, Federal funds received from other assistance agreements may be considered as grantee or sub grantee cash contributions. Contract means (except as used in the definitions for "grant" and "sub grant" in this section and except where qualified by "Federal")a procurement contract under a grant or sub grant, and means a procurement subcontract under a contract. Cost sharing or matching means the value of the third party in-kind contributions and the portion of the costs of a federally assisted project or program not borne by the Federal Government. Cost -type contract means a contract or subcontract under a grant in which the contractor or subcontractor is paid on the basis of the costs it incurs, with or without a fee. Equipment means tangible, nonexpendable, personal property having a useful life of more than one year and an acquisition cost of $5,000 or more per unit. A grantee may use its own definition of equipment provided that such definition would at least include all equipment defined above. Expenditure report means: (1) For non -construction grants, the SF -269 "Financial Status Report" (or other equivalent report); 19 (2) for construction grants, the SF -271 "Outlay Report and Request for Reimbursement" (or other equivalent report). Grant means an award of financial assistance, including cooperative agreements, in the form of money, or property in lieu of money, by the Federal Government to an eligible grantee. The term does not include technical assistance which provides services instead of money, or other assistance in the form of revenue sharing, loans, loan guarantees, interest subsidies, insurance, or direct appropriations. Also, the term does not include assistance, such as a fellowship or other lump sum award, which the grantee is not required to account for. Grantee means the government to which a grant is awarded and which is accountable for the use of the funds provided. The grantee is the entire legal entity even if only a particular component of the entity is designated in the grant award document. Local government means a county, municipality, city, town, township, local public authority (including any public and Indian housing agency under the United States Housing Act of 1937) school district, special district, intrastate district, council of governments (whether or not incorporated as a nonprofit corporation under state law), any other regional or interstate government entity, or any agency or instrumentality of a local government. Obligations means the amounts of orders placed, contracts and sub grants awarded, goods and services received, and similar transactions during a given period that will require payment by the grantee during the same or a future period. OMB means the United States Office of Management and Budget. Outlays (expenditures) mean charges made to the project or program. They may be reported on a cash or accrual basis. For reports prepared on a cash basis, outlays are the sum of actual cash disbursement for direct charges for goods and services, the amount of indirect expense incurred, the value of in-kind contributions applied, and the amount of cash advances and payments made to contractors and sub grantees. For reports prepared on an accrued expenditure basis, outlays are the sum of actual cash disbursements, the amount of indirect expense incurred, the value of in kind contributions applied, and the new increase (or decrease) in the amounts owed by the grantee for goods and other property received, for services performed by employees, contractors, sub grantees, subcontractors, and other payees, and other amounts becoming owed under programs for which no current services or performance are required, such as annuities, insurance claims, and other benefit payments. Percentage of completion method refers to a system under which payments are made for construction work according to the 0n percentage of completion of the work, rather than to the grantee's cost incurred. Prior approval means documentation evidencing consent prior to incurring specific cost. Real property means land, including land improvements, structures and appurtenances thereto, excluding movable machinery and equipment. Share, when referring to the awarding agency's portion of real property, equipment or supplies, means the same percentage as the awarding agency's portion of the acquiring party's total costs under the grant to which the acquisition costs of the property was charged. Only costs are to be counted—not the value of third -party in-kind contributions. State means any of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, or any agency or instrumentality of a State exclusive of local governments. The term does not include any public and Indian housing agency under United States Housing Act of 1937. Sub grant means an award of financial assistance in the form of money, or property in lieu of money, made under a grant by a grantee to an eligible sub grantee. The term includes financial assistance when provided by contractual legal agreement, but does not include procurement purchases, nor does it include any form of assistance which is excluded from the definition of "grant" in this part. Sub grantee means the government or other legal entity to which a sub grant is awarded and which is accountable to the grantee for the use of the funds provided. Supplies means all tangible personal property other than "equipment" as defined in this part. Suspension means depending on the context, either: (1) temporary withdrawal of the authority to obligate grant funds pending corrective action by the grantee or sub grantee or a decision to terminate the grant, or (2) an action taken by a suspending official in accordance with agency regulations implementing E.O. 12549 to immediately exclude a person from participating in grant transactions for a period, pending completion of an investigation and such legal or debarment proceedings as may ensue. Termination means permanent withdrawal of the authority to obligate previously -awarded grant funds before that authority would otherwise expire. It also means the voluntary relinquishment of that authority by the grantee or sub grantee. "Termination" does not include: (1) Withdrawal of funds awarded on the basis of the grantee's underestimate of the un -obligated balance in a prior period; (2) Withdrawal of the un -obligated balance as of the expiration of a grant; 21 (3) Refusal to extend a grant or award additional funds, to make a competing or non -competing continuation, renewal, extension, or supplemental award; or (4) voiding of a grant upon determination that the award was obtained fraudulently, or was otherwise illegal or invalid from inception. Terms of a grant or sub grant mean all requirements of the grant or sub grant, whether in statute, regulations, or the award document. Third party in-kind contributions mean property or services which benefit a federally assisted project or program and which are contributed by non -Federal third parties without charge to the grantee, or a cost -type contractor under the grant agreement. Un -liquidated obligations for reports prepared on a cash basis mean the amount of obligations incurred by the grantee that has not been paid. For reports prepared on an accrued expenditure basis, they represent the amount of obligations incurred by the grantee for which an outlay has not been recorded. Un -obligated balance means the portion of the funds authorized by the Federal agency that has not been obligated by the grantee and is determined by deducting the cumulative obligations from the cumulative funds authorized. Sec. 18.4 Applicability. (a) General. Subparts A through D of this part apply to all grants and sub grants to governments, except where inconsistent with Federal statutes or with regulations authorized in accordance with the exception provision of Sec. 18.6, or: (1) Grants and sub grants to State and local institutions of higher education or State and local hospitals. (2) The block grants authorized by the Omnibus Budget Reconciliation Act of 1981 (Community Services; Preventive Health and Health Services; Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child Health Services; Social Services; Low -Income Home Energy Assistance; States' Program of Community Development Block Grants for Small Cities; and Elementary and Secondary Education other than programs administered by the Secretary of Education under title V, subtitle D, chapter 2, Section 583—the Secretary's discretionary grant program) and titles I -III of the Job Training Partnership Act of 1982 and under the Public Health Services Act (Section 1921), Alcohol and Drug Abuse Treatment and Rehabilitation Block Grant and part C of title V, Mental Health Service for the Homeless Block Grant). (3) Entitlement grants to carry out the following programs of the Social Security Act: (i) Aid to Needy Families with Dependent Children (title IV -A of the Act, not including the Work Incentive Program 77 (WIN) authorized by section 402(a)19(G); HHS grants for WIN are subject to this part); (ii) Child Support Enforcement and Establishment of Paternity (title IV -D of the Act); (iii) Foster Care and Adoption Assistance (title IV -E of the Act); (iv) Aid to the Aged, Blind, and Disabled (titles I, X, XIV, and XVI-AABD of the Act); and (v) Medical Assistance (Medicaid) (title XIX of .the Act) not including the State Medicaid Fraud Control program authorized by section 1903(a)(6)(B). (4) Entitlement grants under the following programs of The National School Lunch Act: (i) School Lunch (section 4 of the Act), (ii) Commodity Assistance (section 6 of the Act), (iii) Special Meal Assistance (section 11 of the Act), (ivj Summer Food Service for Children (section 13 of the Act), and (v) Child Care Food Program (section 17 of the Act). (5) Entitlement grants under the following programs of The Child Nutrition Act of 1966: (i) Special Milk (section 3 of the Act), and (ii) School Breakfast (section 4 of the Act). (6) Entitlement grants for State Administrative expenses under The Food Stamp Act of 1977 (section 16 of the Act). (7) A grant for an experimental, pilot, or demonstration project that is also supported by a grant listed in paragraph (a)(3) of this section; (8) Grant funds awarded under subsection 412(e) of the Immigration and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the Refugee Education Assistance Act of 1980 (Pub. L.96-422, 94 Stat. 1809), for cash assistance, medical assistance, and supplemental security income benefits to refugees and entrants and the administrative costs of providing the assistance and benefits; (9) Grants to local education agencies under 20 U.S.C. 236 through 241-1(a), and 242 through 244 (portions of the Impact Aid program), except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for Handicapped Children); and (10) Payments under the Veterans Administration's State Home Per Diem Program (38 U.S.C. 641(a)). (b) Entitlement programs. Entitlement programs enumerated above in Sec. 18.4(a) (3) through (8) are subject to subpart E. Sec. 18.5 Effect on other issuance's. All other grants administration provisions of codified program regulations, program manuals, handbooks and other 1)� nonregulatory materials which are inconsistent with this part are superseded, except to the extent they are required by statute, or authorized in accordance with the exception provision in'Sec. 18.6. Sec. 18.6 Additions and exceptions. (a) For classes of grants and grantees subject to this part, Federal agencies may not impose additional administrative requirements except in codified regulations published in the Federal Register. (b) Exceptions for classes of grants or grantees may be authorized only by OMB. (1) All Departmental requests for exceptions shall be processed through the Assistant Secretary of Administration. (2) [Reserved] (c) Exceptions on a case-by-case basis and for subgrantees may be authorized by the affected Federal agencies. (1) All case-by-case exceptions may be authorized by the affected operating administrations or departmental offices, with the concurrence of the Assistant Secretary for Administration. (2) [Reserved] [53 FR 8086 and 8087, Mar. 11, 1988, as amended at 60 FR 19646, Apr. 19, 1995] Subpart B—Pre-Award Requirements Sec. 18.10 Forms for applying for grants. (a) Scope. (1) This section prescribes forms and instructions to be used by governmental organizations (except hospitals and institutions of higher education operated by a government) in applying for grants. This section is not applicable, however, to formula grant programs which do not require applicants to apply for funds on a project basis. (2) This section applies only to applications to Federal agencies for grants, and is not required to be applied by grantees in dealing with applicants for sub grants. However, grantees are encouraged to avoid more detailed or burdensome application requirements for sub grants. (3) Forms and procedures for Federal Highway Administration (FHWA) projects are contained in 23 CFR part 630, subpart B, 23 CFR part 420, subpart A, and 49 CFR part 450. (b) Authorized forms and instructions for governmental organizations. (1) In applying for grants, applicants shall only use standard application forms or those prescribed by the granting 0A agency with the approval of OMB under the Paperwork Reduction Act of 1980. (2) Applicants are not required to submit more than the original and two copies of preapplications or applications. (3) Applicants must follow all applicable instructions that bear OMB clearance numbers. Federal agencies may specify and describe the programs, functions, or activities that will be used to plan, budget, and evaluate the work under a grant. Other supplementary instructions may be issued only with the approval of OMB to the extent required under the Paperwork Reduction Act of 1980. For any standard form, except the SF -424 face sheet, Federal agencies may shade out or instruct the applicant to disregard any line item that is not needed. (4) When a grantee applies for additional funding (such as a continuation supplemental award) or amends a previously submitted application, only the affected pages need be submitted. Previously submitted pages with information that is still current need not be resubmitted.[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 1988]Sec. 18.11 State plans. (a) Scope. The statutes for some programs require States to submit plans before receiving grants. Under regulations implementing Executive Order 12372, "Intergovernmental Review of Federal Programs," States are allowed to simplify, consolidate and substitute plans. This section contains additional provisions for plans that are subject to regulations implementing the Executive order. (b) Requirements. A State need meet only Federal administrative or programmatic requirements for a plan that are in statutes or codified regulations. (c) Assurances. In each plan the State will include an assurance that the State shall comply with all applicable Federal statutes and regulations in effect with respect to the periods for which it receives grant funding. For this assurance and other assurances required in the plan, the State may: (1) Cite by number the statutory or regulatory provisions requiring the assurances and affirm that it gives the assurances required by those provisions, (2) Repeat the assurance language in the statutes or regulations, or (3) Develop its own language to the extent permitted by law. (d) Amendments. A State will amend a plan whenever necessary to reflect: (1) New or revised Federal statutes or regulations or (2) a material change in any State law, organization, policy, 25 or State agency operation. The State will obtain approval for the amendment and its effective date but need submit for approval only the amended portions of the plan. Sec. 18.12 Special grant or sub grant conditions for "high-risk" grantees. (a) A grantee or sub grantee may be considered "high risk" if an awarding agency determines that a grantee or sub grantee: (1) Has a history of unsatisfactory performance, or (2) Is not financially stable, or (3). Has a management system which does not meet the management standards set forth in this part, or (4) Has not conformed to terms and conditions of previous awards, or (5) Is otherwise not responsible; and if the awarding agency determines that an award will be made, special conditions and/or restrictions shall correspond to the high risk condition and shall be included in the award. (b) Special conditions or restrictions may include: (1) Payment on a reimbursement basis; (2) Withholding authority to proceed to the next phase until receipt of evidence of acceptable performance within a given funding period; (3) Requiring additional, more detailed financial reports; (4) Additional project monitoring; (5) Requiring the grantee or sub grantee to obtain technical or management assistance; or (6) Establishing additional prior approvals. (c) If an awarding agency decides to impose such conditions, the awarding official will notify the grantee or sub grantee as early as possible, in writing, of: (1) The nature of the special conditions/restrictions; (2) The reason(s) for imposing them; (3) The corrective actions which must be taken before they will be removed and the time allowed for completing the corrective actions; and (4) The method of requesting reconsideration of the conditions/ restrictions imposed. Subpart C—Post-Award Requirements. Financial Administration Sec. 18.20 Standards for financial management systems. (a) A State must expand and account for grant funds in accordance with State laws and procedures for expending and accounting for its own funds. Fiscal control and accounting procedures of the State, as well as its sub grantees and cost -type contractors, must be sufficient to— (1) Permit preparation of reports required by this part and the statutes authorizing the grant, and ?r (2) Permit the tracing of funds to a level of expenditures adequate to establish that such funds have not been used in violation of the restrictions and prohibitions of applicable statutes. (b) The financial management systems of other grantees and sub grantees must meet the following standards: (1) Financial reporting. Accurate, current, and complete disclosure of the financial results of financially assisted activities must be made in accordance with the financial reporting requirements of the grant or sub grant. (2) Accounting records. Grantees and sub grantees must maintain records which adequately identify the source and application of funds provided for financially - assisted activities. These records must contain information pertaining to grant or sub grant awards and authorizations, obligations, unobligated balances, assets, liabilities, outlays or expenditures, and income. (3) Internal control. Effective control and accountability must be maintained for all grant and sub grant cash, real and personal property, and other assets. Grantees and sub grantees must adequately safeguard all such property and must assure that it is used solely for authorized purposes. (4) Budget control. Actual expenditures or outlays must be compared with budgeted amounts for each grant or sub grant. Financial information must be related to performance or productivity data, including the development of unit cost information whenever appropriate or specifically required in the grant or sub grant agreement. If unit cost data are required, estimates based on available documentation will be accepted whenever possible. (5) Allowable cost. Applicable OMB cost principles, agency program regulations, and the terms of grant and sub grant agreements will be followed in determining the reasonableness, allowability, and allocability of costs. (6) Source documentation. Accounting records must be supported by such source documentation as cancelled checks, paid bills, payrolls, time and attendance records, contract and sub grant award documents, etc. (7) Cash management. Procedures for minimizing the time elapsing between the transfer of funds from the U.S. Treasury and disbursement by grantees and sub grantees must be followed whenever advance payment procedures are used. Grantees must establish reasonable procedures to ensure the receipt of reports on sub grantees' cash balances and cash disbursements in sufficient time to enable them to prepare complete and accurate cash transactions reports to the awarding agency. When advances are made by letter -of -credit or electronic transfer of funds methods, the grantee must make 27 drawdowns as close as possible to the time of making disbursements. Grantees must monitor cash drawdowns by their sub grantees to assure that they conform substantially to the same standards of timing and amount as apply to advances to the grantees. (c) An awarding agency may review the adequacy of the financial management system of any applicant for financial assistance as part of a pre -award review or at any time subsequent to award. (d) Certain Urban Mass Transportation Administration (UMTA) grantees shall comply with the requirements of section 15 of the Urban Mass Transportation (UMT) Act of 1964, as amended, as implemented by 49 CFR part 630, regarding a uniform system of accounts and records and a uniform reporting system for certain grantees.[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 1988] Sec. 18.21 Payment. (a) Scope. This section prescribes the basic standard and methods under which a Federal agency will make payments to grantees, and grantees will make payments to sub grantees contractors. (b) Basic standard. Methods and procedures for payment shall minimize the time elapsing between the transfer of funds and disbursement by the grantee or sub grantee, in accordance with Treasury regulations at 31 CFR part 205. (c) Advances. Grantees and sub grantees shall be paid in advance, provided they maintain or demonstrate the willingness and ability to maintain procedures to minimize the time elapsing between the transfer of the funds and their disbursement by the grantee or sub grantee. (d) Reimbursement. Reimbursement shall be the preferred method when the requirements in paragraph (c) of this section are not met. Grantees and sub grantees may also be paid by reimbursement for any construction grant. Except a., otherwise specified in regulation, Federal agencies shall not use the percentage of completion method to pay construction grants. The grantee or sub grantee may use that method to pay its construction contractor, and if it does, the awarding agency's payments to the grantee or sub grantee will be based on the grantee's or sub grantee's actual rate of disbursement. (e) Working capital advances. If a grantee cannot meet the criteria for advance payments described in paragraph (c) of this section, and the Federal agency has determined that reimbursement is not feasible because the grantee lacks sufficient working capital, the awarding agency may provide cash or a working capital advance basis. Under this procedure the awarding agency shall advance cash to the grantee to cover its estimated disbursement needs for an initial period generally geared to the grantee's disbursing ME the and Cycle. Thereafter, the awarding agency shall reimburse the grantee for its actual cash disbursements. The working capital advance method of payment shall not be used by grantees or sub grantees if the reason for using such method is the unwillingness or inability of the grantee to provide timely advances to the sub grantee to meet the sub grantee's actual cash disbursements. (f) Effect of program income, refunds, and audit recoveries on payment.. (1) Grantees and sub grantees shall disburse repayments to and interest earned on a revolving fund before requesting additional cash payments for the same activity. (2) Except as provided in paragraph (f) (1) of this section, grantees and sub grantees shall disburse program income, rebates, refunds, contract settlements, audit recoveries and interest earned on such funds before requesting additional cash payments. (g) Withholding payments. (1) Unless otherwise required by Federal statute, awarding agencies shall not withhold payments for proper charges incurred by grantees or sub grantees unless— (i) The grantee or sub grantee has failed to comply with grant award conditions or (ii) The grantee or sub grantee is indebted to the United States. (2) Cash withheld for failure to comply with grant award condition, but without suspension of the grant, shall be released to the grantee upon subsequent compliance. When a grant is suspended, payment adjustments will be made in accordance with Sec. 18.43(c). (3) A Federal agency shall not make payment to grantees for amounts that are withheld by grantees or sub grantees from payment to contractors to assure satisfactory completion of work. Payments shall be made by the Federal agency when the grantees or sub grantees actually disburse the withheld funds to the contractors or to escrow accounts established to assure satisfactory completion of work. (h) Cash depositories. (1) Consistent with the national goal of expanding the opportunities for minority business enterprises, grantees and sub grantees are encouraged to use minority banks (a bank which is owned at least 50 percent by minority group members). A list of minority owned banks can be obtained from the Minority Business Development Agency, Department of Commerce, Washington, DC 20230. (2) A grantee or sub grantee shall maintain a separate bank account only when required by Federal -State agreement. (i) Interest earned on advances. Except for interest earned on advances of funds exempt under the Intergovernmental Cooperation Act (31 U.S.C. 6501 et 29 seq.) and the Indian Self Determination Act (23 U.S.C. 450), grantees and sub grantees shall promptly, but at least quarterly, remit interest earned on advances to the Federal agency. The grantee or sub grantee may keep interest amounts up to $100 per year for administrative expenses. (j) 23 U.S.C. 121 limits payments to States for highway construction projects to the Federal share of the costs of construction incurred to date, plus the Federal share of the value of stockpiled materials. (k) Section 404 of the Surface Transportation Assistance Act of 1982 directs the Secretary to reimburse States for the Federal share of costs incurred. [53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 1988] Sec. 18.22 Allowable costs. (a) Limitation on use of funds. Grant funds may be used only for: (1) The allowable costs of the grantees, sub grantees and cost -type contractors, including allowable costs in the form of payments to fixed-price contractors; and (2) Reasonable fees or profit to cost -type contractors but not any fee or profit (or other increment above allowable costs) to the grantee or sub grantee. (b) Applicable cost principles. For each kind of organization, there is a set of Federal principles for determining allowable costs. Allowable costs will be determined in accordance with the cost principles applicable to the organization incurring the costs. The following chart lists the kinds of organizations and the applicable cost principles. For the costs of a - State, local or Indian tribal government... Private nonprofit organization other than an (1) institution of higher education, (2) hospital, or (3) organization named in OMB Circular A-122 as not subject to that circular. Educational institutions .................. For-profit organization other than a hospital and an organization named in OBM Circular A-122 as not subject to that circular. -z n Use the principles in - OMB Circular A-87. OMB Circular A-122. OMB Circular A-21. 48 CFR part 31. Contract Cost Principles and Procedures, or uniform cost accounting standards that comply with cost principles acceptable to the Federal agency. (c) The overhead cost principles of OMB Circular A-87 shall not apply to State highway agencies for FHWA funded grants. (d) Sections 3(1) and 9(p) of the UMT Act of 1964, as amended, authorize the Secretary to include in the net project cost eligible for Federal assistance, the amount of interest earned and payable on bonds issued by the State or local public body to the extent that the proceeds of such bonds have actually been expended in carrying out such project or portion thereof. Limitations are established in sections 3 and 9 of the UMT Act of 1964, as amended. (e) Section 9 of the UMT Act of 1964, as amended, authorizes grants to finance the leasing of facilities and equipment for use in mass transportation services provided leasing is more cost effective than acquisition or construction. [53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 1988] Sec. 18.23 Period of availability of funds. (a) General. Where a funding period is specified, a grantee may charge to the award only costs resulting from obligations of the funding period unless carryover of unobligated balances is permitted, in which case the carryover balances may be charged for costs resulting from obligations of the subsequent funding period. (b) Liquidation of obligations. A grantee must liquidate all obligations incurred under the award not later than 90 days after the end of the funding period (or as specified in a program regulation) to coincide with the submission of the annual Financial Status Report (SF -269). The Federal agency may extend this deadline at the request of the grantee. Sec. 18.24 Matching or cost sharing. (a) Basic rule: Costs and contributions acceptable. With the qualifications and exceptions listed in paragraph (b) of this section, a matching or cost sharing requirement may be satisfied by either or both of the following: (1) Allowable costs incurred by the grantee, sub grantee or a cost -type contractor under the assistance agreement. This includes allowable costs borne by non -Federal grants or by others cash donations from non -Federal third parties. (2) The value of third party in-kind contributions applicable to the period to which the cost sharing or matching requirements applies. (b) Qualifications and exceptions - 31 (1) Costs borne by other Federal grant agreements. Except as provided by Federal statute, a cost sharing or matching requirement may not be met by costs borne by another Federal grant. This prohibition does not apply to income earned by a grantee or sub grantee from a contract awarded under another Federal grant. (2) General revenue sharing. For the purpose of this section, general revenue sharing funds distributed under 31 U.S.C. 6702 are not considered Federal grant funds. (3) Cost or contributions counted towards other Federal costs -sharing requirements. Neither costs nor the values of third party in-kind contributions may count towards satisfying a cost sharing or matching requirement of a grant agreement if they have been or will be counted towards satisfying a cost sharing or matching requirement of another Federal grant agreement, a Federal procurement contract, or any other award of Federal funds. (4) Costs financed by program income. Costs financed by program income, as defined in Sec. 18.25, shall not count towards satisfying a cost sharing or matching requirement unless they are expressly permitted in the terms of the assistance agreement. (This use of general program income is described in Sec. 18.25(8).) (5) Services or property financed by income earned by contractors. Contractors under a grant may earn income from the activities carried out under the contract in addition to the amounts earned from the party awarding the contract. No costs of services or property supported by this income may count toward satisfying a cost sharing or matching requirement unless other provisions of the grant agreement expressly permit this kind of income to be used to meet the requirement. (6) Records. Costs and third party in-kind contributions counting towards satisfying a cost sharing or matching requirement must be verifiable from the records of grantees and sub grantee or cost -type contractors. These records must show how the value placed on third party in- kind contributions was derived. To the extent feasible, volunteer services will be supported by the same methods that the organization uses to support the allocability of regular personnel costs. (7) Special standards for third party in-kind contributions. (i) Third party in-kind contributions count towards satisfying a cost sharing or matching requirement only where, if the party receiving the contributions were to pay for them, the payments would be allowable costs. (ii) Some third party in-kind contributions are goods and services that, if the grantee, sub grantee, or contractor receiving the contribution had to pay for 32 them, the payments would have been an indirect costs. Costs sharing or matching credit for such contributions shall be given only if the grantee, sub grantee or Sec. 18.24 Matching or cost sharing. (Continued) contractor has established, along with its regular indirect cost rate, a special rate for allocating to individual projects or programs the value of the contributions. (iii) A third party in-kind contribution to a fixed- price contract may count towards satisfying a cost sharing or matching requirement only if it results in: (A) An increase in the services or property provided under the contract (without additional cost to the grantee or sub grantee) or (B) A cost savings to the grantee or sub grantee. (iv) The values placed on third party in-kind contributions for cost sharing or matching purposes will conform to the rules in the succeeding sections of this part. If a third party in-kind contribution is a type not treated in those sections, the value placed upon it shall be fair and reasonable. (8) 23 U.S.C. 121(a) permits reimbursement for actual construction cost incurred by States for highway construction projects. Except for private donations of right-of-way, contributions and donations shall not be considered State costs, and shall not be allowable for matching purposes for highway construction contracts. 23 U.S.C. 323 permits private donations of right-of-way to be used for a State's matching share, and establishes procedures for determining the fair market value of such donated right-of-way. (9) Section 4(a) of the UMT Act of 1964, as amended, provides that the Federal grant for any project to be assisted under section 3 of the UMT Act of 1964, as amended, shall be in an amount equal to 75 percent of the net project costs. Net project cost is defined as that portion of the cost of the project which cannot be reasonably financed from revenues. (10) Section 18(e) of the UMT Act of 1964, as amended, limits the Federal share to 80 percent of the net cost of construction, as determined by the Secretary of Transportation. The Federal share for the payment of subsidies for operating expenses, as defined by the Secretary, shall not exceed 50 percent of the net cost of such operating expense projects. (c) valuation of donated services— (1) Volunteer services. Unpaid services provided to a grantee or sub grantee by individuals will be valued at rates consistent with those ordinarily paid for similar 33 work in the grantee's or sub grantee's organization. If the grantee or sub grantee does not have employees performing similar work, the rates will be consistent with those ordinarily paid by other employers for similar work in the same labor market. In either case, a reasonable amount for fringe benefits may be included in the valuation. Employees of other organizations. When an employer other than a grantee, sub grantee, or cost -type contractor furnishes free of charge the services of an employee in the employee's normal line of work, the services will be valued at the employee's regular rate of pay exclusive of the employee's fringe benefits and overhead costs. If the services are in a different line of work, paragraph (c)(1) of this section applies. (3) Section 5(g) of the Department of Transportation Act (49 U.S.C. 1654(8)) limits in-kind service contributions under the local Rail Service Assistance Program to "the cash equivalent of State salaries for State public employees working in the State rail assistance program, but not including overhead and general administrative costs." d) Valuation of third party donated supplies and loaned equipment or space. (1) If a third party donates supplies, the contribution will be valued at the market value of the supplies at the time of donation. (2) If a third party donates the use of equipment or space in a building but retains title, the contribution will be valued at the fair rental rate of the equipment or space. (e) Valuation of third party donated equipment, buildings, and land. If a third party donates equipment, buildings, or land, and title passes to a grantee or sub grantee, the treatment of the donated property will depend upon the purpose of the grant or sub grant, as follows: (1) Awards for capital expenditures. If the purpose of the grant or sub grant is to assist the grantee or sub grantee in the acquisition of property, the market value of that property at the time of donation may be counted as cost sharing or matching; (2) Other awards. If assisting in the acquisition of property is not the purpose of the grant or sub grant, paragraphs (e)(2)(i) and (ii) of this section apply: (i) If approval is obtained from the awarding agency, the market value at the time of donation of the donated equipment or buildings and the fair rental rate of the donated land may be counted as cost sharing or matching. In the case of a sub grant, the terms of the grant agreement may require 34 that the approval be obtained from the Federal agency as well as the grantee. In all cases, the approval may be given only if a purchase of the equipment or rental of the land would be approved as an allowable direct cost. If any part of the donated property was acquired with Federal funds, only the non-federal share of the property may be counted as cost sharing or matching. (ii) If approval is not obtained under paragraph (e)(2)(i) of this section, no amount may be counted for donated land, and only depreciation or use allowances may be counted for donated equipment and buildings. The depreciation or use allowances for this property are not treated as third party in- kind contributions. Instead, they are treated as costs incurred by the grantee or sub grantee. They are computed and allocated (usually as indirect costs) in accordance with the cost principles specified in Sec. 18.22, in the same way as depreciation or use allowances for purchased equipment and buildings. The amount of depreciation or use allowances for donated equipment and buildings is based on the property's market value at the time it was donated. (f) Valuation of grantee or sub grantee donated real property for construction/acquisition. If a grantee or sub grantee donates real property for a construction or facilities acquisition project, the current market value of that property may be counted as cost sharing or matching. If any part of the donated property was acquired with Federal funds, only the non-federal share of the property may be counted as cost sharing or matching. (g) Appraisal of real property. In some cases under paragraphs (d), (e) and (f) of this section, it will be necessary to establish the market value of land or a building or the fair rental rate of land or of space in a building. In these cases, the Federal agency may require the market value or fair rental value be set by an independent appraiser, and that the value or rate be certified by the grantee. This requirement will also be imposed by the grantee on sub grantees. [53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 1988] Sec. 18.25 Program income. (a) General. Grantees are encouraged to earn income to defray program costs. Program income includes income from fees for services performed, from the use or rental of real 35 or personal property acquired with grant funds, from the sale of commodities or items fabricated under a grant agreement, and from payments of principal and interest on loans made with grant funds. Except as otherwise provided in regulations of the Federal agency, program income does not include interest on grant funds, rebates, credits, discounts, refunds, etc. and interest earned on any of them. (b) Definition of program income. Program income means gross income received by the grantee or sub grantee directly generated by a grant supported activity, or earned only as a result of the grant agreement during the grant period. "During the grant period" is the time between the effective date of the award and the ending date of the award reflected in the final financial report. (c) Cost of generating program income. If authorized by Federal regulations or the grant agreement, costs incident to the generation of program income may be deducted from gross income to determine program income. (d) Governmental revenues. Taxes, special assessments, levies, fines, and other such revenues raised by a grantee or sub grantee are not program income unless the revenues are specifically identified in the grant agreement or Federal agency regulations as program income. (e) Royalties. Income from royalties and license fees for copyrighted material, patents, and inventions developed by a grantee or sub grantee is program income only if the revenues are specifically identified in the grant agreement or Federal agency regulations as program income. (See Sec. 18.34.) (f) Property. Proceeds from the sale of real property or equipment will be handled in accordance with the requirements of Secs. 18.31 and 18.32. (g) Use of program income. Program income shall be deducted from outlays which may be both Federal and non -Federal as described below, unless the Federal agency regulations or the grant agreement specify another alternative (or a combination of the alternatives). In specifying alternatives, the Federal agency may distinguish between income earned by the grantee and income earned by sub grantees and between the sources, kinds, or amounts of income. When Federal agencies authorize the alternatives in paragraphs (g) (2) and (3) of this section, program income in excess of any limits stipulated shall also be deducted from outlays. (1) Deduction. Ordinarily program income shall be deducted from total allowable costs to determine the net allowable costs. Program income shall be used for current costs unless the Federal agency authorizes otherwise. Program income which the grantee did not anticipate at the time of the award shall be used to reduce the Federal agency and grantee contributions rather than to increase the funds committed to the project. 36 (2) Addition. When authorized, program income may be added to the funds committed to the grant agreement by the Federal agency and the grantee. The program income shall be used for the purposes and under the conditions of the grant agreement. (3) Cost sharing or matching. When authorized, program income may be used to meet the cost sharing or matching requirement of the grant agreement. The amount of the Federal grant award remains the same. (4) Section 3(a)(1)(D) of the UMT Act of 1964, as amended, provides that the Secretary shall establish requirements for the use of income derived from appreciated land values for certain UMTA grants. Specific requirements shall be contained in grant agreements. (5) UMTA grantees may retain program income for allowable capital or operating expenses. (6) For grants awarded under section 9 of the UMT Act of 1964, as amended, any revenues received from the sale of advertising and concessions in excess of fiscal year 1985 levels shall be excluded from program income. (7) 23 U.S.C. 156 requires that States shall charge fair market value for the sale, lease, or use of right-of-way airspace for non -transportation purposes and that such income shall be used for projects eligible under 23 U.S.C. (h) Income after the award period. There are no Federal requirements governing the disposition of program income earned after the end of the award period (i.e., until the ending date of the final financial report, see paragraph '(a) of this section), unless the terms of the agreement or the Federal agency regulations provide otherwise. [53 FR 8086 and 8087, mar. 11, 1988, as amended at 53 FR 8087, mar. 11, 19881 Sec. 18.26 Non -Federal audits. (a) Basic rule. Grantees and sub grantees are responsible for obtaining audits in accordance with the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, "Audits of States, Local Governments, and Non -Profit Organizations." The audits shall be made by an independent auditor in accordance with generally accepted government auditing standards covering financial audits. (b) Sub grantees. State or local governments, as those terms are defined for purposes of the Single Audit Act Amendments of 1996, that provide Federal awards to a sub grantee, which expends $300,000 or more (or other amount as 37 specified by OMB) in Federal awards in a fiscal year, shall: (1) Determine whether State or local sub grantees have met the audit requirements of the Act and whether sub grantees covered by OMB Circular A-110, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non -Profit Organizations," have met the audit requirements of the Act. Commercial contractors (private for-profit and private and governmental organizations) providing goods and services to State and local governments are not required to have a single audit performed. State and local governments should use their own procedures to ensure that the contractor has complied with laws and regulations affecting the expenditure of Federal funds; (2) Determine whether the sub grantee spent Federal assistance funds provided in accordance with applicable laws and regulations. This may be accomplished by reviewing an audit of the sub grantee made in accordance with the Act, Circular A-110, or through other means (e.g., program reviews) if the sub grantee has not had such an audit; (3) Ensure that appropriate corrective action is taken within six months after receipt of the audit report in instance of noncompliance with Federal laws and regulations; (4) Consider whether sub grantee audits necessitate adjustment of the grantee's own records; and (5) Require each sub grantee to permit independent auditors to have access to the records and financial statements. (c) Auditor selection. In arranging for audit services, Sec. 18.36 shall be followed. [53 FR 8086 and 8087, Mar. 11, 1988, as amended at 61 FR 21387, May 10, 1996; 62 FR 45939, 45947, Aug. 29, 19971 Changes, Property, and Sub Awards Sec. 18.30 Changes. (a) General. Grantees and sub grantees are permitted to rebudget within the approved direct cost budget to meet unanticipated requirements and may make limited program changes to the approved project. However, unless waived by the awarding agency, certain types of post -award changes in budgets and projects shall require the prior written approval of the awarding agency. M (b) Relation to cost principles. The applicable cost principles (see Sec. 18.22) contain requirements for prior approval of certain types of costs. Except where waived, those requirements apply to all grants and sub grants even if paragraphs (c) through (f) of this section do not. (c) Budget changes— (1) Non -construction projects. Except as stated in other regulations or an award document, grantees or sub grantees shall obtain the prior approval of the awarding agency whenever any of the following changes is anticipated under a non construction award: (i) Any revision which would result in the need for additional funding. (ii) Unless waived by the awarding agency, cumulative transfers among direct cost categories, or, if applicable, among separately budgeted programs, projects, functions, or activities which exceed or are expected to exceed ten percent of the current total approved budget, whenever the awarding agency's share exceeds $100,000. (iii) Transfer of funds allotted for training allowances (i.e., from direct payments to trainees to other expense categories). (2) Construction projects. Grantees and sub grantees shall obtain prior written approval for any budget revision which would result in the need for additional funds. (3) Combined construction and non -construction projects. When a grant or sub grant provides funding for both construction and non -construction activities, the grantee or sub grantee must obtain prior written approval from the awarding agency before making any fund or budget transfer from non -construction to construction or vice versa. (d) Programmatic changes. Grantees or sub grantees must obtain the prior approval of the awarding agency whenever any of the following actions is anticipated: (1) Any revision of the scope or objectives of the project (regardless of whether there is an associated budget revision requiring prior approval). (2) Need to extend the period of availability of funds. (3) Changes in key persons in cases where specified in an application or a grant award. In research projects, a change in the project director or principal investigator shall always require approval unless waived by the awarding agency. (4) Under non -construction projects, contracting out, sub granting (if authorized by law) or otherwise obtaining the services of a third party to perform activities which are central to the purposes of the award. This approval requirement is in addition to the approval requirements of Sec. 18.36 but does not apply 39 to the procurement of equipment, supplies, and general support services. (e) Additional prior approval requirements. The awarding agency may not require prior approval for any budget revision which is not described in paragraph (c) of this section. (f) Requesting prior approval. (1) A request for prior approval of any budget revision will be in the same budget formal the grantee used in its application and shall be accompanied by a narrative justification for the proposed revision. (2) A request for a prior approval under the applicable Federal cost principles (see Sec. 18.22) may be made by letter. (3) A request by a sub grantee for prior approval will be addressed in writing to the grantee. The grantee will promptly review such request and shall approve or disapprove the request in writing. A grantee will not approve any budget or project revision which is inconsistent with the purpose or terms and conditions of the Federal grant to the grantee. If the revision, requested by the sub grantee would result in a change to the grantee's approved project which requires Federal prior approval, the grantee will obtain the Federal agency's approval before approving the sub grantee's request. Sec. 18.31 Real property. (a) Title. Subject to the obligations and conditions set forth in this section, title to real property acquired under a grant or sub grant will vest upon acquisition in the grantee or sub grantee respectively. (b) Use. Except as otherwise provided by Federal statutes, real property will be used for the originally authorized purposes as long as needed for that purposes, and the grantee or sub grantee shall not dispose of or encumber its title or other interests. (c) Disposition. when real property is no longer needed for the originally authorized purpose, the grantee or sub grantee will request disposition instructions from the awarding agency. The instructions will provide for one of the following alternatives: (1) Retention of title. Retain title after compensating the awarding agency. The amount paid to the awarding agency will be computed by applying the awarding agency's percentage of participation in the cost of the original purchase to the fair market value of the property. However, in those situations where a grantee or sub grantee is disposing of real property acquired with grant funds and acquiring replacement real property 40 under the same program, the net proceeds from the disposition may be used as an offset to the cost of the replacement property. (2) Sale of property. Sell the property and compensate the awarding agency. The amount due to the awarding agency will be calculated by applying the awarding agency's percentage of participation in the cost of the original purchase to the proceeds of the sale after deduction of any actual and reasonable selling and fixing -up expenses. If the grant is still active, the net proceeds from sale may be offset against the original cost of the property. When a grantee or sub grantee is directed to sell property, sales procedures shall be -followed that provide for competition to the extent practicable and result in the highest possible return. (3) Transfer of title. Transfer title to the awarding agency or to a third -party designated/approved by the awarding agency. The grantee or sub grantee shall be paid an amount calculated by applying the grantee or sub grantee's percentage of participation in the purchase of the real property to the current fair market value of the property. (d) If the conditions in 23 U.S.C. 103(e) (5), (6), or (7), as appropriate, are met and approval is given by the Secretary, States shall not be required to repay the Highway Trust Fund for the cost of right-of-way and other items when certain segments of the Interstate System are withdrawn. [53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 19881 Sec. 18.32 Equipment. (a) Title. Subject to the obligations and conditions set forth in this section, title to equipment acquired under a grant or sub grant will vest upon acquisition in the grantee or sub grantee respectively. (b) States. A State will use, manage, and dispose of equipment acquired under a grant by the State in accordance with State laws and procedures. Other grantees and sub grantees will follow paragraphs (c) through (e) of this section. (c) Use. (1) Equipment shall be used by the grantee or sub grantee in the program or project for which it was acquired as long as needed, whether or not the project or program continues to be supported by Federal funds. When no longer needed for the original program or project, the equipment may be used in other activities currently or previously supported by a Federal agency. 41 (2) The grantee or sub grantee shall also make equipment available for use on other projects or -programs currently or previously supported by the Federal Government, providing such use will not interfere with the work on the projects or program for which it was originally acquired. First preference for other use shall be given to other programs or projects supported by the awarding agency. User fees should be considered if appropriate. (3) Notwithstanding the encouragement in Sec. 18.25(a) to earn program income, the grantee or sub grantee must not use equipment acquired with grant funds to provide services for a fee to compete unfairly with private companies that provide equivalent services, unless specifically permitted or contemplated by Federal statute. (4) when acquiring replacement equipment, the grantee or sub grantee may use the equipment to be replaced as a trade-in or sell the property and use the proceeds to offset the cost of the replacement property, subject to the approval of the awarding agency. (d) Management requirements. Procedures for managing equipment (including replacement equipment), whether acquired in whole or in part with grant funds, until disposition takes place will, as a minimum, meet the following requirements: (1) Property records must be maintained that include a description of the property, a serial number or other identification number, the source of property, who holds title, the acquisition date, and cost of the property, percentage of Federal participation in the cost of the property, the location, use and condition of the property, and any ultimate disposition data including the date of disposal and sale price of the property. (2) A physical inventory of the property must be taken and the results reconciled with the property records at least once every two years. (3) A control system must be developed to ensure adequate safeguards to prevent loss, damage, or theft of the property. Any loss, damage, or theft shall be investigated. (4) Adequate maintenance procedures must be developed to keep the property in good condition. (5) If the grantee or sub grantee is authorized or required to sell the property, proper sales procedures must be established to ensure the highest possible return. (e) Disposition. When original or replacement equipment acquired under a grant or sub grant is no longer needed for the original project or program or for other activities currently or previously supported by a Federal agency, disposition of the equipment will be made as follows: 42 (1) Items of equipment with a current per-unit fair market value of less than $5,000 may be retained, sold or otherwise disposed of with no further obligation to the awarding agency. (2) Items of equipment with a current per unit fair market value in excess of $5,000 may be retained or sold and the awarding agency shall have a right to an amount calculated by multiplying the current market value or proceeds from sale by the awarding agency's share of the equipment. (3) In cases where a grantee or sub grantee fails to take appropriate disposition actions, the awarding agency may direct the grantee or sub grantee to take excess and disposition actions. (f) Federal equipment. In the event a grantee or sub grantee is provided federally -owned equipment: (1) Title will remain vested in the Federal Government. (2) Grantees or sub grantees will manage the equipment in accordance with Federal agency rules and procedures, and submit an annual inventory listing. (3) When the equipment is no longer needed, the grantee or sub grantee will request disposition instructions from the Federal agency. (g) Right to transfer title. The Federal awarding agency may reserve the right to transfer title to the Federal Government or a third part named by the awarding agency when such a third party is otherwise eligible under existing statutes. Such transfers shall be subject to the following standards: (1) The property shall be identified in the grant or otherwise made known to the grantee in writing. (2) The Federal awarding agency shall issue disposition instruction within 120 calendar days after the end of the Federal support of the project for which it was acquired. If the Federal awarding agency fails to issue disposition instructions within the 120 calendar -day period the grantee shall follow Sec. 18.32(e). (3) When title to equipment is transferred, the grantee shall be paid an amount calculated by applying the percentage of participation in the purchase to the current fair market value of the property. Sec. 18.33 Supplies. (a) Title. Title to supplies acquired under a grant or sub grant will vest, upon acquisition, in the grantee or sub grantee respectively. (b) Disposition. If there is a residual inventory of unused supplies exceeding $5,000 in total aggregate fair market value upon termination or completion of the award, and if the supplies are not needed for any other federally sponsored programs or projects, the grantee or sub grantee shall compensate the awarding agency for its share. 43 Sec. 18.34 Copyrights. The Federal awarding agency reserves a royalty -free, nonexclusive, and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for Federal Government purposes: (a) The copyright in any work developed under a grant, sub grant, or contract under a grant or sub grant; and (b) Any rights of copyright to which a grantee, sub grantee or a contractor purchases ownership with grant.support. Sec. 18.35 Sub awards to debarred and suspended parties. Grantees and sub grantees must not make any award or permit any award (sub grant or contract) at any tier to any party which is debarred or suspended or is otherwise excluded from or ineligible for participation in Federal assistance programs under Executive Order 12549, "Debarment and Suspension." Sec. 18.36 Procurement. (a) States. When procuring property and services under a grant, a State will follow the same policies and procedures it uses for procurements from its non -Federal funds. The State will ensure that every purchase order or other contract includes any clauses required by Federal statutes and executive orders and their implementing regulations. Other grantees and sub grantees will follow paragraphs (b) through (i) in this section. (b) Procurement standards. (1) Grantees and sub grantees will use their own procurement procedures which reflect applicable State and local laws and regulations, provided that the procurements conform to applicable Federal law and the standards identified in this section. (2) Grantees and sub grantees will maintain a contract administration system which ensures that contractors perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders. (3) Grantees and sub grantees will maintain a written code of standards of conduct governing the performance of their employees engaged in the award and administration of contracts. No employee, officer or agent of the grantee or sub grantee shall participate in selection, or in the award or administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when: (i) The employee, officer or agent, (ii) Any member of his immediate family, (iii) His or her partner, or (iv) An organization which employs, or is about to employ, any of the above, has a financial or other interest in the firm selected for award. The grantee's or sub grantee's officers, employees or agents will neither solicit nor accept gratuities, favors or anything of monetary value from contractors, potential contractors, or parties to sub agreements. Grantee and sub grantees may set minimum rules where the financial interest is not substantial or the gift is an unsolicited item of nominal intrinsic value. To the extent permitted by State or local law or regulations, such standards or conduct will provide for penalties, sanctions, or other disciplinary actions for violations of such standards by the grantee's and sub grantee's officers, employees, or agents, or by contractors or their agents. The awarding agency may in regulation provide additional prohibitions relative to real, apparent, or potential conflicts of interest. (4) Grantee and sub grantee procedures will provide for a review of proposed procurements to avoid purchase of unnecessary or duplicative items. Consideration should be given to consolidating or breaking out procurements to obtain a more economical purchase. where appropriate, an analysis will be made of lease versus purchase alternatives, and any other appropriate analysis to determine the most economical approach. (5) To foster greater economy and efficiency, grantees and sub grantees are encouraged to enter into State and local intergovernmental agreements for procurement or use of common goods and services. (6) Grantees and sub grantees are encouraged to use Federal excess and surplus property in lieu of purchasing new equipment and property whenever such use is feasible and reduces project costs. (7) Grantees and sub grantees are encouraged to use value engineering clauses in contracts for construction projects of sufficient size to offer reasonable opportunities for cost reductions. Value engineering is a systematic and creative analysis of each contract item or task to ensure that its essential function is provided at the overall lower cost. (8) Grantees and sub grantees will make awards only to responsible contractors possessing the ability to perform successfully under the terms and conditions of a proposed procurement. Consideration will be given to such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources. (9) Grantees and sub grantees will maintain records sufficient to detail the significant history of a procurement. These records will 45 include, but are not necessarily limited to the following: rationale for the method of procurement, selection of contract type, contractor selection or rejection, and the basis for the contract price. (10) Grantees and sub grantees will use time and material type contracts only— (i) After a determination that no other contract is suitable, and (ii) If the contract includes a ceiling price that the contractor exceeds at its own risk. (11) Grantees and sub grantees alone will be responsible, in accordance with good administrative practice and sound business judgment, for the settlement of all contractual and administrative issues arising out of procurements. These issues include, but are not limited to source evaluation, protests, disputes, and claims. These standards do not relieve the grantee or sub grantee of any contractual responsibilities under its contracts. Federal agencies will not substitute their judgment for that of the grantee or sub grantee unless the matter is primarily a Federal concern. Violations of law will be referred to the local, State, or Federal authority having proper jurisdiction. (12) Grantees and sub grantees will have protest procedures to handle and resolve disputes relating to their procurements and shall in all instances disclose information regarding the protest to the awarding agency. A protestor must exhaust all administrative remedies with the grantee and sub grantee before pursuing a protest with the Federal agency. Reviews of protests by the Federal agency will be limited to: (i) Violations of Federal law or regulations and the standards of this section (violations of State or local law will be under the jurisdiction of State or local authorities) and (ii) Violations of the grantee's or sub grantee's protest procedures for failure to review a complaint or protest. Protests received by the Federal agency other than those specified above will be referred to the grantee or sub grantee. (c) Competition. (1) All procurement transactions will be conducted in a manner providing full and open competition consistent with the standards of Sec. 18.36. Some of the situations considered to be restrictive of competition include but are not limited to: (i) Placing unreasonable requirements on firms in order for them to qualify to do business, (ii) Requiring unnecessary experience and excessive bonding, (iii) Noncompetitive pricing practices between firms or between affiliated companies, (iv) Noncompetitive awards to consultants that are on retainer contracts, (v) Organizational conflicts of interest, (vi) Specifying only a "brand name" product instead of allowing "an equal" product to be offered and M describing the performance of other relevant requirements of the procurement, and (vii) Any arbitrary action in the procurement process. (2) Grantees and sub grantees will conduct procurements in a manner that prohibits the use of statutorily or administratively imposed in -State or local geographical preferences in the evaluation of bids or proposals, except in those cases where applicable Federal statutes expressly mandate or encourage geographic preference. Nothing in this section preempts State licensing laws. When contracting for architectural and engineering (A/E) services, geographic location may be a selection criteria provided its application leaves an appropriate number of qualified firms, given the nature and size of the project, to compete for the contract. (3) Grantees will have written selection procedures for procurement transactions. These procedures will ensure that all solicitations: (i) Incorporate a clear and accurate description of the technical requirements for the material, product, or service to be procured. Such description shall not, in competitive procurements, contain features which unduly restrict competition. The description may include a statement of the qualitative nature of the material, product or service to be procured, and when necessary, shall set forth those minimum essential characteristics and standards to which it must conform if it is to satisfy its intended use. Detailed product specifications should be avoided if at all possible. When it is impractical or uneconomical to make a clear and accurate description of the technical requirements, a "brand name or equal" description may be used as a means to define the performance or other salient requirements of a procurement. The specific features of the named brand which must be met by offerors shall be clearly stated; and (ii) Identify all requirements which the offerors must fulfill and all other factors to be used in evaluating bids or proposals. (4) Grantees and sub grantees will ensure that all pre -qualified lists of persons, firms, or products which are used in acquiring goods and services are current and include enough qualified sources to ensure maximum open and free competition. Also, grantees and sub grantees will not preclude potential bidders from qualifying during the solicitation period. (d) Methods of procurement to be followed (1) Procurement by small purchase procedures. Small purchase procedures are those relatively simple and informal procurement methods for securing services, supplies, or other property that do not cost more than the simplified acquisition threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000). If small purchase procedures are used, price or rate quotations shall be obtained from an adequate number of qualified sources. 47 (2) Procurement by sealed bids (formal advertising). Bids are publicly solicited and a firm -fixed-price contract (lump sum or unit price) is awarded to the responsible bidder whose bid, conforming with all the material terms and conditions of the invitation for bids, is the lowest in price. The sealed bid method is the preferred method for procuring construction, if the conditions in sec. 18.36(d)(2)(i) apply. (i) In order for sealed bidding to be feasible, the following conditions should be present: (A) A complete, adequate, and realistic specification or purchase description is available; (B) Two or more responsible bidders are willing and able to compete effectively and for the business; and (C) The procurement lends itself to a firm fixed price contract and the selection of the successful bidder can be made principally on the basis of price. (ii) If sealed bids are used, the following requirements apply: (A) The invitation for bids will be publicly advertised and bids shall be solicited from an adequate number of known suppliers, providing them sufficient time prior to the date set for opening the bids; (B) The invitation for bids, which will include any specifications and pertinent attachments, shall define the items or services in.order for the bidder to properly respond; (C) All bids will be publicly opened at the time and place prescribed in the invitation for bids; (D) A firm fixed-price contract award will be made in writing to the lowest responsive and responsible bidder. Where specified in bidding documents, factors such as discounts, transportation cost, and life cycle costs shall be considered in determining which bid is lowest. Payment discounts will only be used to determine the low bid when prior experience indicates that such discounts are usually taken advantage of; and (E) Any or all bids may be rejected if there is a sound documented reason. Fir M Sec. 18.36 Procurement. (3) Procurement by competitive proposals. The technique of competitive proposals is normally conducted with more than one source submitting an offer, and either a fixed- price or cost reimbursement type contract is awarded. It is generally used when conditions are not appropriate for the use of sealed bids. If this method is used, the following requirements apply: (d) Methods of procurement to be followed. (Continued) (i) Requests for proposals will be publicized and identify all evaluation factors and their relative importance. Any response to publicized requests for proposals shall be honored to the maximum extent practical; (ii) Proposals will be solicited from an adequate number of qualified sources; (iii) Grantees and sub grantees will have a method for conducting technical evaluations of the proposals received and for selecting awardees; (iv) Awards will be made to the responsible firm whose proposal is most advantageous to the program, with price and other factors considered; and (v) Grantees and sub grantees may use competitive proposal procedures for qualifications -based procurement of architectural/engineering (A/E) professional services whereby competitors' qualifications are evaluated and the most qualified competitor is selected, subject to negotiation of fair and reasonable compensation. The method, where price is not used as a selection factor, can only be used in procurement of A/E professional services. It cannot be used to purchase other types of services though A/E firms are a potential source to perform the proposed effort. (4) Procurement by noncompetitive proposals is procurement through solicitation of a proposal from only one source, or after solicitation of a number of sources, competition is determined inadequate. (i) Procurement by noncompetitive proposals may be used only when the award of a contract is infeasible under small purchase procedures, sealed bids or competitive proposals and one of the following circumstances applies: (A) The item is available only from a single source; (B) The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation; (C) The awarding agency authorizes noncompetitive proposals; or M Sec. 18.36 Procurement. (D) After solicitation of a number of sources, competition is determined inadequate. (ii) Cost analysis, i.e., verifying the proposed cost data, the projections of the data, and the evaluation of the specific elements of costs and profits, is required. (iii) Grantees and sub grantees may be required to submit the proposed procurement to the awarding agency for pre -award review in accordance with paragraph (g) of this section. (e) Contracting with small and minority firms, women's business enterprise and labor surplus area firms. (1) The grantee and sub grantee will take all necessary affirmative steps to assure that minority firms, women's business enterprises, and labor surplus area firms are used when possible. (2) Affirmative steps shall include: (i) Placing qualified small and minority businesses and women's business enterprises on solicitation lists; (ii) Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources; (iii) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises; (iv) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises; (v) Using the services and assistance of the Small Business Administration, and the Minority Business Development Agency of the Department of Commerce; and (vi) Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (e)(2) (i) through (v) of this section. (f) Contract cost and price. (1) Grantees and sub grantees must perform a cost or price analysis in connection with every procurement action including contract modifications. The method and degree of analysis is dependent on the facts surrounding the particular procurement situation, but as a starting point, grantees must make independent estimates before receiving bids or proposals. A cost analysis must be performed when the offeror is required to submit the elements of his estimated cost, e.g., under professional, consulting, and architectural engineering services contracts. A cost analysis will be necessary when 50 adequate price competition is lacking, and for sole source procurements, including contract modifications or change orders, unless price reasonableness can be established on the basis of a catalog or market price of a commercial product sold in substantial quantities to the general public or based on prices set by law or regulation. A price analysis will be used in all other instances to determine the reasonableness of the proposed contract price. (2) Grantees and sub grantees will negotiate profit as a separate element of the price for each contract in which there is no price competition and in all cases where cost analysis is performed. To establish a fair and reasonable profit, consideration will be given to the complexity of the work to be performed, the risk borne by the contractor, the contractor's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work. (3) Costs or prices based on estimated costs for contracts under grants will be allowable only to the extent that costs incurred or cost estimates included in negotiated prices are consistent with Federal cost principles (see Sec. 18.22). Grantees may reference their own cost principles that comply with the applicable Federal cost principles. (4) The cost plus a percentage of cost and percentage of construction cost methods of contracting shall not be used. (g) Awarding agency review. (1) Grantees and sub grantees must make available, upon request of the awarding agency, technical specifications on proposed procurements where the awarding agency believes such review is needed to ensure that the item .and/or service specified is the one being proposed for purchase. This review generally will take place prior to the time the specification is incorporated into a solicitation document. However, if the grantee or sub grantee desires to have the review accomplished after a solicitation has been developed, the awarding agency may still review the specifications, with such review usually limited to the technical aspects of the proposed purchase. (2) Grantees and sub grantees must on request make available for awarding agency pre -award review procurement documents, such as requests for proposals or invitations for bids, independent cost estimates, etc. when: (i) A grantee's or sub grantee's procurement procedures or operation fails to comply with the procurement standards in this section; or 51 (ii) The procurement is expected to exceed the simplified acquisition threshold and is to be awarded without competition or only one bid or offer is received in response to a solicitation; or (iii) The procurement, which is expected to exceed the simplified acquisition threshold, specifies a "brand name" product; or (iv) The proposed award is more than the simplified acquisition threshold and is to be awarded to other than the apparent low bidder,under a sealed bid procurement; or (v) A proposed contract modification changes the scope of a contract or increases the contract amount by more than the simplified acquisition threshold. (3) A grantee or sub grantee will be exempt from the pre -award review in paragraph (g)(2) of this section if the awarding agency determines that its procurement systems comply with the standards of this section. (i) A grantee or sub grantee may request that its procurement system be reviewed by the awarding agency to determine whether its system meets these standards in order for its system to be certified. Generally, these reviews shall occur where there is a continuous high -dollar funding, and third -party contracts are awarded on a regular basis. (ii) A grantee or sub grantee may self -certify its procurement system. Such self -certification shall not limit the awarding agency's right to survey the system. Under a self -certification procedure, awarding agencies may wish to rely on written assurances from the grantee or sub grantee that it is complying with these standards. A grantee or sub grantee will cite specific procedures, regulations, standards, etc., as being in compliance with these requirements and have its system available for review. (h) Bonding requirements. For construction or facility improvement contracts or subcontracts exceeding the simplified acquisition threshold, the awarding agency may accept the bonding policy and requirements of the grantee or sub grantee provided the awarding agency has made a determination that the awarding agency's interest is adequately protected. If such a determination has not been made, the minimum requirements shall be as follows: (1) A bid guarantee from each bidder equivalent to five percent of the bid price. The "bid guarantee" shall consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of his bid, execute such contractual documents as may be required within the time specified. 52 (2) A performance bond on the part of the contractor for 100 percent of the contract price. A "performance bond" is one executed in connection with a contract to secure fulfillment of all the contractor's obligations under such contract. (3) A payment bond on the part of the contractor for 100 percent of the contract price. A "payment bond" is one executed in connection with a contract to assure payment as required by law of all persons supplying labor and material in the execution of the work provided for in the contract. (i) Contract provisions. A grantee's and sub grantee's contracts must contain provisions in paragraph (i) of this section. Federal agencies are permitted to require changes, remedies, changed conditions, access and records retention, suspension of work, and other clauses approved by the office of Federal Procurement Policy. (1) Administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as may be appropriate. (Contracts more than the simplified acquisition threshold) (2) Termination for cause and for convenience by the grantee or sub grantee including the manner by which it will be effected and the basis for settlement. (All contracts in excess of $10,000) (3) Compliance with Executive Order 11246 of September 24, 1965, entitled "Equal Employment Opportunity," as amended by Executive. order 11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR chapter 60). (All construction contracts awarded in excess of $10,000 by grantees and their contractors or sub grantees) (4) Compliance with the Copeland "Anti -Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR part 3). (All contracts and sub grants for construction or repair) (5) Compliance with the Davis -Bacon Act (40 U.S.C. 276a to 276a-7) as supplemented by Department of Labor regulations (29 CFR part 5). (Construction contracts in excess of $2000 awarded by grantees and sub grantees when required by Federal grant program legislation) (6) Compliance with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-330) as supplemented by Department of Labor regulations (29 CFR part 5). (Construction contracts awarded by grantees and sub grantees in excess of $2000, and in excess of $2500 for other contracts which involve the employment of mechanics or laborers) 53 (7) Notice of awarding agency requirements and regulations pertaining to reporting. (8) Notice of awarding agency requirements and regulations pertaining to patent rights with respect to any discovery or invention which arises or is developed in the course of or under such contract. (9) Awarding agency requirements and regulations pertaining to copyrights and rights in data. (10) Access by the grantee, the sub grantee, the Federal grantor agency, the Comptroller General of the United States, or any of their duly authorized representatives to any books, documents, papers, and records of the contractor which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions. (11) Retention of all required records for three years after grantees or sub grantees make final payments and all other pending matters are closed. (12) Compliance with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). (Contracts, subcontracts, and sub grants of amounts in excess of $100,000) (13) Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94163, 89 Stat. 871). (j) 23 U.S.C. 112(a) directs the Secretary to require recipients of highway construction grants to use bidding methods that are "effective in securing competition." Detailed construction contracting procedures are contained in 23 CFR part 635, subpart A. (k) Section 3(a)(2)(C) of the UMT Act of 1964, as amended, prohibits the use of grant or loan funds to support procurements utilizing exclusionary or discriminatory specifications. (1) 46 U.S.C. 1241(b)(1) and 46 CFR part 381 impose cargo preference requirements on the shipment of foreign made goods. (m) Section 165 of the Surface Transportation Assistance Act of 1982, 49 U.S.C. 1601, section 337 of the Surface Transportation and Uniform Relocation Assistance Act of 1987, and 49 CFR parts 660 and 661 impose Buy America provisions on the procurement of foreign products and materials. (n) Section 105(f) of the Surface Transportation Assistance Act of 1982, section 106(c) of the Surface Transportation and Uniform Relocation Assistance Act of 54 1987, and 49 CFR part 23 impose requirements for the participation of disadvantaged business enterprises. (o) Section 308 of the Surface Transportation Assistance Act of 1982, 49 U.S.C. 1068(b)(2), authorizes the use of competitive negotiation for the purchase of rolling stock as appropriate. (p) 23 U.S.C. 112(b) provides for an exemption to competitive bidding requirements for highway construction contracts in emergency situations. (q) 23 U.S.C. 112 requires concurrence by the Secretary before highway construction contracts can be awarded, except for projects authorized under the provisions of 23 U.S.C. 171. (r) 23 U.S.C. 112(e) requires standardized contract clauses concerning site conditions, suspension or work, and material changes in the scope of the work for highway construction contracts. (s) 23 U.S.C. 140(b) authorizes the preferential employment of Indians on Indian Reservation road projects and contracts. (t) FHWA, UMTA, and Federal Aviation Administration (FAA) grantees and sub grantees shall extend the use of qualifications -based (e.g., architectural and engineering services) contract selection procedures to certain other related areas and shall award such contracts in the same manner as Federal contracts for architectural and engineering services are negotiated under Title IX of the Federal Property and Administrative Services Act of 1949, or equivalent State (or airport sponsor for FAA) qualifications -based requirements. For FHWA and UMTA programs, this provision applies except to the extent that a State adopts or has adopted by statute a formal procedure for the procurement of such services. [53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 1988; 60 FR 19639, 19647, Apr. 19, 19951 Sec. 18.37 Sub grants. (a) States. States shall follow state law and procedures when awarding and administering sub grants (whether on a cost reimbursement or fixed amount basis) of financial assistance to local and Indian tribal governments. States shall: (1) Ensure that every sub grant includes any clauses required by Federal statute and executive orders and their implementing regulations; (2) Ensure that sub grantees are aware of requirements imposed upon them by Federal statute and regulation; (3) Ensure that a provision for compliance with Sec. 18.42 is placed in every cost reimbursement sub grant; and 55 (4) Conform any advances of grant funds to sub grantees substantially to the same standards of timing and amount that apply to cash advances by Federal agencies. (b) All other grantees. All other grantees shall follow the provisions of this part which are applicable to awarding agencies when awarding and administering sub grants (whether on a cost reimbursement or fixed amount basis) of financial assistance to local and Indian tribal governments. Grantees shall: (1) Ensure that every sub grant includes a provision for compliance with this part; (2) Ensure that every sub grant includes any clauses required by Federal statute and executive orders and their implementing regulations; and (3) Ensure that sub grantees are aware of requirements imposed upon them by Federal statutes and regulations. (c) Exceptions. By their own terms, certain provisions of this part do not apply to the award and administration of sub grants: (1) Section 18.10; (2) Section 18.11; (3) The letter -of -credit procedures specified in Treasury Regulations at 31 CFR part 205, cited in Sec. 18.21; and (4) Section 18.50. 56 Reports, Records, Retention, and Enforcement Sec. 18.40 Monitoring and reporting program performance. (a) Monitoring by grantees. Grantees are responsible for managing the day-to-day operations of grant and sub grant supported activities. Grantees must monitor grant and sub grant supported activities to assure compliance with applicable Federal requirements and that performance goals are being achieved. Grantee monitoring must cover each program, function or activity. (b) Non -construction performance reports. The Federal agency may, if it decides that performance information available from subsequent applications contains sufficient information to meet its programmatic needs, require the grantee to submit a performance report only upon expiration or termination of grant support. Unless waived by the Federal agency this report will be due on the same date as the final Financial Status Report. (b) Non -construction performance reports. (Continued) (1) Grantees shall submit annual performance reports unless the awarding agency requires quarterly or semi- annual reports. However, performance reports will not be required more frequently than quarterly. Annual reports shall be due 90 days after the grant year, quarterly or semi-annual reports shall be due 30 days after the reporting period. The final performance report will be due 90 days after the expiration or termination of grant support. If a justified request is submitted by a grantee, the Federal agency may extend the due date for any performance report. Additionally, requirements for unnecessary performance reports may be waived by the Federal agency. (2) Performance reports will contain, for each grant, brief information on the following: (i) A comparison of actual accomplishments to the objectives established for the period. Where the output of the project can be quantified, a computation.of the cost per unit of output may be required if that information will be useful. (ii) The reasons for slippage if established objectives were not met. (iii) Additional pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs. (3) Grantees will not be required to submit more than the original and two copies of performance reports. (4) Grantees will adhere to the standards in this section in prescribing performance reporting requirements for sub grantees. (c) Construction performance reports. For the most part, on- site technical inspections and certified percentage -of - completion data are relied on heavily by Federal agencies to 57 monitor progress under construction grants and sub grants. The Federal agency will require additional formal performance reports only when considered necessary, and never more frequently than quarterly. (1) Section 12(h) of the UMT Act of 1964, as amended, requires pre -award testing of new buses models. (2) (Reserved] (d) Significant developments. Events may occur between the scheduled performance reporting dates which have significant impact upon the grant or sub grant supported activity. In such cases, the grantee must inform the Federal agency as soon as the following types of conditions become known: (1) Problems, delays; or adverse conditions which will materially impair the ability to meet the objective of the award. This disclosure must include a statement of the action taken, or contemplated, and any assistance needed to resolve the situation. (2) Favorable developments which enable meeting time schedules and objectives sooner or at less cost than anticipated or producing more beneficial results than originally planned. (e) Federal agencies may make site visits as warranted by program needs. (f) waivers, extensions. (1) Federal agencies may waive any performance report required by this part if not needed. (2) The grantee may waive any performance report from a sub grantee when not needed. The grantee may extend the due date for any performance report from a sub grantee if the grantee will still be able to meet its performance reporting obligations to the Federal agency. [53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 1988]Sec. 18.41 Financial Reporting. (a) General. (1) Except as provided in paragraphs (a) (2) and (5) of this section, grantees will use only the forms specified in paragraphs (a) through (e) of this section, and such supplementary or other forms as may from time to time be authorized by OMB, for: (i) Submitting financial reports to Federal agencies, or (ii) Requesting advances or reimbursements when letters of credit are not used. (2)Grantees need not apply the forms prescribed in this section in dealing with their sub grantees. M However, grantees shall not impose more burdensome requirements on sub grantees. (3) Grantees shall follow all applicable standard and supplemental Federal agency instructions approved by OMB to the extent required under the Paperwork Reduction Act of 1980 for use in connection with forms specified in paragraphs (b) through (e) of this section. Federal agencies may issue substantive supplementary instructions only with the approval of OMB. Federal agencies may shade out or instruct the grantee to disregard any line item that the Federal agency finds unnecessary for its decision making purposes. (4) Grantees will not be required to submit more than the original and two copies of forms required under this part. (5) Federal agencies may provide computer outputs to grantees to expedite or contribute to the accuracy of reporting. Federal agencies may accept the required information from grantees in machine usable format or computer printouts instead of prescribed forms. (6) Federal agencies may waive any report required by this section if not needed. (7) Federal agencies may extend the due date of any financial report upon receiving a justified request from a grantee. (b) Financial Status Report— (1) Form. Grantees will use Standard Form 269 or 269A, Financial Status Report, to report the status of funds for all non -construction grants and for construction grants when required in accordance with Sec. 18.41(e)(2)(iii). (2) Accounting basis. Each grantee will report program outlays and program income on a cash or accrual basis as prescribed by the awarding agency. If the Federal agency requires accrual information and the grantee's accounting records are not normally kept on the accrual basis, the grantee shall not be required to convert its accounting system but shall develop such accrual information through and analysis of the documentation on hand. (3) Frequency. The Federal agency may prescribe the frequency of the report for each project or program. However, the report will not be required more frequently than quarterly. If the Federal agency does not specify the frequency of the report, it will be submitted annually. A final report will be required upon expiration or termination of grant support. M (4) Due date. when reports are required on a quarterly or semiannual basis, they will be due 30 days after the reporting period. When required on an annual basis, they will be due 90 days after the grant year. Final reports will be due 90 days after the expiration or termination of grant support. (c) Federal Cash Transactions Report— (1) Form. (i) For grants paid by letter or credit, Treasury check advances or electronic transfer of funds, the grantee will submit the Standard Form 272, Federal Cash Transactions Report, and when necessary, its continuation sheet, Standard Form 272a, unless the terms of the award exempt the grantee from this requirement. (ii) These reports will be used by the Federal agency to monitor cash advanced to grantees and to obtain disbursement or outlay information for each grant from grantees. The format of the report may be adapted as appropriate when reporting is to be accomplished with the assistance of automatic data processing equipment provided that the information to be submitted is not changed in substance. (2) Forecasts of Federal cash requirements. Forecasts of Federal cash requirements may be required in the "Remarks" section of the report. (3) Cash in hands of sub grantees. When considered necessary and feasible by the Federal agency, grantees may be required to report the amount of cash advances in excess of three days needs in the hands of their sub grantees or contractors and to provide short narrative explanations of actions taken by the grantee to reduce the excess balances. (4) Frequency and due date. Grantees must submit the report no later than 15 working days following the end of each quarter. However, where an advance either by letter of credit or electronic transfer of funds is authorized at an annualized rate of one million dollars or more, the Federal agency may require the report to be submitted within 15 working days following the end of each month. (d) Request for advance or reimbursement— (1) Advance payments. Requests for Treasury check advance payments will be submitted on Standard Form 270, Request for Advance or Reimbursement. (This form will not be used for draw downs under a letter of credit, electronic funds transfer or when Treasury check advance M payments are made to the grantee automatically on a predetermined basis.) (2) Reimbursements. Requests for reimbursement under non-construction grants will also be submitted on Standard Form 270. (For reimbursement requests under construction grants, see paragraph (e)(1) of this section.) (3) The frequency for submitting payment requests is treated in Sec.18.41 (b)(3). (e) Outlay report and request for reimbursement for construction programs. (1) Grants that support construction activities paid by reimbursement method. (i) Requests for reimbursement under construction grants will. be submitted on Standard Form 271, Outlay Report and Request for Reimbursement for Construction Programs. Federal agencies may, however, prescribe the Request for Advance or Reimbursement form, specified in Sec. 18.41(d), instead of this form. (ii) The frequency for submitting reimbursement requests is treated in Sec. 18.41(b)(3). (2) Grants that support construction activities paid by letter of credit, electronic funds transfer or Treasury check advance. (i) When a construction grant is paid by letter of credit, electronic funds transfer or Treasury check advances, the grantee will report its outlays to the Federal agency using Standard Form 271, Outlay Report and Request for Reimbursement. for Construction Programs. The Federal agency will provide any necessary special instruction. However, frequency and due date shall be governed by Sec. 18.41(b) (3) and (4). (ii) When a construction grant is paid by Treasury check advances based on periodic requests from the grantee, the advances will be requested on the form specified in Sec. 18.41(d). (iii) The Federal agency may substitute the Financial Status Report specified in Sec. 18.41(b) for the Outlay Report and Request for Reimbursement for Construction Programs. (3) Accounting basis. The accounting basis for the Outlay Report and Request for Reimbursement for Construction Programs shall be governed by Sec. 18.41(b)(2). (f) Notwithstanding the provisions of paragraphs (a)(1) of this section, recipients of FHWA and National Highway Traffic Safety Administration (NHTSA) grants shall use FHWA, NHTSA or State financial reports. 61 [53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 19881 Sec. 18.42 Retention and access requirements for records. (a) Applicability. (1) This section applies to all financial and programmatic records, supporting documents, statistical records, and other records of grantees or sub grantees which are: (i) Required to be maintained by the terms of this part, program regulations or the grant agreement, or (ii) Otherwise reasonably considered as pertinent to program regulations or the grant agreement. (2) This section does not apply to records maintained by contractors or subcontractors. For a requirement to place a provision concerning records in certain kinds of contracts, see Sec. 18.36(1)(10). (b) Length of retention period. (1) Except as otherwise provided, records must be retained for three years from the starting date specified in paragraph (c) of this section. (2) If any litigation, claim, negotiation, audit or other action involving the records has been started before the expiration of the 3 -year period, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular 3 -year period, whichever is later. (3) To avoid duplicate recordkeeping, awarding agencies may make special arrangements with grantees and sub grantees to retain any records which are continuously needed for joint use. The awarding agency will request transfer of records to its custody when it determines that the records possess long-term retention value. When the records are transferred to or maintained by the Federal agency, the 3 -year retention requirement is not applicable to the grantee or sub grantee (c)Starting date of retention period— (1) General. When grant support is continued or renewed at annual or other intervals, the retention period for the records of each funding period starts on the day the grantee or sub grantee submits to the awarding agency its single or last expenditure report for that period. However, if grant support is continued or renewed quarterly, the retention period for each year's records starts on the day the grantee submits its expenditure report for the last quarter of the Federal fiscal year. In all other cases, the retention period starts on the day the grantee submits its final expenditure report. If 62 an expenditure report has been waived, the retention period starts on the day the report would have been due. (2) Real property and equipment records. The retention period for real property and equipment records starts from the date of the disposition or replacement or transfer at the direction of the awarding agency. (3) Records for income transactions after grant or sub grant support. In some cases grantees must report income after the period of grant support. Where there is such a requirement, the retention period for the records pertaining to the earning of the income starts from the end of the grantee's fiscal year in which the income is earned. (4) Indirect cost rate proposals, cost allocations plans, etc. This paragraph applies 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 chargeback rates or composite fringe benefit rates). (i) If submitted for negotiation. If the proposal, plan, or other computation is required to be submitted to the Federal Government (or to the grantee) to form the basis for negotiation of the rate, then the 3 -year retention period for its supporting records starts from the date of such submission. (ii) If not submitted for negotiation. If the proposal, plan, or other computation is not required to be submitted to the Federal Government (or to the grantee) for negotiation purposes, then the 3 -year retention period for the proposal plan, or computation and its supporting records starts from the end of the fiscal year (or other accounting period) covered by the proposal, plan, or other computation. (d) Substitution of microfilm. Copies made by microfilming, photocopying, or similar methods may be substituted for original the records. (e) Access to records— (1) Records of grantees and sub grantees. The awarding agency and the Comptroller General of the United States, or any of their authorized representatives, shall have the right of access to any pertinent books, documents, papers, or other records of grantees and sub grantees which are pertinent to the grant, in order to make audits, examinations, excerpts, and transcripts. (2) Expiration of right of access. The right of access in this section must not be limited to the required retention period but shall last as long as the records are retained. 63 (f) Restrictions on public access. The Federal Freedom of Information Act (5 U.S.C. 552) does not apply to records unless required by Federal, State, or local law, grantees and sub grantees are not required to permit public access to their records. Sec. 18.43 Enforcement. (a) Remedies for noncompliance. If a grantee or sub grantee materially fails to comply with any term of an award, whether stated in a Federal statute or regulation, an assurance, in a State plan or application, a notice of award, or elsewhere, the awarding agency may take one or more of the following actions, as appropriate in the circumstances: (1) Temporarily withhold cash payments pending correction of the deficiency by the grantee or sub grantee or more severe enforcement action by the awarding agency, (2) Disallow (that is, deny both use of funds and matching credit for) all or part of the cost of the activity or action not in compliance, (3) Wholly or partly suspend or terminate the current award for the grantee's or sub grantee's program, (4) Withhold further awards for the program, or (5) Take other remedies that may be legally available. (b) Hearings, appeals. In taking an enforcement action, the awarding agency will provide the grantee or sub grantee an opportunity for such hearing, appeal, or other administrative proceeding to which the grantee or sub grantee is entitled under any statute or regulation applicable to the action involved. (c) Effects of suspension and termination. Costs of grantee or sub grantee resulting from obligations incurred by the grantee or sub grantee during a suspension or after termination of an award are not allowable unless the awarding agency expressly authorizes them in the notice of suspension or termination or subsequently. Other grantee or sub grantee costs during suspension or after termination which are necessary and not reasonably avoidable are allowable if: (1) The costs result from obligations which were properly incurred by the grantee or sub grantee before the effective date of suspension or termination, are not in anticipation of it, and, in the case of a termination, are non -cancellable, and, (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. 2 (d) Relationship to debarment and suspension. The enforcement remedies identified in this section, including suspension and termination, do not preclude grantee or sub grantee from being subject to "Debarment and Suspension" under E.O. 12549 (see Sec. 18.35). Sec. 18.44 Termination for convenience. Except as provided in Sec. 18.43 awards may be terminated in whole or in part only as follows: (a) By the awarding agency with the consent of the grantee or sub grantee in which case the two parties shall agree upon the termination conditions, including the effective date and in the case of partial termination, the portion to be terminated, or (b) By the grantee or sub grantee upon written notification to the awarding agency, setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. However, if, in the case of a partial termination, the awarding agency determines that the remaining portion of the award will not accomplish the purposes for which the award was made, the awarding agency may terminate the award in its entirety under either Sec. 18.43 or paragraph (a) of this section. Subpart D -After -The -Grant Requirements Sec. 18.50 Closeout. (a) General. The Federal agency will close out the award when it determines that all applicable administrative actions and all required work of the grant has been completed. (b) Reports. Within 90 days after the expiration or termination of the grant, the grantee must submit all financial, performance, and other reports required as a condition of the grant. Upon request by the grantee, Federal agencies may extend this timeframe. These may include but are not limited to: (1) Final performance or progress report. (2) Financial Status Report (SF 269) or Outlay Report and Request for Reimbursement for construction Programs (SF -271) (as applicable). (3) Final request for payment (SF -270) (if applicable). (4) Invention disclosure (if applicable). (5) Federally -owned property report: In accordance with Sec. 18.32(f), a grantee must submit an inventory of all federally owned property (as distinct from property acquired with grant funds) for which it is 65 accountable and request disposition instructions from the Federal agency of property no longer needed. (c) Cost adjustment. The Federal agency will, within 90 days after receipt of reports in paragraph (b) of this section, make upward or downward adjustments to the allowable costs. (d) Cash adjustments. (1) The Federal agency will make prompt payment to the grantee for allowable reimbursable costs. (2) The grantee must immediately refund to the Federal agency any balance of unobligated (unencumbered) cash advanced that is not authorized to be retained for use on other grants. Sec. 18.51 Later disallowances and adjustments. The closeout of a grant does not affect: (a) The Federal agency's right to disallow costs and recover funds on the basis of a later audit or other review; (b) The grantee's obligation to return any funds due as a result of later refunds, corrections, or other transactions; (c) Records retention as required in Sec. 18.42; (d) Property management requirements in Secs. 18.31 and 18.32; and Audit requirements in Sec. 18.26. Sec. 18.52 Collection of amounts due. (a) Any funds paid to a grantee in excess of the amount to which the grantee is finally determined to be entitled under the terms of the award constitute a debt to the Federal Government. If not paid within a reasonable period after demand, the Federal agency may reduce the debt by: (1) Making an administrative offset against other requests for reimbursements, (2) Withholding advance payments otherwise due to the grantee, or (3) Other action permitted by law. (b) Except where otherwise provided by statutes or regulations, the Federal agency will charge interest on an overdue debt in accordance with the Federal Claims Collection Standards (4 CFR Ch. II). The date from which interest is computed is not extended by litigation or the filing of any form of appeal. Subpart E—Entitlements [Reserved] Z k-5Mzk"WM44 Appendix A to Part 96 -Office of Management and Budget Circular No. A-128—Uniform Audit Requirements for State and Local Governments EXECUTIVE OFFICE OF THE Budget, , Office of Management and CIRCULAR NO. A-128, April 12, 1985 To the Heads of Executive Departments and Establishments. Subject: Audits of State and Local Governments. 1. Purpose. This Circular is issued pursuant to the Single Audit Act of 1984, Pub. L. 98-502. It establishes audit requirements for State and local governments that receive Federal aid, and defines Federal responsibilities for implementing and monitoring those requirements. 2. Super session. The Circular supersedes Attachment P, "Audit Requirements," of Circular A-102, "Uniform requirements for grants to State and local governments." 3. Background. The Single Audit Act builds upon earlier efforts to improve audits of Federal aid programs. The Act requires State or local governments that receive $100,000 or more a year in Federal funds to have an audit made for that year. Section 7505 of the Act requires the Director of the Office of Management and Budget to prescribe policies, procedures and guidelines to implement the Act. It specifies that the Director shall designate "cognizant" Federal agencies, determine criteria for making appropriate charges to Federal programs for the cost of audits, and provide procedures to assure that small firms or firms owned and controlled by disadvantaged individuals have the opportunity to participate in contracts for single audits. 4. Policy. The Single Audit Act requires the following: a. State or local governments that receive $100,000 or more a year in Federal financial assistance shall have an audit made in accordance with this Circular. b. State or local governments that receive between $25,000 and $100,000 a year shall have an audit made in accordance with this Circular, or in accordance with Federal laws and regulations governing the programs they participate in. c. State or local governments that receive less than $25,000 a year shall be exempt from compliance with the Act and other Federal audit requirements. These State and local governments shall be governed by audit requirements prescribed by State or local law or regulation. d. Nothing in this paragraph exempts State or local governments from maintaining records of Federal financial assistance or from providing access to such 67 records to Federal agencies, as provided for in Federal law or in Circular A-102, "Uniform requirements for grants to State or local governments." 5. Definitions. For the purposes of this Circular the following definitions from the Single Audit Act apply: a. Cognizant agency means the Federal agency assigned by the Office of Management and Budget to carry out the responsibilities described in paragraph 11 of this Circular. b. Federal financial assistance means assistance provided by a Federal agency in the form of grants, contracts, cooperative agreements, loans, loan guarantees, property, interest subsidies, insurance, or direct appropriations, but does not include direct Federal cash assistance to individuals. It includes awards received directly from Federal agencies, or indirectly through other units of State and local governments. c. Federal agency has the same meaning as the term agency in section 551(1) of title 5, U.S.C. d. Generally accepted accounting principles has the meaning specified in the generally accepted government auditing standards. e. Generally accepted government auditing standards means the Standards For Audit of Government Organizations, Programs, Activities, and Functions, developed by the Controller General, dated February 27, 1981. f. Independent auditor means: (1) A State or local government auditor who meets the independence standards specified in generally accepted government auditing standards; or (2) A public accountant who meets such independence standards. g. Internal controls means the plan of organization and methods and procedures adopted by management to ensure that: (1) Resource use is consistent with laws, regulations, and policies; (2) Resources are safeguarded against waste, loss, and misuse; and (3) Reliable data is obtained, maintained, and fairly disclosed in reports. h. Indian tribe means any Indian tribe, band, nations, or other organized group or community, including any Alaskan Native village or regional or village corporations (as defined in, or established under, the Alaskan Native Claims Settlement Act) that is recognized by the United States as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. 0 i. Local government means any unit of local government within a State, including a county, a borough, municipality, city, town, township, parish, local public authority, special district, school district, intrastate district, council of governments, and any other instrumentality of local government. j. Major Federal Assistance Program, as defined by Pub. L. 98-502, is described in the Attachment to this Circular. k. Public accountants means those individuals who meet the qualification standards included in generally accepted government auditing standards for personnel performing government audits. 1. State means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands, any instrumentality thereof, and any multi -State, regional, or interstate entity that has governmental functions and any Indian tribe. m. Sub -recipient means any person or government department, agency, or establishment that receives Federal financial assistance to carry out a program through a State or local government, but does not include an individual that is a beneficiary of such a program. A sub -recipient may also be a direct recipient of Federal financial assistance. 6. Scope of Audit. The Single Audit Act provides that: a. The audit shall be made by an independent auditor in accordance with generally accepted government auditing standards covering financial and compliance audits. b. The audit shall cover the entire operations of a State or local government or, at the option of that government, it may cover departments, agencies or establishments that received, expended, or otherwise administered Federal financial assistance during the year. However, if a State or local government receives $25,000 or more in General Revenue Sharing Funds in a fiscal year, it shall have an audit of its entire operations. A series of audits of individual departments, agencies, and establishments for the same fiscal year may be considered a single audit. c. Public hospitals and public colleges and universities may be excluded from State and local audits and the requirements of this Circular. However, if such entities are excluded, audits of these entities shall be made in accordance with statutory requirements and the provisions of Circular A-110, "Uniform requirements for grants to universities, hospitals, and other nonprofit organizations." d. The auditor shall determine whether: (1) The financial statements of the government, department, agency or establishment present fairly its financial position and the results of its financial operations in accordance with generally accepted accounting principles; (2) The organization has internal accounting and other control systems to provide reasonable assurance that it is managing Federal financial assistance programs in compliance with applicable laws and regulations; and (3) The organization has complied with laws and regulations that may have material effect on its financial statements and on each major Federal assistance program. 7. Frequency of Audit. Audits shall be made annually unless the State or local government has, by January 1, 1987, a constitutional or statutory requirement for less frequent audits. For those governments, the cognizant agency shall permit biennial audits, covering both years, if the government so requests. It shall also honor requests for biennial audits by governments that have an administrative policy calling for audits less frequent than annual, but only for fiscal years beginning before January 1, 1987. 8. Internal Control and Compliance Reviews. The Single Audit Act requires that the independent auditor determine and report on whether the organization has internal control systems to provide reasonable assurance that it is managing Federal assistance programs in compliance with applicable laws and regulations. a. Internal control review. In order to provide this assurance the auditor must make a study and evaluation of internal control systems used in administering Federal assistance programs. The study and evaluation must be made whether or not the auditor intends to place reliance on such systems. As part of this review, the auditor shall: (1) Test whether these internal control systems are functioning in accordance with prescribed procedures. (2) Examine the recipient's system for monitoring sub -recipients and obtaining and acting on sub - recipient audit reports. b. Compliance review. The law also requires the auditor to determine whether the organization has complied with laws and regulations that may have a material effect on each major Federal assistance program. (1) In order to determine which major programs are to be tested for compliance, State and local governments shall identify in their accounts all 70 Federal funds received and expended and the programs under which they were received. This shall include funds received directly from Federal agencies and through other State and local governments. (2) The review must include the selection and testing of a representative number of charges from each major Federal assistance program. The selection and testing of transactions shall be based on the auditor's professional judgment considering such factors as the amount of expenditures for the program and the individual awards; the newness of the program or changes in its conditions; prior experience with the program, particularly as revealed in audits and other evaluations (e.g., inspections, program reviews); the extent to which the program is carried out through sub-recipients; the extent to which the program contracts for goods or services; the level to which the program is already subject to program reviews or other forms of independent oversight; the adequacy of the controls for ensuring compliance; the expectation of adherence or lack of adherence to the applicable laws and regulations; and the potential impact of adverse findings. (a) In making the test of transactions, the auditor shall determine whether: —The amounts reported as expenditures were for allowable services, and —The records show that those who received services or benefits were eligible to receive them. (b) In addition to transaction testing, the auditor shall determine whether: —Matching requirements, levels of effort and earmarking limitations were met, —Federal financial reports and claims for advances and reimbursements contain information that is supported by the books and records from which the basic financial statements have been prepared, and —Amounts claimed or used for matching were determined in accordance with OMB Circular A-87, "Cost principles for State and local governments, "and Attachment F of Circular A-102, "Uniform requirements for grants to State and local governments." (c) The principal compliance requirements of the largest Federal aid programs may be ascertained by referring to the Compliance Supplement for Single Audits of State and Local Governments, issued by OMB and available from the Government Printing Office. For those programs not covered in the Compliance Supplement, the auditor may 71 ascertain compliance requirements by researching the statutes, regulations, and agreements governing individual programs. (2) Transactions related to other Federal assistance programs that are selected in connection with examinations of financial statements and evaluations of internal controls shall be tested for compliance with Federal laws and regulations that apply to such transactions. 9. Sub -recipients. State or local governments that receive Federal financial assistance and provide $25,000 or more of it in a fiscal year to a sub -recipient shall: a. Determine whether State or local sub -recipients have met the audit requirements of this Circular and whether sub - recipients covered by Circular A-110, "Uniform requirements for grants to universities, hospitals, and other nonprofit organizations," have met that requirement; b. Determine whether the sub -recipient spent Federal assistance funds provided in accordance with applicable laws and regulations. This may be accomplished by reviewing an audit of the sub -recipient made in accordance with this Circular, Circular A-110, or through other means (e.g., program reviews) if the sub -recipient has not yet had such an audit; c. Ensure that appropriate corrective action is taken within six months after receipt of the audit report in instances of noncompliance with Federal laws and regulations; d. Consider whether sub -recipient audits necessitate adjustment of the recipient's own records; and e. Require each sub -recipient to permit independent auditors to have access to the records and financial statements as necessary to comply with this Circular. 10. Relation to Other Audit Requirements. The Single Audit Act provides that an audit made in accordance with this Circular shall be in lieu of any financial or financial compliance audit required under individual Federal assistance programs. To the extent that a single audit provides Federal agencies with information and assurances they need to carry out their overall responsibilities, they shall rely upon and use such information. However, a Federal agency shall make any additional audits which are necessary to carry out its responsibilities under Federal law and regulation. Any additional Federal audit effort shall be planned and carried out in such a way as to avoid duplication. a. The provisions of this Circular do not limit the authority of Federal agencies to make, or contract for audits and evaluations of Federal financial assistance programs, nor do they limit the authority of any Federal agency Inspector General or other Federal audit official. 72 b. The provisions of this Circular do not authorize any State or local government or sub -recipient thereof to constrain Federal agencies, in any manner, from carrying out additional audits. c. A Federal agency that makes or contracts for audits in addition to the audits made by recipients pursuant to this Circular shall, consistent with other applicable laws and regulations, arrange for funding the cost of such additional audits. Such additional audits include economy and efficiency audits, program results audits, and program evaluations. 11. Cognizant Agency Responsibilities. The Single Audit Act provides for cognizant Federal agencies to oversee the implementation of this Circular. a. The Office of Management and Budget will assign cognizant agencies for States'and their subdivisions and larger local governments and their subdivisions. Other Federal agencies may participate with an assigned cognizant agency, in order to fulfill the cognizance responsibilities. Smaller governments not assigned a cognizant agency will be under the general oversight of the Federal agency that provides them the most funds whether directly or indirectly. b. A cognizant agency shall have the following responsibilities: (1) Ensure that audits are made and reports are received in a timely manner and in accordance with the requirements of this Circular. (2) Provide technical advice and liaison to State and local governments and independent auditors. (3) Obtain or make quality control reviews of selected audits made by non -Federal audit organizations, and provide the results, when appropriate, to other interested organizations. (4) Promptly inform other affected Federal agencies and appropriate Federal law enforcement officials of any reported illegal acts or irregularities. They should also inform State or local law enforcement and prosecuting authorities, if not advised by the recipient, of any violation of law within their jurisdiction. (5) Advise the recipient of audits that have been found not to have met the requirements set forth in this Circular. In such instances, the recipient will be expected to work with the auditor to take corrective action. If corrective action is not taken, the cognizant agency shall notify the recipient and Federal awarding agencies of the facts and make recommendations for follow-up action. Major inadequacies or repetitive substandard performance of independent auditors 73 shall be referred to appropriate professional bodies for disciplinary action. (6) Coordinate, to the extent practicable, audits made by or for Federal agencies that are in addition to the audits made pursuant to this Circular; so that the additional audits upon such audits. (7) Oversee the resolution of audit findings that affect the programs of more than one agency. 12. Illegal Acts or Irregularities. If the auditor becomes aware of illegal acts or other irregularities, prompt notice shall be given to recipient management officials above the level of involvement. (See also paragraph 13(a)(3) below for the auditor's reporting responsibilities.) The recipient, in turn, shall promptly notify the cognizant agency of the illegal acts or irregularities and of proposed and actual actions, if any. Illegal acts and irregularities include such matters as conflicts of interest, falsification of records or reports, and misappropriations of funds or other assets. 13. Audit Reports. Audit reports must be prepared at the completion of the audit. Reports serve many needs of State and local governments as well as meeting the requirements of the Single Audit Act. a. The audit report shall state that the audit was made in accordance with the provisions of this Circular. The report shall be made up of at least; (1) The auditor's report on financial statements and on a schedule of Federal assistance; the financial statements; and a schedule of Federal assistance, showing the total expenditures for each Federal assistance program as identified in the Catalog of Federal Domestic Assistance. Federal programs or grants that have not been assigned a catalog number shall be identified under the caption "other Federal assistance. (2)The auditor's report on the study and evaluation of internal control systems must identify the organization's significant internal accounting controls, and those controls designed to provide reasonable assurance that Federal programs are being managed in compliance with laws and regulations. It must also identify the controls that were evaluated, the controls that were not evaluated, and the material weaknesses identified as a result of the evaluation. (3) The auditor's report on compliance containing: —A statement of positive assurance with respect to those items tested for compliance, including compliance with law and regulations pertaining to 74 financial reports and claims for advances and reimbursements; —Negative assurance on those items not tested; —A summary of all instances of noncompliance; and —An identification of total amounts questioned, if any, for each Federal assistance award, as a result of noncompliance. b. The three parts of the audit report may be bound into a single report, or presented at the same time as separate documents. c. All fraud abuse, or illegal acts or indications of such acts, including all questioned costs found as the result of these acts that auditors become aware of, should normally be covered in a separate written report submitted in accordance with paragraph 13f. d. In addition to the audit report, the recipient shall provide including a plan for corrective action taken or planned and comments on the status of corrective action taken. If prior corrective action is not necessary, a statement describing the reason it is not should accompany the audit report. e. The reports shall be made available by the State or local government for public inspection within 30 days after the completion of the audit. f. In accordance with generally accepted government audit standards, reports shall be submitted by the auditor to the organization audited and to those requiring or arranging for the audit. In addition, the recipient shall submit copies of the reports to each Federal department or agency that provided Federal assistance funds to the recipient. Sub - recipients shall submit copies to recipients that provided them Federal assistance funds. The reports shall be sent within 30 days after the completion of the audit, but no later than one year after the end of the audit period unless a longer period is agreed to with the cognizant agency. g. Recipients of more than $100,000 in Federal funds shall submit one copy of the audit report within 30 days. after issuance to a central clearinghouse to be designated by the Office of Management and Budget. The clearinghouse will keep completed audits on file and follow up with State and local governments that have not submitted required audit reports. h. Recipients shall keep audit reports on file for three years from their issuance. 14. Audit Resolution. As provided in paragraph 11, the cognizant agency shall be responsible for monitory the resolution of audit findings that affect the programs of more than one Federal agency. Resolution of findings that relate to the programs of a single Federal agency will be the responsibility of the recipient and that agency. 75 Alternate arrangements may be made on a case-by-case basis by agreement among the agencies concerned. Resolution shall be made within six months after receipt of the report by the Federal departments and agencies. Corrective action should proceed as rapidly as possible. 15. Audit Work papers and Reports. Work papers and reports shall be retained for a -minimum of three years from the date of the audit report, unless the auditor is notified in writing by the cognizant agency to extend the retention period. Audit work papers shall be made available upon request to the cognizant agency or its designee or the General Accounting Office, at the completion of the audit. 16. Audit Costs. The cost of audits made in accordance with the provisions of this Circular are allowable charges to Federal assistance programs. a. The charges may be considered a direct cost or an allocated indirect cost, determined in accordance with the provision of Circular A-87, "Cost principles for State and local governments." b. Generally, the percentage of costs charged to Federal assistance programs for a single audit shall not exceed the percentage that Federal funds expended represent of total funds expended by the recipient during the fiscal year. The percentage may be exceeded, however, if appropriate documentation demonstrates higher actual cost: 17. Sanctions. The Single Audit Act provides that no cost may be charged to Federal assistance programs for audits required by the Act that are not made in accordance with this Circular. In cases of continued inability or unwillingness to have a proper audit, Federal agencies must consider other appropriate sanctions including: —Withholding a percentage of assistance payments until the audit is completed satisfactorily, —Withholding or disallowing overhead costs, and —Suspending the Federal assistance agreement until the audit is made. 18. Auditor Selection. In arranging for audit services State and local governments shall follow the procurement standards prescribed by Attachment 0 of Circular A-102, "Uniform requirements for grants to State and local governments." The standards provide that while recipients are encouraged to enter into intergovernmental agreements for audit and other services, analysis should be made to determine whether it would be more economical to purchase the services from private firms. In instances where use of such intergovernmental agreements are required by State statutes (e.g., audit services) these statutes will take precedence. 19. Small and Minority Audit Firms. Small audit firms and audit firms owned and controlled by socially and economically disadvantaged individuals shall have the maximum practicable opportunity to participate in contracts awarded to fulfill the requirements of this Circular. Recipients of Federal assistance shall take the following steps to further this goal: a. Assure that small audit firms and audit firms owned and controlled by socially and economically disadvantaged individuals are used to the fullest extent practicable. 76 b. Make information on forthcoming opportunities available and arrange time frames for the audit so as to encourage and facilitate participation by small audit firms and audit firms owned and controlled by socially and economically disadvantaged individuals. c. Consider in the contract process whether firms competing for larger audits intend to subcontract with small audit firms and audit firms owned and controlled by socially and economically disadvantaged individuals. d. Encourage contracting with small audit firms or audit firms owned and controlled by socially and economically disadvantaged individuals which have traditionally audited government programs and, in such cases where this is not possible, assure that these firms are given consideration for audit subcontracting opportunities. e. Encourage contracting with consortiums of small audit firms as described in paragraph (a) above when a contract is too large for an individual small audit firm or audit firm owned and controlled by socially and economically disadvantaged individuals. f. Use the services and assistance, as appropriate, of such organizations as the Small Business Administration in the solicitation and utilization of small audit firms or audit firms owned and controlled by socially and economically disadvantaged individuals. 20. Reporting. Each Federal agency will report to the Director of OMB on or before March 1, 1987, and annually thereafter on the effectiveness of State and local governments in carrying out the provisions of this Circular. The report must identify each State or local government or Indian tribe that, in the opinion of the agency, is failing to comply with the Circular. 21. Regulations. Each Federal agency shall include the provisions of this Circular in its regulations implementing the Single Audit Act. 22. Effective Date. This Circular is effective upon publication and shall apply to fiscal years of State and local governments that begin after December 31, 1984. Earlier implementation is encouraged. However, until it is implemented, the audit provisions of Attachment P to Circular A-102 shall continue to be observed. 23. Inquiries. All questions or inquiries should be addressed to Financial Management Division, Office of Management and Budget, telephone number 202/395-3993. 24. Sunset Review Date. This Circular shall have an independent policy review to ascertain its effectiveness three years from the date of issuance. 77 Attachment—Circular A-128 Definition of Major Program as Provided in Pub. L. 98-502 Major Federal Assistance Program, for State and local governments having Federal assistance expenditures between $100,000 and $100,000,000, means any program for which Federal expenditures during the applicable year exceed the larger of $300,000, or 3 percent of such total expenditures. Where total expenditures of Federal assistance exceed $100,000,000, the following criteria apply: ----------------------------------------------------------- Total expenditures of Federal financial assistance Major Federal for all programs assistance program --------------=----------------------------------- means any program More than But less than that exceeds ----------------------------------------------------------- $100 $ billion..... $3 8 billion............... $ billion..... $4 $ billion............... $ billion..... $7 S hillion_______________ 5 billion_.__. 510 $ billion............... S billion..... $13 8 billion............... 5 billion..... 516 $ billion............... $ billion..... $19 Over $7 $20 10 EXHIBIT D SUGGESTED LANGUAGE FOR RECYLING CERTIFICATION State law requires that state contracts shall have Recycling Certification in writing under penalty of perjury, the minimum, if not exact, percentage of recycled content, both post consumer waste and secondary waste as defined in the Public Contract Code, Sections 12161 and 12200, in materials, goods, or supplies offered or products used in the performance of this Agreement, regardless of whether the product meets the required recycled product percentage as defined in the Public Contract Code, Sections 12161 and 12200. Contractor may certify that the product contains zero recycled content. (PCC 10233, 10308.5, 10354) RECYCLED CONTENT CERTIFICATION I, the official named below, CERTIFY UNDER PENALTY OF PERJURY that I am duly authorized to legally bind the prospective Contractor to the clause(s) listed below. This certification is made under the laws of the State of California. Print Name and Title of Person Signing Date Executed ALBERT J. BORO, MAYOR Authorized Signature Executed in the County of MARIN Title TELEPHONE NUMBER MAYOR (¢15 ) 485-3066 Legal Business Name Federal ID Number CITY OF SAN RAFAEL 94-6000424 The Contractor hereby certifies under penalty of perjury, that 50 percent of the materials, goods, supplies offered, or products used in the performance of this contract meets the or exceeds the minimum percentage of recycled material as defined in Sections 12161 and 12200 of the Public Contract Code. The Contractor may certify that the product contains zero recycled content. 79 EXHIBIT D CERTIFICATION CLAUSES I, the official named below, CERTIFY UNDER PENALTY OF PERJURY that I am duly authorized to legally bind the prospective Contractor to the clause(s) listed below. This certification is made under the laws of the State of California. Print Name and Title of Person Signing Date Executed ALBERT J. BORO, MAYOR Authorized Signature Executed in the County of MARIN Title TELEPHONE NUMBER MAYOR 415 485-3066 Legal Business Name Federal ID Number CITY OF SAN RAFAEL 94-6000424 CONTRACTOR CERTIFICATION CLAUSES 1. STATEMENT OF COMPLIANCE: Contractor has, unless exempted, complied with the nondiscrimination program requirements. (GC 12990 (a -f) and CCR, Title 2, Section 8103) (Not applicable to public entities.) 2. DRUG-FREE WORKPLACE REQUIREMENTS: Contractor will comply with the requirements of the Drug -Free Workplace Act of 1990 and will provide a drug-free workplace by taking the following actions: a. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited and 'specifying actions to be taken against employees for violations. b. Establish a Drug -Free Awareness Program to inform employees about: 1) the dangers of drug abuse in the workplace; 2) the person's or organization's policy of maintaining a drug-free workplace; 3) any available counseling, rehabilitation and employee assistance programs; and, CONTRACTOR CERTIFICATION CLAUSES (CONTINUED) 4) penalties that may be imposed upon employees for drug abuse violations. c. Provide that every employee who works on the proposed Agreement will: 1) receive a copy of the company's drug-free policy statement; and, 2) agree to abide by the terms of the company's statement as a condition of employment on the Agreement. Failure to comply with these requirements may result in suspension of payments under the Agreement or termination of the Agreement or both and Contractor may be ineligible for award of any future State agreements if the department determines that any of the following has occurred: the Contractor has made false certification, or violated the certification by failing to carry out the requirements as noted above. (GC 8350 et seq.) 3. NATIONAL LABOR RELATIONS BOARD CERTIFICATION: Contractor certifies that no more than one (1) final unappealable finding of contempt of court by a Federal court has been issued against Contractor within the immediately preceding two-year period because of Contractor's failure to comply with an order of a Federal court which orders Contractor to comply with an order of the National Labor Relations Board. (PCC 10296) (Not applicable to public entities.) DOING BUSINESS WITH THE STATE OF CALIFORNIA The following laws apply to persons or entities doing business with the State of California. 1. CONFLICT OF INTEREST: Contractor needs to be aware of the following provisions regarding current or former state employees. If Contractor has any questions on the status of any person rendering services or involved with the Agreement, the awarding agency must be contacted immediately for clarification. a. Current State Employees (PCC 10410): 1) No officer or employee shall engage in any employment, activity or enterprise from which the officer or employee receives compensation or has a financial interest and which is sponsored or funded by any state agency, unless the employment, activity or enterprise is required as a condition of regular state employment. M. CONTRACTOR CERTIFICATION CLAUSES (CONTINUED) 2) No officer or employee shall contract on his or her own behalf as an independent contractor with any state agency to provide goods or services. b. Former State Employees (PCC 10411): 1) For the two-year period from the date he or she left state employment, no former state officer or employee may enter into a contract in which he or she engaged in any of the negotiations, transactions, planning, arrangements or any part of the decision-making process relevant to the contract while employed in any capacity by any state agency. 2) For the twelve-month period from the date he or she left state employment, no former state officer or employee may enter into a contract with any state agency if he or she was employed by that state agency in a policy-making position in the same general subject area as the proposed contract within the 12 -month period prior to his or her leaving state service. If Contractor violates any provisions of above paragraphs, such action by Contractor shall render this Agreement void. (PCC 10420) Members of boards and commissions are exempt from this section if they do not receive payment other than payment of each meeting of the board or commission, payment for preparatory time and payment for per diem.(PCC 10430(e)) 2. LABOR CODS/WORKERS' COMPENSATION: Contractor needs to be aware of the provisions which require every employer to be insured against liability for Worker's Compensation or to undertake self insurance in accordance with the provisions,. and Contractor affirms to comply with such provisions before commencing the performance of the work of this Agreement. (Labor Code Section 3700) 3. AMERICANS WITH DISABILITIES ACT: Contractor assures the State that it complies with the Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. (42 U.S.C. 12101 et seq.) 0 CONTRACTOR CERTIFICATION CLAUSES (CONTINUED) 4. CONTRACTOR NAME CHANGE: An amendment is required to change the contractor's name as listed on this Agreement. Upon receipt of legal documentation of the name change the State will process the amendment. Payment of invoices presented with a new name cannot be paid prior to approval of said amendment. 5. CORPORATE QUALIFICATIONS TO DO BUSINESS IN CALIFORNIA: a. When agreements are to be performed in the state by corporations, the contracting agencies will be verifying that the contractor is currently qualified to do business in California in order to ensure that all obligations due to the state are fulfilled. b. "Doing business" is defined in R&TC Section 23101 as actively engaging in any transaction for the purpose of financial or pecuniary gain or profit. Although there are some statutory exceptions to taxation, rarely will a corporate contractor performing within the state not be subject to the franchise tax. c. Both domestic and foreign corporations (those incorporated outside of California) must be in good standing in order to be qualified to do business in California. Agencies will determine whether a corporation is in good standing by calling the Office of the Secretary of State. 6. RESOLUTION: A county, city, district, or other local public body must provide the State with a copy of a resolution, order, motion, or ordinance of the local governing body which by law has authority to enter into an agreement, authorizing execution of the agreement. 7. AIR OR WATER POLLUTION VIOLATION: Under the State laws, the Contractor shall not be: (1) in violation of any order or resolution not subject to review promulgated by the State Air Resources Board or an air pollution control district; (2) subject to cease and desist order not subject to review issued pursuant to Section 13301 of the Water Code for violation of waste discharge requirements or discharge prohibitions; or (3) finally determined to be in violation of provisions of federal law relating to air or water pollution. M CONTRACTOR CERTIFICATION CLAUSES (CONTINUED) 8. ANTITRUST CLAIMS: a. The Government Code Chapter on Antitrust claims contains the following definitions: 1) "Public purchase" means a purchase by means of competitive bids of goods, services, or materials by the State or any of its political subdivisions or public agencies on whose behalf the Attorney General may bring an action pursuant to subdivision (c) of Section 16750 of the Business and Professions Code. 2) "Public purchasing body" means the State or the subdivision or agency making a public purchase. Government Code Section 4550. b. In submitting a bid to a public purchasing body, the bidder offers and agrees that if the bid is accepted, it will assign to the purchasing body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, materials, or services by the bidder for sale to the purchasing body pursuant to the bid. Such assignment shall be made and become effective at the time the purchasing body tenders final payment to the bidder. Government Code Section 4552. c. If an awarding body or public purchasing body receives, either through judgment or settlement, a monetary recovery for a cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from the public body any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assignor but were not paid by the public body as part of the bid price, less the expenses incurred in obtaining that portion of the recovery. Government Code Section 4553. d. Upon demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and (a) the assignee has not been injured thereby, or (b) the assignee declines to file a court action for the cause of action. See Government Code Section 4554. W CONTRACTOR CERTIFICATION CLAUSES (CONTINUED) 9. VENDOR DATA RECORD FORM STD. 204: This form must be completed by all contractors that are not another state agency or other government entity. This only applies if you have never done business with. 85 Sample Bid/Proposal Attachment regarding the Darfur Contracting Act of 2008 Effective January 1, 2009, all Invitations for Bids (IFB) or Requests for Proposals (RFP) for goods or services must address the requirements of the Darfur Contracting Act of 2008 (Act). (Public Contract Code sections 10475, et seq.; Stats. 2008, Ch. 272). The Act was passed by the California Legislature and signed into law by the Governor to preclude State agencies generally from contracting with."scrutinized" companies that do business in the African nation of Sudan (of which the Darfur region is a part), for the reasons described in Public Contract Code section 10475. A .scrutinized company is a company doing business in Sudan as defined in Public Contract Code section 10476. Scrutinized companies are ineligible to, and cannot, bid on or submit a proposal for a contract with a State agency for goods or services. (Public Contract Code section 10477(a)). Therefore, Public Contract Code section 10478 (a) requires a company that currently has (or within the previous three years has had) business activities or other operations outside of the United States to certify that it is not a "scrutinized" company when it submits a bid or proposal to a State agency. (See # 1 on the sample Attachment). A scrutinized company may still, however, submit a bid or proposal for a contract with a State agency for goods or services if the company first obtains permission from the Department of General Services (DGS) according to the criteria set forth in Public Contract Code section 10477(b). (See # 2 on the sample Attachment). The following sample Attachment may be included in an IFB or RFP to satisfy the Act's certification requirements of bidders and proposers. EXIIIBIT E DARFUR CONTRACTING ACT Pursuant to Public Contract Code section 10478, if a bidder or proposer currently or within the previous three years has had business activities or other operations outside of the United States, it must certify that it is not a "scrutinized" company as defined in Public Contract Code section 10476. Therefore, to be eligible to submit a bid or proposal, please complete only one of the following three paragraphs (via initials for Paragraph # 1 or Paragraph # 2, or via initials and certification for Paragraph # 3): 1. We do not currently have, or we have not had within the previous Initials three years, business activities or other operations outside of the United States. 2. We are a scrutinized company as defined in Public Contract Code Initials section 10476, but we have received written permission from the Department of General Services (DGS) to submit a bid or proposal pursuant to Public Contract Code section 10477(b). A copy of the written permission from DGS is included with our bid or proposal. We currently have, or we have had within the previous three years, Initials business activities or other operations outside of the United States, + certification but we certify below that we are not a scrutinized company below as defined in Public Contract Code section 10476. CERTIFICATION For # 3. I, the official named below, CERTIFY UNDER PENALTY OF PERJURY that I am duly authorized to legally bind the prospective proposer/bidder to the clause listed above in # 3. This certification is made under the laws of the State of California. Proposer/Bidder Firm Name (Printed) Federal ID Number By (Authorized Signature) Printed Name and Title of Person Signing Date Executed 711 Executed in the County and State of i Your bid or proposal will be disqualified unless you include this form with either paragraph V or #2 initialed or paragraph #3 initialed and certified a